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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 Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Airbus Model A330–200 Freighter, –200 and –300 series airplanes; and Airbus Model A340–200, –300, –500, and –600 series airplanes. This AD was prompted by reports of certain hydraulic reservoirs (HRs) becoming depressurized due to air leakage from the HR pressure relief valve (PRV). This AD requires repetitive inspections of the hydraulic fluid levels and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, adjustment of the fluid level(s) and nitrogen pressure in affected HRs. We are issuing this AD to address the unsafe condition on these products.
This AD is effective February 10, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 10, 2017.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email:
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1138; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain A330–200 Freighter, –200 and –300 series airplanes; and Airbus Model A340–200, –300, –500, and –600 series airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016–0107, dated June 7, 2016, to correct an unsafe condition for certain Airbus Model A330–200 Freighter, –200 and –300 series airplanes; and Airbus Model A340–200, –300, –500, and –600 series airplanes. The MCAI states:
Some events of depressurisation of hydraulic reservoirs have been reported, due to air leakage from the HR PRV [hydraulic reservoir pressure relief valve]. The results of the investigations revealed that the air leakage was due to the extrusion of the O-ring seal from the HR PRV. This may have happened during HR maintenance, testing or during flight, if HR over-filling was performed, as a result of which hydraulic fluid could pass through the PRV, causing [the] PRV seal to migrate from its nominal position, leading to loss of HR pressurisation.
This condition, if not detected and corrected, could lead to the loss of one or more hydraulic systems, possibly resulting in loss of control of the aeroplane.
Prompted by these findings, Airbus issued Alert Operators Transmission (AOT) A29L005–16 [dated January 28, 2016] to provide inspection instructions.
For the reasons described above, this [EASA] AD requires repetitive inspections of the HR fluid level of each hydraulic circuit and, depending on findings, accomplishment of applicable corrective action(s). This [EASA] AD also requires actions when maintenance action is accomplished on hydraulic reservoirs.
This [EASA] AD is considered as interim action and further [EASA] AD action may follow.
Required actions include repetitive inspection of the hydraulic fluid levels and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, adjustment of the fluid level(s) and nitrogen pressure in affected HRs. You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM 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
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Airbus Alert Operators Transmission (AOT) A29L005–16, Revision 01, dated June 28, 2016. This service information describes procedures for inspecting hydraulic fluid levels and nitrogen gas pressure in certain HRs, and adjustment of the fluid level(s) and nitrogen pressure in affected HRs. 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 101 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary servicing that will be required based on the results of the required inspection. We have no way of determining the number of airplanes that might need this servicing:
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 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 the 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 February 10, 2017.
None.
This AD applies to Airbus Model A330–201, –202, –203, –223, –223F, –243, –243F, –301, –302, –303, –321, –322, –323, –341, –342 and –343 airplanes; and Model A340–211, –212, –213, –311, –312, –313, –541, and –642 airplanes; certificated in any category, fitted with a hydraulic reservoir (HR) pressure relief valve (PRV) part number (P/N) 42F0026 installed on TECHSPACE HR having P/N 42F1005, 42F1203, 42F1304, 42F1412, 42F1512, or 42F1607.
Air Transport Association (ATA) of America Code 29, Hydraulic power.
This AD was prompted by reports of certain hydraulic reservoirs (HRs) becoming depressurized due to air leakage from the HR PRV. We are issuing this AD to detect and correct air leakage from the HR PRV, which could lead to the loss of one or more hydraulic systems, with the possible result of loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within the compliance time defined in table 1 to paragraph (g) of this AD, as applicable, inspect the HR fluid level and nitrogen pressure of each hydraulic circuit, in accordance with the instructions of paragraph 4.2.2.1 of Airbus Alert Operators Transmission (AOT) A29L005–16, Revision 01, dated June 28, 2016. Repeat the inspection thereafter at intervals not to exceed 1,600 flight hours.
If, during any inspection required by paragraph (g) of this AD, any unacceptable pressure or fluid level is identified, before further flight, do the actions in paragraphs (h)(1) and (h)(2) of this AD, as applicable, for each unacceptable pressure or fluid level that is discovered. Accomplishment of these actions on an airplane does not constitute terminating action for the repetitive inspections as required by paragraph (g) of this AD for that airplane.
(1) Add or remove hydraulic fluid, as applicable, in accordance with the instructions of paragraph 4.2.2.2 of Airbus Alert Operators Transmission (AOT) A29L005–16, Revision 01, dated June 28, 2016.
(2) Add or remove nitrogen gas, as applicable, in accordance with the instructions of paragraph 4.2.2.2 of Airbus AOT A29L005–16, Revision 01, dated June 28, 2016.
Concurrent with the initial inspection specified in paragraph (g) of this AD, revise the maintenance or inspection program, as applicable, to incorporate the hydraulic reservoir servicing actions specified in paragraph 4.2.2.2 of Airbus AOT A29L005–16, Revision 01, dated June 28, 2016.
After accomplishing the revision required by paragraph (i) of this AD, no alternative actions (
This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using Airbus AOTA29L005–16, dated January 28, 2016.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016–0107, dated June 7, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(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 this AD specifies otherwise.
(i) Airbus Alert Operators Transmission (AOT) A29L005–16, Revision 01, dated June 28, 2016.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email:
(4) You may view this service information at the 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), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Dassault Aviation Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; Model MYSTERE-FALCON 200 airplanes; Model MYSTERE-FALCON 20–C5, 20–D5, 20–E5, and 20–F5 airplanes; and MYSTERE-FALCON 50 airplanes. This AD was prompted by a report that, during approach for landing, the main entry door detached from an airplane. This AD requires a functional test or check of the main entry door closure and warning system, and applicable door closing inspections, adjustments, operational tests, and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.
This AD is effective February 10, 2017.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 10, 2017.
For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; Model MYSTERE-FALCON 200 airplanes; Model MYSTERE-FALCON 20–C5, 20–D5, 20–E5, and 20–F5 airplanes; and MYSTERE–FALCON 50 airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015–0007, dated January 15, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; Model MYSTERE-FALCON 200 airplanes; Model MYSTERE-FALCON 20–C5, 20–D5, 20–E5, and 20–F5 airplanes; and MYSTERE-FALCON 50 airplanes. The MCAI states:
During approach for landing, a Mystère-Falcon 20–X5 lost the main entrance door [MED] at an altitude of 7,000 feet. The flight crew maintained control of the aeroplane to land uneventfully. The results of the preliminary technical investigations concluded that the cause of this event could be either a broken cable, or an unlocked safety catch, associated with one or two deficient micro switches.
This condition, if not detected and corrected, could lead to in-flight opening and/or detachment of the Crew/Passenger door, possibly resulting in loss of control of the aeroplane, and/or injury to persons on the ground.
To address this potential unsafe condition, Dassault Aviation issued Service Bulletins (SB) F20–789, F200–133 and MF50–531, providing instructions for inspection/adjustment, as well as an operational test of the Crew/Passenger door closure.
For the reasons described above, this [EASA] AD requires a one-time accomplishment of a functional test/check of the MED closure/warning system. It also requires [a general visual] inspection and operational test of the Crew/Passenger door [including the control and latching mechanisms] and, depending on findings, applicable corrective actions.
Corrective actions include adjusting the telescopic rod bolts on the door until the clearance between the lower part of the door and the fuselage is within the specified tolerances. The corrective actions for the control and latching mechanisms include adjusting components and replacing damaged components (including pull latches, microswitches, pulleys, and cables). Signs of damage include cracks, corrosion, wear, and distortion. You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM 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 for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Dassault Aviation issued the following service information.
• Dassault Service Bulletin F20–789, also referred to as 789, dated December 9, 2014.
• Dassault Service Bulletin F50–531, also referred to as 531, dated December 9, 2014.
• Dassault Service Bulletin F200–133, also referred to as 133, dated December 9, 2014.
The service information describes procedures for inspections, adjustments, and operational tests of certain doors and corrective actions. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 392 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
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 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 the 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 February 10, 2017.
None.
This AD applies to the Dassault Aviation airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(5) of this AD, all airplanes.
(1) Model FAN JET FALCON airplanes.
(2) Model FAN JET FALCON SERIES C, D, E, F, and G airplanes.
(3) Model MYSTERE–FALCON 200 airplanes.
(4) Model MYSTERE–FALCON 20–C5, 20–D5, 20–E5, and 20–F5 airplanes.
(5) Model MYSTERE–FALCON 50 airplanes.
Air Transport Association (ATA) of America Code 52, Doors.
This AD was prompted by a report that, during approach for landing, the main entry door detached from an airplane. We are issuing this AD to detect and correct defective crew/passenger doors. Such a condition could result in the in-flight opening or detachment of the crew/passenger door, which could result in loss of control of the airplane and injury to persons on the ground.
Comply with this AD within the compliance times specified.
Within 65 days after the effective date of this AD, unless done within 6 months before the effective date of this AD, do the applicable functional test or door lock check specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, and do all applicable corrective actions, using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). Do all applicable corrective actions before further flight.
(1) For Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; and Model MYSTERE-FALCON 20–C5, 20–D5, 20–E5, and 20–F5 airplanes: A functional test of the passenger/crew door warning system.
(2) For Model MYSTERE-FALCON 200 airplanes: A check of the door locking indicator system.
(3) For Model MYSTERE-FALCON 50 airplanes: A check of the door lock indication.
Within 330 flight hours or 13 months, whichever occurs first after the effective date of this AD, unless already done: Do the applicable door closing inspections, adjustments, and operational tests, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (h)(1), (h)(2), or (h)(3) of this AD. Do all applicable corrective actions before further flight.
(1) For Model FAN JET FALCON airplanes; Model FAN JET FALCON SERIES C, D, E, F, and G airplanes; and Model MYSTERE-FALCON 20–C5, 20–D5, 20–E5, and 20–F5 airplanes: Dassault Service Bulletin F20–789, also referred to as 789, dated December 9, 2014.
(2) For Model MYSTERE-FALCON 200 airplanes: Dassault Service Bulletin F200–133, also referred to as 133, dated December 9, 2014.
(3) For Model MYSTERE-FALCON 50 airplanes: Dassault Service Bulletin F50–531, also referred to as 531, dated December 9, 2014.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015–0007, dated January 15, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Dassault Service Bulletin F20–789, also referred to as 789, dated December 9, 2014.
(ii) Dassault Service Bulletin F50–531, also referred to as 531, dated December 9, 2014.
(iii) Dassault Service Bulletin F200–133, also referred to as 133, dated December 9, 2014.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
(4) You may view this service information at the 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:
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA or the Agency) is reclassifying surgical instrumentation for use with urogynecologic surgical mesh from class I (general controls) exempt from premarket notification to class II (special controls) and subject to premarket notification, and identifying them as “specialized surgical instrumentation for use with urogynecologic surgical mesh.” FDA is designating special controls that are necessary to provide a reasonable assurance of safety and effectiveness of the device. FDA is reclassifying this device on its own initiative based on new information.
This order is effective January 6, 2017. See further discussion in section V, “Implementation Strategy.”
Sharon Andrews, Center for Devices and Radiological Health, 10903 New Hampshire Ave., Bldg. 66, Rm. G110, Silver Spring, MD 20993, 301–796–6529,
The Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 301
Devices that were in commercial distribution before the enactment of the 1976 amendments on May 28, 1976, are generally referred to as preamendments devices. Under section 513(d) of the FD&C Act, preamendments devices are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.
Devices that were not in commercial distribution prior to May 28, 1976, are generally referred to as postamendments devices. Postamendments devices are automatically classified into class III without any FDA rulemaking process (section 513(f) of the FD&C Act). Postamendments devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, under section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and 21 CFR part 807.
On July 9, 2012, the Food and Drug Administration Safety and Innovation Act (FDASIA) (Pub. L. 112–144) was enacted. Section 608(a) of FDASIA amended section 513(e) of the FD&C Act, changing the mechanism for reclassifying a device from rulemaking to an administrative order.
Section 513(e) of the FD&C Act provides that FDA may, by administrative order, reclassify a device based upon “new information.” FDA can initiate a reclassification under section 513(e) of the FD&C Act or an interested person may petition FDA to reclassify a device. The term “new information,” as used in section 513(e) of the FD&C Act, includes information developed as a result of a reevaluation of the data before the Agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See,
Reevaluation of the data previously before the Agency is an appropriate basis for subsequent action where the reevaluation is made in light of newly available authority (see
The process for issuing a final reclassification order is specified in section 513(e)(1) of the FD&C Act. Prior to the issuance of a final order reclassifying a device, the following must occur: (1) Publication of a proposed order in the
In the
In the May 1, 2014 proposed order, FDA stated that it would convene a panel specifically to discuss reclassification of urogynecologic surgical mesh instrumentation before finalizing reclassification of those devices. FDA held a meeting on February 26, 2016 (81 FR 938, January 8, 2016), of the Gastroenterology-Urology Devices Panel of the Medical Devices Advisory Committee (“the Panel”), a device classification panel described in section 513(b) of the FD&C Act. Prior to the meeting, all panel members were provided a comprehensive Executive Summary regarding the reclassification of urogynecologic surgical mesh instrumentation, which included information contained in the May 1, 2014, proposed order, a summary of comments submitted to the public docket on the proposed reclassification of urogynecologic surgical mesh instrumentation, and information regarding FDA's risk-based classification and regulation of medical devices (Ref. 1).
The Executive Summary also included a new FDA analysis of perioperative adverse events related to urogynecologic surgical mesh procedures. FDA conducted a new analysis to supplement the adverse event information discussed in the May 1, 2014, proposed order, which included adverse events related to POP procedures that were: (1) Reported in clinical studies and systematic literature reviews in the published literature or (2) submitted to the Manufacturer and User Facility Device Experience (MAUDE) database between January 1, 2011, and December 31, 2013. FDA's new analysis was a more comprehensive analysis of perioperative adverse events associated with stress urinary incontinence (SUI) procedures (retropubic, transobturator, mini-sling) and POP procedures (transvaginal repair and transabdominal repair (transabdominal POP repair is referred to as sacrocolpopexy)).
Adverse events related to a urogynecologic surgical mesh procedure, and that might be attributable to the specialized instrumentation used during the procedure, are typically submitted to FDA or described in published literature with reference to the surgical mesh and not the instrumentation. Therefore, it can be difficult to distinguish adverse events related to the urogynecologic surgical mesh instrumentation from those related to the surgical mesh. As noted in the proposed order, FDA believes it is reasonable to assume that perioperative adverse events—
In its new, more comprehensive analysis, FDA conducted a search of the relevant, scientific literature published between January 1, 1997, and December 8, 2015, to identify perioperative adverse events associated with urogynecologic surgical mesh procedures (see the 207 studies included as references in the Executive Summary provided to the Panel (Ref. 1). The search criteria consisted of a combination of terms related to adverse events (type, timing with respect to surgery), type of urogynecologic condition, type of surgical instrumentation, study design, device name, and manufacturer name. FDA then filtered the results to identify those studies that describe perioperative adverse events during one of the following urogynecologic surgical mesh procedures: SUI-retropubic, SUI-transobturator, SUI-mini-sling, POP-transvaginal, and POP-sacrocolpopexy. All perioperative adverse events were classified into one of the following categories: “organ perforation and injury,” “vascular injury and bleeding,” or “nerve injury and pain.” FDA then computed an adverse event rate for each study by dividing the number of patients that experienced one of these types of events by the total number of patients included in the study.
FDA also conducted a search of the Medical Device Reporting (MDR) database for relevant adverse events reported between January 1, 2008, and December 2, 2015. There are no FDA product codes specifically assigned to urogynecologic surgical mesh instrumentation; therefore, FDA first identified reports that were associated with a product code assigned to urogynecologic surgical mesh. FDA filtered the resulting injury and death reports to identify and analyze those that described perioperative adverse events. By stratifying its analysis by product code for the urogynecologic surgical mesh, which depends, in part, on the procedure type (
After completing its review of the published literature and MDR database, and aggregating its findings, FDA determined that perioperative adverse events occur during all types of urogynecologic surgical mesh procedures to treat female SUI and POP. Moreover, and as discussed in the Executive Summary (Ref. 1, Attachments 6–8), FDA made the following findings from its review of the published literature:
• The rate of “vascular injury and bleeding” varied between 0.4–29.4 percent in studies describing retropubic SUI procedures; 0.2–11.9 percent in studies describing transobturator SUI procedures; 1–20.5 percent in studies describing mini-sling SUI procedures; 0.7–7.7 percent in studies describing transvaginal POP repair procedures; and 2.8 percent for one study describing sacrocolpoplexy procedures;
• the rate of “organ perforation and injury” varied between 0.3–23.8 percent for retropubic SUI procedures; 0.2–5.8 percent for transobturator SUI procedures, 0.2–2.6 percent for mini-sling SUI procedures; 0.7–13.1 percent for transvaginal POP repair procedures; and 3.6 percent for one study describing sacrocolpoplexy procedures; and
• the rate of “nerve injury and pain” varied between 0.1–5.3 percent for retropubic SUI procedures; 0.8–30.8 percent for transobturator SUI procedures, 1.1–4.1 percent for mini-sling SUI procedures; 6.0–39.1 percent for transvaginal POP repair procedures; and 14.9 percent for one study describing sacrocolpoplexy procedures.
FDA presented a summary of the information contained in the Executive Summary during the February 26, 2016, panel meeting (Ref. 2). The Panel then discussed whether urogynecologic surgical mesh instrumentation should be reclassified, and if so, whether it should be reclassified from class I (general controls) to class II (special controls) or class III (premarket approval) (Ref. 3). The Panel discussed a variety of potential causes for the perioperative adverse events identified by FDA (
The Panel agreed with FDA that the device is not purported or represented for a use in supporting or sustaining human life, or for a use which is of substantial importance in preventing impairment of human health, or presents a potential unreasonable risk of illness or injury. In light of this assessment, the Panel consensus was that urogynecologic surgical mesh instrumentation did not meet the definition of a class III device. The Panel also agreed with FDA that general controls alone are not sufficient to provide reasonable assurance of safety and effectiveness for the device, and that there is sufficient information to establish special controls to provide such assurance. When considering the specific special controls proposed by FDA, two Panel members requested that an additional special control be the submission of clinical data. However, after additional discussion, the Panel unanimously agreed that the special controls proposed by FDA, which did not include the submission of clinical data, would appropriately mitigate the risks to health of this device. As such, the Panel recommended that urogynecologic surgical mesh instrumentation be reclassified from class I (general controls) exempt from premarket notification to class II (special controls).
In the final order, FDA is modifying two of the special controls included in the proposed order. First, FDA is revising § 884.4910(b)(2) (21 CFR 884.4910(b)(2)) to require a demonstration that the device, if reusable, can be adequately reprocessed. Reprocessing validation will help to ensure that reusable urogynecologic surgical mesh instrumentation is fit for subsequent use after being previously used or contaminated. The validated processes are designed to remove soil and contaminants by cleaning and to inactivate microorganisms by disinfection or sterilization. Although FDA recognized in the proposed order that “the risk of infection due to inadequate sterilization and/or reprocessing instructions/procedures can be mitigated through sterilization validation testing and the inclusion of validated reprocessing instructions in the device labeling,” proposed § 884.4910(b)(2) addressed sterilization only. FDA believes this revised special control will help to mitigate the risks posed by infection from reusable urogynecologic surgical mesh instrumentation.
Second, FDA is revising § 884.4910(b)(4) to require that non-clinical performance testing demonstrate that the device: (1) Meets all design specifications and performance requirements and (2) performs as intended under anticipated conditions of use. In the proposed order, FDA specified that “[b]ench and/or cadaver testing must demonstrate safety and effectiveness in expected-use conditions.” FDA has revised the reference to “bench and/or cadaver testing” to “non-clinical performance testing” to allow for additional types of non-clinical testing that will also mitigate the corresponding risks to health. FDA is making other revisions to this provision as noted previously to provide further clarity.
FDA received comments regarding the proposed reclassification of urogynecologic surgical mesh instrumentation from class I to class II. A summary of the comments and FDA's responses are provided in this section. Certain comments are grouped together under a single number because the subject matter is similar. The number assigned to each one is purely for organizational purposes and does not signify the comment's value, importance, or the order in which it was received.
(Comment 1) Several comments supported reclassification of urogynecologic surgical mesh instrumentation, with some comments supporting reclassification into class II and others supporting reclassification into class III.
(Response 1) FDA agrees with comments supporting reclassification of urogynecologic surgical mesh instrumentation into class II and disagrees with comments that support reclassification into class III. Based on information set forth in the proposed order (79 FR 24634), FDA tentatively concluded in that order that certain specified special controls, in addition to general controls, were necessary to mitigate the risks to health for urogynecologic surgical mesh instrumentation, and as such, proposed to reclassify the device from class I to class II (79 FR 24634 at 24640). FDA continues to believe that there is sufficient information to establish special controls to provide a reasonable assurance of safety and effectiveness for this device, and thus does not believe this device should be reclassified into class III.
FDA's new, more comprehensive, adverse event analysis provides further support for the risks to health of this device that FDA identified in the proposed order (see section I; Ref. 1), and the special controls established by FDA are specifically intended to mitigate those risks. For example, FDA's new MDR analysis revealed that failures of urogynecologic surgical mesh instrumentation (
Based on all of this information, the Panel consensus was that urogynecologic surgical mesh instrumentation meets the statutory definition of a class II device and does not meet the statutory definition of a class III device (see section I; Ref. 3).
Because FDA has determined that general controls alone are not sufficient to provide a reasonable assurance of safety and effectiveness for this device, and there is sufficient information to establish special controls to provide such an assurance, FDA is reclassifying the device into class II.
(Comment 2) One comment requested that urogynecologic surgical mesh
(Response 2) Surgical mesh indicated for urogynecologic procedures is a class III device when it is indicated for transvaginal POP repair (see 81 FR 354; § 884.5980) and a class II device when it is indicated for all other urogynecologic procedures, such as sacrocolpopexy and treatment of female SUI (see § 878.3300). FDA characterized the risk profile of different kinds of urogynecologic surgical mesh instrumentation by analyzing adverse events associated with the use of this specialized instrumentation and stratifying them by the type of urogynecologic procedure for which they were used. The results indicate that the risk profile of urogynecologic surgical mesh instrumentation used with class III surgical mesh during transvaginal POP repair is comparable to that of urogynecologic surgical mesh instrumentation used with class II surgical mesh during other kinds of urogynecologic procedures (see section I; Ref. 1). Urogynecologic surgical mesh instrumentation used in all types of urogynecologic surgical mesh procedures appears to have a similar risk-benefit profile, and therefore FDA believes these devices should have the same classification.
Moreover, as previously discussed, based on information included in the proposed order (79 FR 24634), FDA's comprehensive adverse event analysis (see Ref. 1), and the Panel's deliberations and determinations, FDA has determined that urogynecologic surgical mesh instrumentation is a class II device because general controls alone cannot provide a reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide such assurance. As such, FDA is reclassifying these devices from class I to class II.
(Comment 3) One comment stated that the scope of the urogynecologic surgical mesh instrumentation reclassification was unclear, and it could be interpreted that the reclassification applies only to instrumentation used for transvaginal POP repair rather than for instrumentation used for any urogynecologic surgical mesh procedure.
(Response 3) FDA disagrees that the scope of the instrumentation reclassification was unclear in the May 1, 2014, proposed order. FDA included the description in the identification of urogynecologic surgical mesh instrumentation in proposed § 884.4910(a) stating that surgical instrumentation for use with surgical mesh for urogynecological procedures is a prescription device used to aid in insertion, placement, fixation, or anchoring of surgical mesh for procedures including transvaginal POP repair, sacrocolpopexy (transabdominal POP repair), and treatment of female SUI. This description, which is not substantively changing in the final order, makes clear that all urogynecologic surgical mesh instrumentation—whether used for transvaginal POP repair or other urogynecologic surgical mesh procedures—falls under this reclassification.
(Comment 4) One comment stated that data provided in the proposed order to support the instrumentation reclassification was based only on POP procedures, that valid scientific evidence had not been provided to support the instrumentation reclassification, and that no evidence was provided to support the risks that were identified in the proposed order.
(Response 4) First, FDA acknowledges that the data provided to support the instrumentation reclassification in the May 1, 2014, proposed order derived only from surgical mesh procedures indicated for POP. FDA subsequently conducted a new, more comprehensive analysis of perioperative adverse events associated with a variety of SUI procedures (retropubic, transobturator, mini-sling) and POP procedures (transvaginal repair and sacrocolpoplexy) by reviewing adverse events included in the relevant, scientific, published literature and adverse events submitted to the MDR database. Based on this analysis, FDA determined that perioperative adverse events occur during all types of SUI and POP procedures (see section I; Ref. 1). FDA also discovered that in the published literature, the highest reported rates of “organ perforation and injury,” “vascular injury and bleeding,” and “nerve injury and pain” were distributed across different types of urogynecologic surgical mesh procedures rather than only occurring during one specific type, such as transvaginal POP repair. FDA believes these results provide further support for the reclassification of these devices into class II, and also supports the scope of this reclassification, which encompasses specialized instrumentation used during all types of urogynecologic surgical mesh procedures. After presenting the proposed order and this new information to the Panel at the February 26, 2016, meeting, the Panel recommended that urogynecologic surgical mesh instrumentation be reclassified from class I (general controls) exempt from premarket notification to class II (special controls) (Ref. 3). FDA agrees with the Panel's recommendations and is reclassifying these devices from class I to class II.
Second, FDA disagrees that valid scientific evidence was not provided in the May 1, 2014, proposed order to support reclassification of urogynecologic surgical mesh instrumentation. Valid scientific evidence is defined in § 860.7(c)(2) as evidence from well-controlled investigations, other types of studies and case histories conducted by qualified experts, and reports of significant human experience with a marketed device, from which it can fairly and responsibly be concluded by qualified experts that there is reasonable assurance of the safety and effectiveness of a device under its conditions of use. (See also section 513 of the FD&C Act). In the proposed order, FDA reviewed perioperative adverse events included in published studies of surgical mesh used during POP procedures. These publications constitute “valid scientific evidence” because they are controlled studies (Refs. 7–10, 12, 14) and collections of well-documented case histories conducted by qualified experts (Refs. 4–6, 11, 13).
Finally, FDA disagrees that no evidence was provided to support the risks of urogynecologic surgical mesh instrumentation identified in the proposed order. In the proposed order, FDA specifically referenced clinical studies and systematic literature reviews in the published literature that included reports of perioperative adverse events (
As discussed throughout this document, FDA subsequently conducted a more comprehensive search of the relevant, scientific, published literature and MDR database to evaluate the risks of urogynecologic surgical mesh instrumentation. A summary of the findings from these reviews is in the Executive Summary (Ref. 1) and was provided in our presentation to the Panel on February 26, 2016 (Ref. 2). The findings from the literature review—which were confirmed by the MDR database review—provide further support for the risks identified and discussed in the proposed order.
Based on this information, the Panel consensus was that the four risks to health of urogynecologic surgical mesh instrumentation that FDA identified in the proposed order is a complete and accurate list (Ref. 3).
(Comment 5) One comment, which was submitted after the proposed order issued and before the Panel meeting was held, stated that the proposed order should be withdrawn until Panel input was obtained.
(Response 5) FDA disagrees. The process followed by FDA in reclassifying this device is in accordance with section 513(e)(1) of the FD&C Act. This provision requires, in relevant part, that issuance of a final administrative order reclassifying a device be preceded by a proposed order and a meeting of a device classification panel. There is no requirement that a proposed order be “withdrawn” after its issuance but before the Panel meeting, and the rationale for doing so is not clear to FDA.
Under section 513(e) of the FD&C Act, FDA is adopting its findings as published in the proposed order for urogynecologic surgical mesh instrumentation, with the modifications discussed in section II of this document. For the reasons set forth in the proposed order and in this document, FDA concludes that general controls are insufficient to provide a reasonable assurance of safety and effectiveness for urogynecologic surgical mesh instrumentation, and there is sufficient information to establish special controls to provide such assurance.
FDA is issuing this final order to reclassify urogynecologic surgical mesh instrumentation from class I (general controls) exempt from premarket notification to class II (special controls) and subject to premarket notification, and identifying them as “specialized surgical instrumentation for use with urogynecologic surgical mesh.” FDA is also establishing special controls, which are set forth in § 884.4910(b)(1) through (5).
Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness of urogynecologic surgical mesh instrumentation, and therefore, this device is not exempt from premarket notification requirements.
The order is effective January 6, 2017.
Manufacturers of urogynecologic surgical mesh instrumentation that have not been legally marketed prior to January 6, 2017, must obtain 510(k) clearance and demonstrate compliance with the special controls included in this final order before marketing the device.
Manufacturers of urogynecologic surgical mesh instrumentation that have been legally marketed prior to January 6, 2017, must obtain 510(k) clearance and demonstrate compliance with the special controls included in this final order by January 8, 2018, for those devices if they wish to continue offering them for sale.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910–0120 and the collections of information under 21 CFR part 801 have been approved under OMB control number 0910–0485.
Prior to the amendments by FDASIA, section 513(e) of the FD&C Act provided for FDA to issue regulations to reclassify devices. Although section 513(e) of the FD&C Act as amended requires FDA to issue final orders rather than regulations, FDASIA also provides for FDA to revoke previously issued regulations by order. FDA will continue to codify classifications and reclassifications in the Code of Federal Regulations (CFR). Changes resulting from final orders will appear in the CFR as changes to codified classification determinations or as newly codified orders. Therefore, under section 513(e)(1)(A)(i) of the FD&C Act, as amended by FDASIA, in this final order, we are codifying the reclassification of specialized surgical instrumentation for use with urogynecologic surgical mesh into class II in § 884.4910.
The following references are on display in the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at
1. Executive Summary of the February 26, 2016, meeting of the Gastroenterology-Urology Devices Panel (available at
2. FDA presentation to Panel members at the February 26, 2016, meeting of the Gastroenterology-Urology Devices Panel (available at
3. Transcript of the February 26, 2016, meeting of the Gastroenterology-Urology Devices Panel (available at
4. Caquant, F., et al., “Safety of Trans Vaginal Mesh Procedure: Retrospective Study
5. Maher, C.F., et al., “Surgical Management of Pelvic Organ Prolapse in Women,”
6. Diwadkar, G.B., et al., “Complication and Reoperation Rates After Apical Vaginal Prolapse Surgical Repair: A Systematic Review,”
7. Maher, C.F., et al., “Laparoscopic Sacral Colpopexy Versus Total Vaginal Mesh for Vaginal Vault Prolapse: A Randomized Trial,”
8. Altman, D., et al., “Anterior Colporrhaphy Versus Transvaginal Mesh for Pelvic-Organ Prolapse,”
9. Iglesia, C.B., et al., “Vaginal Mesh for Prolapse: A Randomized Controlled Trial,”
10. Withagen, M.I., et al., “Trocar-Guided Mesh Compared With Conventional Vaginal Repair in Recurrent Prolapse: A Randomized Controlled Trial,”
11. Sung, V.W., et al., Society of Gynecologic Surgeons Systematic Review Group. “Graft Use in Transvaginal Pelvic Organ Prolapse and Urinary Incontinence,”
12. Hiltunen, R., et al., “Low-Weight Polypropylene Mesh for Anterior Vaginal Wall Prolapse: A Randomized Controlled Trial,”
13. Jia, X., et al., “Efficacy and Safety of Using Mesh or Grafts in Surgery for Anterior and/or Posterior Vaginal Wall Prolapse: Systematic Review and Meta-Analysis,”
14. Sivaslioglu, A.A., E. Unlubilgin, and I. Dolen, “A Randomized Comparison of Polypropylene Mesh Surgery With Site-Specific Surgery in the Treatment of Cystocoele,”
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 884 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(1) The device must be demonstrated to be biocompatible;
(2) The device must be demonstrated to be sterile and, if reusable, it must be demonstrated that the device can be adequately reprocessed;
(3) Performance data must support the shelf life of the device by demonstrating package integrity and device functionality over the requested shelf life;
(4) Non-clinical performance testing must demonstrate that the device meets all design specifications and performance requirements, and that the device performs as intended under anticipated conditions of use; and
(5) Labeling must include:
(i) Information regarding the mesh design that may be used with the device;
(ii) Detailed summary of the clinical evaluations pertinent to use of the device;
(iii) Expiration date; and
(iv) Where components are intended to be sterilized by the user prior to initial use and/or are reusable, validated methods and instructions for sterilization and/or reprocessing of any reusable components.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) finds that the Cleveland-Akron-Lorain, Ohio area (Cleveland area) is attaining the 2008 ozone National Ambient Air Quality Standard (NAAQS or standard) and is redesignating the area to attainment for the 2008 ozone NAAQS, because the area meets the statutory requirements for redesignation under the Clean Air Act (CAA). The Cleveland area includes Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage, and Summit counties. EPA is also approving, as a revision to the Ohio State Implementation Plan (SIP), the state's plan for maintaining the 2008 ozone standard through 2030 in the Cleveland area. Finally, EPA finds adequate and is approving the state's 2020 and 2030 volatile organic compound (VOC) and oxides of nitrogen (NO
This final rule is effective January 6, 2017.
EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2016–0396. All documents in the docket are listed in the
Jenny Liljegren, Physical Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J),
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
This rule takes action on the July 6, 2016 submission from Ohio EPA requesting redesignation of the Cleveland area to attainment for the 2008 ozone standard. The background for today's action is discussed in detail in EPA's proposal, dated October 17, 2016 (81 FR 71444). In that rulemaking, we noted that, under EPA regulations at 40 CFR part 50, the 2008 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.075 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. (
As discussed in the proposed rule, quality-assured and certified monitoring data for 2013–2015 and preliminary data for 2016 show that the Cleveland area has attained and continues to attain the 2008 ozone standard. In the maintenance plan submitted for the area, Ohio has demonstrated that the ozone standard will be maintained in the area through 2030. Finally, Ohio has adopted 2020 and 2030 VOC and NO
EPA provided a 30-day review and comment period for the October 17, 2016, proposed rule. The comment period ended on November 16, 2016. During the comment period, comments in support of the action were submitted on behalf of the Ohio Utility Group and its member companies. We received no adverse comments on the proposed rule.
EPA finds that the Cleveland nonattainment area is attaining the 2008 ozone standard, based on quality-assured and certified monitoring data for 2013–2015 and that the Ohio portion of this area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus changing the legal designation of the Cleveland area from nonattainment to attainment for the 2008 ozone standard. EPA is also approving, as a revision to the Ohio SIP, the state's maintenance plan for the area. The maintenance plan is designed to keep the Cleveland area in attainment of the 2008 ozone NAAQS through 2030. Finally, EPA finds adequate and is approving the newly-established 2020 and 2030 MVEBs for the Cleveland area.
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, 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 rule relieves the state of planning requirements for this ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under 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 imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability 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 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of
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 March 7, 2017. 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, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(pp) * * *
(3) Approval—On July 6, 2016, the Ohio Environmental Protection Agency submitted a request to redesignate the Cleveland area to attainment of the 2008 ozone NAAQS. As part of the redesignation request, the State submitted a maintenance plan as required by section 175A of the Clean Air Act. Elements of the section 175 maintenance plan include a contingency plan and an obligation to submit a subsequent maintenance plan revision in eight years as required by the Clean Air Act. The 2020 motor vehicle emissions budgets for the Cleveland area are 38.85 tons per summer day (TPSD) for VOC and 61.56 TPSD for NO
42 U.S.C. 7401
Corporation for National and Community Service.
Interim final rule.
The Corporation for National and Community Service (CNCS) is updating its regulations to reflect required annual inflation-related increases to the civil monetary penalties in its regulations, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
You may send your comments electronically through the Federal government's one-stop rulemaking Web site at
Phyllis Green, Executive Assistant, Office of General Counsel, at 202–606–6709 or email to
The Corporation for National and Community Service (CNCS) is a federal agency that engages more than five million Americans in service through its AmeriCorps, Senior Corps, Social Innovation Fund, and Volunteer Generation Fund programs to further its mission to improve lives, strengthen communities, and foster civic engagement through service and volunteering. For more information, visit NationalService.gov.
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114–74) (the “Act”), which is intended to improve the effectiveness of civil monetary penalties and to maintain the deterrent effect of such penalties, requires agencies to adjust the civil monetary penalties for inflation annually.
CNCS has two civil monetary penalties in its regulations. A civil monetary penalty under the Act is a penalty, fine, or other sanction that is for a specific monetary amount as provided by Federal law or has a maximum amount provided for by Federal law and is assessed or enforced by an agency pursuant to Federal law and is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. (
The inflation adjustment for each applicable civil monetary penalty is determined using the percent increase in the Consumer Price Index for all Urban Consumers (CPI–U) for the month of October of the year in which the amount of each civil money penalty was most recently established or modified. In the December 16, 2016, OMB Memo for the Heads of Executive Agencies and Departments, M–17–11,
CNCS identified two civil penalties in its regulations: (1) The penalty associated with Restrictions on Lobbying (45 CFR 1230.400) and (2) the penalty associated with the Program Fraud Civil Remedies Act (45 CFR 2554.1).
The civil monetary penalties related to Restrictions on Lobbying (Section 319, Pub. L. 101–121; 31 U.S.C. 1352) range from $18,936 to $189,361. Using the 2017 multiplier, the new range of possible civil monetary penalties is from $19,246 to $192,459.
The Program Fraud Civil Remedies Act of 1986 (Pub. L. 99–509) civil monetary penalty has an upper limit of $10,781. Using the 2017 multiplier, the new upper limit of the civil monetary penalty is $10,957.
This final rule adjusts the civil monetary penalty amounts related to Restrictions on Lobbying (45 CFR 1230.400) and the Program Fraud Civil Remedies Act of 1986 (45 CFR 2554.1). The range of civil monetary penalties related to Restrictions on Lobbying increase from “$18,936 to $189,361” to “$19,246 to $192,459.” The civil monetary penalties for the Program Fraud Civil Remedies Act of 1986 increase from “up to $10,781” to “up to $10,957.”
CNCS finds, under 5 U.S.C. 553(b)(3)(B), that there is good cause to except this rule from the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b). Because CNCS is implementing a final rule pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires CNCS to update its regulations based on a prescribed formula, CNCS has no discretion in the nature or amount of the change to the civil monetary penalties. Therefore, notice and comment for these proscribed updates is impracticable and unnecessary. As an interim final rule, no further regulatory action is required for the issuance of this legally binding rule. If you would like to provide technical comments, however, they may be submitted until February 6, 2017.
CNCS has determined that making technical changes to the amount of civil monetary penalties in its regulations does not trigger any requirements under procedural statutes and Executive Orders that govern rulemaking procedures.
This rule is effective January 15, 2017. The adjusted civil penalty amounts apply to civil penalties assessed on or after January 15, 2017, when the violation occurred after November 2, 2015. If the violation occurred prior to November 2, 2015, or a penalty was assessed prior to August 1, 2016, the pre-adjustment civil penalty amounts in effect prior to August 1, 2106, will apply.
Government contracts, Grant programs, Loan programs, Lobbying, Penalties, Reporting and recordkeeping requirements.
Claims, Fraud, Organization and functions (Government agencies), Penalties.
For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapters XII and XXV, title 45 of the Code of Federal Regulations as follows:
Section 319, Pub. L. 101–121 (31 U.S.C. 1352); Pub. L. 93–113; 42 U.S.C. 4951,
Pub. L. 99–509, Secs. 6101–6104, 100 Stat. 1874 (31 U.S.C. 3801–3812); 42 U.S.C. 12651c–12651d.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products, including consumer central air conditioners and heat pumps. EPCA also requires the U.S. Department of Energy (DOE) to periodically determine whether more-stringent, amended standards would be technologically feasible and economically justified, and would save a significant amount of energy. In this proposed rule, DOE proposes to amend the energy conservation standards for consumer central air conditioners and heat pumps identical to those set forth in a direct final rule published elsewhere in this
DOE will accept comments, data, and information regarding the proposed standards no later than April 26, 2017.
Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the
1.
2.
3.
4.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document (“Public Participation”).
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Division at
A link to the docket Web page for consumer central air conditioners and heat pumps can be found at:
For further information on how to submit a comment or review other public comments and the docket, contact the Appliance and Equipment Standards staff at (202) 586–6636 or by email:
Mr. Antonio Bouza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE–5B, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–4563. Email:
Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC–33, 1000 Independence Avenue SW., Washington, DC, 20585–0121. Telephone: (202) 287–6307. Email:
Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94–163 (42 U.S.C. 6291–6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances (collectively referred to as “covered products”), which includes the consumer central air conditioners and heat pumps that are the subject of this rulemaking. (42 U.S.C. 6292(a)(3))
Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling, and DOE implements the remainder of the program. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product prior to the adoption of a new or amended energy conservation standard. (42 U.S.C. 6295(o)(3)(A) and (r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for central air conditioners and heat pumps appear at title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix M and M1.
The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100–12) included amendments to EPCA that established the original energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(1)–(2)) EPCA, as amended, also requires DOE to conduct two cycles of rulemakings to determine whether to amend the energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(3)) The first cycle culminated in a final rule published in the
EPCA requires DOE to periodically review its already established energy conservation standards for a covered product. Not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed standards. (42 U.S.C. 6295(m)(1)) Pursuant to this requirement, the next review that DOE would need to conduct must occur no later than six years from the issuance of the 2011 direct final rule. This direct final rule fulfills that requirement.
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including consumer central air conditioners and heat pumps. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and (3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including consumer central air conditioners and heat pumps, if no test procedure has been established for the product, or (2) if DOE determines by rule that the proposed standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)–(B)) In deciding whether a proposed standard is economically justified, after receiving comments on the proposed standard, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination by, to the greatest extent practicable, considering the following seven factors:
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers relevant.
(42 U.S.C. 6295(o)(2)(B)(i)(I)–(VII))
DOE notes that the current energy conservation standards for central air conditioners and heat pumps (set forth at 10 CFR 430.32(c)) contain requirements for seasonal energy efficiency ratio (SEER), heating seasonal performance factor (HSPF), energy efficiency ratio (EER), and average off mode power consumption. Standards based upon the latter two metrics were newly adopted in the June 27, 2011 DFR for the reasons stated in that rulemaking. 76 FR 37408. As discussed in section II.B.1 and section II.B.3 of this proposed rule, DOE has chosen to specify performance standards based on EER and SEER for only the southwest region of the country. Pursuant to its mandate under 42 U.S.C. 6295(m)(1), this DOE rulemaking has considered amending the existing energy conservation standards for central air conditioners and heat pumps, and DOE is adopting the amended standards contained in this direct final rule.
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) or
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) DOE generally considers these criteria as part of its analysis but consistently conducts a more thorough analysis of a given standard's projected impacts that extends beyond this presumption.
Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. In this case, DOE must specify a different standard level for a type or class of covered product that has the same function or intended use, if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature that other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Under 42 U.S.C. 6295(o)(6), which was added to EPCA by section 306(a) of the Energy Independence and Security Act of 2007 (EISA 2007; Pub. L. 110–140), DOE may consider the establishment of regional standards for central air conditioners and heat pumps. Specifically, in addition to a base national standard for a product, DOE may for central air conditioners and heat pumps, establish one or two more-restrictive regional standards. (42 U.S.C. 6295(o)(6)(B)) The regions must include only contiguous States (with the exception of Alaska and Hawaii, which may be included in regions with which they are not contiguous), and each State may be placed in only one region (
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)–(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).
Pursuant to further amendments to EPCA contained in EISA 2007, Public Law 110–140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)–(B)) The SEER and HSPF metrics for central air conditioners and heat pumps already account for standby mode energy use, and the current standards include limits on off mode energy use.
As mentioned previously, EISA 2007 amended EPCA, in relevant part, to grant DOE authority to issue a final rule (hereinafter referred to as a “direct final rule”) establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates), as determined by the Secretary, that contains recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). (42 U.S.C. 6295(p)(4)) Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly-submitted recommendation for an energy or water conservation standard satisfies 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable.
A notice of proposed rulemaking (NOPR) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule, and DOE must provide a public comment period of at least 110 days on this proposal. (42 U.S.C. 6295(p)(4)(A)–(B)) While DOE typically provides a comment period of 60 days on proposed standards, in this case, DOE provides a comment period of the same length as the comment period on the direct final rule—
Typical of other rulemakings, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, the substance of any adverse comment(s) received will be weighed against the anticipated benefits of the jointly-submitted recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that, to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. Nevertheless, if the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously-published NOPR. DOE must publish in the
According to the Energy Policy and Conservation Act's 6-year review requirement (42 U.S.C. 6295(m)(1)), DOE must publish a notice of proposed rulemaking to propose new standards for consumer central air conditioner and heat pump products or a notice of determination that the existing standards do not need to be amended by
On August 28, 2015, DOE published a notice of data availability (NODA) describing analysis to be used in support of the central air conditioners and heat pumps standards rulemaking. 80 FR 52206. The analysis for this notice provided the results of a series of DOE provisional analyses regarding potential energy savings and economic impacts of amending the central air conditioner and heat pump energy conservation standards. These analyses were conducted for the following categories: Engineering, consumer impacts, national impacts, and manufacturer impacts.
In response to the November 2014 RFI, Lennox formally requested that DOE convene a negotiated rulemaking to address potential amendments to the current standards, which would help ensure that all stakeholders have input into the discussion, analysis, and outcome of the rulemaking. (Lennox, No. 22) Other key industry stakeholders made similar suggestions. (American Council for an Energy-Efficient Economy, No. 23; Air Conditioning Contractors of America, No. 25; Heating, Air Conditioning & Refrigeration Distributors International, No. 26) ASRAC carefully evaluated this request, and the Committee voted to charter a working group to support the negotiated rulemaking effort requested by these parties.
Subsequently, DOE determined that the complexity of the CAC/HP rulemaking necessitated a combined effort to address these equipment types to ensure a comprehensive vetting of all issues and related analyses to support any final rule setting standards. To this end, DOE solicited the public for membership nominations to the CAC/HP Working Group that would be formed under the ASRAC charter by issuing a Notice of Intent to Establish the Central Air Conditioners and Heat Pumps Working Group To Negotiate a Notice of Proposed Rulemaking for Energy Conservation Standards. 80 FR 40938 (July 14, 2015). The CAC/HP Working Group was established under ASRAC in accordance with the Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking Act—with the purpose of discussing and, if possible, reaching consensus on a set of energy conservation standards to propose/finalize for CACs and HPs. The CAC/HP Working Group was to consist of fairly representative parties having a defined stake in the outcome of the proposed standards, and would consult, as appropriate, with a range of experts on technical issues.
DOE received 26 nominations for membership. Ultimately, the CAC/HP Working Group consisted of 15 members, including one member from ASRAC and one DOE representative.
During the CAC/HP Working Group discussions, participants discussed setting new standards for single-package air conditioners. Specifically, arguments were made against raising the standard level for single-package systems due to the unavailability of full product lines, which span the entire range of cooling capacities, with efficiencies that are only modestly greater (
The CAC/HP Working Group successfully reached consensus on recommended energy conservation standards, as well as test procedure amendments for CACs and HPs. On January 19, 2016, the CAC/HP Working Group submitted the Term Sheet to ASRAC outlining its recommendations, which ASRAC subsequently adopted.
After carefully considering the consensus recommendations for amending the energy conservation standards for CACs and HPs submitted by the CAC/HP Working Group and adopted by ASRAC, DOE has determined that these recommendations are in accordance with the statutory requirements of 42 U.S.C. 6295(p)(4) for the issuance of a direct final rule.
More specifically, these recommendations comprise a statement submitted by interested persons who are fairly representative of relevant points of view on this matter. In reaching this determination, DOE took into consideration the fact that the CAC/HP Working Group, in conjunction with ASRAC members who approved the recommendations, consisted of representatives of manufacturers of the covered equipment at issue, States, and efficiency advocates—all of which are groups specifically identified by Congress as relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the Term Sheet was signed and submitted by a broad cross-section of interests, including the manufacturers who produce the subject products, trade associations representing these manufacturers and installation contractors, environmental and energy-efficiency advocacy organizations, and electric utility companies. Although States were not direct signatories to the Term Sheet, the ASRAC Committee approving the CAC/HP Working Group's
DOE also evaluated whether the recommendation satisfies 42 U.S.C. 6295(o), as applicable. In making this determination, DOE conducted an analysis to evaluate whether the potential energy conservation standards under consideration achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified and result in significant energy conservation. The evaluation is the same comprehensive approach that DOE typically conducts whenever it considers potential energy conservation standards for a given type of product or equipment.
DOE has considered the recommended energy conservation standards and believes that they meet the EPCA requirements for issuance of a direct final rule. As a result, DOE published a direct final rule establishing energy conservation standards for consumer central air conditioners and heat pumps elsewhere in this
For further background information on the proposed standards and the supporting analyses, please see the direct final rule published elsewhere in this
When considering new or amended energy conservation standards, the standards that DOE adopts for any type (or class) of covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
For this proposed rule, DOE considered the impacts of amended standards for central air conditioners and heat pumps at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next-most-efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
To aid the reader in understanding the benefits and/or burdens of each TSL, tables in this section summarize the quantitative analytical results for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a standard and impacts on employment.
Table II–1 and Table II–2 summarize the quantitative impacts estimated for each TSL for central air conditioners and heat pumps. The national impacts are measured over the lifetime of central air conditioners and heat pumps purchased in the 30-year period that begins in the anticipated first year of compliance with any amended standards (2021–2050 or, in the case of the recommended TSL, 2023–2052). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A of the direct final rule.
First, DOE considered TSL 4, which would save an estimated total of 14.2 quads of energy, an amount DOE considers significant. TSL 4 has an estimated NPV of consumer benefit of −$31.4 billion using a 7-percent discount rate, and −$28.1 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 4 are 841 Mt of CO
At TSL 4, the average LCC savings is −$304 for split air conditioners, −$425 for split heat pumps, −$80 for package air conditioners, $115 for package heat pumps, $58 for space-constrained air conditioners, and −$540 for small-duct high-velocity air conditioners. The simple PBP is 19.2 years for split air conditioners, 14.9 years for split heat pumps, 12.3 years for package air conditioners, 5.2 years for package heat pumps, 11.6 years for space-constrained air conditioners, and 34.3 years for small-duct high-velocity air conditioners. The share of consumers experiencing a net LCC cost is 75 percent for split air conditioners, 79 percent for split heat pumps, 69 percent for package air conditioners, 39 percent for package heat pumps, 60 percent for space-constrained air conditioners, and 90 percent for small-duct high-velocity air conditioners.
At TSL 4, the projected change in INPV ranges from a decrease of $1,135.6 million to an increase of $393.5 million. If the more severe range of impacts is reached, TSL 4 could result in a net loss of up to 25.3 percent of INPV for manufacturers.
After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that, at TSL 4 for central air conditioner and heat pump standards, the benefits of energy savings and emissions reductions would be outweighed by the negative NPV of total consumer benefits at a 3-percent and 7-percent discount rate, negative average consumer LCC savings for most product classes, and the reduction in industry value.
Next, DOE considered TSL 3, which would save an estimated total of 8.6 quads of energy, an amount DOE considers significant. TSL 3 has an estimated NPV of consumer benefit of −$10 billion using a 7-percent discount rate, and $1.1 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 3 are 508.7 Mt of CO
At TSL 3, the average LCC savings is −$122 for split air conditioners, −$25 for split heat pumps, $43 for package air conditioners, and $115 for package heat pumps. The simple PBP is 15.2 years for split air conditioners, 9.4 years for split heat pumps, 8.9 years for package air conditioners, and 5.2 years for package heat pumps. The share of consumers experiencing a net LCC cost is 63 percent for split air conditioners, 54 percent for split heat pumps, 53 percent for package air conditioners, and 39 percent for package heat pumps. There are no impacts on space-constrained air conditioners or small-duct high-velocity air conditioners at TSL 3.
At TSL 3, the projected change in INPV ranges from a decrease of $1,114.2 million to an increase of $16.1 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 24.8 percent of INPV for manufacturers.
After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that at TSL 3 for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit at a 3-percent discount rate, and emissions reductions would be outweighed by the negative NPV of consumer benefit at a 7-percent discount rate, negative average LCC savings for most product classes, and the potential reduction in INPV for manufacturers.
Next, DOE considered the Recommended TSL, which would save an estimated total of 3.2 quads of energy, an amount DOE considers significant. The Recommended TSL has an estimated NPV of consumer benefit of $2.5 billion using a 7-percent discount rate, and $12.2 billion using a 3-percent discount rate.
The cumulative emissions reductions under the Recommended TSL are 188.3 Mt of CO
Under the Recommended TSL, the average LCC savings for split air conditioners is $43 in the north region, $150 in the hot dry region, $39 in the hot humid region, and $131 for split heat pumps. The simple payback period for split air conditioners is 10.5 years in the north region, 7.6 years in the hot dry region, 7.7 years in the hot humid region, and 4.9 years for split heat pumps. The share of consumers experiencing a net LCC cost for split air conditioners is 25 percent in the north region, 42 percent in the hot dry region, 45 percent in the hot humid region, and 20 percent for split heat pumps. There are no impacts to packaged air conditioners, packaged heat pumps, space-constrained air conditioners, and small-duct high-velocity air conditioners under the Recommended TSL.
Under the Recommended TSL, the projected change in INPV ranges from a decrease of $692.3 million to a decrease of $114.2 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 15.4 percent of INPV for manufacturers.
After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that under the Recommended TSL for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit, positive impacts on consumers (as indicated by positive average LCC savings and favorable PBPs), and emission reductions, would outweigh the negative impacts on some consumers and the potential reduction in INPV for manufacturers.
Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this notice of proposed rulemaking that proposes amended energy conservation standards for central air conditioners and heat pumps at the Recommended TSL. The proposed amended energy conservation standards for central air conditioners and heat pumps as determined by the DOE test procedure at the time of the 2015–2016 ASRAC negotiations are presented in Table II–3.
Table II–4 shows the amended energy conservation standards for central air conditioners and heat pumps as determined by the test procedure final rule issued by DOE on November 30, 2016, hereinafter referred to as the “November 2016 test procedure final rule”.
The following paragraph describes how DOE translated the energy conservation standards in Table II–3—which are in terms of SEER, HSPF, and EER as determined by the DOE test procedure at the time of the 2015–2016 ASRAC Negotiations—to the energy conservation standard levels in Table II–4—which are in terms of SEER2, HSPF2, and EER2 as determined by the November 2016 test procedure final rule. DOE used a methodology consistent with the recommendations of the CAC/HP Working Group to translate the SEER standard levels to SEER2 standard levels for the split-system and single-package product classes. Note that the heating load line slope factor established by the November 2016 test procedure final rule is different than the heating load line slope factors used by the CAC/HP Working Group in their Term Sheet recommendation #9. DOE translated the HSPF standard levels to HSPF2 standard levels for split-system and single-package heat pumps by adjusting for the intermediate heating load line slope factor established by the November 2016 test procedure final rule using interpolation. (November 2016 Test Procedure Final Rule, pp. 127–130)
Comments in response to the provisional translations for HSPF2 for split system and single-package heat pumps are summarized in the November 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 127–130). Commenters agreed with the translation for split-system heat pumps, but industry commenters felt that the 6.8 value was too high for single-package heat pumps.
The August 2016 test procedure SNOPR and November 2016 test procedure final rule did not include translated levels for small-duct high velocity (SDHV) and space-constrained products. Neither did Recommendation #9 of the Term Sheet. Recommendation #9 did, however, state that the energy conservation standards for those product classes should remain unchanged from current levels (
In developing its provisional translations for space-constrained air conditioners published in the NODA, DOE reviewed existing test data, adjusted relevant measurements based on blower performance data, and translated the levels based on the average impact. For the space-constrained and SDHV heat pump translations published in the NODA, DOE also reviewed test data and confirmed that the 15% reduction from HSPF to HSPF2 that DOE observed for split-system and single-package heat pumps was appropriate also for space-constrained and SDHV heat pumps.
In written comments, manufacturers and AHRI expressed support for DOE's provisional translations for SDHV products. Unico stated that it reviewed all of its test reports from the previous two years and found its range of results validated DOE's translations for SDHV products. (Unico, No. 95 at p. 2). AHRI and Lennox also expressed support for DOE's SEER and HPSF to SEER2 and HSPF2 levels for SDHV products. (AHRI, No. 94 at p. 1; Lennox, No. 97 at p. 1) EEI commented that it did not agree with DOE's translation because the HSPF appears to drop by approximately 15.3%, even though there has been no change to the product. (EEI, No. 96 at p. 2).
Regarding the concern expressed by EEI, DOE's translations do not assume nor reflect any change to product design. EPCA requires DOE to consider changes in energy conservation standards if a test procedure change alters the measurement, but does not prohibit a test procedure change that alters the measurement. (42 U.S.C. 6293(e)) In the November 2016 test procedure final rule, DOE adopted provisions that amend the test procedure required to determine representations for CAC/HP, including SDHV products. These provisions impact the value of the test procedure results. For instance, the November 2016 test procedure final rule assumes higher heating loads for heat pumps in colder outdoor conditions, which will typically result in lower HSPF2 ratings. (November 2016 Test Procedure Final Rule, pp. 110–127) Simply stated, an SDHV product tested in accordance with the test procedure at the time of the 2015–2016 ASRAC Negotiations will get a different rating than the same SDHV product (without design changes) tested in accordance with the test procedure adopted in the November 2016 test procedure final rule. DOE's translations are intended to reflect these differences. DOE is using “SEER2”, “HSPF2”, and “EER2” to distinguish ratings determined by the November 2016 test procedure from the SEER, HSPF and EER ratings determined by past test procedures to mitigate confusion that may result from the possibility that products available before and after the November 2016 test procedure may have a different SEER2/HSPF2/EER2 than SEER/HSPF/EER rating despite no changes to design.
Unico's SDHV data validate DOE's translations, which are also supported by AHRI and Lennox. DOE did not receive any other comments or data suggesting that its translations for SDHV products are inappropriate. For these reasons, DOE is proposing the SDHV translations presented in the October 2016 NODA in this NOPR.
AHRI is concerned that the SEER2 translation DOE presented for space-constrained air conditioners is too high by 0.1. AHRI calculated SEER2 to be 11.7 at 0.30 in. wc. rather than 11.8. AHRI provided data for 4 space-constrained products to illustrate its results. (AHRI, No. 94 at p. 2). Lennox also commented that DOE's SEER2 translation for space-constrained air conditioners is too high by 0.1. (Lennox, No. 97 at p. 2) AHRI and Lennox also commented that DOE should adopt the same SEER2 standard for space-constrained air conditioners and heat pumps (AHRI, No. 94 at p.2; Lennox, No. 97 at p. 2) First Co. strongly disagrees with DOE's proposed translation of SEER to SEER2 values for space-constrained air conditioners because DOE's methodology for
DOE appreciates the space-constrained air conditioner translation data provided by AHRI. DOE combined AHRI's data with the data DOE used to develop DOE's provisional translations. Note that after the October 2016 NODA, DOE issued the November 2016 test procedure final rule in which it adopted a minimum external static pressure requirement of 0.3 in. wc. for space-constrained air conditioners and heat pumps. (November 2016 Test Procedure Final Rule, pp. 97–99) Consequently, DOE combined AHRI's data with DOE's data reflective of performance at that operating condition. Once combined, the data validates AHRI's assertion that 11.7 is the appropriate SEER2 level for space-constrained air conditioners at 0.3 in. wc. Thus, DOE is adopting 11.7 SEER2 as the standard level for space-constrained air conditioners in this final rule. DOE disagrees with AHRI and Lennox that 11.7 SEER2 should also be used for space-constrained heat pumps. While space-constrained air conditioners are required to certify at least one coil-only combination that is representative of the least efficient coil-only combination distributed in commerce, space-constrained heat pumps have no coil-only requirement. (10 CFR 429.16(a)(1)) AHRI derived 11.7 SEER2 using 406 W/1000 scfm (the default fan power at 0.3 in. wc.) for indoor fan power consumption. As discussed in the November 2015 test procedure SNOPR and subsequently referenced in the November 2016 test procedure final rule, this default fan power value is reflective of the weighted-average performance of indoor fan by motor type distribution projected for the effective date of this standard, which includes a significant majority of lower-efficiency PSC motors. 80 FR 69319–20 and (November 2016 Test Procedure Final Rule, p. 104) First Co. states that most space-constrained blower-coil systems currently sold include a high-efficiency ECM motor. (First Co., No 93 at pp. 1–2) Brushless permanent magnet motors (often referred to as “ECM”) are more efficient than PSC motors. Thus, 406 W/1000 scfm is not representative of the field operation of space-constrained blower-coil systems being sold. DOE's provisional analysis presented in the October 2016 NODA is consistent with First Co.'s claims, showing that higher-efficiency motors typically used in space-constrained blower-coil systems sold today consume less than 406 W/1000 scfm, resulting in a higher SEER2 level for space-constrained blower-coil systems compared to space-constrained coil-only systems. DOE did not receive any additional comments or data regarding the SEER2 level for space-constrained heat pumps. For these reasons, DOE finds that a higher SEER2 level for space-constrained heat pumps—which is based on blower-coil performance—compared to space-constrained air-conditioners—which is based on coil-only performance—is appropriate. DOE adopts its provisional translation of 11.9 SEER2 for space-constrained heat pumps for these reasons.
DOE provided a response to First Co.'s comment regarding the required coil-only test for testing of space constrained products in the November 30, 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 146–148)
The benefits and costs of the proposed amended standards can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) The annualized national economic value (expressed in 2015$) of the benefits from operation of products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of emission reductions, including CO
Estimates of annualized benefits and costs of the proposed amended standards for central air conditioners and heat pumps, expressed in 2015$, are shown in Table II–6. The results under the primary estimate are as follows.
Using a 7-percent discount rate for benefits and costs other than CO
Using a 3-percent discount rate for all benefits and costs and the average SCC series that uses a 3-percent discount rate ($40.6/t in 2015), the estimated cost of the proposed standards is $747 million per year in increased product costs,
DOE also notes that, using a 7-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $300 million per year. Using a 3-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $741 million per year.
DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the
Submitting comments via
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Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
The regulatory reviews conducted for this proposed rule are identical to those conducted for the direct final rule published elsewhere in this
The Secretary of Energy has approved publication of this proposed rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
For the reasons set forth in the preamble, DOE proposes to amend part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
(c)
(2) In addition to meeting the applicable requirements in paragraph (c)(1) of this section, products in product class (i) of paragraph (c)(1) of this section (
(3)(i) In addition to meeting the applicable requirements in paragraph (c)(1) of this section, products in product classes (i) and (iii) of paragraph (c)(1) of this section (
(ii) Any outdoor unit model that has a certified combination with a rating below 14 SEER or the applicable EER cannot be installed in this region. The least-efficient combination of each basic model must comply with this standard.
(5) Central air conditioners and central air conditioning heat pumps manufactured on or after January 1, 2023, must have Seasonal Energy Efficiency Ratio 2 and Heating Seasonal Performance Factor 2 not less than:
(6)(i) In addition to meeting the applicable requirements in paragraph (c)(5) of this section, products in product classes (i) and (iii) of paragraph (c)(5) of this section (
(ii) Any outdoor unit model that has a certified combination with a rating below the applicable standard level(s) for a region cannot be installed in that region. The least-efficient combination of each basic model must comply with this standard.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2013–03–12 for all Dassault Aviation Model MYSTERE–FALCON 50 airplanes. AD 2013–03–12 currently requires revising the maintenance program to incorporate new or revised maintenance requirements and airworthiness limitations. Since we issued AD 2013–03–12, the manufacturer has issued a revision to the airplane maintenance manual (AMM) that introduces new or more restrictive maintenance requirements and/or airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or revised maintenance requirements and airworthiness limitations. We are proposing this AD to prevent reduced structural integrity of the airplane.
We must receive comments on this proposed AD by February 21, 2017.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On February 1, 2013, we issued AD 2013–03–12, Amendment 39–17347 (78 FR 9798, February 12, 2013) (“AD 2013–03–12”). AD 2013–03–12 requires actions intended to address an unsafe condition on all Dassault Aviation Model MYSTERE–FALCON 50 airplanes. Since we issued AD 2013–03–12, the manufacturer has issued a revision to the AMM that introduces new or more restrictive maintenance requirements and/or airworthiness limitations.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016–0067, dated April 7, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE–FALCON 50 airplanes. The MCAI states:
The airworthiness limitations and maintenance requirements for the Mystère Falcon 50 type design are included in DA Mystère Falcon 50 Aircraft Maintenance Manual (AMM) chapter 5–40 and are approved by EASA.
Failure to implement these limitations or accomplish these tasks could result in an unsafe condition [reduced structural integrity of the airplane]. Consequently, compliance with these actions has been identified as mandatory for continued airworthiness.
Consequently, EASA issued AD 2011–0246 [which corresponds to FAA AD 2013–03–12] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in DA Mystère Falcon 50 AMM chapter 5–40 Revision 21.
Since that [EASA] AD was issued, DA issued revision 23 of the Mystere Falcon 50 AMM chapter 5–40 (hereafter referred to as `the ALS' in this [EASA] AD), which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.
The ALS introduces, among others, the following changes:
For the reasons described above, this [EASA] AD, retains the requirements of EASA AD 2011–0246, which is superseded, and requires the implementation of the maintenance tasks and airworthiness limitations, as specified in the ALS.
This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate
Dassault Aviation has issued Section 05–40/00, Airworthiness Limitations, of Chapter 5–40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 23, dated July 2015. The service information describes maintenance requirements and/or airworthiness limitations. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This AD requires revisions to certain operator maintenance documents to include new actions (
We estimate that this proposed AD affects 249 airplanes of U.S. registry.
The actions required by AD 2013–03–12, and retained in this proposed AD, take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2013–03–12 is $85 per product.
We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $21,165, or $85 per product.
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; 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 February 21, 2017.
(1) This AD replaces AD 2013–03–12, Amendment 39–17347 (78 FR 9798, February 12, 2013) (“AD 2013–03–12”).
(2) This AD affects AD 2010–26–05, Amendment 39–16544 (75 FR 79952, December 21, 2010) (“AD 2010–26–05”), and AD 2012–02–18, Amendment 39–16941 (77 FR 12175, February 29, 2012) (“AD–2012–02–18”).
This AD applies to Dassault Aviation Model MYSTERE–FALCON 50 airplanes, certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 05, Periodic inspections.
This AD was prompted by a manufacturer revision to the airplane maintenance manual (AMM) that introduces new or more restrictive maintenance requirements and/or airworthiness limitations. We are issuing this AD to prevent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2013–03–12, with no changes. Within 30 days after March 19, 2013 (the effective date of AD 2013–03–12): Revise the maintenance program to incorporate all airworthiness limitations and maintenance tasks specified in Section 05–40/00, Airworthiness Limitations, of Chapter 5–40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual,
This paragraph restates the requirements of paragraph (h) of AD 2013–03–12, with a new exception. Except as required by paragraph (i) of this AD: After accomplishing the revisions required by paragraph (g) of this AD, no alternative actions (
Within 30 days after the effective date of this AD: Revise the maintenance or inspection program, as applicable, to incorporate airworthiness limitations, maintenance tasks, and associated thresholds and intervals specified in Section 05–40/00, Airworthiness Limitations, of Chapter 5–40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 23, dated July 2015. The initial compliance times for the tasks are at the applicable times specified in Section 05–40/00, Airworthiness Limitations, of Chapter 5–40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 23, dated July 2015, or within 30 days after the effective date of this AD, whichever occurs later. Accomplishing the revision of the maintenance or inspection program required by this paragraph terminates the requirements of paragraph (g) of this AD.
After the maintenance or inspection program has been revised as required by paragraph (i) of this AD, no alternative actions (
Accomplishing the actions required by paragraph (g) or (i) of this AD terminates all requirements of AD 2010–26–05 and AD 2012–02–18 for the Dassault Aviation Model MYSTERE–FALCON 50 airplanes specified in those ADs.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016–0067, dated April 7, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2007–13–08, for certain Airbus Model A318, A319, A320, and A321 series airplanes. AD 2007–13–08 currently requires repetitive inspections of the auxiliary power unit (APU) starter motor, APU inlet plenum, and APU air intake for discrepancies; repetitive cleaning of the APU air intake, and applicable corrective actions. Since we issued AD 2007–13–08, a determination was made that the unsafe condition could occur on additional airplanes. This proposed AD would expand the applicability in AD 2007–13–08, and include an optional terminating installation for the repetitive actions. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by February 21, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Airbus, Airworthiness Office–EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email:
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1405; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On June 12, 2007, we issued AD 2007–13–08, Amendment 39–15112 (72 FR 33877, June 20, 2007) (“AD 2007–13–08”), for certain Airbus Model A318, A319, A320, and A321 series airplanes. AD 2007–13–08 was prompted by mandatory continuing airworthiness information issued by an airworthiness authority of another country to identify and correct an unsafe condition on an aviation product. AD 2007–13–08 currently requires repetitive inspections of the APU starter motor, APU inlet plenum, and APU air intake for discrepancies; repetitive cleaning of the APU air intake, and applicable corrective actions. We issued AD 2007–13–08 to detect and correct reverse flow during APU startup, leading to flame propagation in the APU air inlet and intake duct. Such conditions could result in an in-flight fire in the APU area.
Since we issued AD 2007–13–08, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016–0176, dated August 31, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, A320, and A321 airplanes. The MCAI states:
An operator reported black smoke at the rear of the fuselage during taxi after landing. The smoke was caused by a fire in the auxiliary power unit (APU) air intake. The subsequent analysis demonstrated that, following numerous unsuccessful APU start attempts in flight, there is a risk of reverse flow leading to flame propagation to the APU air inlet and air intake duct.
This condition, if not detected and corrected, could result in an in-flight fire in the APU area.
Prompted by these findings, Airbus issued Service Bulletin (SB) A320–49–1068 to provide inspection and cleaning instructions. The applicable Flight Crew Operating Manual (FCOM) already contained a limitation for the number of APU start attempts, as follows:
To address this potential unsafe condition, EASA issued AD 2006–0153 to require repetitive inspections of the APU starter motor, APU inlet plenum and APU air intake [for discrepancies], as well as repetitive cleaning of the APU air intake [and applicable corrective actions].
As the reverse flow inside the APU can only occur in flight with the APU inlet closed, various modifications (mod) were developed to introduce a new electronic control box (ECB) with associated software, the functionality of which keeps the APU inlet door open for 15 minutes, following an APU auto-shutdown in flight. Consequently, AD 2006–0153 was revised [which corresponds to FAA AD 2007–13–08], reducing the Applicability by excluding certain post-mod aeroplanes, and introducing these modifications as optional terminating actions.
After EASA AD 2006–0153R2 was issued, it was determined that, as an APU ECB can be replaced (or moved from one aeroplane to another) in service, inadvertently installing a pre-mod ECB would reintroduce the unsafe condition. Prompted by this finding, EASA issued AD 2016–0159, retaining the requirements of EASA AD 2006–0153R2, which was superseded, expanding the Applicability and including references to additional optional terminating actions.
Since EASA AD 2016–0159 was issued, it was determined that paragraph (5) of the [EASA] AD contained some erroneous statements, inadvertently excluding certain aeroplanes, those that have Airbus mod 23698 or mod 24498 embodied in production, from the repetitive actions.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016–0159, which is superseded, and corrects paragraph (5). For post-mod aeroplanes where, inadvertently, an `affected' ECB has been installed in service, this AD adds the requirement to restore those aeroplanes to post-mod configuration by installation of a `serviceable' ECB. This [EASA] AD also introduces some editorial changes, not affecting the required actions.
Discrepancies include a defective APU starter motor, misaligned brush wear indicator-pin, oil contamination of the brush wear indicator, and dirt, debris, dust, sand, oil, combustible residues, grease and other contaminations of the APU inlet plenum. Corrective actions include replacement of the APU starter motor and cleaning the APU air intake, if necessary. You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Service Bulletin A320–49–1068, Revision 01, dated February 2, 2006. The service information describes procedures for repetitive inspections for discrepancies of the APU starter motor, APU inlet plenum, and APU air intake, as well as repetitive cleaning of the APU air intake and applicable corrective actions.
Airbus has also issued the following service information, which describes procedures for replacing the ECB. These documents are distinct since they apply to different airplane models in different configurations.
• Airbus Service Bulletin A320–49–1070, dated July 28, 2006.
• Airbus Service Bulletin A320–49–1075, Revision 01, dated December 1, 2006.
• Airbus Service Bulletin A320–49–1077, Revision 04, dated February 27, 2013.
• Airbus Service Bulletin A320–49–1098, dated June 21, 2011.
• Airbus Service Bulletin A320–49–1102, dated January 3, 2012.
• Airbus Service Bulletin A320–49–1107, Revision 02, dated May 10, 2016.
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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 1,182 airplanes of U.S. registry.
The actions required by AD 2007–13–08, and retained in this proposed AD, take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2007–13–08 is $340 per product.
We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $401,880, or $340 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
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; 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 February 21, 2017.
This AD replaces AD 2007–13–08, Amendment 39–15112 (72 FR 33877, June 20, 2007) (“AD 2007–13–08”).
This AD applies to Airbus airplanes identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD, all manufacturer serial numbers, certificated in any category.
(1) Model A318–111, –112, –121, and –122 airplanes.
(2) Model A319–111, –112, –113, –114, –115, –131, –132, and –133 airplanes.
(3) Model A320–211, –212, –214, –231, –232, and –233 airplanes.
(4) Model A321–111, –112, –131, –211, –212, –213, –231, and –232 airplanes.
Air Transport Association (ATA) of America Code 49, Airborne Auxiliary Power.
This AD was prompted by a report of a fire in the auxiliary power unit (APU) air intake. An analysis demonstrated that, following numerous unsuccessful APU start attempts in flight, there is a risk of reverse airflow, leading to flame propagation to the APU air inlet and air intake duct. This AD was also prompted by the determination that AD 2007–13–08 only addresses the unsafe condition for certain airplanes. We are issuing this AD to detect and correct reverse flow during APU startup, leading to flame propagation in the APU air inlet and intake duct. Such conditions could result in an in-flight fire in the APU area.
Comply with this AD within the compliance times specified, unless already done.
Except as provided by paragraph (i) of this AD, within 600 flight hours after July 25, 2007 (the effective date of AD 2007–13–08), or within 60 days after the effective date of this AD, whichever occurs later: Inspect the APU starter motor, APU air inlet plenum, and APU air intake of each affected APU identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD for discrepancies; and do all applicable corrective actions before further flight; in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–49–1068, Revision 01, dated February 2, 2006. Repeat the inspection thereafter at intervals not to exceed 600 flight hours.
Except as provided by paragraph (i) of this AD, prior to the accumulation of 2,400 flight hours since first flight of the airplane, or within 600 flight hours after July 25, 2007 (the effective date of AD 2007–13–08), or within 60 days after the effective date of this AD, whichever occurs latest, unless accomplished previously in accordance with Airbus Service Bulletin A320–49–1098,
(1) For airplanes equipped with an APU and associated ECB part number identified in table 2 to paragraphs (i)(1), (i)(2), and (j) of this AD, the actions specified in paragraphs (g) and (h) of this AD are not required.
(2) For airplanes on which Airbus Modification 35803, 35936, 152289, 152645, 155015, or 157848 has been embodied in production, the actions specified in paragraphs (g) and (h) of this AD are not required provided that, within 30 days after the effective date of this AD, the applicable actions specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD are done.
(i) The part number of the installed ECB is identified.
(ii) Any affected ECB identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD that is found to be installed is replaced with an ECB having a part number identified in table 2 to paragraphs (i)(1), (i)(2), and (j) of this AD, as applicable to the APU installed on the airplane; and the replacement is done in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (i)(2)(ii)(A), (i)(2)(ii)(B), (i)(2)(ii)(C), (i)(2)(ii)(D), (i)(2)(ii)(E), or (i)(2)(ii)(F) of this AD; or using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency (EASA), or Airbus's EASA Design Organization Approval (DOA).
(A) Airbus Service Bulletin A320–49–1070, dated July 28, 2006.
(B) Airbus Service Bulletin A320–49–1075, Revision 01, dated December 1, 2006.
(C) Airbus Service Bulletin A320–49–1077, Revision 04, dated February 27, 2013.
(D) Airbus Service Bulletin A320–49–1098, dated June 21, 2011.
(E) Airbus Service Bulletin A320–49–1102, dated January 3, 2012.
(F) Airbus Service Bulletin A320–49–1107, Revision 02, dated May 10, 2016.
(3) For airplanes on which an APU ECB having a part number approved after the effective date of this AD is installed, the actions specified in paragraphs (g) and (h) of this AD are not required, provided the conditions specified in paragraphs (i)(3)(i) and (i)(3)(ii) of this AD are met.
(i) The part number must be approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.
(ii) The installation must be accomplished in accordance with airplane modification instructions approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.
Replacing an affected ECB identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD with an ECB having a part number identified in table 2 to paragraphs (i)(1), (i)(2), and (j) of this AD, as applicable to the APU installed on the airplane, constitutes terminating action for the repetitive inspections required by paragraphs (g) and (h) of this AD. The replacement must be done in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (i)(2)(ii) (A), (i)(2)(ii)(B), (i)(2)(ii)(C), (i)(2)(ii)(D), (i)(2)(ii)(E), or (i)(2)(ii)(F) of this AD, or using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA.
As of the effective date of this AD, no person may install on any airplane an APU with an associated ECB identified in table 1 to paragraphs (g), (h), (i)(2), (j), and (k) of this AD.
This paragraph provides credit for actions specified in paragraphs (i)(2) and (j) of this AD, if those actions were performed before the effective date of this AD using any of the service information specified in paragraphs (l)(1) through (l)(7) of this AD.
(1) Airbus Service Bulletin A320–49–1075, dated September 22, 2006, which was incorporated by reference in AD 2007–13–08.
(2) Airbus Service Bulletin A320–49–1077, dated March 21, 2007, which is not incorporated by reference in this AD.
(3) Airbus Service Bulletin A320–49–1077, Revision 01, dated August 9, 2007, which is not incorporated by reference in this AD.
(4) Airbus Service Bulletin A320–49–1077, Revision 02, dated July 1, 2008, which is not incorporated by reference in this AD.
(5) Airbus Service Bulletin A320–49–1077, Revision 03, dated December 8, 2008, which is not incorporated by reference in this AD.
(6) Airbus Service Bulletin A320–49–1107, dated November 5, 2013, which is not incorporated by reference in this AD.
(7) Airbus Service Bulletin A320–49–1107, Revision 01, dated July 28, 2015, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(i) 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. The AMOC approval letter must specifically reference this AD.
(ii) AMOCs approved previously for AD 2007–13–08 are approved as AMOCs for the corresponding provisions of paragraphs (g) and (h) of this AD.
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016–0176, dated August 31, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus, Airworthiness Office–EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 707 airplanes and Model 720 and 720B series airplanes. This proposed AD was prompted by a determination that undetected web fatigue cracking caused by oil canning may exist in the station 1440 aft pressure bulkhead web. This proposed AD would require repetitive detailed inspections for any oil canning or cracking of the station 1440 aft pressure bulkhead web, and related corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by February 21, 2017.
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 NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone: 562–797–1717; Internet:
You may examine the AD docket on the Internet at
George Garrido, Aerospace Engineer, Airframe Branch, ANM–120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5232; fax: 562–627–5210; 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 have determined that undetected web fatigue cracking caused by oil canning may exist in the station 1440 aft pressure bulkhead Web. Oil canning is defined as a locally buckled forward area of the aft pressure bulkhead web between the radial stiffeners and the circumferential tear straps, which can pop outward when the fuselage is pressurized, causing a stress reversal cycle during each flight that may lead to fatigue cracking of the aft pressure bulkhead web. Oil canning may lead to cracking and related damage (including sharp creases; gouges; cracks; deformation to a radial stiffener, circumferential tear strap, Y-chord, or terminal fitting splice plate; or damaged holes) or irregularity (including loose or missing fasteners, pressure leakage, fasteners within 1 inch of any oil canning location, or an oil canning location within 2 inches of another oil canning location). This condition, if not corrected, could result in an undetected fatigue crack in the aft pressure bulkhead web growing to a length that could result in reduced structural integrity of the web and lead to rapid decompression of the airplane.
We reviewed Boeing 707 Alert Service Bulletin A3543, dated September 15, 2016 (“ASB A3543, Revision 0”). The service information describes procedures for repetitive detailed inspections for any oil canning or cracking of the station 1440 aft pressure bulkhead web, and related 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 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 these same type designs.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at
The phrase “related investigative actions” is used in this proposed AD. Related investigative actions are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
ASB A3543, Revision 0, specifies to contact the manufacturer for certain instructions, but this proposed AD would require using repair methods, modification deviations, and alteration deviations in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We estimate that this proposed AD affects 12 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any additional inspections that would be required based on the results of the initial proposed inspection. These cost estimates are for one canning location. We have no way of determining the number of aircraft that might need these actions:
We have received no definitive data that would enable us to provide cost estimates for certain corrective actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
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, 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 February 21, 2017.
None.
This AD applies to the airplanes, certificated in any category, as identified in Boeing 707 Alert Service Bulletin A3543, dated September 15, 2016 (“ASB A3543, Revision 0”), and in paragraphs (c)(1) and (c)(2) of this AD.
(1) The Boeing Company Model 707–100 Long Body, –200, –100B Long Body, and –100B Short Body series airplanes; and Model 707–300, –300B, –300C, and –400 series airplanes.
(2) The Boeing Company Model 720 and 720B series airplanes.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a determination that undetected web fatigue cracking caused by oil canning may exist in the station 1440 aft pressure bulkhead web. We are issuing this AD to detect and correct fatigue cracking of the aft pressure bulkhead web, which could grow in length and ultimately reduce the structural integrity of the web and lead to rapid decompression of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0, except as required by paragraph (h)(1) of this AD: Do all applicable actions specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, in accordance with the Accomplishment Instructions of ASB A3543, Revision 0, except as required by paragraph (h)(2) of this AD.
(1) Do a detailed inspection of the station 1440 aft pressure bulkhead web for any oil canning. Repeat the inspection at the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0.
(2) Do all applicable related investigative actions, including detailed, eddy current, and high frequency eddy current (HFEC) inspections. Repeat the applicable inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0.
(3) Do all applicable corrective actions at the applicable time specified in paragraph 1.E., “Compliance,” of ASB A3543, Revision 0.
(1) Where ASB A3543, Revision 0, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Where Boeing Alert Service Bulletin A3543, dated September 15, 2016, specifies to contact Boeing for repair instructions, and specifies that action as Required for Compliance (RC), this AD requires repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the airplane can be repaired, but if any crack is found as identified in ASB A3543, Revision 0, concurrence by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA, is required before issuance of the special flight permit.
(1) The Manager, Los Angeles 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 (k)(1) 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, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (h) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact George Garrido, Aerospace Engineer, Airframe Branch, ANM–120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5232; fax: 562–627–5210; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone: 562–797–1717; Internet:
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking; notice of proposed rulemaking by cross-reference to temporary regulation.
This document contains proposed regulations under chapter 4 of Subtitle A (sections 1471 through 1474) of the Internal Revenue Code of 1986 (Code) describing the verification requirements (including certifications of compliance) and events of default for entities that agree to perform the chapter 4 due diligence, withholding, and reporting requirements on behalf of certain foreign financial institutions (FFIs) or the chapter 4 due diligence and reporting obligations on behalf of certain non-financial foreign entities. These proposed regulations also describe the certification requirements and procedures for IRS's review of certain trustees of trustee-documented trusts and the procedures for IRS's review of periodic certifications provided by registered deemed-compliant FFIs. In addition, these proposed regulations describe the procedures for future modifications to the requirements for certifications of compliance for participating FFIs. These proposed regulations also describe the requirements for certifications of compliance for participating FFIs that are members of consolidated compliance groups. In addition, in the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by April 6, 2017.
Send submissions to: CC:PA:LPD:PR (REG–103477–14), Internal Revenue Service, Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–103477–14), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224; or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Kamela Nelan, (202) 317–6942; concerning submissions of comments and/or requests for a public hearing, Regina Johnson, (202) 317–6901 (not toll free numbers).
Sections 1471 through 1474 under chapter 4 of Subtitle A (chapter 4) were added to the Code on March 18, 2010, as part of the Hiring Incentives to Restore Employment Act of 2010, Public Law 111–147. Chapter 4 (commonly known as the Foreign Account Tax Compliance Act, or FATCA) generally requires withholding agents to withhold tax on certain payments to foreign financial institutions (FFIs) that do not agree to report certain information to the IRS regarding their U.S. accounts under section 1471(b)(1). Chapter 4 also generally requires withholding agents to withhold tax on certain payments to certain non-financial foreign entities (NFFEs) that do not provide to the withholding agent information on their substantial United States owners (substantial U.S. owners) or a certification that they have no such owners. On January 28, 2013, final regulations (TD 9610) under chapter 4 were published in the
To address situations where foreign law would prevent an FFI from reporting directly to the IRS the information required by chapter 4, the Treasury Department, in collaboration with certain foreign governments, developed two alternative model intergovernmental agreements, known as the Model 1 IGA and the Model 2 IGA. Under the Model 1 IGA, an FFI that is treated as a reporting Model 1 FFI is treated as complying with and not subject to withholding under section 1471 provided that the FFI complies with the requirements specified in the Model 1 IGA and reports information about its U.S. accounts to the Model 1 IGA jurisdiction, which is followed by the automatic exchange of that information on a government-to-government basis with the United States. Under the Model 2 IGA, an FFI that is treated as a reporting Model 2 FFI follows the terms of the FFI agreement and reports information about U.S. accounts directly to the IRS. See Revenue Procedure 2014–38, 2014–29 I.R.B. 131, as may be amended, for the FFI agreement. An FFI identified as a nonreporting financial institution pursuant to a Model 1 or Model 2 IGA is not required to report information on U.S. accounts unless specifically required as a condition of its applicable chapter 4 status.
The chapter 4 regulations permit certain FFIs and NFFEs to be sponsored by other entities for purposes of satisfying their chapter 4 requirements. Under the 2013 final regulations, an FFI treated as complying with the requirements of section 1471(b)(1) (a deemed-compliant FFI) includes a sponsored FFI. In addition, the 2014 temporary regulations provide that a NFFE excepted from providing information regarding its substantial U.S. owners to a withholding agent (an excepted NFFE) includes a NFFE that is a direct reporting NFFE or a sponsored direct reporting NFFE. In the preamble to the 2014 temporary regulations, the Treasury Department and IRS announced that regulations describing the verification requirements of a sponsoring entity of a sponsored FFI or sponsored direct reporting NFFE (sponsored entities) would be proposed and issued separately from the 2014 temporary regulations.
The chapter 4 regulations provide two general categories of deemed-compliant FFIs: Registered deemed-compliant FFIs and certified deemed-compliant FFIs. A registered deemed-compliant FFI includes an FFI that satisfies the requirements of § 1.1471–5(f)(1)(i)(F)(
The Model 1 and Model 2 IGAs treat certain financial institutions as nonreporting financial institutions. Under Annex II of the Model 1 IGA, a nonreporting financial institution that is a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle is treated as a deemed-compliant FFI for purposes of section 1471. A sponsoring entity of a
Under the Model 1 and Model 2 IGAs, a nonreporting financial institution includes a financial institution that “otherwise qualifies as a deemed-compliant FFI . . . under relevant U.S. Treasury Regulations.” Thus, a financial institution covered by a Model 1 or Model 2 IGA may choose to qualify as a sponsored investment entity, controlled foreign corporation, or closely held investment vehicle pursuant to § 1.1471–5(f) instead of Annex II of the Model 1 or Model 2 IGA. In such a case, the financial institution must satisfy all of the requirements applicable to such an entity in the regulations, including the requirement for the sponsoring entity to report information directly to the IRS, even in the case of a financial institution covered by a Model 1 IGA.
Under Annex II of the Model 2 IGA, a financial institution that is a sponsored investment entity or sponsored controlled foreign corporation is treated as a registered deemed-compliant FFI, and a financial institution that is a sponsored, closely held investment vehicle is treated as a certified deemed-compliant FFI. A sponsoring entity of a sponsored entity subject to a Model 2 IGA agrees to perform, on behalf of the sponsored entity, all of the due diligence, withholding, reporting, and other requirements that the sponsored entity would have been required to perform if it were a reporting Model 2 FFI. As a result, the sponsoring entity of a sponsored entity subject to a Model 2 IGA registers with the IRS and reports to the IRS with respect to financial accounts of the sponsored entity. Annex II of the Model 2 IGA also provides that a registered deemed-compliant FFI must register with the IRS on the FATCA registration Web site and have its responsible officer certify every three years to the IRS that all of the requirements for the deemed-compliant category claimed by the financial institution have been satisfied since July 1, 2014.
The Model 1 and Model 2 IGAs treat certain FFIs that are trusts as nonreporting financial institutions. Under Annex II of the Model 1 IGA, a financial institution that is a trustee-documented trust is treated as a deemed-compliant FFI. Under Annex II of the Model 2 IGA, a financial institution that is a trustee-documented trust is treated as a certified deemed-compliant FFI. Under both the Model 1 IGA and the Model 2 IGA, a trust qualifies as a trustee-documented trust provided that the trustee of the trust is a U.S. financial institution, reporting Model 1 FFI, or participating FFI that reports all of the information required to be reported pursuant to the IGA with respect to U.S. accounts or U.S. reportable accounts (as applicable) of the trust. A trustee of a trustee-documented trust subject to a Model 1 or Model 2 IGA should register with the IRS. A trustee of a trustee-documented trust subject to a Model 2 IGA reports to the IRS with respect to the trust, whereas a trustee of a trustee-documented trust subject to a Model 1 IGA reports to the applicable Model 1 IGA jurisdiction.
Section 1472(c)(1)(G) permits the Treasury Department and IRS to issue regulations exempting withholding agents from withholding or reporting under section 1472(a) with respect to payments beneficially owned by certain persons identified by the Treasury Department and IRS, which are referred to in the chapter 4 regulations as excepted NFFEs. As noted in Part II.A of this Background, the 2014 temporary regulations include direct reporting NFFEs as a class of excepted NFFEs.
A direct reporting NFFE is a NFFE that elects to report information about its substantial U.S. owners directly to the IRS (rather than to the withholding agent) and that meets the requirements of § 1.1472–1(c)(3). A direct reporting NFFE may elect to be treated as a sponsored direct reporting NFFE if another entity, other than a nonparticipating FFI, agrees to act as its sponsoring entity for performing all of the due diligence, reporting, and other requirements that the NFFE would have been required to perform as a direct reporting NFFE. The sponsoring entity of a sponsored direct reporting NFFE must register with the IRS as a sponsoring entity and must also register the NFFE with the IRS as a sponsored direct reporting NFFE as required in the chapter 4 regulations. The sponsoring entity must also comply with the verification procedures and other compliance-related requirements provided in the regulations. The 2014 temporary regulations reserve on the verification procedures and the events of default for a sponsoring entity of a sponsored direct reporting NFFE.
Under section VI(b) of Annex I of the Model 1 and Model 2 IGAs, an active NFFE includes a NFFE that is treated as an excepted NFFE under the chapter 4 regulations. An active NFFE (including a direct reporting NFFE) does not need to be reported as a U.S. account by a reporting Model 1 FFI or reporting Model 2 FFI with which the NFFE holds an account.
Under the chapter 4 regulations, a participating FFI is required to establish and implement a compliance program for satisfying its requirements under § 1.1471–4. The responsible officer of the FFI must periodically certify to the IRS that the FFI maintains effective internal controls or, if the responsible officer cannot make this certification, he or she must make a qualified certification. If there is an event of default, the IRS will notify the FFI and request remediation. The FFI must respond to the notice of default and provide information to the IRS. If the FFI does not provide a response, the IRS may deliver a notice of termination that terminates the FFI's participating FFI status.
The chapter 4 regulations permit a participating FFI that is a member of an expanded affiliated group to elect to be part of a consolidated compliance program under the authority of a participating FFI, reporting Model 1 FFI, or U.S. financial institution that is a member of the same expanded affiliated group (compliance FI). The compliance FI must establish and maintain the consolidated compliance program and perform a consolidated periodic review on behalf of each member FFI that elects to be part of the consolidated compliance program (electing FFI).
An FFI may be a registered deemed-compliant FFI if it meets the requirements of a class of FFIs specified in § 1.1471–5(f)(1). Certain classes of registered deemed-compliant FFIs have compliance obligations as a condition of their status under this section. For example, a registered deemed-compliant FFI that is a nonreporting member of a participating FFI group under § 1.1471–5(f)(1)(i)(B) must monitor its accounts to ensure that it identifies any account that becomes a U.S. account or an account held by a recalcitrant account holder or
These proposed regulations provide verification requirements for a sponsoring entity of a sponsored FFI that are generally similar to the verification requirements for a compliance FI. See Part IV of this Explanation of Provisions for the verification requirements for consolidated compliance programs. Under these proposed regulations, a sponsoring entity must maintain a compliance program to oversee its compliance with respect to each sponsored FFI for purposes of satisfying the deemed-compliant status requirements of § 1.1471–5(f)(1)(i)(F) or (f)(2)(iii) or an applicable Model 2 IGA. The deemed-compliant status requirements include: (i) The assumption by the sponsoring entity of due diligence, withholding, and reporting obligations on behalf of each sponsored FFI, and (ii) compliance with the additional requirements for status as a sponsoring entity, such as registering with the IRS.
These proposed regulations consolidate all of the verification requirements for a sponsoring entity. The 2014 temporary regulations, in § 1.1471–5T(f)(1)(i)(F)(
These proposed regulations also require that a sponsoring entity appoint a responsible officer (as defined in § 1.1471–1(b)(116) of these proposed regulations) to oversee the compliance of the sponsoring entity with respect to each sponsored FFI for purposes of satisfying the requirements of § 1.1471–5(f)(1)(i)(F) or (f)(2)(iii) or of an applicable Model 2 IGA. The responsible officer must certify to the IRS by July 1 of the calendar year following the end of each certification period that the sponsoring entity is compliant with the requirements to be a sponsoring entity and maintains effective internal controls with respect to all sponsored FFIs for which it acts (or provides a qualified certification) on the form and in the manner prescribed by the IRS. A sponsored FFI is not required to appoint its own responsible officer. Although the preamble to the 2014 temporary regulations states that under proposed regulations a sponsoring entity would be required to make two separate compliance certifications (one on behalf of its sponsored FFI(s) and another on the sponsoring entity's own behalf), the Treasury Department and IRS have determined that a single certification is sufficient for this purpose.
Under these proposed regulations, in general, a sponsoring entity must make a certification regarding its compliance with respect to all sponsored FFIs for which it acts during the certification period. However, with respect to a certification period, a sponsoring entity is generally not required to certify for a sponsored FFI that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored FFI for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity. However, the preceding sentence does not apply with respect to a sponsored FFI that, immediately before the FFI agrees to be sponsored by the sponsoring entity, was a participating FFI, registered deemed-compliant FFI, or sponsored, closely held investment vehicle. The sponsoring entity may certify for a sponsored FFI described in the preceding sentence for the portion of the certification period prior to the date that the FFI first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the FFI (or the FFI's sponsoring entity, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity. The first certification period begins on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014.
The requirements for the certification of compliance may be modified to include additional certifications or information (such as quantitative or factual information related to the sponsoring entity's compliance), provided that such additional information or certifications are published at least 90 days before being made effective in order to allow for public comment. The Treasury Department and IRS intend to coordinate any such modification to the requirements for the certification of compliance for sponsoring entities with any modification to the requirements for the certification of compliance for participating FFIs. See Part IV of this Explanation of Provisions for certifications required by participating FFIs.
These proposed regulations provide that the responsible officer of a sponsoring entity must make the certification described in § 1.1471–4(c)(7) (preexisting account certification of a participating FFI) with respect to each sponsored FFI that enters into the sponsorship agreement with the sponsoring entity during the certification period. However, with respect to a certification period, the preexisting account certification is not required for a sponsored FFI if, immediately before it first agrees to be sponsored by the sponsoring entity, the FFI was a participating FFI, a sponsored FFI, or a registered deemed-compliant FFI that is a local FFI or a restricted fund, and the FFI (or the FFI's former sponsoring entity, if applicable) provides a written certification to the sponsoring entity that the FFI has made the preexisting account certification required of it, provided that the sponsoring entity does not know that such certification is unreliable or incorrect. Furthermore, since a participating FFI could have up to two years to complete the required due diligence on its preexisting accounts under § 1.1471–4(c)(3)(ii) and (c)(5)(i), the preexisting account certification is not required for a sponsored FFI that first agrees to be sponsored by the sponsoring entity during the two year period prior to the end of such certification period, provided that the
These proposed regulations permit the IRS to make general inquiries to a sponsoring entity regarding its compliance with its applicable requirements, similar to the general inquiries the IRS may make to a participating FFI with respect to its compliance (as provided in final regulations under chapter 4 published together with the temporary chapter 4 regulations). These proposed regulations provide that the IRS may request any additional information from the sponsoring entity (including a copy of the sponsorship agreement that the sponsoring entity has entered into with each sponsored FFI) necessary to determine its compliance with the due diligence, withholding, and reporting requirements of § 1.1471–4 or an applicable Model 2 IGA with respect to each sponsored FFI and to assist the IRS with its review of account holder compliance with tax reporting requirements. These proposed regulations also provide that if the IRS determines that the sponsoring entity may not have substantially complied with the requirements of a sponsoring entity with respect to any sponsored FFI for which it acts, the IRS may make inquiries to the sponsoring entity regarding its compliance with the requirements of a sponsoring entity and may request the performance of specified review procedures. Inquiries regarding the compliance of a sponsoring entity with respect to a sponsored FFI subject to the requirements of an applicable Model 2 IGA will be made using the procedures described in these proposed regulations, except as otherwise provided in an applicable Model 2 IGA.
These proposed regulations describe the events of default for a sponsoring entity and the termination procedures following an event of default. The Treasury Department and IRS recognize that some events of default may relate only to a particular sponsored FFI (or several such FFIs) for which the sponsoring entity acts and thus should not affect the statuses of other sponsored FFIs for which the sponsoring entity acts or the status of the sponsoring entity. In other cases, an event of default may relate to a sponsoring entity's failure to comply with its own requirements, such as when it fails to establish and maintain a compliance program or perform a periodic review. Accordingly, these proposed regulations provide IRS the discretion to determine whether, based on facts and circumstances, an event of default should result in the termination of the sponsoring entity's status as a sponsoring entity, the deemed-compliant statuses of one or more sponsored FFIs, or both the status of the sponsoring entity and the statuses of one or more sponsored FFIs. If a sponsoring entity's status is terminated, the sponsoring entity may not reregister as a sponsoring entity for any sponsored FFI or any sponsored entity subject to a Model 1 IGA without prior written approval from the IRS. A sponsored FFI whose sponsoring entity's status is terminated may register on the FATCA registration Web site as a participating FFI or registered deemed-compliant FFI or may be registered on the FATCA registration Web site as a sponsored FFI of a new sponsoring entity (other than an entity that has a relationship to the terminated sponsoring entity described in section 267(b)), as applicable. However, if the sponsored FFI's status is terminated (independent of a termination of the sponsoring entity), the sponsored FFI must obtain prior written approval from the IRS in order to register as a participating FFI or registered deemed-compliant FFI or be registered as a sponsored FFI of a new sponsoring entity.
The definition of sponsored FFI in the 2013 final regulations is limited to an entity that is a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle under § 1.1471–5(f)(1)(i)(F) or § 1.1471–5(f)(2)(iii). These proposed regulations expand the definition of sponsored FFI to also include a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle treated as a deemed-compliant FFI under an applicable Model 2 IGA. These proposed regulations do not impose verification requirements or specify events of default for a sponsoring entity of a sponsored entity subject to an applicable Model 1 IGA. The obligations of such a sponsoring entity are governed by the laws and requirements of the applicable Model 1 IGA jurisdiction. However, the IRS may treat a sponsored entity covered by a Model 1 IGA as a nonparticipating FFI pursuant to Article 5(2)(b) of an applicable Model 1 IGA if the IRS determines that there is significant non-compliance with the obligations of the IGA by the sponsored entity that has not been resolved within 18 months. In addition, pursuant to the termination procedures described in the previous paragraph, the IRS may revoke the status of a sponsoring entity based on an event of default relating to one or more sponsored FFIs. Consistent with Annex II of the Model 1 IGA, such revocation would prevent the sponsoring entity from sponsoring an FFI subject to a Model 1 IGA. The IRS may also notify such Model 1 IGA jurisdiction of the revocation. A sponsored entity subject to a Model 1 IGA whose sponsor's status is terminated would need to become a reporting Model 1 FFI, obtain a new sponsor, or meet the requirements of another deemed-compliant status.
As described in Part II.B of the Background of this preamble, the Model 2 IGA allows certain sponsored FFIs to be treated as deemed-compliant FFIs and provides that the IRS may revoke a sponsoring entity's status if there is a material failure by the sponsoring entity to comply with the obligations described in Annex II of the IGA. Accordingly, the verification requirements and events of default in these proposed regulations apply to a sponsoring entity of a sponsored FFI subject to an applicable Model 2 IGA. In addition, the procedures for IRS inquiries specified in these proposed regulations apply to a sponsoring entity of a sponsored FFI subject to an applicable Model 2 IGA except to the extent otherwise provided in the applicable Model 2 IGA. Although Annex II of the Model 2 IGA permits the IRS to revoke a sponsoring entity's status upon a material failure (as described above), because the Treasury Department and IRS believe that a consistent standard for when to terminate a sponsoring entity's status should apply, these proposed regulations provide that the IRS will not revoke the status of a sponsoring entity of a sponsored FFI subject to a Model 2 IGA unless there is an event of default
These proposed regulations provide that a trustee of a trustee-documented trust subject to a Model 2 IGA shall appoint a responsible officer who will maintain a compliance program and oversee the trustee's compliance with respect to each trustee-documented trust for purposes of satisfying the requirements of an applicable Model 2 IGA. The responsible officer must perform a periodic review of the sufficiency of the trustee's compliance program for each certification period. The responsible officer must also certify to the IRS that the trustee has established a compliance program, performed a periodic review, and reported to the IRS all of the information required to be reported with respect to each trustee-documented trust for each certification period. Certain late-joining trustee-documented trusts may be excluded from a certification under rules similar to those provided in these proposed regulations for sponsored FFIs. The IRS will not unilaterally revoke the status of, or issue a notice of default to, a trustee of such a trust. Instead, subject to the requirements of an applicable Model 2 IGA, these proposed regulations permit the IRS to make inquiries to the trustee regarding its compliance with its applicable requirements and notify the Model 2 IGA jurisdiction if the trustee has not complied with its requirements with respect to one or more trustee-documented trusts established in that jurisdiction. The IRS may also notify an applicable Model 1 IGA jurisdiction of the trustee's non-compliance with respect to its requirements as a trustee of a trustee-documented trust subject to a Model 2 IGA if the trustee also acts on behalf of trustee-documented trusts in the Model 1 IGA jurisdiction or if the trustee is located in the Model 1 IGA jurisdiction.
These proposed regulations include verification requirements and the events of default for a sponsoring entity of a sponsored direct reporting NFFE. These proposed regulations also specify the requirements for a sponsorship agreement between a sponsoring entity and each sponsored direct reporting NFFE for which it acts.
Under these proposed regulations, a sponsoring entity must appoint a responsible officer to oversee the compliance of the sponsoring entity with respect to each sponsored direct reporting NFFE. The responsible officer of the sponsoring entity must make a periodic certification to the IRS on the form and in the manner prescribed by the IRS. The certification requirements of a sponsoring entity of a sponsored direct reporting NFFE are more limited than the certification requirements of a sponsoring entity of a sponsored FFI because the obligations of a sponsoring entity of a sponsored direct reporting NFFE are more limited than those of a sponsoring entity of a sponsored FFI. A sponsoring entity of a sponsored direct reporting NFFE must certify that it meets the requirements of a sponsoring entity, that it has a written sponsorship agreement that meets the requirements in these proposed regulations in effect with each sponsored direct reporting NFFE, that there have been no events of default (or that such events have been remediated), and that the sponsoring entity has corrected any failures to report on Form 8966, “FATCA Report,” with respect to any sponsored direct reporting NFFE.
In general, a sponsoring entity must make the periodic certification with respect to all sponsored direct reporting NFFEs for which it acts during the certification period. However, with respect to a certification period, a sponsoring entity is not required to certify for a sponsored direct reporting NFFE that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored direct reporting NFFE for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which the sponsored direct reporting NFFE was sponsored by the sponsoring entity. However, the preceding sentence does not apply to a sponsored direct reporting NFFE that, immediately before the NFFE agrees to be sponsored by the sponsoring entity, was a direct reporting NFFE or sponsored direct reporting NFFE of another sponsoring entity. The sponsoring entity may certify for a sponsored direct reporting NFFE described in the preceding sentence for the portion of the certification period prior to the date that the NFFE first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the NFFE (or the NFFE's sponsoring entity, if applicable) a written certification that the NFFE has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored direct reporting NFFE for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such NFFE was sponsored by the sponsoring entity. The first certification period will begin on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014.
Under these proposed regulations, the IRS may make inquiries to a sponsoring entity to determine the sponsoring entity's compliance with its requirements. The IRS may also request any additional information from the sponsoring entity (including a copy of the sponsorship agreement that the sponsoring entity has entered into with each sponsored direct reporting NFFE). If the IRS determines that the sponsoring entity may not have substantially complied with the requirements of a sponsoring entity with respect to any sponsored direct reporting NFFE for which it acts, the IRS may request additional information to verify the sponsoring entity's compliance with such requirements and may request the performance of specified review procedures.
These proposed regulations also specify the events of default and termination procedures applicable to a sponsoring entity of a sponsored direct reporting NFFE. Consistent with the verification requirements for direct reporting NFFEs in the chapter 4 regulations, a notice of default is triggered by an event of default. An event of default may result in the termination of the sponsoring entity's status as a sponsoring entity, the statuses of one or more sponsored direct reporting NFFEs as such, or both the status of a sponsoring entity and the statuses of one or more sponsored direct reporting NFFEs. A sponsored direct reporting NFFE whose sponsoring entity's status is terminated may register on the FATCA registration Web site as a direct reporting NFFE or sponsored direct reporting NFFE, unless the sponsored direct reporting NFFE's status is also terminated, in which case the sponsored direct reporting NFFE must obtain prior written approval from the IRS in order to register.
These proposed regulations provide that the requirements for a participating
These proposed regulations modify the procedures and timeframes for notices of default and terminations applicable to participating FFIs in the chapter 4 regulations to conform to the procedures and timeframes for sponsoring entities in these proposed regulations. These proposed regulations include a minimum period of 45 days for a participating FFI to respond to a notice of default. Within 30 days of a termination of an FFI's participating FFI status, the FFI must send a notice of termination to each withholding agent from which the FFI receives payments and each financial institution with which it holds an account to which a withholding certificate or other documentation was provided. Requests for reconsideration of a notice of default or a notice of termination must be made within 90 days of the notice of default or notice of termination (as applicable). An FFI that has had its participating FFI status terminated may not reregister on the FATCA registration Web site as a participating FFI or a registered deemed-compliant FFI unless it receives written approval from the IRS.
The chapter 4 regulations provide that when an FFI elects to be part of a consolidated compliance program (electing FFI), each branch that it maintains (including a limited branch or a branch described in § 1.1471–5(f)(1)) must be subject to periodic review as part of such program. These proposed regulations clarify that a branch of an electing FFI located in a Model 1 IGA jurisdiction is excluded from the periodic review. In addition, these proposed regulations clarify that the responsible officer of the compliance FI must make the periodic certification described in § 1.1471–4(f)(3) (or a qualified certification) on the form and in the manner prescribed by the IRS. In general, the certification must be made on behalf of all electing FFIs in the compliance group during the certification period. However, with respect to a certification period, a compliance FI is not required to make a certification for an electing FFI that first elects to be part of the consolidated compliance program of the compliance FI during the six month period prior to the end of the certification period, provided that the compliance FI makes certifications for such electing FFI for subsequent certification periods, and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. However, the preceding sentence does not apply to an electing FFI that, immediately before the electing FFI elects to be part of the consolidated compliance program, was a participating FFI or registered deemed-compliant FFI. The compliance FI may certify for an electing FFI described in the preceding sentence for the portion of the certification period prior to the date that the electing FFI elects to be part of the consolidated compliance program if the compliance FI obtains from the FFI (or the FFI's former compliance FI, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The compliance FI does not know that such certification is unreliable or incorrect; and (2) the certification for the electing FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. The first certification period for a compliance group begins on the later of the date the compliance FI is issued a GIIN or June 30, 2014, and ends at the close of the third full calendar year following such date. Each subsequent certification period is the three calendar year period following the previous certification period.
These proposed regulations provide that the responsible officer of a compliance FI must make the certification described in § 1.1471–4(c)(7) (preexisting account certification of a participating FFI) with respect to each electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the certification period (as defined in § 1.1471–4(f)(3)(i)). Notwithstanding the preceding sentence, a preexisting account certification is not required for an electing FFI if, immediately before electing to be part of the consolidated compliance program under the compliance FI, the FFI was a participating FFI or a registered deemed-compliant FFI that is a local FFI or restricted fund, and the FFI (or the FFI's former compliance FI, if applicable) provides a written certification to the compliance FI that the FFI has made the preexisting account certification required of it, unless the compliance FI knows that such certification is unreliable or incorrect. In addition, a preexisting account certification is not required for a certification period for an electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the two year period prior to the end of such certification period, provided that the compliance FI makes the preexisting account certification for such FFI by the due date of the certification of compliance for the subsequent certification period. The preexisting account certification, if required for a certification period, must be submitted by the due date of the FFI's periodic certification of compliance for the certification period, on the form and in the manner prescribed by the IRS.
The chapter 4 regulations do not explicitly provide that the IRS may apply verification procedures and make inquiries regarding the certifications provided by registered deemed-compliant FFIs. These proposed regulations provide that the IRS may make inquiries of, and request additional information from and the performance of specified review procedures by, a registered deemed-compliant FFI to verify the FFI's compliance with the requirements of its applicable deemed-compliant status. These requirements are similar to the provisions for the IRS's verification of a participating FFI's compliance with the FFI agreement. If the IRS determines that a registered deemed-compliant FFI has not complied with the requirements of the deemed-compliant status claimed by the FFI, the IRS may terminate the FFI's deemed-compliant status. A registered deemed-compliant FFI that has had its status terminated may request reconsideration of the termination by submitting a written request to the IRS within 90 days of the notice of termination.
These proposed regulations apply on the date of publication of a Treasury decision adopting these rules as final regulations in the
Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required.
The IRS intends that the information collection requirements in these proposed regulations will be satisfied by submitting certifications to the IRS electronically. For purposes of the Paperwork Reduction Act, the reporting burden associated with the collection of information in these proposed regulations will be reflected in the OMB Form 83–1, Paperwork Reduction Act Submission, associated with the certification.
It is hereby certified that the collection of information requirement in these proposed regulations will not have a significant economic impact on a substantial number of small entities because these proposed regulations affect foreign persons, not domestic entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of these proposed regulations is Kamela Nelan, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(b) * * *
(99) [The text of proposed § 1.1471–1(b)(99) is the same as the text of § 1.1471–1T(b)(99) published elsewhere in this issue of the
(116)
(121)
The revisions and additions read as follows:
(c) * * *
(1) [The text of proposed § 1.1471–3(c)(1) is the same as the text of § 1.1471–3T(c)(1) published elsewhere in this issue of the
(3) * * *
(iii) * * *
(B) * * *
(
(6) * * *
(ii) * * *
(E) * * *
(
(7) * * *
(ii) [The text of proposed § 1.1471–3(c)(7)(ii) is the same as the text of § 1.1471–3T(c)(7)(ii) published elsewhere in this issue of the
(d) * * *
(6) * * *
(i) * * *
(F) [The text of proposed § 1.1471–3(d)(6)(i)(F) is the same as the text of § 1.1471–3T(d)(6)(i)(F) published elsewhere in this issue of the
The revisions and additions read as follows:
(c) * * *
(2) * * *
(ii) * * *
(B) * * *
(
(
(d) * * *
(2) * * *
(ii) * * *
(G) [The text of proposed § 1.1471–4(d)(2)(ii)(G) is the same as the text of § 1.1471–4T(d)(2)(ii)(G) published elsewhere in this issue of the
(4) * * *
(iv) * * *
(C) [The text of proposed § 1.1471–4(d)(4)(iv)(C) is the same as the text of § 1.1471–4T(d)(4)(iv)(C) published elsewhere in this issue of the
(D) [The text of proposed § 1.1471–4(d)(4)(iv)(D) is the same as the text of § 1.1471–4T(d)(4)(iv)(D) published elsewhere in this issue of the
(f) * * *
(2) * * *
(ii) * * *
(A)
(B) * * *
(
(
(3) * * *
(i)
(g) * * *
(2)
The revisions and additions read as follows:
(f) * * *
(1) * * *
(i) * * *
(F) * * *
(
(
(
(iv)
(B)
(2) * * *
(iii) * * *
(D) * * *
(
(E) The IRS may revoke a sponsoring entity's status as a sponsoring entity with respect to one or more sponsored FFIs if there is an event of default as defined in paragraph (k)(1) of this section and following the termination procedures described in paragraphs (k)(2), (k)(3), and (k)(4) of this section. A sponsoring entity is not liable for any failure to comply with the obligations contained in paragraph (f)(2)(iii)(D) of this section unless the sponsoring entity is a withholding agent that is separately liable for the failure to withhold on or report with respect to a payment made by the sponsoring entity on behalf of the sponsored FFI. A sponsored FFI will remain liable for any failure of its sponsoring entity to comply with the obligations contained in paragraph (f)(2)(iii)(D) of this section that the sponsoring entity has agreed to undertake on behalf of the FFI, even if the sponsoring entity is also a withholding agent and is itself separately liable for the failure to withhold on or report with respect to a payment made by the sponsoring entity on behalf of the sponsored FFI. The same tax, interest, or penalties, however, shall not be collected more than once.
(j)
(2)
(3)
(ii)
(iii)
(iv)
(v)
(A) The sponsoring entity meets all of the requirements of a sponsoring entity as described in paragraph (f)(1)(i)(F)(
(B) The sponsoring entity has a written sponsorship agreement in effect with each sponsored FFI authorizing the sponsoring entity to fulfill the requirements of paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA with respect to each sponsored FFI; and
(C) Each sponsored FFI treated as a sponsored investment entity, a sponsored controlled foreign corporation, or a sponsored, closely held investment vehicle by the sponsoring entity meets the requirements of its respective status.
(vi)
(
(
(
(
(
(B)
(
(
(
(
(
(
(vii)
(A) With respect to any sponsored FFI, the deliberate or systematic failure of the sponsoring entity to report accounts that such sponsored FFI was required to treat as U.S. accounts, withhold on passthru payments to the extent required, deposit taxes withheld to the extent required, accurately report recalcitrant account holders (or non-consenting U.S. accounts under an applicable Model 2 IGA), or accurately report with respect to nonparticipating FFIs as required under § 1.1471–4(d)(2)(ii)(F) or an applicable Model 2 IGA;
(B) A criminal or civil penalty or sanction imposed on the sponsoring entity or any sponsored FFI (or any branch or office of the sponsoring entity or any sponsored FFI) by a regulator or other governmental authority or agency with oversight over the sponsoring entity's or sponsored FFI's compliance with the AML due diligence procedures to which it (or any branch or office thereof) is subject and that is imposed based on a failure to properly identify account holders under the requirements of those procedures;
(C) A potential future tax liability of any sponsored FFI related to its compliance (or lack thereof) with the due diligence, withholding, and reporting requirements of § 1.1471–4 or an applicable Model 2 IGA for which such sponsored FFI has established, for financial statement purposes, a tax reserve or provision;
(D) A potential contractual liability under the agreement described in paragraph (j)(3)(v)(B) of this section of the sponsoring entity to any sponsored FFI related to such sponsoring entity's compliance (or lack thereof) with paragraph (f)(1)(i)(F) or (f)(2)(iii) of this section or an applicable Model 2 IGA for which the sponsoring entity has established, for financial statement purposes, a reserve or provision; and
(E) Failure to register with the IRS as a sponsoring entity or to register each sponsored FFI required to be registered under paragraph (f)(1)(i)(F)(
(4)
(ii)
(iii)
(5)
(k)
(i) With respect to any sponsored FFI, failure to obtain, in any case in which foreign law would (but for a waiver) prevent the reporting of U.S. accounts required under § 1.1471–4(d), valid and effective waivers from holders of U.S. accounts or failure to otherwise close or transfer such U.S. accounts as required under § 1.1471–4(i);
(ii) With respect to any sponsored FFI, failure to significantly reduce, over a period of time, the number of account holders or payees that such sponsored FFI is required to treat as recalcitrant account holders or nonparticipating FFIs, as a result of the sponsoring entity failing to comply with the due diligence procedures set forth in § 1.1471–4(c);
(iii) With respect to any sponsored FFI, failure to fulfill the requirements of § 1.1471–4(i) in any case in which foreign law prevents or otherwise limits withholding under § 1.1471–4(b);
(iv) Failure to take timely corrective actions to remedy a material failure described in paragraph (j)(3)(vii) of this section after making a qualified certification described in paragraph (j)(3)(vi)(B) of this section;
(v) Failure to make the preexisting account certification required under paragraph (j)(5) of this section or the periodic certification required under paragraph (j)(3) of this section with respect to any sponsored FFI within the specified time period;
(vi) Making incorrect claims for refund on behalf of any sponsored FFI;
(vii) Failure to cooperate with an IRS request for additional information under paragraph (j)(4) of this section;
(viii) Making any fraudulent statement or misrepresentation of material fact to the IRS or representing to a withholding agent or the IRS its status as a sponsoring entity for an entity other than an entity for which it acts as a sponsoring entity;
(ix) The sponsoring entity is no longer authorized to perform the requirements of a sponsoring entity with respect to one or more sponsored FFIs; or
(x) Failure to have the written sponsorship agreement described in paragraph (j)(3)(v)(B) of this section in effect with each sponsored FFI.
(2)
(3)
(4)
(ii)
(iii)
(iv)
(v)
(l)
(2)
(ii)
(iii)
(iv)
(A) The responsible officer of the trustee has established a compliance program that is in effect as of the date of the certification and has performed a periodic review described in paragraph (l)(1) of this section for the certification period; and
(B) The trustee has reported to the IRS on Form 8966, “FATCA Report” (or such other form as the IRS may prescribe), all of the information required to be reported pursuant to the applicable Model 2 IGA with respect to all U.S. accounts of each trustee-documented trust for which the trustee acts during the certification period by the due date of Form 8966 (including extensions) for each year.
(3)
(ii)
(c) * * *
(5) * * *
(iii)
(f)
(2)
(ii)
(iii)
(iv)
(A) The sponsoring entity meets all of the requirements of a sponsoring entity described in paragraph (c)(5)(ii) of this section;
(B) The sponsoring entity has the written sponsorship agreement described in paragraph (f)(4) of this section in effect with each sponsored direct reporting NFFE;
(C) There were no events of default (as defined in paragraph (g) of this section) with respect to the sponsoring entity, or, to the extent there were any such events of default, appropriate measures were taken by the sponsoring entity to remediate and prevent such events from reoccurring; and
(D) With respect to any failure to report to the extent required under paragraph (c)(3)(ii) of this section with respect to one or more sponsored direct reporting NFFEs, the sponsoring entity has corrected such failure by filing the appropriate information returns.
(3)
(ii)
(4)
(i) The sponsored direct reporting NFFE agrees to provide the sponsoring entity access to the sponsored direct reporting NFFE's books and records regarding each of its owners (including AML/KYC documentation regarding the sponsored direct reporting NFFE's owners provided by the sponsored direct reporting NFFE with respect to each financial account it holds) and such other information sufficient for the sponsoring entity to determine the direct and indirect substantial U.S. owners of the sponsored direct reporting NFFE, including the information about such owners required under paragraph (c)(3)(ii) of this section to be reported on Form 8966, “FATCA Report” (or such other form as the IRS may prescribe);
(ii) The sponsored direct reporting NFFE obtains a valid and effective waiver of any legal prohibitions on reporting the information about its direct and indirect substantial U.S. owners required under paragraph (c)(3)(ii) of this section to be reported on Form 8966 (or such other form as the IRS may prescribe);
(iii) The sponsored direct reporting NFFE authorizes the sponsoring entity to act on the sponsored direct reporting NFFE's behalf with respect to the sponsored direct reporting NFFE's obligations as a sponsored direct reporting NFFE (for example, authorizing the sponsoring entity to file Form 8966 on the sponsored direct reporting NFFE's behalf, responding to the IRS inquiries described in paragraph (f)(3) of this section, and providing the certification described in paragraph (f)(2) of this section);
(iv) The sponsored direct reporting NFFE agrees to identify to the sponsoring entity on request each withholding agent and financial institution to which the sponsored direct reporting NFFE reports its status as a sponsored direct reporting NFFE and agrees to provide to the sponsoring entity a copy of the withholding certificate or written statement prescribed in § 1.1471–3(d)(11)(x)(B) (as applicable) that the sponsored direct reporting NFFE provides to each such withholding agent or financial institution;
(v) The sponsored direct reporting NFFE represents that it does not have any formal or informal practices or procedures to assist its substantial U.S. owners with the avoidance of the requirements of chapter 4;
(vi) The sponsored direct reporting NFFE agrees to cooperate with the sponsoring entity in responding to any IRS inquiries under paragraph (f)(3) of this section with respect to the sponsored direct reporting NFFE; and
(vii) The sponsoring entity retains the records described in paragraphs (c)(3)(iii) and (iv) of this section for the longer of six years or the retention period under the sponsoring entity's normal business procedures. A sponsoring entity may be required to extend the retention period if the IRS requests such an extension prior to the expiration of the period.
(g)
(i) Failure to have the written sponsorship agreement described in paragraph (f)(4) of this section in effect with each sponsored direct reporting NFFE;
(ii) Failure to satisfy the requirements of paragraph (c)(3)(iii) of this section with respect to each sponsored direct reporting NFFE that the NFFE would have been required to satisfy as a direct reporting NFFE;
(iii) Failure to report to the IRS on Form 8966, “FATCA Report,” (or such other form as the IRS may prescribe) all of the information required under paragraph (c)(3)(ii) of this section with respect to each sponsored direct reporting NFFE and each of its substantial U.S. owners (or report to the IRS on Form 8966 that the sponsored direct reporting NFFE had no substantial U.S. owners) by the due date of the form (including any extensions);
(iv) Failure to make the certification required under paragraph (f)(2) of this section;
(v) Failure to cooperate with an IRS request for additional information described in paragraph (f)(3) of this section, including requests for the records described in paragraph (c)(3)(iv) of this section and requests to extend the retention period for these records as described in (f)(4)(vii) of this section;
(vi) Making any fraudulent statement or misrepresentation of material fact to the IRS or representing to a withholding agent or the IRS its status as a sponsoring entity under paragraph (c)(5) of this section for an entity other than an entity for which it acts as a sponsoring entity; or
(vii) Failure to obtain from each sponsored direct reporting NFFE the information required to report on Form 8966.
(2)
(3)
(4)
(ii)
(iii)
(iv)
(d) * * *
(4) * * *
(vii) [The text of proposed § 1.1474–1(d)(4)(vii) is the same as the text of § 1.1474–1T(d)(4)(vii) published elsewhere in this issue of the
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by April 6, 2017.
Send submissions to: CC:PA:LPD:PR (REG–134247–16), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–134247–16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, or sent electronically, via the Federal eRulemaking Portal at
Concerning the proposed regulations, Leni Perkins, (202) 317–6942; concerning submissions of comments and/or requests for a public hearing, Regina Johnson, (202) 317–6901 (not toll-free numbers).
The temporary regulations in the Rules and Regulations section of this issue of the
Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13653. Therefore, a regulatory assessment is not required.
It is hereby certified that the collection of information in this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6).
The domestic small business entities that are subject to the collections of information in this notice of proposed rulemaking are those domestic business entities that are payors of certain U.S. source income to foreign persons. These domestic small business entities are subject to comprehensive rules under chapter 3 to identify the proper treatment of payees for purposes of that chapter's information reporting and tax withholding purposes. The domestic small business entities subject to the collections of information in this notice of proposed rulemaking are also subject to comprehensive information reporting and tax withholding rules under chapters 4 and 61 with respect to payments of certain U.S. source income subject to information reporting and tax reporting under chapter 3. These payors are also subject to information and reporting rules under section 3406.
Payors of payments that are subject to the information reporting and withholding regimes under chapter 3 play an important role in U.S. tax compliance by providing information about payments made to, and income earned by, U.S. and foreign taxpayers.
Although the Treasury Department and the IRS anticipate that a substantial number of domestic small entities will be affected by the collection of information in this notice of proposed rulemaking, the Treasury Department and the IRS believe that the economic impact to these entities resulting from the information collection requirements will not be significant. The reporting obligations under these proposed regulations flow from the obligations that domestic small entities may have as withholding agents for payments of amounts subject to withholding under sections 1441 or 1442. As withholding agents, these entities have already been subject to the overall framework of these regulations, and the economic burden of complying with any additional requirements will be minimal. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments that are submitted timely to the IRS as prescribed in this preamble under the “
The principal author of these proposed regulations is Leni C. Perkins, Office of Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
The revisions and additions read as follows:
(b) * * *
(7) * * *
(ii) * * *
(B) [The text of the proposed amendment to § 1.1441–1(b)(7)(ii)(B) is the same as the text of § 1.1441–1T(b)(7)(ii)(B) published elsewhere in this issue of the
(c) * * *
(2) * * *
(ii) [The text of the proposed amendment to § 1.1441–1(c)(2)(ii) is the same as the text of § 1.1441–1T(c)(2)(ii) published elsewhere in this issue of the
(3) * * *
(ii) [The text of the proposed amendment to § 1.1441–1(c)(3)(ii) is the same as the text of § 1.1441–1T(c)(3)(ii) published elsewhere in this issue of the
(38) * * *
(ii) [The text of the proposed amendment to § 1.1441–1(c)(38)(ii) is the same as the text of § 1.1441–1T(c)(38)(ii) published elsewhere in this issue of the
(e) * * *
(2) * * *
(ii) * * *
(B) [The text of the proposed amendment to § 1.1441–1(e)(2)(ii)(B) is the same as the text of § 1.1441–1T(e)(2)(ii)(B) published elsewhere in this issue of the
(3) * * *
(iv) * * *
(C) * * *
(
(4) * * *
(i) * * *
(B) [The text of the proposed amendment to § 1.1441–1(e)(4)(i)(B) is the same as the text of § 1.1441–1T(e)(4)(i)(B) published elsewhere in this issue of the
(ii) * * *
(A) * * *
(
(iv) * * *
(D) [The text of the proposed amendment to § 1.1441–1(e)(4)(iv)(D) is the same as the text of § 1.1441–1T(e)(4)(iv)(D) published elsewhere in this issue of the
(E) [The text of the proposed amendment to § 1.1441–1(e)(4)(iv)(E) is the same as the text of § 1.1441–1(e)(4)(iv)(E) published elsewhere in this issue of the
(a) * * *
(8) [The text of the proposed amendment to § 1.1441–2(a)(8) is the same as the text of § 1.1441–2T(a)(8) published elsewhere in this issue of the
The additions and revision read as follows:
(b) * * *
(1) * * *
(i) [The text of the proposed amendment to § 1.1441–6(b)(1)(i) is the same as the text of § 1.1441–6T(b)(1)(i) published elsewhere in this issue of the
(ii) [The text of the proposed amendment to § 1.1441–6(b)(1)(ii) is the same as the text of § 1.1441–6T(b)(1)(ii) published elsewhere in this issue of the
(c) * * *
(1) [The text of the proposed amendment to § 1.1441–6(c)(1) is the same as the text of § 1.1441–6T(c)(1) published elsewhere in this issue of the
(5) * * *
(i) [The text of the proposed amendment to § 1.1441–6(c)(5)(i) is the same as the text of § 1.1441–6T(c)(5)(i) published elsewhere in this issue of the
(b) * * *
(10) * * *
(iv) [The text of the proposed amendment to § 1.1441–7(b)(10)(iv) is the same as the text of § 1.1441–7T(b)(10)(iv) published elsewhere in this issue of the
National Park Service; Interior.
Proposed rule.
The National Park Service proposes to revise the regulation that defines smoking to include the use of electronic cigarettes and other electronic nicotine delivery systems. The National Park Service also proposes to allow a superintendent to close an area, building, structure, or facility to smoking when necessary to maintain public health and safety.
Comments must be received by 11:59 p.m. EST on March 7, 2017.
You may submit your comments, identified by Regulation Identifier Number (RIN) 1024–AE30, by any of the following methods:
•
•
Sara Newman, Director, Office of Public Health, by telephone 202–513–7225, or email
In the National Park Service Organic Act of 1916, Congress granted the National Park Service (NPS) broad
The NPS protects park resources and visitors by regulating smoking within park areas. The regulation governing smoking (36 CFR 2.21) was last amended in 1983. This regulation allows the superintendent to designate a portion of a park area, or all or a portion of a building, structure, or facility as closed to smoking when necessary to protect park resources, reduce the risk of fire, or prevent conflicts among visitor use activities. The regulation prohibits smoking in an area or location so designated and within all caves and caverns. The existing definition of “smoking” in section 1.4 is limited to combustible sources such as a tobacco cigarette; it does not include the use of electronic cigarettes and other electronic nicotine delivery systems (ENDS). Since 2009, ENDS have emerged as an alternative means of nicotine delivery, one that does not require the burning of tobacco. Essentially, when a user “draws” on an ENDS, a liquid solution containing nicotine is heated and vaporized, and inhaled by the user. The user then exhales a vapor that mimics the exhalation from a lit tobacco cigarette.
NPS policy with respect to tobacco smoking is found in Director's Order #50D (Smoking Policy), originally issued in 2003, and then revised and reissued in 2009. The purpose of the Order—in conformity with Executive Order 13058 (Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace)—is to “protect employees and park visitors from the health hazards and annoyances associated with” exposure to environmental tobacco smoke, commonly known as “second-hand” smoke, which is a known human carcinogen.
The Director issued Policy Memorandum 15–03 (Use of Electronic Nicotine Delivery Systems) on September 10, 2015. This policy establishes NPS guidance on the use of ENDS within all facilities and vehicles that are Government owned or leased, and within concessions facilities. The purpose of the Policy Memorandum is to afford all NPS employees and park visitors the same protections from exposure to nicotine and other harmful substances that may be found in ENDS vapor that are currently in place for tobacco smoke. Under this policy, use of ENDS is now treated as tobacco smoking and all provisions of Director's Order #50D apply to ENDS use. With regard to concessions facilities, the Policy Memorandum requires that ENDS use be treated the same as smoking for purposes of NPS Management Policies (2006).
Director's Order #50D and Policy Memorandum 15–03 are available online on the NPS Office of Policy Web site at
The NPS proposes to apply its smoking regulations at 36 CFR 2.21 to ENDS use the same way they currently apply to tobacco smoking. The basis for this regulatory change is stated below and in Policy Memorandum 15–03 and will make NPS regulations consistent with NPS policy on this subject.
Non-smokers are exposed to nicotine and other potentially harmful components of ENDS vapor at higher than background levels when passively exposed to second hand vapor.
The Surgeon General's 2014 report The Health Consequences of Smoking- 50 Years of Progress (Report) documents the devastating health consequences of tobacco smoking and also calls for “rigorous surveillance” of ENDS in order to weigh their risks and potential benefits (
On May 5, 2016, the FDA finalized a rule (81 FR 28973) extending its authority to ENDS under the Family Smoking Prevention and Tobacco Control Act (Pub. L. 111–31; 123 Stat. 1776). The rule brings ENDS in line with regulations that have governed tobacco products since 2009. The rule prohibits the sale of ENDS to minors, requires ENDS to meet applicable product standards and receive marketing authorization from the FDA, requires the reporting of ingredients, and places health warnings on product packages and advertisements. The FDA expressed concerns about the increasing use of ENDS, especially among middle and high school students, and explained that the rule will “help protect Americans from the dangers of tobacco and nicotine.”
The General Services Administration (GSA) has advised the managers of all GSA-occupied space—which includes space rented by GSA on behalf of NPS—that ENDS are subject to the same restrictions imposed on smoking tobacco products. The U.S. Fish and Wildlife Service's (FWS) policy found at 242 FW 13 goes even further, and prohibits “vaping”—another name for ENDS use—in all interior spaces of FWS facilities, whether Government owned or leased.
In addition to public health risks from the inhalation of vapor, ENDS also pose a risk of explosion and fire. A 2014 Federal Emergency Management Agency (FEMA) report stated that fires or explosions caused by the failure of lithium-ion batteries in ENDS are rare, but possible.
Acting out of an abundance of caution in light of the scientific findings and uncertainty to date, and in the interest of equity, the purpose of this proposed rule (similar to the purpose of Policy Memorandum 15–03) is to afford all NPS employees and park visitors the same protections from exposure to nicotine and other harmful substances that may be found in ENDS vapor that are currently in place for exposure to tobacco smoke.
The proposed rule would add a new definition to 36 CFR 1.4 that defines “Electronic nicotine delivery system” as an electronic device, such as an electronic cigarette, that a person uses to simulate smoking by inhaling vapor from the device. The proposed rule would revise the definition of “Smoking” in 36 CFR 1.4 to include the direct inhalation of vapor from an electronic nicotine delivery system. The NPS also proposes to add a new basis for which a superintendent may close an area or building, structure, or facility to smoking in 36 CFR 2.21—when necessary to maintain public health and safety. This reflects the health risks associated with smoking tobacco products and using ENDS. An existing basis in the regulations for restricting tobacco smoking—to reduce the risk of fire—also would apply to the use of ENDS for the reasons explained above. After these changes are made, the smoking regulation at 2.21 would apply to the smoking of tobacco and the use of ENDS, consistent with NPS policy.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule will not have a significant economic effect on a substantial number of small entities under the RFA(5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:
(a) Does not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. This rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of administrative, legal, and technical nature (43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.
We are required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National parks, Penalties, Reporting and recordkeeping requirements, Signs and symbols.
In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 1 as set forth below:
54 U.S.C. 100101, 100751, 320102.
(a) * * *
(a) The superintendent may designate a portion of a park area, or all or a portion of a building, structure or facility as closed to smoking when necessary to maintain public health and safety, to protect park resources, reduce the risk of fire, or prevent conflicts among visitor use activities. Smoking in an area or location so designated is prohibited.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to add natural gas processing (NGP) facilities (also known as natural gas liquid extraction facilities) to the scope of the industrial sectors covered by the reporting requirements of section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), commonly known as the Toxics Release Inventory (TRI) and section 6607 of the Pollution Prevention Act (PPA). Adding these facilities would meaningfully increase the information available to the public on releases and other waste management of listed chemicals from the natural gas processing sector and further the purposes of EPCRA section 313. EPA estimates that at least 282 NGP facilities in the U.S. would meet the TRI employee threshold (10 full-time employees or equivalent) and manufacture, process, or otherwise use (threshold activities) at least one TRI-listed chemical in excess of applicable threshold quantities. NGP facilities in the U.S. manufacture, process, or otherwise use more than 21 different TRI-listed chemicals, including n-hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol. EPA expects that TRI reporting by U.S. NGP facilities would provide significant release and waste management data on these chemicals to the public.
Comments must be received on or before March 7, 2017.
Submit your comments, identified by Docket ID No. EPA–HQ–TRI–2016–0390, at
Entities potentially regulated by this proposed action are those facilities that primarily engage in the recovery of liquid hydrocarbons from oil and gas field gases, including facilities that engage in sulfur recovery from natural gas, and which manufacture, process, or otherwise use chemicals listed at 40 CFR 372.65 and meet the reporting requirements of EPCRA section 313, 42 U.S.C. 11023, and PPA section 6607, 42 U.S.C. 13106. These facilities are categorized under Standard Industrial Classification (SIC) code 1321 and North American Industry Classification System (NAICS) code 211112. Note that the TRI regulations currently use the 2012 set of NAICS codes, as discussed further in Units II.D. and IV.C.
1.
2.
This action is taken under EPCRA sections 313(b) and 328, 42 U.S.C. 11023(b) and 11048.
Specifically, EPCRA section 313(b)(1)(B), 42 U.S.C. 11023(b)(1)(B), states that the Agency may “add or
EPCRA section 313, 42 U.S.C. 11023, requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to PPA section 6607, 42 U.S.C. 13106. Congress established the original scope of TRI sectors subject to EPCRA section 313 reporting, requiring reporting by facilities in the manufacturing sectors covered by SIC codes 20 through 39. In 1997, EPA exercised its statutory authority under EPCRA to add SIC Codes to the scope of TRI, adding (with some limitations) metal mining, coal mining, electric utilities, commercial hazardous waste treatment, chemicals and allied products-wholesale, petroleum bulk plants and terminals-wholesale, and solvent recovery services. (62 FR 23834, May 1, 1997).
Regulations at 40 CFR part 372, subpart B, require facilities that meet all of the following criteria to report:
• The facility has 10 or more full-time employee equivalents (
• The facility is included in a NAICS Code listed at 40 CFR 372.23, or under Executive Order 13148, Federal facilities regardless of their industry classification; and
• The facility manufactures (defined by statute to include importing), processes, or otherwise uses any EPCRA section 313 (TRI) chemical in quantities greater than the established thresholds for the specific chemical in the course of a calendar year.
Facilities that meet the criteria must file a Form R report or, in some cases, may submit a Form A Certification Statement, for each listed toxic chemical for which the criteria are met. As specified in EPCRA section 313(a), the report for any calendar year must be submitted on or before July 1 of the following year. For example, reporting year 2015 data should have been postmarked on or before July 1, 2016.
The list of toxic chemicals subject to TRI reporting can be found at 40 CFR 372.65. This list is also published every year as Table II in the current version of the Toxics Release Inventory Reporting Forms and Instructions. The current TRI chemical list contains 594 individually listed chemicals and 31 chemical categories.
As described in Units II.A. and II.B., Congress provided EPA with explicit statutory authority to expand the categories of facilities required to report under EPCRA section 313, and EPA exercised that authority to add sectors in 1997. (62 FR 23834, May 1, 1997). When adding these seven sectors, EPA considered three factors:
As explained in Units II.D. and III.A. of the 1997 Final Rule, EPA identified these three factors in determining whether the statutory standard in EPCRA section 313(b)(1)(B) would be met by addition of the candidate facilities.
On April 9, 1997, the Office of Management and Budget (OMB) published in the
Some NGP facilities are already subject to TRI reporting requirements because NGP facilities that primarily recover sulfur from natural gas are part of a manufacturing sector that was originally subjected to reporting by Congress.
Specifically, the scope of TRI sectors subject to reporting includes SIC code 2819 (Industrial Inorganic Chemicals, Not Elsewhere Classified), which was one of the manufacturing sectors in SIC 20–39 originally required to report to TRI by Congress. SIC code 2819 crosswalks to several manufacturing sector NAICS codes, including 211112 (Natural Gas Liquid Extraction), but only to the extent that it includes facilities that primarily engage in sulfur recovery from natural gas.
Thus, when EPA began to use NAICS codes for TRI reporting purposes, the Agency listed NAICS 211112 with a qualifier to limit TRI coverage of the sector to facilities that fit SIC code 2819.
By a letter dated October 24, 2012, the Environmental Integrity Project (EIP), together with 16 other organizations, and later joined by two additional organizations (collectively, Petitioners), submitted a Petition to EPA pursuant to section 553(e) of the Administrative Procedure Act (APA) to add the Oil and Gas Extraction industrial sector (SIC code 13) to the scope of industrial sectors covered by the reporting requirements of the TRI. The Petition and related documents can be found in Docket ID No. EPA–HQ–TRI–2013–0281 at
The Petitioners requested that EPA exercise its discretionary TRI sector addition authority to add the Oil and Gas Extraction sector, as defined by SIC code 13. SIC 13 is broad in scope, comprising the following subsectors:
• Crude Petroleum and Natural Gas (SIC 1311);
• Natural Gas Liquids (SIC 1321);
• Drilling Oil and Gas Wells (SIC 1381);
• Oil and Gas Field Exploration Services (SIC 1382); and
• Oil and Gas Field Services, Not Elsewhere Classified (SIC 1389).
These SIC-defined subsectors correspond to the following NAICS sectors, in whole or in part:
• Crude Petroleum and Natural Gas Extraction (NAICS 211111);
• Natural Gas Liquid Extraction (NAICS 211112);
• Drilling Oil and Gas Wells (NAICS 213111);
• Support Activities for Oil and Gas Operations (NAICS 213112);
• Oil and Gas Pipeline and Related Structures Construction (NAICS 237120);
• Site Preparation Contractors (NAICS 238910); and
• Geophysical Surveying and Mapping Services (NAICS 541360).
By requesting that EPA extend the TRI reporting requirements to SIC 13, the Petition requested that EPA add to TRI the SIC codes 1311, 1321, 1381, 1382, and 1389, along with the relevant portion of each corresponding NAICS code.
On October 22, 2015, EPA granted, in part, the Petition insofar as it requested that EPA commence the rulemaking process to propose adding NGP facilities to the scope of TRI. EPA denied the remainder of the Petition. EPA's response to the Petition, including a full explanation of the Agency's rationale, can be found in Docket ID No. EPA–HQ–TRI–2013–0281 and as a reference in the docket for this proposal in Docket ID No. EPA–HQ–TRI–2016–0390 (Reference (Ref.) 1).
According to a triennial survey of NGP facilities by the U.S. Energy Information Administration (EIA–757 survey), described further in an economic analysis EPA prepared for this rulemaking, there were 517 NGP facilities in the lower 48 states as of 2012 (Ref. 2). As explained more fully later in this document, EPA estimates that over half of these facilities would annually meet TRI reporting thresholds for at least one of more than 21 different TRI-listed chemicals and, if covered by the reporting requirements of TRI, would be required to submit TRI information to EPA (Ref. 2). The information likely to be obtained from these facilities is not readily available elsewhere.
As discussed previously, EPA generally considers three factors when deciding whether to add an industrial sector to the scope of the industrial sectors covered by TRI:
1.
2.
3.
NGP facilities meet these three factors:
•
•
NGP facilities are stationary surface facilities that receive gas from a gathering system that supplies raw natural gas from many nearby wells. These facilities prepare natural gas (composed primarily of methane) to industrial or pipeline specifications and extract heavier liquid hydrocarbons from the raw or field natural gas. During this process, natural gas liquids (NGLs) (
SIC 1321 (Natural Gas Liquids) and NAICS 211112 (Natural Gas Liquid Extraction) comprise establishments that recover liquid hydrocarbons from oil and gas field gases (see discussion in Unit II.E.). NAICS 211112 includes facilities that primarily recover sulfur from natural gas—such facilities already
Current regulations only require NAICS 211112 facilities that recover sulfur from natural gas to report TRI data (
To add the facilities contemplated by this proposed rule to the scope of industrial sectors that TRI covers, EPA is proposing to:
• Add SIC code 1321 to 40 CFR 372.23(a);
• Remove the “Exceptions and/or limitations” language from the Code of Federal Regulations (CFR) text for NAICS code 211112 for NAICs codes that correspond to SIC codes 20 through 39 in 40 CFR 372.23(b); and
• Add NAICS code 211112 to the CFR text for NAICS codes that correspond to SIC codes other than SIC codes 20 through 39 in 40 CFR 372.23(c).
It would be necessary to list NAICS 211112 in both subsections (b) and (c) of 40 CFR 372.23 for two reasons: (1) 40 CFR 372.23(b) lists NAICS codes that crosswalk to SIC codes within the original scope of TRI sectors subject to Section 313 reporting (SIC Codes 20–39), and (2) 40 CFR 372.23(c) lists NAICS codes that crosswalk to SIC codes not within the original scope of TRI sectors. Because NAICS 211112 includes a SIC code in the original scope of TRI sectors (SIC 2819) and a SIC code not in the original scope of TRI sectors (SIC 1321), EPA proposes that NAICS 211112 be listed under both subsections to provide additional clarity for the crosswalk.
This proposal does not seek to add to TRI coverage natural gas field facilities that only recover condensate from a stream of natural gas, lease separation facilities that separate condensate from natural gas, or natural gas pipeline compressor stations that supply energy to move gas through transmission or distribution lines into storage. Additional examples of operations that this proposal does not intend to add to TRI coverage include Joule-Thompson valves, dew point depression valves, and isolated or standalone Joule-Thompson skids. The industrial operations described in this paragraph often occur at or close to extraction sites and are typically classified under NAICS codes other than 211112 (
However, the term “facility” is defined by EPCRA section 329(4) as “all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person).” 42 U.S.C. 11049(4). Accordingly, operations described in the previous paragraph could be part of a single “facility” with TRI reporting and recordkeeping requirements if they are contiguous or adjacent to “buildings, equipment, structures, and other stationary items” with a common owner or operator that are in a covered TRI industrial sector.
Every 5 years the OMB updates the NAICS codes to “clarify existing industry definitions and content, recognize new and emerging industries, and correct errors and omissions.” (80 FR 46480, August 4, 2015). EPA updates its TRI regulations to align with OMB revisions to the NAICS codes (
In OMB's revisions for the 2017 NAICS codes, facilities performing activities involving natural gas that currently classify under NAICS 211111 (Crude Petroleum and Natural Gas Extraction) and NAICS 211112 (Natural Gas Liquid Extraction) will classify under a new NAICS code: 211130 (Natural Gas Extraction).
This proposed rule to add NGP facilities to the scope of the TRI proposes to add facilities that primarily engage in the recovery of liquid hydrocarbons from oil and gas field gases (and to retain facilities that primarily engage in sulfur recovery from natural gas, which are already covered facilities), as described in Unit IV.A. This proposed rule would accomplish this, based on the 2012 NAICS codes currently used by the TRI regulations, by adding SIC code 1321 to 40 CFR 372.23(a), removing the “exceptions and/or limitations” from NAICS code 211112 currently found in 40 CFR 372.23(b), and adding NAICS code 211112 to 40 CFR 372.23(c). If EPA updates the NAICS codes used for TRI reporting purposes to align with the OMB revisions for 2017 before EPA issues a final rule adding NGP facilities to TRI, then if EPA issues a final rule adding NGP facilities to TRI, that final rule will reflect the appropriate new NAICS code (
The following is a listing of the documents that are specifically referenced in this document. For assistance in locating reference documents, please consult the person listed under
1. USEPA. Formal Response to October, 24, 2012, Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Classification Code 13, to the List of Facilities Required to Report under Section 313 of the Emergency Planning and Community Right-to-Know Act. October 22, 2015.
2. USEPA, OPPT. Economic Analysis of the Proposed Addition of Natural Gas Processing Facilities to the Toxics Release Inventory. August 11, 2016.
3. USEPA, OPPT. Supporting Statement for an Information Collection Request (ICR) Under the Paperwork Reduction Act (PRA). Proposed Rule ICR; Addition of Natural Gas Processing Facilities to the Toxics Release Inventory (TRI). EPA ICR No. 2560.01; OMB Control No. 2070–[NEW]. November 2016.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). EPA prepared an economic analysis of the potential costs and benefits associated with this action, which is available in the docket (Ref. 2).
The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501
This action would impose an incremental information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2025–0009 and 2050–0078. This proposal would not alter the reporting and recordkeeping requirements for facilities that currently have regulatory requirements related to TRI reporting. However, this proposal would require all facilities that classify under NAICS 211112 to consider TRI reporting requirements regardless of whether or not they primarily recover sulfur from natural gas. Accordingly, if EPA adds this industrial sector to the scope of industries covered by TRI, these facilities would need to adhere to reporting and recordkeeping requirements should they trigger TRI reporting.
Currently, the facilities subject to the reporting requirements under EPCRA 313 and PPA 6607 may use either the EPA Toxic Chemicals Release Inventory Form R (EPA Form 1B9350- 1), or the EPA Toxic Chemicals Release Inventory Form A (EPA Form 1B9350- 2). The Form R must be completed if a facility manufactures, processes, or otherwise uses any listed chemical above threshold quantities and meets certain other criteria. For the Form A, EPA established an alternative threshold for facilities with low annual reportable amounts of a listed toxic chemical. A facility that meets the appropriate reporting thresholds, but estimates that the total annual reportable amount of the chemical does not exceed 500 pounds per year, can take advantage of an alternative manufacture, process, or otherwise use threshold of 1 million pounds per year of the chemical, provided that certain conditions are met, and submit the Form A instead of the Form R. In addition, respondents may designate the specific chemical identity of a substance as a trade secret pursuant to EPCRA section 322, 42 U.S.C. 11042, 40 CFR part 350.
OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control number 2025–0009 (EPA Information Collection Request (ICR) No. 1363) and those related to trade secret designations under OMB Control number 2050–0078 (EPA ICR No. 1428). As provided in 5 CFR 1320.5(b) and 1320.6(a), an Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers relevant to EPA's regulations are listed in 40 CFR part 9, and displayed on the information collection instruments (
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
EPA will respond to any ICR-related comments in the final rule.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601
This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. EPA's economic analysis indicates that the total industry reporting and recordkeeping burden for collecting this information would be between $8,624,018 and $13,584,347 in the first year (Ref. 2). In subsequent years, the total industry reporting and recordkeeping burden for collecting this information is estimated to be between $4,106,642 and $6,468,747 (Ref. 2). The total annualized cost of the proposed rule to industry and EPA is estimated to be approximately $4,634,000 to $7,300,000 with a 3% discount rate and approximately $4,721,000 to $7,437,000 with a 7% discount rate (Ref. 2). EPA's analysis shows that no small government owns or operates an NGP facility that would report under EPCRA section 313.
This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because this action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. No facilities owned or operated by tribal governments are expected to classify under SIC 1321 or NAICS 211112.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. NGP facilities would be subject to the requirements of this proposal; however, this proposal would not impact how these facilities operate but rather would require facilities that trigger TRI reporting requirements to submit annual reports on chemicals for which they trigger reporting requirements. Moreover, the impact this action could cause is minor. EPA's economic analysis for this action indicates that all entities that would be impacted are estimated to incur annualized cost impacts of less than 1% (Ref. 2).
This rulemaking does not involve any technical standards, and is therefore not subject to considerations under NTTAA section 12(d), 15 U.S.C. 272 note.
This action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not address any human health or environmental risks and does not affect the level of protection provided to human health or the environment. This action adds an industry sector to the EPCRA section 313 reporting requirements. By adding an industry to the list of industry sectors subject to reporting under EPCRA section 313, EPA would be providing communities across the U.S. (including minority populations and low income populations) with access to data which they may use to seek lower exposures and consequently reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the informational benefits of the action will have a positive impact on the human health and environmental impacts of minority populations, low-income populations, and indigenous peoples.
Environmental protection, Community right-to-know, reporting and recordkeeping requirements, and Toxic chemicals.
Therefore, it is proposed that 40 CFR part 372, be amended as follows:
42 U.S.C. 11023 and 11048.
The additions to read as follows:
(a) * * *
(c) * * *
Fish and Wildlife Service, Interior.
Proposed rule and 12-month petition finding; request for comments.
Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove
To ensure we can consider your comments on this proposed rule, they must be received or postmarked on or before March 7, 2017. Please note that if you are using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R2–ES–2016–0119; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 220411–3803.
We request that you send comments only by the methods described above. We will post all comments on
Wally Murphy, Field Supervisor, New Mexico Ecological Services Field Office (see
Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and will be as accurate as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain their basis. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:
(1) New information concerning
(2) New information on historical and current
(3) New information regarding
Please note that submissions merely stating support for, or opposition to, the action being considered, without providing supporting information, although noted, will not be considered in making a determination, as the Act (16 U.S.C. 1531
Prior to issuing a final rule on this proposed action, we will consider all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you mail or hand-deliver hardcopy comments that include personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on
In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:
(1) You can view them on
(2) You can make an appointment, during normal business hours, to view the comments and materials in person at
The Act, Section 4(b)(5)(E) enables one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in
Section 4(b)(3)(B) (16 U.S.C. 1531
Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the
On February 2, 2005, we initiated a
On July 16, 2012, we received a petition dated July 12, 2012, from New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that we delist
On May 31, 2013, we received a complaint from the same petitioners alleging we failed to make a 90-day finding on the petition.
On September 9, 2013, we published a 90-day finding (78 FR 55046) that delisting
On November 20, 2015, the petitioners filed a second lawsuit. This lawsuit sought to compel the Service to complete a 12-month finding regarding
On November 4, 2016, we completed our second
Three
A population of
Section 4 (16 U.S.C. 1533) of the Act and implementing regulations (50 CFR part 424) set forth procedures to add 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 Act, a species may be determined endangered or threatened based on any of the following five factors, acting alone or in combination:
(A) The present or threatened habitat or range destruction, modification or curtailment;
(B) Commercial, recreational, scientific, or educational overutilization;
(C) Disease or predation;
(D) Inadequate regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
When delisting a species, we must consider both these five factors and how conservation actions have removed or reduced the threats. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate the species is neither endangered nor threatened for the following reasons:
(1) The species is extinct;
(2) The species has recovered and is no longer endangered or threatened; or
(3) The original scientific data used at the time the species was classified were erroneous.
In making this finding,
In making our 12-month finding on the petition, we considered and evaluated the best available scientific and commercial information.
The 1981
All
The area designated as
• Apply no surface occupancy stipulation to all future oil and gas leases.
• Avoid future right-of-way actions through SMA area.
• Withdraw from mining claim location, and close to mineral material disposal and solid material leasing.
• Complete limited ORV designation and implementation plan to restrict vehicles to designated routes.
• Restrict fire suppression and geophysical operations to comply with ORV designation.
• Restrict surface disturbance, including plant collections and camping within the area.
Proposed actions related to lease rights acquired prior to the SMA designations are analyzed for impacts and designed to reduce or remove the impacts under BLM Manual 6840 directions, and using conditions-of-approval on the permit. SMA guidance can also affect actions that cross both public lands and adjacent non-Federal lands (
All
Knight (1993, p. 57) concluded that oil and gas mineral development, and possibly gypsum, were the only serious potential threats to
The Seven Rivers Hills and Ben Slaughter Draw SMAs also withdrew minerals, such as gypsum, sulfur, and salts, from claim and mine development, but mineral claims are not specifically withdrawn from the Black River SMA. Chemical analysis found the gypsum outcrops
Other potential impacts to the Seven Rivers Hills
The populations at Black River and Ben Slaughter Draw are not near any existing or proposed reservoirs and, therefore, are not threatened by flooding. At the time of listing, we considered the possibility of flooding to the Seven Rivers Hills population from the Brantley Reservoir. However, this impact has not occurred because the dam spillway does not allow the water
ORV traffic is not presently an
Livestock grazing is the predominant land use in all
Livestock using the habitat in the Black River population has little effect on
The Brantley Dam conservation pool was anticipated to be in close proximity to the Seven Rivers Hills
The Ben Slaughter population is immediately adjacent to Ben Slaughter Spring and Jumping Spring, which are water sources that concentrate livestock use. Livestock trailing and trampling
All three
There are no immediate threats from commercial or recreational
In addition to alleviating threats, positive steps have been taken to inform
There are no known documented or anecdotal
Federal regulatory mechanisms have been effective in removing or managing many
ORV traffic prohibitions are difficult to enforce because of sign vandalism, for which law enforcement officers cannot keep a continuous watch. However, BLM SMA restrictions on ORV traffic at the Seven Rivers Hills designated critical habitat area and Ben Slaughter Draw appear to be effective at diminishing ORV impacts. BLM further committed its authority by restricting access to the occupied
The Bureau of Land Management SMA at the Black River population requires a “no surface occupancy” stipulation for all oil and gas leases, but does not have prescriptions to protect this area from mineral claims or ORV traffic. All three
The Carlsbad Resource Management Plan does not clearly state that future plan revisions shall continue to maintain
A few hectares of
There are no regulatory protections for federally listed endangered and threatened plant species from surface-disturbing land uses on private or State-owned lands, unless the activity is authorized, funded, or carried out by a Federal agency. Approximately 50 percent of the
Our previous reviews did not analyze climate change as a factor affecting the species. Based on the unequivocal evidence the earth's climate is warming from observing increasing average global air and ocean temperatures, widespread glacier and polar ice cap melting, and rising sea levels recorded by the Intergovernmental Panel on Climate Change (IPCC) Report (IPCC 2007a, entire; 2013, entire), climate change is now a factor in all Federal agency decision-making (Government Accounting Office 2007, entire). The Service has incorporated climate change into its decision-making under the Act (Service 2010, entire). Global climate information has been downscaled to our region of interest, and projected into the future under two different scenarios of possible emissions of greenhouse gases (Alder and Hostetler 2014: 2). Climate predictions for the
Two additional populations were documented in Eddy County since this plant was listed in 1981. Plant numbers in those populations also appear relatively unchanged since their 1985 discovery; the Black River population has a minimum of 16,660 plants, and the Ben Slaughter Draw population is estimated at around 18,270 plants. Additionally, an estimated 1,000 to 1,500 plants in the Ben Slaughter Draw population were observed in 2013, at the nearby Hay Hollow location. These numbers are estimates, as it is difficult to estimate plant numbers in each population due to variable density and patchy distribution across occupied gypsum outcrops. All previous and current plant numbers estimates lack precision, but adequately demonstrate substantial populations at the three known locations. No
Based on extensive survey efforts in New Mexico, it is unlikely that other new populations will be discovered. Potentially suitable habitat exists in Texas on private land, but no surveys have been conducted.
As required by the Act, we considered the 5 factors in assessing whether
Based on our reviewing the best available scientific and commercial information pertaining to the 5 factors, we find that the petitioned action to delist
In making this finding, we have followed the procedures set forth in section 4(a)(1) of the Act and our regulations at 50 CFR part 424. We intend that any
As noted earlier in this document, Section 4 of the Act and its implementing regulations at 50 CFR part 424, set forth the procedures for listing, reclassifying or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “species” as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate fish or wildlife population segment that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in Section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. For species that are already listed as endangered or threatened, the threat analysis must evaluate both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting (
We have determined that none of the existing or potential threats is likely causing
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 endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species 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, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer 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 in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance 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.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range 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 have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (
On the basis of our evaluation, we propose to remove
This proposal, if made final, would revise 50 CFR 17.12(h) by removing
Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. This requirement is to develop a program that detects delisted species failures to sustain itself without the Act's protective measures. If, at any time during the monitoring period, data indicate that protective Act status should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.
We will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective
The PDM plan will build upon current monitoring practices. The PDM plan outlines the monitoring needed to verify that a species delisted due to recovery remains secure from extinction after the protections of the Act no longer apply. The goals of this PDM plan are to: (1) Outline the monitoring plan for species abundance and threats; and (2) identify circumstances that will trigger increased monitoring, or to identify when there are no longer concerns for
In accordance with our joint peer review policy with the National Marine Fisheries Service, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” was published in the
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
A complete list of all references cited in this final rule is available at
The primary authors of this notice are the staff members of the New Mexico Ecological Services Field Office, U.S. Fish and Wildlife Service (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245, unless otherwise noted.
Fish and Wildlife Service, Interior.
Proposed rule and 12-month petition finding; request for comments.
Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove the lesser long-nosed bat
We will accept comments received or postmarked on or before March 7, 2017. Please note that if you are using the Federal eRulemaking Portal (see
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone (602–242–0210); or by facsimile (602–242–2513). If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800–877–8339.
Any final action resulting from this proposed rule will be based on the best
(1) New information on the historical and current status, range, distribution, and population size of lesser long-nosed bats, including the locations of any additional populations;
(2) New information regarding the life history, ecology, and habitat use of the lesser long-nosed bat;
(3) New information concerning the taxonomic classification and conservation status of the lesser long-nosed bat in general; and
(4) New information related to any of the risk factors or threats to the lesser long-nosed bat identified in the Species Status Assessment or the proposed action.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531
Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you mail or hand-deliver hardcopy comments that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on
In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:
(1) You can view them on
(2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's Arizona Ecological Services Field Office (see
Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in
On September 30, 1988, we published a final rule in the
A thorough review of the taxonomy, life history, ecology, and overall viability of the lesser long-nosed bat is presented in the Species Status Assessment (SSA) report for the lesser long-nosed bat (USFWS 2016), which is available online at
The lesser long-nosed bat (
The Service has assigned a recovery priority number of 8 to the lesser long-nosed bat. This recovery priority number means that the lesser long-nosed bat was considered to have a moderate degree of threat and a high recovery potential. Because the lesser long-nosed bat is a colonial roosting species known to occur at a limited number of roosts across its range in Mexico and the United States (Arizona and New Mexico), impacts at roost locations could have a significant impact on the population, particularly if the impacts occur at maternity roosts. However, because approximately 60 percent (eight out of fourteen) of the roost locations known at the time of listing were on “protected” lands in both the United States and Mexico, the degree of threat was determined to be moderate. The primary recovery actions outlined in the recovery plan were to monitor and protect known roost sites and foraging habitats. Because both of these actions could be potentially be accomplished through management at all of the known roost sites known at that time, the recovery potential for the lesser long-nosed bat was determined to be high. A U.S. recovery plan was completed for the lesser long-nosed bat in 1997 (USFWS 1997, entire) and the Program for the Conservation of Migratory Bats in Mexico was formed in 1994 (Bats 1995, p. 1–6).
The Service completed a 5-year review of the status of the lesser long-nosed bat in 2007. This review recommended downlisting this bat from endangered to threatened status under the Act (USFWS 2007; available at
The lesser long-nosed bat is a migratory bat characterized by a resident subpopulation that remains year round in central and southern Mexico to mate and give birth, and a migratory subpopulation that winters and mates in central and southern Mexico, but that migrates north in the spring to give birth in northern Mexico and the southwestern United States (Arizona). This migratory subpopulation then obtains the necessary resources (in Arizona and New Mexico in the United States) to be able to migrate south in the fall back to central and southern Mexico. The lesser long-nosed bat is a nectar, pollen, and fruit-eating bat that depends on a variety of flowering plants as food resources. These plants include columnar cacti, agaves, and a variety of flowering deciduous trees. The lesser long-nosed bat is a colonial roosting species that roosts in groups ranging from a few hundred to over 100,000. Roost sites are primarily caves, mines, and large crevices with appropriate temperatures and humidity; reduced access to predators; free of the disease-
The primary life-history needs of this subspecies include appropriate and adequately distributed roosting sites; adequate forage resources for life-history events such as mating and birthing; and adequate roosting and forage resources in an appropriate configuration (a “nectar trail”) to complete migration between central and southern Mexico and northern Mexico and the United States.
For more information on this topic, see chapter 2 of the SSA Report (USFWS 2016), which is available online at
For the last 20 years following the completion of the lesser long-nosed bat recovery plan, there has been a steadily increasing effort related to the conservation of this subspecies. Better methods of monitoring have been developed, including the use of infrared videography and radio telemetry. These monitoring efforts have led to an increase in the number of known roosts throughout its range, from approximately 14 known at the time of listing to approximately 75 currently known roost sites, as well as more accurate assessments of the numbers of lesser long-nosed bats using these roosts. The 1988 listing rule emphasized low populations numbers along with an apparent declining population trend. At this time, we have documented increased lesser long-nosed bat numbers and positive trends (stable or increasing numbers of bats documented over the past 20 years) at most roosts. There is no question that current population numbers of lesser long-nosed bats exceed the levels known and recorded at the time of listing in 1988. A number of publications have documented numbers of lesser long-nosed bats throughout its range that far exceed the numbers used in the listing analysis (Fleming et al. 2003; Sidner and Davis 1988). For example, although numbers fluctuate from year to year, the numbers of lesser long-nosed bats estimated from 2010–2015 in the three known maternity roosts in the U.S. were an average of two and a half times higher than numbers presented in the Recovery Plan (USFWS 2016; p. 10). Furthermore, protection measures have been implemented at over half the roosts in both the United States and Mexico (approximately 40 roosts), including gating, road closures, fencing, implementation of management plans, public education, monitoring, and enforcement of access limitations. Generally, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Efforts to physically protect roosts through the use of gates or barriers have been implemented at six roost sites in Arizona. The experimental fence at one roost (a mine site) worked initially, but was subsequently vandalized resulting in roost abandonment. The fencing was repaired and there have been no subsequent breeches and the bats have recolonized the site (USFWS 2016; p. 11).
In addition, since the 1988 listing rule, increased public and academic interest, along with additional funding, has resulted in additional research leading to a better understanding of the life history of the lesser long-nosed bat. At the time of listing, we believed livestock grazing and fire were impacting the viability of this subspecies. We now know that livestock grazing and fire have less of an impact on the viability of this subspecies than previously thought. Other threats have been reduced such as reducing the killing of non-target bat species during vampire bat control activities in Mexico (
The lesser long-nosed bat's conservation status in Mexico has been determined to be secure enough that Mexico removed the subspecies from its endangered species list in 2013 because of the factors described above. The species has a greater distribution in Mexico than in the United States, but most of the same reasoning for the subspecies' removal from Mexico's endangered species list applies to our proposal to remove the lesser long-nosed bat from the U.S. List of Endangered and Threatened Wildlife. Much of the range of this species in the United States is on federally managed lands (>75 percent). Federal agencies have guidelines and requirements in place to protect lesser long-nosed bats and their habitats, particularly roost sites. As described above, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Gating of roosts on Federal lands is being implemented and evaluated. If the lesser long-nosed bat is delisted, protection of their roost sites and forage resources will continue on Federal lands. Agency land-use plans and general management plans contain objectives to protect cave resources and restrict access to abandoned mines, both of which can be enforced by law enforcement officers. In addition, guidelines in these plans for grazing, recreation, off-road use, fire, etc. will continue to prevent or minimize impacts to lesser long-nosed bat forage resources. Examples of these agency plans include the Fort Huachuca Integrated Natural Resources Management Plan, the Coronado National Forest Land Use and Resource Management Plan, and the Safford District Resource Management Plan (DOD 2001, entire; USFS 2005, entire; BLM 1991, entire). As described above, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Gating of roosts on Federal lands is being implemented and evaluated and, while the best design for such gates is still being developed, these gates do provide long-term protection of the sites. Further, outreach and education, particularly with regard to pollinator conservation, has increased and human attitudes regarding bats are more positive now than in the past; and the lesser long-nosed bat has demonstrated adaptability to potential adverse environmental conditions, such as changes in plant flowering phenology (see discussion under
Because of the occurrence of both resident and migratory subpopulations within the lesser long-nosed bat population, it is important for all of the necessary habitat elements to be appropriately distributed across the range of this species such that roost sites, forage resources, and migration
For more information on this topic, see chapter 5 of the SSA Report (USFWS 2016), which is available online at
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans identify site-specific management actions that will achieve recovery of the species and objective, measurable criteria that set a trigger for review of the species' status. Methods for monitoring recovery progress may also be included in recovery plans.
Recovery plans are not regulatory documents; instead they are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act. They also identify suites of actions that are expected to facilitate achieving this goal of recovery. While recovery plans are not regulatory, they provide guidance regarding what recovery may look like and possible paths to achieve it. However, there are many paths to accomplishing recovery of a species, and recovery may be achieved without all recovery actions being implemented or criteria being fully met. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.
The 1997 lesser long-nosed bat recovery plan objective is to downlist the species to threatened (USFWS 1997, entire). The recovery plan does not explain why delisting was not considered as the objective for the recovery plan. The existing recovery plan does not explicitly tie the recovery criteria to the five listing factors at section 4(a)(1) of the Act or contain explicit discussion of those five listing factors. In addition, the reasons for listing discussed in the recovery plan do not actually correspond with the five listing factors set forth in section 4(a)(1) of the Act. The recovery plan lists four criteria that should be considered for downlisting the subspecies, which are summarized below. A detailed review of the recovery criteria for the lesser long-nosed bat is presented in the 5-year Review for the Lesser Long-Nosed Bat (USFWS 2007; available online at
Significant efforts have been made to implement a regular schedule of monitoring at the known roost sites in Arizona. All thirteen of the roost sites identified in the recovery plan have had some degree of monitoring over the past 20 years. In the United States, all of the six roosts identified in the recovery plan for monitoring (Copper Mountain, Bluebird, Old Mammon, Patagonia Bat Cave, State of Texas, and Hilltop) have been monitored since 2001. This recovery criterion has been satisfied for roosts in Arizona. None of the New Mexico roosts were identified for monitoring in the recovery plan, but these roosts have been monitored sporadically since the completion of the recovery plan (USFWS 2007; p. 6–9). The seven roost sites in Mexico have been regularly monitored since the development of the recovery plan (Medellín and Torres 2013, p. 11–13). For more information, see chapter 2 of the SSA Report (USFWS 2016).
Nearly all of the lesser long-nosed bat experts and researchers who provided input to the 5-year review indicated that they observed that the number of lesser long-nosed bats at most of the roost sites in both the United States and Mexico is stable or increasing. As discussed in the SSA report, current expert opinion supports this same conclusion (see chapter 2 of the SSA Report (USFWS 2016). The lesser long-nosed bat's conservation status in Mexico has been determined to be secure enough that Mexico removed the subspecies from its endangered species list in 2013 based on the factors discussed above.
More lesser long-nosed bat roost locations are currently known, and are being more consistently monitored, than at the time of listing in 1988 (an increase from approximately 14 to approximately 75 currently known roosts). In related efforts, a number of studies have been completed that provide us with better information related to the forage requirements of the lesser long-nosed bat when compared to the time of listing and recovery plan completion. Because of improved information, land management agencies are doing a better job of protecting lesser long-nosed bat roost sites and foraging areas. For more information, see chapter 2 of the SSA Report (USFWS 2016).
Our current state of knowledge with regard to threats to this subspecies has changed since the development of the recovery plan. Threats to the lesser long-nosed bat from grazing on food plants, the tequila industry, and prescribed fire, identified in the recovery plan, are likely not as severe as once thought. Effects from illegal border activity and the associated enforcement activities are a new and continuing threat to roost sites in the border region. Potential effects to forage species and their phenology as a result of climate change have been identified, but are characterized by uncertainty and lack of data specifically addressing those issues. Nonetheless, lesser long-nosed bats have shown the ability to adapt to adverse forage conditions and we find that the lesser long-nosed bat is characterized by flexible and adaptive behaviors that will allow it to remain
As discussed in the SSA report and 5-year review, data relied upon to develop the 1988 listing rule and the recovery plan were incomplete. Subsequent to the completion of the listing rule and recovery plan, considerable additional data regarding the life history and status of the lesser long-nosed bat have been gathered and, as discussed above, have documented an increase in the number of known roost sites and the number of lesser long-nosed bats occupying those roosts. During the 2007 5-year review of the status of this subspecies, it was determined that the 1997 recovery plan was outdated and did not reflect the best available information on the biology of this subspecies and its needs (USFWS 2007; p. 30; available online at
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (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. A species may be reclassified or delisted on the same basis. Consideration of these factors was included in the SSA report in the discussion on “threats” or “risk factors,” and threats were projected into the future using scenarios to evaluate the current and future viability of the lesser long-nosed bat. The effects of conservation measures currently in place were also assessed in the SSA report as part of the current condition of the subspecies, and those effects were projected in future scenarios. The evaluation of the five factors as described in the SSA report is summarized below.
The primary threat to this subspecies continues to be roost site disturbance or loss. The colonial roosting behavior of this subspecies, where high percentages of the population can congregate at a limited number of roost sites, increases the likelihood of significant declines or extinction due to impacts at roost sites. However, as discussed above, increased lesser long-nosed bat numbers and positive trends at most roosts have reduced concerns expressed in the 1988 listing rule with regard to low population numbers and an apparent declining population trend. Known roosts have had protective measures implemented, previously unknown roosts have been identified and agencies and conservation partners are implementing protective measures, and outreach and education has been effective in increasing the understanding of the general public, as well as conservation partners, with regard to the need to prevent disturbance at lesser long-nosed bat roosts while the bats are present (USFWS 2016, p. 45–48). As discussed in the SSA report, we have determined that the current lesser long-nosed bat population is currently viable and is likely to remain so into the future based on the documentation of higher numbers of lesser long-nosed bats, increased numbers of known and protected roost sites, improved outreach and education, and a decrease in the effects of known threats and plans to assess and address known threats in the future (USFWS 2016, entire). We have determined that roost sites have and will be protected to the extent that roost disturbance is no longer a sufficient threat to warrant listing under the Act.
In general, while actual numbers of bats observed at roost sites may not support a statistically valid population trend, the overall numbers of bats observed at roost sites can be used as an index of population status. Although most data related to lesser long-nosed bat roost counts and monitoring have not been collected in a way that is statistically rigorous enough to draw statistically-valid conclusions about the trend of the population, in the professional judgment of biologists and others involved in these efforts, the total numbers of bats observed at roost sites across the range of the lesser long-nosed bat are considered stable or increasing at nearly all roost sites being monitored. With a documented increase from an estimated 500 lesser long-nosed bats in the U.S. at the time of listing to over 100,000 currently documented, the total number of bats currently being documented is many times greater than those numbers upon which the listing of this species relied, and while this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population.
Significant information regarding the relationship of lesser long-nosed bats to their forage resources has been gathered over the past decade. Because lesser long-nosed bats are highly specialized nectar-, pollen-, and fruit-eaters, they have potential to be extremely vulnerable to loss of or impacts to forage species. However, lesser long-nosed bats are also highly effective at locating food resources, and their nomadic nature allows them to adapt to local conditions. For example, the resiliency of lesser long-nosed bats became evident in 2004, when a widespread failure of saguaro and organ pipe bloom occurred. The failure was first noted in Organ Pipe Cactus National Monument, and such a failure had not been noted in the recorded history of the Monument (Billings 2005). The failure extended from Cabeza Prieta NWR on the west to Tucson on the east, and south into central Sonora, Mexico. The large-scale loss of this lesser long-nosed bat food resource was somewhat offset by the fact that small numbers of both saguaro and organ pipe flowers continued to bloom into August and September. Such a failure would have been expected to result in fewer lesser long-nosed bats using roosts in this area or reduced productivity at these roosts. However, this was not the case. Maternity roost numbers remained as high as or higher than previous years, with some 25,000 adult females counted during 2004 monitoring (Billings 2005). Ultimately, it appears lesser long-nosed bats were able to subsist and raise young in southwestern Arizona in this atypical year. Other observations over the past 20 years, including some years of significantly reduced agave availability, have indicated that the lesser long-nosed bat is more adaptable than previously believed to changing forage resource availability. This adaptability
Additionally, the effects of livestock grazing and prescribed fire on long-nosed bat food sources are also not as significant as originally thought. For example, Widmer (2002) found that livestock were not responsible for all of the utilization of agave flower stalks their study area. Wildlife such as javelina, white-tailed deer, and small mammals also utilized agave flower stalks as a food resource. The extent of livestock use of agave flower stalks appears to be related to standing biomass and distance from water. Further, Bowers and McLaughlin (2000) found that the proportion of agave flower stalks broken by cattle did not differ significantly between grazed and ungrazed areas. All of which indicate that livestock do not have a significant effect on lesser long-nosed bat food sources, over and above native grazers. Thomas and Goodson (1992) and Johnson (2001, p. 37) reported 14% and 19% mortality of agaves following burns. Some agency monitoring has occurred post-fire for both wildfires and prescribed burns. This monitoring indicates that agave mortality in burned areas is generally less than 10% (USFS 2015, p. 82–83; USFS 2013, p. 10–11). Contributing to this relatively low mortality rate is the fact that most fires burn in a mosaic, where portions of the area do not burn. Impacts of fire on agave as a food source for lesser long-nosed bats may not be a significant concern for the following reasons: Fire-caused mortality of agaves appears to be low; alternative foraging areas typically occur within the foraging distance from lesser long-nosed bat roosts; and most agave concentrations occur on steep, rocky slopes with low fuel loads (Warren 1996). In addition, Johnson (2001, p. 35–36) reported that recruitment of new agaves occurred at higher rates in burned plots than in unburned plots, indicating that there may be an increased availability over time of agaves in areas that have burned, if the return rate of fire is greater than seven years. The effects of agave harvesting are limited to bootleggers, which is likely occurring at the same levels as when the species was listed in 1988, however, this is not considered significant. In addition, increased outreach and education are being provided to tequila producers in an effort to reduce the effects of agave harvesting on lesser long-nosed bats.
While not currently a threat affecting the viability of the lesser long-nosed bat population, the potential for migration corridors to be truncated or interrupted is a concern. Significant gaps in the presence of important roosts and forage species along migration routes would affect the population dynamics of this subspecies. While the lesser long-nosed bat continues to be faced with loss and modification of its habitat throughout its range, the habitats used by this subspecies occur over an extensive range that covers a wide diversity of vegetation and ecological communities. These are habitat characteristics that would not make this subspecies intrinsically vulnerable with regard to habitat limitations. That is to say, the wide variety of ecosystems that this subspecies uses, over a relatively expansive range, results in available areas characterized by the asynchronous flowering of forage resources making up the diet of the lesser long-nosed bat and buffers this subspecies from potential loss or reduction of habitats as a result of stochastic events, including the effects of climate change, among others.
There is no question that current population numbers of lesser long-nosed bats exceed the levels known and recorded at the time of listing in 1988. A number of publications have documented numbers of lesser long-nosed bats throughout its range that far exceed the numbers used in the listing analysis with an estimated increase from fewer than 1,000 bats to approximately 200,000 bats (Fleming et al. 2003, pp. 64–65; Sidner and Davis 1988, p. 494). Also, in general, the trend in overall numbers of lesser long-nosed bats estimated at roost sites has been stable or increasing in both the United States and Mexico (Medellín and Knoop 2013, p. 13; USFWS 2016). Increased roost occupancy and the positive trend in numbers of lesser long-nosed bats occupying these roosts appear to be supported by adequate forage resources. The adaptability of the lesser long-nosed bat to changing forage conditions seems to allow the lesser long-nosed bat to sustain a positive population status under current environmental conditions.
While some threats are ongoing with regard to lesser long-nosed bat habitat, in general, we find that threats to this species' habitat have been reduced or are being addressed in such a way that lesser long-nosed bat habitat is being enhanced and protected at a level that has increased since the 1988 listing of this species. In particular, areas that were vulnerable to threats have been protected or are now managed such that those threats have been reduced. Outreach and education have increased the understanding of what needs to be done to protect lesser long-nosed bat habitat. Therefore, based on the analysis completed in the SSA report (USFWS 2016; p. 54–61), we have determined that threats to the habitat of this species are currently reduced and will continue to be addressed in the foreseeable future, or are not as significant as previously thought. We find that threats to the habitat of this species have been eliminated, reduced, or mitigated to the extent that the subspecies no longer is an endangered or threatened species under the Act. Lesser long-nosed bat habitat conditions are currently, and are predicted to remain at levels that have and will improve the viability of the lesser long-nosed bat to the point that the species is no longer endangered.
Lesser long-nosed bats are not known to be taken for commercial purposes, and scientific collecting is not thought to be a problem (USFWS 1988, p. 38459). Caves and mines continue to attract recreational users interested in exploring these features but this threat has probably not increased since the listing. For example, Pima County, in southeastern Arizona, is implementing mine closures on lands that they have acquired for conservation purposes. Other land management agencies also carry out abandoned mine closures for public recreational safety purposes. A positive aspect of these mine closure processes is that most agencies and landowners now understand the value of these features to bats and other wildlife and are implementing measures to maintain those values while still addressing public health and safety concerns. The 1988 listing rule stated that bats were often killed by vandals (USFWS 1988, p. 38459). However, significant changes in the public perception of bats are occurring. Educational efforts are beginning to make a difference.
In both the U.S. and Mexico, public education, in the form of radio and television spots, and educational materials have been implemented. Agencies now receive calls for assistance in nonlethal solutions to bat issues. Often, the general public does take the time to understand or differentiate when it comes to emotional issues such as rabies or vampire bats, but outreach and education are improving the understanding and knowledge of facts when it comes to the reality of the extent of these issues. There has been a focused effort in Mexico to reduce the mortality of non-target species in relation to vampire bat
In summary, we determine that the viability of the lesser long-nosed bat is not being significantly affected by threats from scientific research or public recreational activities.
Disease does not currently appear to be a significant risk factor for the lesser long-nosed bat. Emerging disease issues, such as those associated with white-nose syndrome, may become more significant, however our current scientific assessment indicates that white-nose syndrome will not affect this non-hibernating species. Therefore, because lesser long-nosed bats do not hibernate, we do not anticipate that white-nose syndrome will be a significant risk factor for lesser long-nosed bats (see chapter 4 of the SSA Report (USFWS 2016).
Predation does contribute to the mortality of lesser long-nosed bats at roost sites. Likely predators include snakes, raccoons, skunks, ringtails, bobcats, coyotes, barn owls, great-horned owls, and screech owls. Specifically, barn owls have been observed preying on lesser long-nosed bats at the maternity roost at Organ Pipe Cactus National Monument for many years and snakes have been observed preying on lesser long-nosed bats in Baja California Sur, Mexico. However, at large aggregations, such as bat roosts, predation is an insignificant impact on the population. Therefore, we find that neither disease nor predation are currently or is likely in the future to affect the viability of the lesser long-nosed bat.
The current listing of the lesser long-nosed bat in the United States and the former listing of the bat in Mexico as an endangered species have provided this species with some level of protection. Outside of this, there are no laws or regulations protecting this species in Mexico. In fact, the lack of regulation related to control of vampire bats in Mexico is continuing to result in the mortality of the lesser long-nosed bat due to the lack of requirements to properly identify the target species. However, increased education and outreach is improving this situation in Mexico. In the United States, State laws and regulations provide some additional level of protection. For example, Arizona State Law in ARS Title 17 prohibits the taking of bats outside of a prescribed hunting season and, per Commission Order 14, there is no open hunting season on bats, meaning it is always illegal to take them. Provisions for special licenses to take bats and other restricted live wildlife are found in Arizona Game and Fish Commission Rule 12, Article 4 and are administered by the Arizona Game and Fish Department. However, this protection is for individual animals only, and does not apply to the loss or destruction of habitat. As discussed in the SSA report (USFWS 2016; p. 14), there is one Federal Act and one State Statute in the United States that provide some measure of protection at cave roosts. The Federal Cave Protection Act of 1988 prohibits persons from activities that “destroy, disturb, deface, mar, alter, remove, or harm any significant cave or alters free movement of any animal or plant life into or out of any significant cave located on Federal lands, or enters a significant cave with the intent of committing any act described . . .” Arizona Revised Statute 13–3702 makes it a class 2 misdemeanor to “deface or damage petroglyphs, pictographs, caves, or caverns.” Activities covered under ARS 13–3702 include “kill, harm, or disturb plant or animal life found in any cave or cavern, except for safety reasons.”
The above laws and regulations will continue to protect lesser long-nosed bats and their habitats after delisting. We have determined that these existing regulations address the most important threats to the lesser long-nosed bat as discussed in the SSA report (USFWS 2016; p. 54–61).
Ecosystems within the southwestern United States are thought to be particularly susceptible to the effects of climate change and variability (Strittholt et al. 2012, p. 104–152; Munson et al. 2012, p. 1–2; Archer and Predick 2008). Documented trends and model projections most often show changes in two variables: Temperature and precipitation. Recent warming in the southwest is among the most rapid in the nation, significantly more than the global average in some areas (Garfin et al. 2014, p. 463; Strittholt et al. 2012, p. 104–152; Munson et al. 2012, p. 1–2; Guido et al. 2009). Precipitation predictions have a larger degree of uncertainty than predictions for temperature, especially in the Southwest (Sheppard et al. 2002), but indicate reduced winter precipitation with more intense precipitation events (Global Climate Change 2009, p. 129–134; Archer and Predick 2008, p. 24). Further, some models predict dramatic changes in Southwestern vegetation communities as a result of the effects of climate change (Garfin et al. 2014, p. 468; Munson et al. 2012, p. 9–12; Archer and Predick 2008, p. 24). In the most recent assessment of climate change impacts by the Intergovernmental Panel on Climate Change (IPCC), the IPCC indicated that there would be a decrease in the number of cold days and nights and an increase in the number of warm days and warm nights which would favor frost-intolerant lesser long-nosed bat forage species like saguaro and organ pipe cacti, but may also affect the blooming phenology of those same species (IPCC 2014, p. 53). They also indicted that precipitation events would likely become more intense and that we are more likely to see climate-related extremes such as heat waves, droughts, floods, wildfires, etc. (IPCC 2014, p. 53).
The U.S. Geological Survey produced a mapping tool that allows climate change projections to be downscaled to local areas including states, counties, and watershed units. We used this National Climate Change Viewer (U.S. Geological Survey 2016) to compare past and projected future climate conditions for Pima, Santa Cruz, and Cochise counties, Arizona. The baseline for comparison was the observed mean values from 1950 through 2005, and 30 climate models were used to project future conditions for 2050 through 2074. We selected the climate parameters of April maximum temperature and August and December mean precipitation to evaluate potential effects on lesser long-nosed bat forage resources. These particular parameters were selected from those available because they represented those most likely to impact the survival and flowering phenology of individual forage species.
Similar to the more general climate change effects discussed above, the downscaled analysis also showed warming spring temperatures which could result in an early blooming period for lesser long-nosed bat forage species (USGS 2016). Precipitation changes were evaluated for changes to monsoon and winter precipitation. In line with the general climate projections, changes during the evaluated time periods were greater for winter precipitation than for monsoon precipitation. Changes projected for monsoon precipitation were minimal, but projected to be reduced by approximately one inch per 100 days for winter precipitation (USGS 2016).
The best available information indicates that ongoing climate change will probably have some effect on lesser long-nosed bat forage resources. Such
We evaluated overall viability of the lesser long-nosed bat in the SSA report (USFWS 2016) in the context of resiliency, redundancy, and representation. Species viability, or the ability to survive long term, is related to the species' ability to withstand catastrophic population and species-level events (redundancy); the ability to adapt to changing environmental conditions (representation); and the ability to withstand disturbances of varying magnitude and duration (resiliency). The viability of this species is also dependent on the likelihood of new threats or risk factors or the continuation of existing threats now and in the future that act to reduce a species' redundancy, resiliency, and representation.
As described in the SSA report, we evaluated the viability of the lesser long-nosed bat population at two timeframes, 15 years and 50 years. The 15-year timeframe represents the time it generally takes to document the effectiveness of various research, monitoring, and management approaches that have been or are implemented related to lesser long-nosed bat conservation. Therefore, the 15-year timeframe is a reasonable period of time within which we can predict outcomes of these activities in relation to the viability of the lesser long-nosed bat population. The 50-year timeframe is related primarily to the ability of various climate change models to reasonably and consistently predict or assess likely affects to lesser long-nosed bats and their forage resources. For each of these timeframes, we evaluated three future scenarios, a best-case scenario, a moderate-case scenario, and a worst-case scenario with respect to the extent and degree to which threats will affect the future viability of the lesser long-nosed bat population. We also determined how likely it would be that each of these three scenarios would actually occur. The SSA report details these scenarios and our analysis of the effects of these scenarios, over the two timeframes, on redundancy, resiliency, and representation of the lesser long-nosed bat population.
During our decision-making process, we evaluated our level of comfort making predictions at each of the two timeframes. Ultimately, while the SSA report evaluates both timeframes, there was some discomfort expressed by decision makers for extending predictions of the future viability of the lesser long-nosed bat out to 50 years due to the uncertainty of climate change models and the difficulty of predicting what will happen in Mexico where the majority of this species' habitat occurs, but where we have less information with regard to the threats affecting the lesser long-nosed bats. In the SSA report, all three scenarios were evaluated over both time frames (USFWS 2016, p. 52–56). The evaluation results of future viability in the SSA report were identical for both timeframes (high viability), except in the worst-case scenario where, unlike the moderate- and best-case scenarios, the viability was moderate for the 15-year timeframe and low for the 50-year timeframe. For each future scenario, we describe how confident we are that that particular scenario will occur. This confidence is based on the following confidence categories: Highly likely (greater than 90 percent sure of the scenario occurring); moderately likely (70 to 90 percent sure); somewhat likely (50 to 70 percent sure); moderately unlikely (30 to 50 percent sure); unlikely (10 to 30 percent sure); and highly unlikely (less than 10 percent sure). The SSA report concluded that it is unlikely that the worst-case scenario will actually occur. The worst case scenario describes a drastic increase in negative public attitudes towards bats and lesser long-nosed bat conservation, a greater influence from white-nose syndrome, and the worst possible effects from climate change. Based on our experience and the past and ongoing actions of the public and the commitment of management agencies in their land-use planning documents to address lesser long-nosed bat conservation issues, both now and in the future in both the United States and Mexico, such drastic impacts are unlikely to occur (10 to 30 percent sure this scenario will occur). In fact, for the conditions outlined in the worst-case scenario, we find that certainty of the worst-case scenario occurring is closer to 10 percent than to 30 percent sure that this scenario would actually occur based on the commitment to conservation of this species and the adaptability of the lesser long-nosed bat. If the lesser long-nosed bat is delisted and prior to the final rule, we will confirm with our public and agency conservation partners that they will continue to coordinate and implement existing and future conservation actions related to the lesser long-nosed bat. For additional discussion related to the worst-case scenario, see the SSA report (USFWS 2016; p. 51–53). Such ongoing commitment to lesser long-nosed bat conservation has already been seen subsequent to the delisting of this bat in Mexico and our experience has been that it will also continue in the U.S. after delisting.
Although the worst-case scenario was evaluated in the SSA report, because we found that it was unlikely to actually occur, the focus of our consideration was on the scenarios that had the greatest likelihood of occurring, the best- and moderate-case scenarios, where redundancy, resiliency, and representation remain high regardless of the timeframe or scenario considered. Under the current condition for the lesser long-nosed bat, as well as in both
Section 4 of the Act and its implementing regulations, 50 CFR part 424, set forth the procedures for listing, reclassifying, or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. For species that are already listed as endangered or threatened, the analysis of threats must include an evaluation of both the threats currently facing the species, and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered or threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error. We conclude that the lesser-long nosed bat has recovered and no longer meets the definition of endangered or threatened under the Act.
Although most data related to lesser long-nosed bat roost counts and monitoring have not been collected in a way that is rigorous enough to draw statistically calculable conclusions about the trend of the population, the total numbers of bats observed at roost sites across the range of the lesser long-nosed bat are considered stable or increasing at nearly all roost sites being monitored based on the professional judgment of biologists and others involved in these efforts. The total number of bats currently documented is many times greater than the total number of bats documented at the time of listing in 1988. At the time of listing, there were estimated to be less than 500 lesser long-nosed bats in the United States; current estimates are greater than 100,000. Rangewide, at the time of listing, it was estimated that there were less than 1,000 lesser long-nosed bats. Current rangewide estimates are approximately 200,000 lesser long-nosed bats. While this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population. This better information is related to the species' population and the number of roosts, and its distribution. Better information and increased efforts related to habitat protection (identification of roost sites and forage resources in planning efforts, implementation of protective measures for roosts and forage resources, increased awareness of habitat needs, etc.) have occurred and are planned to be implemented in the future, regardless of the listing status of this subspecies. This increased level of information and conservation, combined with the current state of its threats allow us to conclude that the subspecies is not in danger of extinction and is not expected to become endangered in the foreseeable future. Our thorough evaluation of the available data for occupancy, distribution, and threat factors, as well as the opinions of experts familiar with this subspecies, indicates a currently viable population status with a stable to increasing trend.
Predicting the future viability of the lesser long-nosed bat is somewhat more difficult than for species that occur in discrete, mostly consistent habitats (ponds, springs, specific soil types, etc.). The lesser long-nosed bat population is fluid and constantly adapts to changing environmental conditions over a large, bi-national range. Lesser long-nosed bat roost sites are discrete and consistent, but the lesser long-nosed bat may use these roost sites in a changing and adaptable manner to take advantage of ephemeral and constantly changing forage resources with both seasonal and annual differences of occurrence. Therefore, observations of occupancy and numbers of bats using these roosts may not be a complete or accurate representation of the status of the subspecies across its range. However, the information regarding the status of the lesser long-nosed bat population is much more accurate and complete than it was as the time of the 1988 listing rule.
The future viability of this subspecies is dependent on a number of factors. First, an adequate number of roosts in the appropriate locations is needed. As detailed in the SSA report, adequate roosts of all types (maternity, mating, transition, and migratory) currently exist and are likely to exist into the foreseeable future (USFWS 2016; p. 8–14). Second, sufficient available forage resources are located in appropriate areas, including in proximity to maternity roosts and along the “nectar trail” used during migration. The discussion above and the SSA report detail our analysis and determination that forage resources are adequate and that the lesser long-nosed bat is likely to adapt to any changes in forage availability in the future (USFWS 2016; p. 15–20). In addition, the SSA report analyses the contribution of current and future management of threats to the subspecies' long-term viability. The future viability of the lesser long-nosed bat will also depend on continued positive human attitudes towards the conservation of bats, implementation of conservation actions protecting roost sites and forage and migration resources, and implementation of needed research and monitoring will inform adaptive management that will contribute to the future viability of the lesser long-nosed bat population. The SSA report discusses the improved status of these issues across the range of the lesser long-nosed bat in much more detail (USFWS 2016; p. 43–46). The results of the SSA also indicate that the status of the lesser long-nosed bat has further improved in the years since the 2007 5-Year Review (FWS 2007).
Based on the analysis in the SSA report for the lesser long-nosed bat (USFWS 2016 and summarized above, the lesser long-nosed bat does not currently meet the Act's definition of endangered because it is not in danger of extinction throughout all of its range. Additionally, the lesser long-nosed bat is not a threatened species because it is not likely to become endangered in the foreseeable future throughout all of its range.
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. Having determined that the lesser long-nosed bat is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which the lesser long-nosed bat is in danger of extinction or likely to become so. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The
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 endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species 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, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer 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 in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance 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.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range 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 have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (
We identified portions of the lesser long-nosed bat's range that may be significant, and examined whether any threats are geographically concentrated in some way that would indicate that those portions of the range may be in danger of extinction, or likely to become so in the foreseeable future. Within the current range of the lesser long-nosed bat, some distinctions can be made between Mexico and the United States (international border, vegetation communities, etc.). While these geographic distinctions may be significant, our analysis indicates that the species is unlikely to be in danger of extinction or to become so in the foreseeable future in any geographic region within the range of the lesser long-nosed bat given that factors such as roost sites, forage resources, and migration pathways are well distributed across the entire range and that the status of the species is stable or increasing in both the United States and Mexico, with conservation actions being implemented to address ongoing threats. Therefore, we have not identified any portion of the range that warrants further consideration to determine whether they are a significant portion of its range.
We also evaluated representation across the lesser long-nosed bat's range to determine if certain areas were in danger of extinction, or likely to become so, due to isolation from the larger range. Ramirez (2011) investigated population structure of the lesser long-nosed bat through DNA sampling and analysis and reported that combined results indicated sampled individuals belong to single population including both the United States and Mexico. Consequently, individuals found in the northern migratory range (United States) and in Mexico should be managed as a single population.
Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.
We have determined that none of the existing or potential threats cause the lesser long-nosed bat to be in danger of extinction throughout all or a significant portion of its range, nor is the subspecies likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; or (3) the original scientific data used at the time the species was classified were in error. On the basis of our evaluation, we conclude that, due to recovery, the lesser long-nosed bat is not an endangered or threatened species. We therefore propose to remove the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).
This proposed rule, if made final, would revise our regulations at 50 CFR 17.11(h) by removing the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this subspecies. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the
Section 4(g)(1) of the Act requires the Secretary of Interior, through the Service and in cooperation with the States, to implement a system to monitor for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain populations without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.
We will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective post-delisting monitoring (PDM) plan for the lesser long-nosed bat. The PDM plan will build upon current monitoring techniques and research, as well as emerging technology and techniques. Monitoring will assess the species numbers, distribution, and threats status, as well as ongoing management and conservation efforts that have improved the status of this subspecies since listing. The PDM plan will identify, to the extent practicable and in accordance with our current understanding of the subspecies' life history measurable thresholds and responses for detecting and reacting to significant changes in the lesser long-nosed bat's populations, distribution, and persistence. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The result of the investigation will be to determine if the lesser long-nosed bat warrants expanded monitoring, additional research, additional habitat protection, or resumption of Federal protection under the Act. The draft PDM plan will be made available for public comment in a future publication in the
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. Therefore, we have and will solicit information from Native American Tribes during the comment period to determine potential effects on them or their resources that may result from the proposed delisting of the lesser long-nosed bat, and we will fully consider their comments on the proposed rule submitted during the public comment period.
A complete list of all references cited in this rule is available on
The primary authors of this document are the staff members of the Arizona Ecological Services Field Office, U.S. Fish and Wildlife Service (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245, unless otherwise noted.
Fish and Wildlife Service, Interior.
Proposed rule and 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), propose to reclassify
To ensure that we are able to consider your comments on this proposed rule, they must be received or postmarked on or before March 7, 2017. We must receive requests for public hearings, in writing, at the address shown in
(1)
(2)
We request that you send comments only by one of the methods described above. We will post all comments on
Wally Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone 505–761–2525; facsimile 505–346–2542. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800–877–8339.
Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:
(1) Reasons why we should or should not reclassify
(2) New biological or other relevant data concerning any threat (or lack thereof) to this plant and existing regulations that may be addressing these or any of the below threats.
(3) New information concerning the population size or trends of
(4) New information on how
(5) New information on the current or planned activities within the range of
(6) New information or data on the projected and reasonably likely impacts to
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act 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.”
Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.
You may submit your comments and materials concerning the proposed rule by one of the methods listed in
If you mail or hand-deliver hardcopy comments that include personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on
In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:
(1) You can view them on
(2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's New Mexico Ecological Services Field Office (see
Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in
In accordance with our joint policy on peer review published in the
We will consider all comments and information we receive during the comment period on this proposed rule as we prepare the final determination. Prior to issuing a final rule on this proposed action, we will take into consideration all additional information and comments that we receive. Such information may lead to a final rule that differs from this proposal.
Found on slopes of sandy gravel and amid rocky outcrops in southern New Mexico,
When we originally listed this cactus in 1979, we were aware of only a single population of approximately 200 plants located on the east slope of the Sacramento Mountains in New Mexico (Chaves and Otero Counties) (44 FR 61924; October 26, 1979). When the recovery plan was adopted in 1985, the plant was known to exist in two locations with a total of fewer than 500 plants. It is now reasonable to estimate, based on recent surveys, that several thousand cacti exist within the known range of this taxon, with approximately 3,300 individuals observed within 11 known population centers since 1981, when more intensive surveys were initiated (Service 2005, entire; 2016, entire). Since 1979, the range of this plant has also been extended 10 miles to the west in Otero County, 40 miles north in Lincoln County (DeBruin 1993), and approximately 100 miles to the southeast (from its northwestern-most location in Lincoln County) into the Guadalupe Mountains of Eddy County. Numerous new locations within this range place it within the U.S. Department of Agriculture (USDA) -Forest Service and U.S. Department of the Interior (USDI)- Bureau of Land Management (BLM) jurisdictions as well on private and State lands. It has also been found on the west side of the Sacramento Mountains in Lincoln County (Knight 1999), and on USDA-Forest Service and USDI–BLM lands in the northern Guadalupe Mountains in Eddy and Otero Counties (Chauvin et al. 2001, Sivinski 1996). Populations are not continuous within this range, but are patchy, scattered, and rare.
Some have questioned the taxonomic status of
For a detailed discussion of
We proposed to list this plant, with the scientific name
Under the Act, we maintain the Lists of Endangered and Threatened Wildlife and Plants at 50 CFR 17.11 (for wildlife) and 17.12 (for plants) (Lists). We amend the Lists by publishing final rules in the
On July 16, 2012, we received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting the Service to reclassify
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List. However, revisions to the List (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Therefore, recovery criteria should indicate when a species is no longer an endangered species or threatened species because of any of the five statutory factors.
Thus, while recovery plans provide important guidance to the Service, States, and other partners on methods of minimizing threats to listed species and measurable objectives against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of or remove a species from the Federal List of Endangered and Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of the best scientific and commercial data then available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.
In 1985, we finalized a recovery plan for
The first criterion was intended to address the point at which imminent threats to the plant had been ameliorated so that the populations were no longer in immediate risk of extirpation. Estimated abundance of individuals in all populations has changed over time, from approximately 200 individuals at the time of listing in 1979, to multiple populations with more than 3,300 individuals (Service 2005, p. 4; Service 2016, pp. 3–4). We believe there are likely more than 3,300 individuals across the range of
Currently,
The second criterion is for the Service to develop policy for commercial propagation and to introduce 10,000 propagated individuals into the commercial market.
Various studies have occurred since development of the recovery plan that aid in our understanding of the status of
• Recent surveys indicate that
• May et al. (2008, p. 170) found
• Both Baker (2007, entire) and Felix et al. (2014, p. 64) found morphological characters than differentiate this taxon from other similar taxa.
• Sivinski (2007, p. 93) found that wildfire can cause high mortality in this cactus, and it was slow to recover, with first flowering occurring at between four to five years after seedlings germinated.
• May (2006, entire) and Wester and Britton (2007, p. 11) found that prescribed fire had little effect on
These and other data that we have analyzed indicate that most threats identified at listing and during the development of the recovery plan are reduced in areas occupied by
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species on, reclassifying species on, or removing species from the Lists of Endangered and Threatened Wildlife and Plants. 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 (16 U.S.C. 1532(16)). A species may be determined to be an endangered species or threatened species because of any one or a combination of the five factors described in section 4(a)(1) of the Act: (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 man-made factors affecting its continued existence. A species may be reclassified on the same basis.
Determining whether the status of a species has improved to the point that it can be reclassified from endangered to threatened (“downlisted”) requires consideration of whether the species is endangered or threatened because of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal of the Act's protections.
A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” in the significant portion of its range phrase refers to the range in which the species currently exists. For the purposes of this analysis, we first evaluate the status of
At the time of listing, the primary threats to
Recommendations to address the impacts of these emerging threats, including a long-term monitoring plan for
Habitat loss by road construction and maintenance and through residential development is negligible in the area occupied by
Grazing at low intensity stocking rates can be compatible with the presence of
As mentioned previously, the collection of
The following sections provide a summary of the current threats impacting
Both arid grasslands and pinyon-juniper savanna, where
During 11 of the last 15 years (2001–2015), there has been moderate to exceptional drought conditions in the area where
Based on the unequivocal evidence of warming of the earth's climate from observations of increases in average global air and ocean temperatures, widespread melting of glaciers and polar ice caps, and rising sea levels recorded in the Intergovernmental Panel on Climate Change Report (IPCC 2007a, entire; 2013, entire), effects due to climate change are now a consideration for Federal agency analysis (Government Accounting Office 2007, entire). The Service will incorporate climate change into our decision making under the Act (Service 2010, entire). The earth's surface has warmed by an
This global climate information has been downscaled to our region of interest, and projected into the future under two different scenarios of possible emissions of greenhouse gases (Alder and Hostetler 2014, p. 2). Climate projections for the cactus area include a 5 to 6 percent increase in maximum temperature (up to 4 °C (7.2 °F)), an 11 percent decrease in precipitation, and a 25 percent increase in evaporative deficit over the next 25 years (National Climate Change Viewer, Four County Data,
Effects due to climate change also include an increase in atmospheric carbon dioxide, which is commonly associated with increased temperatures and the greenhouse effect. This increased carbon dioxide directly affects plant photosynthesis (Huxman and Scott 2007, p. 28). At the plant level, adapting to drought involves the ability to balance carbon sequestration (the uptake and storage of carbon) and carbon respiration (efflux back into the atmosphere), while also maintaining sustainable evapotranspiration rates (Huxman and Scott 2007, p. 28). Adaptation would also require a plant to change its phenology (timing of life cycle events) to coincide successfully with extreme shifts in temperature, precipitation, and soil moisture (Walther et al. 2002, p. 389), which are all part of the evapotranspiration equation. The potential for rapid climate change, which is predicted for the future, could pose significant challenges for plants because they may not be able to adjust their phenology or photosynthetic mechanisms quickly enough.
Cacti have a unique photosynthetic pathway referred to as crassulacean acid metabolism (CAM), which is most effective in low soil moisture, intense sunlight, and high daytime temperature conditions, and is considered to be a desert adaptation (Nefzaoui et al. 2014, p. 121). CAM plants may have an advantage under these drier condition scenarios due to the effects of climate change (Reyes-Garcia and Andrade 2009, p. 755). If atypical cactus mortality occurs, this could be evidence that a climatic severity threshold may have been crossed even for this well-adapted CAM plant.
Munson et al. (2013, p. 2,030) forecasts declines in vegetative cover including cacti in Chihuahuan Desert habitats due to climate change. This is because growing seasons are becoming longer and warmer and in many regions (Kunkel 2013, p. 1) including the Southwest (Cayan et al. 2001, p. 399; Easterling 2002, p. 1329) due to the effects of climate change. This trend of longer and warmer growing seasons is projected to continue in the current climate change assessments. Earlier soil moisture stress would result in decreased flowering and reproduction for
When stressors occur together, one may exacerbate the effects of another, causing effects not accounted for when stressors are analyzed individually. Synergistic or cumulative effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of
Another threat combination can occur between drought, climate change effects, and predation. Although predation has not been a monitored factor for
Alterations to the fire regime, including implementation of agency guidance to suppress wildland fires and changes to livestock grazing strategies, are likely the most immediate threatening factors to
The effects of climate change may cause extended periods of drought and alter blooming seasons, thus reducing the chances of successful reproduction cycles. Due to the rugged locations of occupied habitats, impacts from surface development (road building and maintenance, urban development) are not considered major threats to the existence of
The determination of whether a species is endangered or threatened under the Act is based on whether a species is in danger of extinction or likely to become so because of any of five factors: (A) The present or
In considering factors that might constitute threats to a species, we must look beyond the exposure of the species to a factor to evaluate whether the species responds to the factor in a way that causes impacts to the species or is likely to cause impacts in the future. If a species responds negatively to such exposure, the factor may be a threat and, during the status review, our aim is to determine whether impacts are or will be of an intensity or magnitude to place the species at risk. The factor is a threat if it drives, or contributes 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 affected could suffice. In sum, the mere identification of factors that could affect a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors act on the species to the point that the species meets the definition of an endangered or threatened species.
The known range of
The recently published taxonomic determinations of
As a result of recent information, we know that there are 11 known populations of
In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by
On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). The SPR policy is
If this proposed rule is made final, it would revise 50 CFR 17.12(h) to reclassify
As applicable, recovery actions directed at
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We determined we do not need to prepare an environmental assessment or an environmental impact statement, 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 author of this proposed rule is the Southwest Regional Office in Albuquerque, New Mexico, in coordination with the New Mexico Ecological Services Field Office in Albuquerque, New Mexico (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245, unless otherwise noted.
(h) * * *
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on a new information collection, Significant Cave Nominations under the Federal Cave Resources Protection Act (FCRPA).
Comments must be received in writing on or before March 7, 2017 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Johanna Kovarik, Minerals and Geology Management, 740 Simms Street, Golden, CO 80401. Comments also may be submitted via facsimile to (303) 275–5122 or by email to:
Johanna Kovarik, Minerals and Geology Management, 303–275–5378. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 twenty-four hours a day, every day of the year, including holidays.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Forest Service, USDA.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended; the Federal Land Policy and Management Act of 1976, as amended; and the National Forest Management Act of 1976 (NFMA), as amended; the Forest Service (FS), U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (USACE), U.S. Fish and Wildlife Service (FWS) Great Dismal Swamp, West Virginia Division of Natural Resources (WVDNR), and West Virginia Department of Environmental Protection (WVDEP) have participated as cooperating agencies with the Federal Energy Regulatory Commission (FERC) in the preparation of the Atlantic Coast Pipeline (ACP) and Supply Header Project (SHP) Draft Environmental Impact Statement (EIS). The Draft EIS addresses: (1) The impacts of these projects, (2) the associated draft amendments to the Land and Resource Management Plans (LRMPs) for the Monongahela National Forest (MNF) and George Washington National Forest (GWNF), and (3) the proposal for authorization from the Forest Service to construct, operate, maintain, and eventually decommission a natural gas transmission pipeline that crosses National Forest System (NFS) lands. With this agency-specific Notice of Availability, the FS is announcing the opening of the FERC comment period. Comments submitted to the FERC concerning FS actions need to be timely and specific, showing a direct
To ensure that comments will be considered, the FERC must receive written comments on the ACP and Supply Header Project Draft EIS within 90 days following the date of publication of the FERC Notice of Availability (NOA) for the draft EIS in the
You may submit comments related to the ACP and Supply Header Project Draft EIS, including any comments related to the FS consideration of the authorization of ACP to cross NFS lands and/or the FS consideration of LRMP amendments, to the FERC by any of the four methods listed below. The FERC 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 eComment feature on the FERC's Web site (
(2) You can file your comments electronically by using the eFiling feature on the FERC's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket numbers (CP15–554–000 and CP15–554–001 for ACP) with your submission: Nathaniel J. Davis, Sr., Deputy Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
(4) In lieu of sending written or electronic comments, you can submit oral comments at any of the FERC-sponsored public sessions that are scheduled in the FERC Notice of Availability for the draft EIS.
Your comments must reference the FERC Docket number for the Atlantic Coast Pipeline and Supply Header Project, L.P., Docket Nos. CP15–554–000 and CP15–554–001 (ACP), to be correctly attributed to this specific project. Copies of the ACP and Supply Header Project Draft EIS are available for inspection in the offices of the Forest Supervisor for the Monongahela National Forest and the Forest Supervisor for the George Washington and Jefferson National Forests.
Additional information about the projects is available from the FERC's Office of External Affairs at 866–208–FERC (3372), or on the FERC Web site (
This NOA is specific to the FS and provides notice that the agency has participated as a cooperating agency with FERC in the preparation of the ACP and Supply Header Project Draft EIS. The Atlantic Coast Pipeline route would cross about 21 miles of lands managed by the FS. More specifically, the pipeline route would cross 5.1 miles of lands managed by the Monongahela National Forest, in Pocahontas County, West Virginia and 15.9 miles of lands managed by the George Washington National Forest, in Highland, Bath, and Augusta counties, Virginia. The Supply Header Project would not affect the Monongahela or George Washington National Forests.
The FERC is the NEPA Lead Federal Agency for the environmental analysis of the construction and operation of the proposed ACP and Supply Header Project. The FS is the federal agency responsible for authorizing this use and issuing special use permits for natural gas pipelines across NFS lands under its jurisdiction.
Before issuing a Special Use permit (SUP) to construct, operate, maintain, and eventually decommission a natural gas transmission pipeline that crosses NFS lands, the FS would include any specific stipulations applicable to lands, facilities, water bodies, and easements for inclusion in the SUP.
In order for the potential actions to be consistent with the respective LRMPs (36 CFR 219.15), the FS would need to make several amendments to the LRMPs before the FS could authorize the use and issue a SUP.
The FERC's draft EIS includes the consideration of a FS authorization across NFS lands and the associated FS LRMP amendments. The FS intends to adopt FERC's EIS for agency decisions if the analysis provides sufficient evidence to support the agency's decisions and the agency is satisfied that agency comments and suggestions have been addressed.
“Project-specific plan amendments” would be needed to deviate from the existing forest plan standards for the construction and operation of the ACP. These amendments are considered project-specific amendments because they would not change FS requirements for other projects or authorize any other actions. Additionally, if the proposed route was authorized and a SUP issued, the GWNF LRMP would need to be amended to change the current management prescriptions in the pipeline's operational corridor to Management Prescription Area (Rx) 5C-Designated Utility Corridors. The MNF does not have LRMP direction that would require a similar plan amendment to reallocate management prescriptions. This amendment is considered a “plan-level” amendment and would change future management direction for the lands reallocated to the new management prescription. The FS has also identified potential amendments that may be required, pending survey information and analyses that are not currently available.
The following amendments have been proposed by the FS as part of the proposed action in the FERC draft EIS:
The type of amendment applicable to the MNF would be a project-specific amendment. This amendment would not change FS requirements for other projects or authorize any other actions.
Other potential amendments may be needed pending the outcome of ongoing analyses and development of project design and mitigation.
The first type of LRMP amendment applicable to the GWNF would be a plan-level amendment that would change land allocations. This would change future management direction for the lands reallocated to the new management prescription (Rx) and is required by LRMP Standards FW–243 and FW–244.
Rx 5C-Designated Utility Corridors contain special uses which serve a public benefit by providing a reliable supply of electricity, natural gas, or water essential to local, regional, and national economies. The new Rx 5C land allocation would be 53.5 feet wide, the width of the final operational right-of-way. The area would not cross into the Rx 4A-Appalachian National Scenic Area but would stop and start at the existing Rx 4A boundary. The applicable area within Rx4A would continue to be managed for the Appalachian National Scenic Trail.
The second type of amendment applicable to the GWNF would be a project-specific amendment that would apply only to the construction and operation of this pipeline. The following standards would require a temporary waiver to allow the project to proceed. These amendments would not change LRMP requirements for other projects or authorize any other actions.
The FS will prepare separate Records of Decisions for the authorization decision and for the plan amendments decisions, after issuance of the FERC final EIS. The FS decision to authorize ACP will be subject to FS predecisional administrative review procedures established in 36 CFR 218. The MNF Potential Amendment 1, GWNF Proposed Amendments 2 and 3 and Potential Amendments 4, 5 and 6 were developed in accordance to 36 CFR 219 (2012) regulations but will be subject to the administrative review procedures under 36 CFR 218 regulations Subparts A and B, per 36 CFR 219.59(b). GWNF Proposed Amendment 1 was developed in accordance to 36 CFR 219 (2012 version) regulations and will be subject to the administrative review procedures under 36 CFR 219 Subpart B. Refer to the applicable administrative review regulations for eligibility.
The FS is requesting public comments on the authorization of ACP on NFS lands and the draft proposed and potential amendments of the LRMPs that would allow ACP to cross the MNF and GWNF. All comments must be submitted to the FERC, the Lead Federal Agency, within 90 days following the date of publication of the FERC Notice of Availability for their draft EIS in the
The Regional Forester Eastern Region for NFS lands on the Monongahela National Forest and the Regional Forester Southern Region for NFS lands on the George Washington National Forest are the Responsible Officials.
The Forest Supervisor for the Monongahela National Forest is the Responsible Official for the LRMP Amendment on the Monongahela National Forest.
The Forest Supervisor for the George Washington and Jefferson National Forests is the Responsible Official for the LRMP Amendments on the George Washington National Forest.
The Forest Supervisor for the Monongahela National Forest.
40 CFR 1506.6, 40 CFR 1506.10.
United States Commission on Civil Rights.
Notice of Commission Business 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 Business Meeting of the U.S. Commission on Civil Rights will be convened at 10 a.m. on Friday, January 13, 2017.
Friday, January 13, 2017, at 10 a.m. EST.
National Place Building, 1331 Pennsylvania Ave. NW., 11th Floor, Suite 1150, Washington, DC 20425 (Entrance on F Street NW.).
Brian Walch, Communications and Public Engagement Director. Telephone: (202) 376–8371; TTY: (202) 376–8116; Email:
This business meeting is open to the public. If you would like to listen to the business meeting, please contact the above for the call-in information.
Hearing-impaired persons who will attend the briefing and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376–8105 or at
Office of Administration, Office of Human Resources Management, Department of Commerce.
Notice.
This notice announces the expansion of employee coverage under the Commerce Alternative Personnel System, formerly the Department of Commerce Personnel Management Demonstration Project, published in the
This notice expanding and modifying the Commerce Alternative Personnel System is effective January 6, 2017.
Department of Commerce—Sandra Thompson, U.S. Department of Commerce, 14th and Constitution Avenue NW., Room 51020, Washington, DC 20230, (202) 482–0056 or Valerie Smith at (202) 482–0272.
The Office of Personnel Management (OPM) approved the Department of Commerce (DoC) demonstration project for an alternative personnel management system, and published the final plan in the
CAPS provides for modifications to be made as experience is gained, results are analyzed, and conclusions are reached on how the system is working. This notice announces that the DoC expands CAPS to include non-bargaining unit employees in the Enterprise Services Organization (ESO) in all duty locations, as a participating organization. The ESO will hire new employees and convert reassigned employees to career paths and occupational series already established under CAPS, requiring no additional series to be added to accommodate the expansion.
The DoC will follow the CAPS plan as published in the
CAPS is designed to (1) improve hiring and allow DoC to compete more effectively for high-quality candidates through direct hiring, selective use of higher entry salaries, and selective use of recruitment incentives; (2) motivate and retain staff through higher pay potential, pay-for-performance, more responsive personnel systems, and selective use of retention incentives; (3) strengthen the manager's role in personnel management through delegation of personnel authorities; and (4) increase the efficiency of personnel systems through the installation of a simpler and more flexible classification system based on pay banding through reduction of guidelines, steps, and paperwork in classification, hiring, and other personnel systems, and through automation.
The current participating organizations include 7 offices of the Chief Financial Officer/Assistant Secretary for Administration in the Office of the Secretary; the Bureau of Economic Analysis; 2 units of the National Telecommunications and Information Administration (NTIA): the Institute for Telecommunication Sciences and the First Responder Network Authority (an independent authority within NTIA); and 12 units of the National Oceanic and Atmospheric Administration: Office of Oceanic and Atmospheric Research, National Marine Fisheries Service, the National Environmental Satellite, Data, and Information Service, National Weather Service—Space Environment Center, National Ocean Service, Program Planning and Integration Office, Office of the Under Secretary, Marine and Aviation Operations, Office of the Chief Administrative Officer, Office of the Chief Financial Officer, the Workforce Management Office, and the Office of the Chief Information Officer.
This amendment modifies the December 24, 1997,
CAPS is designed to provide managers at the lowest organizational level the authority, control, and flexibility to recruit, retain, develop, recognize, and motivate its workforce, while ensuring adequate accountability and oversight.
The ESO is a new organization designed to deliver common business support and mission-enabling services in the functional areas of human resources, acquisition, information technology financial management, and other areas as determined necessary. The mission of the ESO is to: Enhance customer experience through the efficient delivery of high-quality mission-enabling services; increase service transparency and accountability; and enable employees, currently performing these functions, to dedicate more time to the unique mission needs of their organization. The expansion of CAPS coverage to include the ESO, should improve the organization's ability to recruit and retain a high-quality workforce to meet the organization's mission.
DoC's CAPS allows for modifications of procedures if no new waiver from law or regulation is added. Given that this expansion and modification is in accordance with existing law and regulation and CAPS is a permanent alternative personnel system, the DoC is authorized to make the changes described in this notice.
Employee notification of this expansion will be accomplished by providing employees and managers electronic access to all CAPS policies and procedures, including the eleven previous
The CAPS at DoC, published in the
1. The following organization will be added to the project plan, Section II D—Participating Organizations
MannKind Corporation (MannKind) submitted a notification of proposed production activity to the FTZ Board for its facility in Danbury, Connecticut within Subzone 76B. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on December 21, 2016.
MannKind currently has authority to use the facility for the production of Technosphere Insulin®, an inhalable insulin made by a combination of imported fumaryl diketopiperazone (FDKP) and domestic material active ingredients. MannKind's current request would add a finished product to the scope of authority. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt MannKind from customs duty payments on the foreign-status components used in export production. On its domestic sales, MannKind would be able to choose the duty rate during customs entry procedures that applies to FDKP carrier/receptor powder (duty rate 6.5%) for the foreign-status components and materials in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is February 15, 2017.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Juanita H. Chen at
On November 4, 2014, in the U.S. District Court for the Southern District of Texas, Dane Francisco Delgado (“Delgado”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Delgado knowingly and willfully conspired with persons known and unknown to export, furnish, and cause to be exported from the United States to Mexico defense articles designated on the United States Munitions List without having first obtained from the Department of State a license or written authorization for such export. Delgado was sentenced to 60 months in prison, three years of supervised release, and a $100 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Delgado's conviction for violating the AECA, and has provided notice and an opportunity for Delgado to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has received a submission from Delgado.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Delgado's export privileges under the Regulations for a period of 10 years from the date of Delgado's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Delgado had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On April 25, 2016, in the U.S. District Court for the District of New Jersey, Robert Luba (“Luba”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Luba knowingly and willfully exported and caused to be exported from the United States to India a defense article, that is, the technical drawing for the NSSN Class Submarine, Torpedo Tube, Open Breech Door, Gagging Collar A, Drawing Number 7072856, which was designated as a defense article on the United States Munitions List, without having first obtained from the Department of State a license for such export or written authorization for such export. Luba was sentenced six months in prison, three years of supervised release, $173,736.67 in restituition, and a $200 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Luba's conviction for violating the AECA, and has provided notice and an opportunity for Luba to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Luba.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Luba's export privileges under the Regulations for a period of 10 years from the date of Luba's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Luba had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On June 29, 2015, in the U.S. District Court for the District of Maryland, Kamran Ashfaq Malik (“Malik”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Malik knowingly and willfully exported and caused the exportation of firearm parts and accessories designated as defense articles in Category I of the United States Munitions List, to wit: A .223 caliber rifle lower receiver, a .334 caliber rifle lower receiver, two .223 caliber rifle bolt carriers, and two .223 10 round magazines, from the United States and destined for Pakistan without having first obtained the required licenses or authorizations from the Department of State. Malik was sentenced to 24 months in prison, three years of supervised release, and a $100 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Malik's conviction for violating the AECA, and has provided notice and an opportunity for Malik to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Malik.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Malik's export privileges under the Regulations for a period of five years from the date of Malik's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Malik had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC) that revocation of the antidumping duty (AD) and countervailing duty (CVD) orders on certain coated paper suitable for high-quality print graphics using sheet-fed presses (coated paper) from Indonesia and the People's Republic of China (PRC) would be likely to lead to continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, the Department is publishing a notice of continuation of the AD and CVD orders.
Effective January 6, 2017.
Terre Keaton Stefanova at (202) 482–1280 (AD orders), Jackie Arrowsmith at (202) 482–5255 (Indonesia CVD order), or Mark Kennedy at (202) 482–7883 (PRC CVD order), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401
On October 1, 2015, the Department initiated
On December 29, 2016, the ITC published its determinations, pursuant to sections 751(c) and 752 of the Act, that revocation of the AD and CVD orders on coated paper from Indonesia and the PRC would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The scope of the orders cover certain coated paper and paperboard
Certain Coated Paper includes (a) coated free sheet paper and paperboard that meets this scope definition; (b) coated groundwood paper and paperboard produced from bleached chemi-thermo-mechanical pulp (BCTMP) that meets this scope definition; and (c) any other coated paper and paperboard that meets this scope definition.
Certain Coated Paper is typically (but not exclusively) used for printing multi-colored graphics for catalogues, books, magazines, envelopes, labels and wraps, greeting cards, and other commercial printing applications requiring high quality print graphics.
Specifically excluded from the scope are imports of paper and paperboard printed with final content printed text or graphics.
Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 4810.14.11, 4810.14.1900, 4810.14.2010, 4810.14.2090, 4810.14.5000, 4810.14.6000, 4810.14.70, 4810.19.1100, 4810.19.1900, 4810.19.2010, 4810.19.2090, 4810.22.1000, 4810.22.50, 4810.22.6000, 4810.22.70, 4810.29.1000, 4810.29.5000, 4810.29.6000, 4810.29.70, 4810.32, 4810.39 and 4810.92. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.
As a result of the determinations by the Department and the ITC that revocation of the AD and CVD orders would likely lead to a continuation or a recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD and CVD orders on coated paper from Indonesia and the PRC. U.S. Customs and Border Protection (CBP) will continue to collect AD and CVD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.
The effective date of the continuation of the orders will be the date of publication in the
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.
These five-year (sunset) reviews and notice are in accordance with sections 751(c) and published pursuant to section 777(i) the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) finds that revocation of the countervailing duty (CVD) order on sulfanilic acid from India would likely lead to the continuation or recurrence of a countervailable subsidy at the levels indicated in the Final Results of Review section of this notice.
Effective January 6, 2017.
John Conniff, Office III, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1009.
On September 1, 2016, the Department initiated this fourth sunset review of the CVD order on sulfanilic acid from India pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
The Department received an adequate substantive response from the domestic interested party within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). The Department also received a response from a domestic importer of sulfanilic acid, which we rejected as inadequate under 19 CFR 351.218(d)(3)(ii).
The merchandise covered by the CVD order are all grades of sulfanilic acid, which include technical (or crude) sulfanilic acid, refined (or purified) sulfanilic acid and sodium salt of sulfanilic acid (sodium sulfanilate).
Sulfanilic acid is a synthetic organic chemical produced from the direct sulfonation of aniline with sulfuric acid. Sulfanilic acid is used as a raw material in the production of optical brighteners, food colors, specialty dyes, and concrete additives. The principal differences between the grades are the undesirable quantities of residual aniline and alkali insoluble materials present in the sulfanilic acid. All grades are available as dry free flowing powders.
Technical sulfanilic acid contains 96 percent minimum sulfanilic acid, 1.0 percent maximum aniline, and 1.0 percent maximum alkali insoluble materials. Refined sulfanilic acid contains 98 percent minimum sulfanilic acid, 0.5 percent maximum aniline, and 0.25 percent maximum alkali insoluble materials. Sodium salt of sulfanilic acid (sodium sulfanilate) is a granular or crystalline material containing 75 percent minimum sulfanilic acid, 0.5 percent maximum aniline, and 0.25 percent maximum alkali insoluble materials based on the equivalent sulfanilic acid content.
In response to a request from 3V Corporation, on May 5, 1999, the Department determined that sodium sulfanilate processed in Italy from sulfanilic acid produced in India is within the scope of the order.
The merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 2921.42.22 and 2921.42.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
All issues raised in this review are addressed in the Issues and Decision Memorandum, which is dated concurrently with and adopted by this notice.
Pursuant to sections 752(b)(1) and (3) of the Act, we determine that revocation of the
This notice serves as the only reminder to parties subject to 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 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.
The Department is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218(e)(1)(ii)(c)(2).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC) that revocation of the antidumping duty (AD) orders on heavy forged hand tools, finished or unfinished, with or without handles (HFHTs) from the People's Republic of China (PRC) would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing this notice of continuation of the AD orders.
Effective January 6, 2017.
Paul Walker, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202.482.0413.
On February 19, 1991, the Department published the AD orders on HFHTs from the PRC.
The merchandise covered by these orders are hand tools comprising the following classes or kinds of merchandise: (1) Hammers and sledges with heads over 1.5 kg (3.33 pounds); (2) bars over 18 inches in length, track tools and wedges; (3) picks and mattocks; and (4) axes, adzes and similar hewing tools. Subject hand tools are manufactured through a hot forge operation in which steel is sheared to required length, heated to forging temperature, and formed to final shape on forging equipment using dies specific to the desired product shape and size. These products are classifiable under tariff article codes 8205.20.60, 8205.59.30, 8201.30.00, and 8201.40.60 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 the AD orders is dispositive.
As a result of the determinations by the Department and the ITC that revocation of the AD orders would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD orders on HFHTs from the PRC. United States Customs and Border Protection will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.
The effective date of the continuation of the AD orders will be the date of publication in the
This five-year sunset review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce
On September 9, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty (AD) order on magnesia carbon bricks (MCBs) from the People's Republic of China (PRC) covering the period of review (POR) September 1, 2014, to August 31, 2015.
Effective January 6, 2017.
Kenneth Hawkins, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–6491.
The scope of the order includes certain chemically-bonded (resin or pitch), MCBs with a magnesia component of at least 70 percent magnesia (MgO) by weight, regardless of
As noted above, the Department received no comments concerning the
The Department determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries in this review, in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1). The Department intends to issue assessment instructions directly to CBP 15 days after publication in the
In accordance with the Department's assessment practice in NME cases, for entries that were not reported in the U.S. sales data submitted by companies individually examined during the administrative review, the Department will instruct CBP to liquidate such entries for the PRC-wide entity. Additionally, if the Department determines that an exporter had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For any companies listed that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice also 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 return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/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 this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting the administrative review of the antidumping duty order on magnesium metal from the People's Republic of China (“PRC”), covering the period April 1, 2015, through March 31, 2016. The Department preliminarily determines that Tianjin Magnesium International, Co., Ltd. (“TMI”) and Tianjin Magnesium Metal, Co., Ltd. (“TMM”) did not have reviewable entries during the period of review (“POR”). We invite interested parties to comment on these preliminary results.
Effective January 6, 2017.
James Terpstra or Brendan Quinn, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington DC 20230; telephone: (202) 482–3965 or (202) 482–5848, respectively.
On April 1, 2016, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on magnesium metal from the PRC for the POR.
The product covered by this order is magnesium metal from the PRC, which includes primary and secondary alloy magnesium metal, regardless of chemistry, raw material source, form, shape, or size. Magnesium is a metal or alloy containing by weight primarily the element magnesium. Primary magnesium is produced by decomposing raw materials into magnesium metal. Secondary magnesium is produced by recycling magnesium-based scrap into magnesium metal. The magnesium covered by this order includes blends of primary and secondary magnesium.
The subject merchandise includes the following alloy magnesium metal products made from primary and/or secondary magnesium including, without limitation, magnesium cast into ingots, slabs, rounds, billets, and other shapes; magnesium ground, chipped, crushed, or machined into rasping, granules, turnings, chips, powder, briquettes, and other shapes; and products that contain 50 percent or greater, but less than 99.8 percent, magnesium, by weight, and that have been entered into the United States as conforming to an “ASTM Specification for Magnesium Alloy”
The scope of this order excludes: (1) All forms of pure magnesium, including chemical combinations of magnesium and other material(s) in which the pure magnesium content is 50 percent or greater, but less than 99.8 percent, by weight, that do not conform to an “ASTM Specification for Magnesium Alloy”
The merchandise subject to this order is classifiable under items 8104.19.00, and 8104.30.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS items are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
We received timely submissions from TMM and TMI certifying that they did not have sales, shipments, or exports of subject merchandise to the United States during the POR.
Because we have not received information to the contrary from CBP, consistent with our practice, we preliminarily determine that TMI and TMM had no shipments and, therefore, no reviewable entries during the POR. In addition, we find it is not appropriate to rescind the review with respect to these companies but, rather, to complete the review with respect to TMI and TMM and issue appropriate instructions to CBP based on the final results of the review, consistent with our practice in non-market economy (“NME”) cases.
Interested parties may submit case briefs no later than 30 days after the date of publication of this notice in the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days of the date of publication of this notice. Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, parties will be notified of the time and date of the hearing which will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
Unless extended, we intend to issue the final results of this administrative review, including our analysis of all issues raised in any written brief, within 120 days of publication of this notice in the
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of review, as provided for by section 751(a)(2)(C) of the Act: (1) For TMI, which claimed no shipments, the cash deposit rate will remain unchanged from the rate assigned to TMI in the most recently completed review of the company; (2) for previously investigated or reviewed PRC and non-PRC exporters who are not under review in this segment of the proceeding but who have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate (including TMM, which claimed no shipments, but has not been found to be separate from the PRC-wide entity), the cash deposit rate will be the PRC-wide rate of 141.49 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this period. Failure to comply with this requirement may result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice is issued in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) published the
Effective January 6, 2017.
Paul Walker, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington DC 20230; telephone: (202) 482–0413.
The Department published in the
The merchandise covered by the order is steel threaded rod.
Section 751(h) of the Tariff Act of 1930, as amended (“the Act”), defines “ministerial error” as including “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.” After analyzing New Oriental's comments, we have determined, in accordance with section 751(h) of the Act and 19 CFR 351.224(e), that we made certain ministerial errors in the final results with respect to our calculation of surrogate financial ratios.
For a detailed discussion of these ministerial errors, as well as the Department's analysis of these errors,
These amended final results and notice are issued and published in accordance with sections 751(h), and 777(i)(1) of the Act, and 19 CFR 351.224(e).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) and the International Trade Commission (the ITC) have determined that revocation of the antidumping duty (AD) orders on certain iron construction castings (iron castings) from Brazil, Canada, and the People's Republic of China (PRC) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States. The Department and the ITC have also determined that revocation of the countervailing duty (CVD) order on heavy iron construction castings (heavy iron castings) from Brazil would likely lead to continuation or recurrence of net countervailable subsidies and material injury to an industry in the United States. Therefore, the Department is publishing a notice of continuation of the AD orders and the CVD order.
Effective January 6, 2017.
Shanah Lee or Patricia Tran, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–6386 or (202) 482–1503, respectively.
On October 1, 2015, the Department initiated
On December 28, 2016, the ITC published its determination, pursuant to sections 751(c) and 752 of the Act, that revocation of the AD orders on iron castings from Brazil, Canada, and the PRC, and the CVD order on heavy iron castings from Brazil, would likely lead to continuation or recurrence of material
The merchandise covered by the order consists of certain iron construction castings from Brazil, limited to manhole covers, rings, and frames, catch basin grates and frames, cleanout covers and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under Harmonized Tariff Schedule (HTS) item under 7325.10.0010; and to valve, service, and meter boxes which are placed below ground to encase water, gas, or other valves, or water and gas meters, classifiable as light castings under HTS item number 7325.10.0050. The HTS item numbers are provided for convenience and customs purposes only. The written product description remains dispositive.
The merchandise covered by the order consists of certain iron construction castings from Canada, limited to manhole covers, rings, and frames, catch basin grates and frames, clean-out covers, and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under HTS item number 7325.10.0010. The HTS item number is provided for convenience and customs purposes only. The written product description remains dispositive.
The products covered by the order are certain iron construction castings from the PRC, limited to manhole covers, rings and frames, catch basin grates and frames, cleanout covers and drains used for drainage or access purposes for public utilities, water and sanitary systems; and valve, service, and meter boxes which are placed below ground to encase water, gas, or other valves, or water or gas meters. These articles must be of cast iron, not alloyed, and not malleable. This merchandise is currently classifiable under the HTS item numbers 7325.10.0010 and 7325.10.0050. The HTS item numbers are provided for convenience and customs purposes. The written product description remains dispositive.
The products covered by this order are certain heavy iron construction castings, which are defined for purposes of this proceeding as manhole covers, rings and frames; catch basin grates and frames; and cleanout covers and frames. Such castings are used for drainage or access purposes for public utility, water and sanitary systems. These articles must be of cast iron, not alloyed, and not malleable. The merchandise is currently classified under HTS item number 7325.10.00. While the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
As a result of the determinations by the Department and the ITC that revocation of the AD orders and the CVD order would likely lead to a continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD orders on iron castings from Brazil, Canada, and the PRC, and the CVD order on heavy iron castings from Brazil. U.S. Customs and Border Protection will continue to collect cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.
The effective date of the continuation of the AD orders and the CVD order will be the date of publication in the
These five-year sunset reviews and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 7, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty (AD) order on certain hot-rolled carbon steel flat products (hot-rolled steel) from India. We received no comments or requests for a hearing. Therefore, for the final results, we continue to find that Ispat Industries Ltd. (Ispat), JSW Steel Ltd. (JSW), JSW Ispat Steel Ltd. (JSW Ispat), and Tata Steel Ltd. (Tata) had no shipments of the subject merchandise, and, therefore, no reviewable transactions, during the period of review (POR).
Effective January 6, 2017.
George McMahon or Eric Greynolds, AD/CVD Operations Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1167 and (202) 482–6071, respectively.
On September 7, 2016, the Department published the
For purposes of this order, the products covered are certain hot-rolled carbon steel flat products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with
Specifically included in the scope of this order are vacuum-degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high-strength low-alloy (HSLA) steels, and the substrate for motor lamination steels. IF steels are recognized as low-carbon steels with micro-alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.
Steel products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products in which: (i) Iron predominates, by weight, over each of the other contained elements; (ii) the carbon content is 2 percent or less, by weight; and (iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
All products that meet the physical and chemical description provided above are within the scope of this order unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of this order:
• Alloy hot-rolled carbon steel products in which at least one of the chemical elements exceeds those listed above (including,
• Society of Automotive Engineers (SAE)/American Iron & Steel Institute (AISI) grades of series 2300 and higher.
• Ball bearings steels, as defined in the HTSUS.
• Tool steels, as defined in the HTSUS.
• Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 2.25 percent.
• ASTM specifications A710 and A736.
• United States Steel (USS) Abrasion-resistant steels (USS AR 400, USS AR 500).
• All products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507).
• Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTSUS.
The merchandise subject to this order is currently classifiable in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled carbon steel covered by this order, including: Vacuum-degassed fully stabilized; high-strength low-alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise subject to this proceeding is dispositive.
As noted above, the Department received no comments concerning the
Upon issuance of the final results of this administrative review, the Department shall determine, and Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212. The Department intends to issue assessment instructions to CBP 15 days after publication of the final results of this review.
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2) of the Act: (1) The cash deposit rates for respondents noted above, which claimed no shipments, will remain unchanged from the rates assigned to the companies in the most recently completed review of the companies; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, 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 original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 38.72 percent, the all-others rate established in the
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 and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to 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(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/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 this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for Letter of Authorization; request for comments and information.
NMFS has received a request from the United States Air Force (USAF), 86 Fighter Weapons Squadron (86 FWS) for authorization to take marine mammals incidental to conducting munitions testing for their Long Range Strike Weapons Systems Evaluation Program (LRS WSEP) over the course of five years, from September 1, 2017 through August 31, 2022. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the 86 FWS's request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the 86 FWS's application and request.
Comments and information must be received no later than February 6, 2017.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. 1315 East-West Highway, Silver Spring, MD 20910–3225 and electronic comments should be sent
Laura McCue, Office of Protected Resources, NMFS, (301) 427–8401.
An electronic copy of the 86 FWS's application may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and
The NDAA of 2004 (Pub. L. 108–136) removed the “small numbers” and “specified geographical region” limitations indicated earlier and amended the definition of harassment as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment). 86 FWS has identified LRS WSEP missions as military readiness activities.
On September 27, 2016, NMFS issued an incidental harassment authorization (IHA), similar to this request, for takes of marine mammals incidental to Long Range Strike Weapons System Evaluation Program (LRS WSEP) activities in the BSURE area of the PMRF off Kauai, Hawaii. 86 FWS complied with all conditions of the IHA issued, including submission of final reports. Based on these reports, NMFS has determined that impacts to marine mammals were not beyond those anticipated.
On December 21, 2016, NMFS received an adequate and complete application from the 86 FWS requesting authorization for the take of marine mammals incidental to LRS WSEP activities in the Barking Sands Underwater Range Expansion (BSURE) area of the Pacific Missile Range Facility (PMRF) off Kauai, Hawaii for a period of five years. LRS WSEP activities have the potential to result in take of marine mammals in the waters of the PMRF. Therefore, 86 FWS requests authorization to take 16 species of marine mammals that may occur in this area.
86 FWS proposes actions that include LRS WSEP test missions that involve the use of multiple types of live and inert munitions (bombs and missiles) detonated above, at, or slightly below the water surface. The ordnance may be delivered by multiple types of aircraft, including bombers and fighter aircraft. The actions include air-to-surface test missions of the Joint Air-to-Surface Stand-off Missile/Joint Air-to-Surface Stand-off Missile-Extended Range (JASSM/JASSM–ER), Small Diameter Bomb-I/II (SDB–I/II), High-speed Anti-Radiation Missile (HARM), Joint Direct Attack Munition/Laser Joint Direct Attack Munition (JDAM/LJDAM), and Miniature Air-Launched Decoy (MALD). Net explosive weight of the live munitions ranges from 23 to 300 pounds. 86 FWS anticipates the ability to test approximately 110 munitions per year.
Interested persons may submit information, suggestions, and comments concerning 86 FWS's request (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to Northeast Gateway® Energy Bridge
This authorization is effective from December 22, 2016 through December 21, 2017.
Shane Guan, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for a one-year authorization to incidentally take small numbers of marine mammals by harassment, provided that there is no potential for serious injury or mortality to result from the activity. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment
On June 9, 2015, NMFS received an application from Excelerate Energy, L.P. (Excelerate) and Tetra Tech, Inc. (Tetra Tech), on behalf of NEG and Algonquin, for an annual IHA and a subsequent five-year letter of authorization (LOA) pursuant to a rulemaking under section 101(a)(5)(A), to take 14 species of marine mammals by Level B harassment incidental to operations, maintenance, and repair of the NEG Port and the Pipeline Lateral facilities in Massachusetts Bay. They are: North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, short-beaked common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. Since the NEG Port and Pipeline Lateral operation, maintenance, and repair activities have the potential to take marine mammals, a marine mammal take authorization under the MMPA is warranted. NMFS issued an IHA to NEG and Algonquin on December 22, 2015 (81 FR 744; January 7, 2016). The IHA is valid until December 22, 2016. In June 2016 NMFS learned that NEG and Algonquin are considering decommissioning the NEG Port in the foreseeable future. Upon discussion with Excelerate and Tetra Tech, it was agreed that instead of conducting a rulemaking for five years of incidental take authorization that may not be needed, NMFS would process another one-year IHA to NEG and Algonquin to cover marine mammal takes from its operations, maintenance, and repair work from December 23, 2016 through December 22, 2017.
NMFS first issued an IHA to NEG and Algonquin to allow for the incidental harassment of small numbers of marine mammals resulting from the construction and operation of the NEG Port and the Pipeline Lateral (72 FR 27077; May 14, 2007). Subsequently, NMFS issued five one-year IHAs for the take of marine mammals incidental to the operation of the NEG Port activity pursuant to section 101(a)(5)(D) of the MMPA (73 FR 29485; May 21, 2008, 74 FR 45613; September 3, 2009, 75 FR 53672; September 1, 2010, and 76 FR 62778; October 11, 2011). After that, NMFS issued two one-year IHAs to NEG and Algonquin to take marine mammals incidental to the operations of the NEG Port as well as maintenance and repair (79 FR 78806; December 31, 2014, 81 FR 744; January 7, 2016).
The NEG and Algonquin activities include the following:
An IHA was previously issued to NEG and Algonquin for this activity on December 22, 2015 (81 FR 744; January 7, 2016), based on activities described on Excelerate and Tetra Tech's marine mammal incidental take request submitted in June 2014 and on the
A notice of NMFS' proposal to issue an IHA was published in the
Marine mammal species that potentially occur in the vicinity of the Northeast Gateway facility include the North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. General information on the distribution of these marine mammal species can be found in NMFS Stock Assessment Reports (Waring
The highest abundance for humpback whales is distributed primarily along a relatively narrow corridor following the 100-meter (m) (328-feet (ft)) isobath across the southern Gulf of Maine from the northwestern slope of Georges Bank, south to the Great South Channel, and northward alongside Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales increases in the spring with the highest occurrence along the slope waters (between the 40- and 140-m, or 131- and 459-ft, isobaths) off Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the 50- and 200-m (164- and 656-ft) isobaths along the inner slope of Georges Bank. High abundance is also estimated for the waters around Platts Bank. In the summer months, abundance increases markedly over the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the waters (100–200 m or 328–656 ft) between Platts Bank and Jeffreys Ledge, the steep slopes (between the 30- and 160-m isobaths) of Phelps and Davis Bank north of the Great South Channel towards Cape Cod, and between the 50- and 100-m (164- and 328-ft) isobath for almost the entire length of the steeply sloping northern edge of Georges Bank. This general distribution pattern persists in all seasons except winter, when humpbacks remain at high abundance in only a few locations including Porpoise and Neddick Basins adjacent to Jeffreys Ledge, northern Stellwagen Bank and Tillies Basin, and the Great South Channel. The best estimate of abundance for Gulf of Maine, formerly western North Atlantic, humpback whales is 823 animals (Waring
Spatial patterns of habitat utilization by fin whales are very similar to those of humpback whales. Spring and summer high-use areas follow the 100-m (328 ft) isobath along the northern edge of Georges Bank (between the 50- and 200-m (164- and 656-ft) isobaths), and northward from the Great South Channel (between the 50- and 160-m, or 164- and 525-ft, isobaths). Waters around Cashes Ledge, Platts Bank, and Jeffreys Ledge are all high-use areas in the summer months. Stellwagen Bank is a high-use area for fin whales in all seasons, with highest abundance occurring over the southern Stellwagen Bank in the summer months. In fact, the southern portion of the Stellwagen Bank National Marine Sanctuary (SBNMS) is used more frequently than the northern portion in all months except winter, when high abundance is recorded over the northern tip of Stellwagen Bank. In addition to Stellwagen Bank, high abundance in winter is estimated for Jeffreys Ledge and the adjacent Porpoise Basin (100- to 160-m, 328- to 656-ft, isobaths), as well as Georges Basin and northern Georges Bank. The best estimate of abundance for the western North Atlantic stock of fin whales is 1,618 (Waring
Like other piscivorous baleen whales, highest abundance for minke whale is strongly associated with regions between the 50- and 100-m (164- and 328-ft) isobaths, but with a slightly stronger preference for the shallower waters along the slopes of Davis Bank, Phelps Bank, Great South Channel and Georges Shoals on Georges Bank. Minke whales are sighted in the SBNMS in all seasons, with highest abundance estimated for the shallow waters (approximately 40 m, or 131 ft) over southern Stellwagen Bank in the summer and fall months. Platts Bank, Cashes Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise and Scantium) also support high relative abundance. Very low densities of minke whales remain throughout most of the southern Gulf of Maine in winter. The best estimate of abundance for the Canadian East Coast stock, which occurs from the western half of the Davis Strait to the Gulf of Mexico, of minke whales is 20,741 animals (Waring
North Atlantic right whales are generally distributed widely across the southern Gulf of Maine in spring with highest abundance located over the deeper waters (100- to 160-m (328- to 525-ft) isobaths) on the northern edge of the Great South Channel and deep waters (100–300 m, 328–984 ft) parallel to the 100-m (328-ft) isobath of northern Georges Bank and Georges Basin. High abundance is also found in the shallowest waters (<30 m, or <98 ft) of Cape Cod Bay, over Platts Bank and around Cashes Ledge. Lower relative abundance is estimated over deep-water basins including Wilkinson Basin, Rodgers Basin and Franklin Basin. In the summer months, right whales move almost entirely away from the coast to deep waters over basins in the central Gulf of Maine (Wilkinson Basin, Cashes Basin between the 160- and 200-m (525- and 656-ft) isobaths) and north of Georges Bank (Rogers, Crowell and Georges Basins). Highest abundance is found north of the 100-m (328-ft) isobath at the Great South Channel and over the deep slope waters and basins along the northern edge of Georges Bank. The waters between Fippennies Ledge and Cashes Ledge are also estimated as high-use areas. In the fall months, right whales are sighted infrequently in the Gulf of Maine, with highest densities over Jeffreys Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In winter, Cape Cod Bay, Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the main high-use areas. Although SBNMS does not appear to support the highest abundance of right whales, sightings within SBNMS are reported for all four seasons, albeit at low relative abundance. Highest sighting within SBNMS occurred along the southern edge of the Bank.
The western North Atlantic minimum stock size is based on a census of individual whales identified using photo-identification techniques. A review of the photo-ID recapture database as it existed on 20 October 2014 indicated that 476 individually recognized whales in the catalog were known to be alive during 2011. This number represents a minimum population size. This is a direct count and has no associated coefficient of variation (Waring
The long-finned pilot whale is more generally found along the edge of the continental shelf (a depth of 330 to 3,300 ft or 100 to 1,000 m), choosing areas of high relief or submerged banks in cold or temperate shoreline waters. This species is split between two subspecies: The Northern and Southern subspecies. The Southern subspecies is circumpolar with northern limits of Brazil and South Africa. The Northern subspecies, which could be encountered during operation of the NEG Port, ranges from North Carolina to Greenland (Reeves
In spring, summer and fall, Atlantic white-sided dolphins are widespread throughout the southern Gulf of Maine, with the high-use areas widely located either side of the 100-m (328-ft) isobath along the northern edge of Georges Bank, and north from the Great South Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank and Cashes Ledge. In spring, high-use areas exist in the Great South Channel, northern Georges Bank, the steeply sloping edge of Davis Bank and Cape Cod, southern Stellwagen Bank and the waters between Jeffreys Ledge and Platts Bank. In summer, there is a shift and expansion of habitat toward the east and northeast. High-use areas are identified along most of the northern edge of Georges Bank between the 50- and 200-m (164- and 656-ft) isobaths and northward from the Great South Channel along the slopes of Davis Bank and Cape Cod. High numbers of sightings are also recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the bathymetrically complex area northeast of Platts Bank. High numbers of sightings of white-sided dolphin are recorded within SBNMS in all seasons, with highest density in summer and most widespread distributions in spring located mainly over the southern end of Stellwagen Bank. In winter, high numbers of sightings are recorded at the northern tip of Stellwagen Bank and Tillies Basin.
A comparison of spatial distribution patterns for all baleen whales (Mysticeti) and all porpoises and dolphins combined show that both groups have very similar spatial patterns of high- and low-use areas. The baleen whales, whether piscivorous or planktivorous, are more concentrated than the dolphins and porpoises. They utilize a corridor that extended broadly along the most linear and steeply sloping edges in the southern Gulf of Maine indicated broadly by the 100-m (328-ft) isobath. Stellwagen Bank and Jeffreys Ledge support a high abundance of baleen whales throughout the year. Species richness maps indicate that high-use areas for individual whales and dolphin species co-occur, resulting in similar patterns of species richness primarily along the southern portion of the 100-m (328-ft) isobath extending northeast and northwest from the Great South Channel. The southern edge of Stellwagen Bank and the waters around the northern tip of Cape Cod are also highlighted as supporting high cetacean species richness. Intermediate to high numbers of species are also calculated for the waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts Bank, Fippennies Ledge and Cashes Ledge. The best estimate of abundance for the western North Atlantic stock of white-sided dolphins is 48,819 (Waring
Although these five species are some of the most widely distributed small cetacean species in the world (Jefferson
In the U.S. waters of the western North Atlantic, both harbor and gray seals are usually found from the coast of Maine south to southern New England and New York (Waring
Along the southern New England and New York coasts, harbor seals occur seasonally from September through late May (Schneider and Payne 1983). In recent years, their seasonal interval along the southern New England to New Jersey coasts has increased (deHart 2002). In U.S. waters, harbor seal breeding and pupping normally occur in waters north of the New Hampshire/Maine border, although breeding has occurred as far south as Cape Cod in the early part of the 20th century (Temte
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data. NMFS (2016) designate “marine mammal hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The marine mammal hearing groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their hearing range):
• Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hertz (Hz) and 35 kilo Hertz (kHz);
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins,
• Phocid pinnipeds (true seals): Functional hearing is estimated between 50 Hz to 86 kHz; and
• Otariid pinnipeds (sea lions and fur seals): Functional hearing is estimated between 60 Hz to 39 kHz.
Species found in the vicinity of the NEG Port and Pipeline Lateral operations and maintenance and repair area include five low-frequency cetacean species (North Atlantic right whale, humpback whale, fin whale, sei whale, and minke whale), six mid-frequency cetacean species (long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, Risso's dolphin, and killer whale), one high-frequency cetacean species (harbor porpoise), and two pinniped species (harbor seal and gray seal) (Table 1).
The NEG Port operations and maintenance and repair activities could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.
Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak
In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark
Masking occurs at the frequency band which the animals utilize. Therefore, since noise generated from in-water vibratory pile driving and removal is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (
Unlike TS, masking can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 decibel (dB) (more than 3 times in terms of sound pressure level (SPL)) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessel traffic, vessel docking, and stationing while operating DP thrusters, dredging and pipe laying associated with NEG Port and Pipeline Lateral maintenance and repair, and NEG regasification activities, contribute to the elevated ambient noise levels, thus increasing potential for or severity of masking.
Finally, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardson
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification are expected to be biologically significant if the change affects growth, survival, and/or reproduction.
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
The action area is considered biologically important habitat for the North Atlantic right, fin, humpback, and minke whales during part of the seasons, and it is adjacent to the SBNMS. There is no critical habitat in the vicinity of the action area.
Operation of the NEG Port will not result in short-term effects, however, long-term effects on the marine environment, including alteration of the seafloor conditions, continued disturbance of the seafloor, regular withdrawal of sea water, and regular generation of underwater noise, will result from NEG Port operations. Specifically, a small area (0.14 acre) along the Pipeline Lateral has been permanently altered (armored) at two cable crossings. In addition, the structures associated with the NEG Port (flowlines, mooring wire rope and chain, suction anchors, and pipeline end manifolds) occupy 4.8 acres of seafloor. An additional area of the seafloor of up to 43 acres (worst case scenario based on severe 100-year storm with Energy Bridge Regasification Vehicle (EBRV) occupying both submerged turret loading (STL) buoys will be subject to disturbance due to chain sweep while the buoys are occupied. Given the relatively small size of the NEG Port area that will be directly affected by Port operations, NMFS does not anticipate that habitat loss will be significant.
EBRVs are currently authorized to withdraw an average of 4.97 million gallons per day (mgd) and 2.6 billion gallons per year of sea water for general ship operations during cargo delivery activities at the NEG Port. However, as we explained in the
• 11 billion gallons of total annual water use at the Port;
• Maximum daily intake volume of up to 56 mgd at a rate of 0.45 ft per second when an EBRV is not able to achieve the heat recovery system (HRS) it is the capability of reducing water use during the regasification process) mode of operation; and
• Maximum daily change in discharge temperature of 12ºC (53.6ºF) from ambient from the vessel's main condenser cooling system.
Under the requested water-use scenario, Tetra Tech (2011) conducted an environmental analysis on the potential impacts to marine mammals and their prey. To evaluate impacts to phytoplankton under the increased water usage, the biomass of phytoplankton lost from the Massachusetts Bay ecosystem was estimated based on the method presented in the final EIS/EIR. Phytoplankton densities of 65,000 to 390,000 cells/gallon were multiplied by the annual planned activities of withdrawal rate of 11 billion gallons to estimate a loss of 7.15 × 10
In addition, zooplankton losses will also increase proportionally to the increase in water withdrawn. The final EIS/EIR used densities of zooplankton determined by the sampling conducted by the Massachusetts Water Resource Authority (MWRA) to characterize the area around its offshore outfall and assumed a mean zooplankton density of 34.9 × 10
Finally, ichthyoplankton (fish eggs and larvae) losses and equivalent age one juvenile fish estimates under the activity were made based on actual monthly ichthyoplankton data collected in the port area from October 2005 through December 2009 and the activity withdrawal volume of 11 billion gallons per year evenly distributed among months (0.92 billion gallons per month) as a worst-case scenario, representing the maximum number of NEG Port deliveries during any given month. Similarly, the lower, upper, and mean annual entrainment estimates are based on the lower and upper 95 percent confidence limits, of the monthly mean ichthyoplankton densities, and the monthly mean estimates multiplied by the monthly withdrawal rate of 0.92 billion gallons per month. At this withdrawal rate approximately 106 million eggs and 67 million larvae are estimated to be lost (see Table 4.2–2 of the IHA application). The most abundant species and life stages estimated to be entrained under the activity are cunner post yolk-sac larvae (33.3 million), yellowtail flounder/
These estimated losses are not significant given the very high natural mortality of ichthyoplankton. This comparison was done in the final EIS/EIR where ichthyoplankton losses based on historic regional ichthyoplankton densities and a withdrawal rate of approximately 2.6 billion gallons per year were represented by the equivalent number of age-one fish. Under the final EIS/EIR withdrawal scenario, equivalent age-one losses due to entrainment ranged from 1 haddock to 43,431 sand lance (Tetra Tech 2010). Equivalent age-one losses under the conditions when no NEG Port operation occurrence were recalculated using Northeast Gateway monitoring data in order to facilitate comparisons between the permitted scenario and the updated scenario. Using Northeast Gateway monitoring data, withdrawal of 2.6 billion gallons per year would result in equivalent age-one losses ranging from less than 1 haddock to 5,602 American sand lance. By comparison, equivalent age one losses under the activity withdrawal rate of 11 billion gallons per year ranged from less than 1 haddock to 23,701 sand lance and were generally similar to or less than those in the final EIS/EIR. Substantially more equivalent age-one Atlantic herring, pollock, and butterfish were estimated to be lost under the final EIS/EIR at a withdrawal rate of 2.6 billion gallons per year, while substantially more equivalent age-one Atlantic cod, silver hake and hake species, cunner, and Atlantic mackerel are estimated to be lost under the activity.
Although no reliable annual food consumption rates of baleen whales are available for comparison, based on the calculated quantities of phytoplankton, zooplankton, and ichthyoplankton removal analyzed above, it is reasonable to conclude that baleen whale predation rates would dwarf any reasonable estimates of prey removals by NEG Port operations.
As stated earlier, NEG Port will require scheduled maintenance inspections using either divers or remote operated vehicles (ROVs). The duration of these inspections are not anticipated to be more than two 8-hour working days. An EBRV will not be required to support these annual inspections. Water usage during the NEG Port maintenance would be limited to the standard requirements of NEG's normal support vessel. As with all vessels operating in Massachusetts Bay, sea water uptake and discharge is required to support engine cooling, typically using a once-through system. The rate of seawater uptake varies with the ship's horsepower and activity and therefore will differ between vessels and activity type. For example, the
Certain maintenance and repair activities may also require the presence of an EBRV at the NEG Port. Such instances may include maintenance and repair on the STL Buoy, vessel commissioning, and any onboard equipment malfunction or failure occurring while a vessel is present for cargo delivery. Because the requested water-use scenario allows for daily water use of up to 56 mgd to support standard EBRV requirements when not operating in the HRS mode, vessels would be able to remain at the NEG Port as necessary to support all such maintenance and repair scenarios. Therefore, NMFS considers that NEG Port maintenance and repair would
As stated earlier, proper care and maintenance of the Pipeline Lateral should minimize the likelihood of an unanticipated maintenance and/or repair event. However, unanticipated activities may occur from time to time if facility components become damaged or malfunction. Unanticipated repairs may range from relatively minor activities requiring minimal equipment and one or two diver/ROV support vessels to major activities requiring larger construction-type vessels similar to those used to support the construction and installation of the facility.
Major repair activities, although unlikely, may include repairing or replacement of pipeline manifolds or sections of the Pipeline Lateral. This type of work would likely require the use of large specialty construction vessels such as those used during the construction and installation of the NEG Port and Pipeline Lateral. The duration of a major unplanned activity would depend upon the type of repair work involved and would require careful planning and coordination.
Turbidity would likely be a potential effect of Pipeline Lateral maintenance and repair activities on listed species. In addition, the possible removal of benthic or planktonic species, resulting from relatively minor construction vessel water use requirements, as measured in comparison to EBRV water use, is unlikely to affect in a measurable way the food sources available to marine mammals. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
All vessels shall utilize the International Maritime Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on their approach to and departure from the NEG Port and/or the repair/maintenance area at the earliest practicable point of transit in order to avoid the risk of whale strikes.
Upon entering the TSS and areas where North Atlantic right whales are known to occur, including the Great South Channel Seasonal Management Area (GSC–SMA) and the SBNMS, EBRVs shall go into “Heightened Awareness” as described below.
(1) Prior to entering and navigating the modified TSS, the Master of the vessel shall:
• Consult Navigational Telex (NAVTEX), NOAA Weather Radio, the NOAA Right Whale Sighting Advisory System (SAS) or other means to obtain current right whale sighting information as well as the most recent Cornell acoustic monitoring buoy data for the potential presence of marine mammals;
• Post a look-out to visually monitor for the presence of marine mammals;
• Provide the USCG required 96-hour notification of an arriving EBRV to allow the NEG Port manager to notify Cornell of vessel arrival.
(2) The look-out shall concentrate his/her observation efforts within the 2-mile radius ZOI from the maneuvering EBRV.
(3) If marine mammal detection was reported by NAVTEX, NOAA Weather Radio, SAS and/or an acoustic monitoring buoy, the look-out shall concentrate visual monitoring efforts towards the areas of the most recent detection.
(4) If the look-out (or any other member of the crew) visually detects a marine mammal within the 2-mile radius ZOI of a maneuvering EBRV, he/she will take the following actions:
• The Officer-of-the-Watch shall be notified immediately; who shall then relay the sighting information to the Master of the vessel to ensure action(s) can be taken to avoid physical contact with marine mammals; and
• The sighting shall be recorded in the sighting log by the designated look-out.
In accordance with 50 CFR 224.103(c), all vessels associated with NEG Port and Pipeline Lateral activities shall not approach closer than 500 yards (yd, 460 m) to a North Atlantic right whale and 100 yd (91 m) to other whales to the extent physically feasible given navigational constraints. In addition, when approaching and departing the project area, vessels shall be operated so as to remain at least 1 kilometer away from any visually-detected North Atlantic right whales.
In response to active right whale sightings and active acoustic detections, and taking into account exceptional circumstances, EBRVs as well as repair and maintenance vessels shall take appropriate actions to minimize the risk of striking whales. Specifically vessels shall:
(1) Respond to active right whale sightings and/or Dynamic Management Areas (DMAs) reported on the Mandatory Ship Reporting (MSR) or SAS by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less if the vessel is within the boundaries of a DMA or within the circular area centered on an area 8 nautical miles (nmi) in radius from a sighting location;
(2) Respond to active acoustic detections by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less within an area 5 nm in radius centered on the detecting auto-detection buoy (AB); and
(3) Respond to additional sightings made by the designated look-outs within a 2-mile radius of the vessel by slowing the vessel to 10 knots or less and concentrating monitoring efforts towards the area of most recent sighting.
All vessels operated under NEG and Algonquin must follow the established specific speed restrictions when calling at the NEG Port. The specific speed restrictions required for all vessels (
(1) Vessels shall reduce their maximum transit speed while in the TSS from 12 knots or less to 10 knots or less from March 1 to April 30 in all waters bounded by straight lines connecting the following points in the order stated below unless an emergency situation dictates for an alternate speed. This area shall hereafter be referred to as the Off Race Point Seasonal Management Area (ORP–SMA) and tracks NMFS regulations at 50 CFR 224.105:
(2) Vessels shall reduce their maximum transit speed while in the TSS to 10 knots or less unless an emergency situation dictates for an alternate speed from April 1 to July 31 in all waters bounded by straight lines connecting the following points in the order stated below. This area shall hereafter be referred to as the GSC–SMA and tracks NMFS regulations at 50 CFR 224.105:
(3) Vessels are not expected to transit the Cape Cod Bay or the Cape Cod Canal; however, in the event that transit through the Cape Cod Bay or the Cape Cod Canal is required, vessels shall reduce maximum transit speed to 10 knots or less from January 1 to May 15 in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, with a northern boundary of 42°12′ N. latitude and the Cape Cod Canal. This area shall hereafter be referred to as the Cape Cod Bay Seasonal Management Area (CCB–SMA);
(4) All Vessels transiting to and from the project area shall report their activities to the mandatory reporting Section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system;
(5) All Vessels greater than or equal to 300 gross tons (GT) shall maintain a speed of 10 knots or less, unless an emergency situation requires speeds greater than 10 knots; and
(6) All Vessels less than 300 GT traveling between the shore and the project area that are not generally restricted to 10 knots will contact the Mandatory Ship Reporting (MSR) system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 miles (mi) (8 km) of any sighting location, when traveling in any of the seasonal management areas (SMAs) or when traveling in any active DMA.
In addition to the general marine mammal avoidance requirements identified above, vessels calling on the NEG Port must comply with the following additional requirements:
(1) EBRVs shall travel at 10 knots maximum speed when transiting to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For EBRVs, at 1.86 mi (3 km) from the NEG Port, speed will be reduced to 3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, unless an emergency situation dictates the need for an alternate speed;
(2) EBRVs that are approaching or departing from the NEG Port and are within the Area to be Avoided (ATBA) surrounding the NEG Port, shall remain at least 1 km away from any visually-detected North Atlantic right whale and at least 100 yd (91 m) away from all other visually-detected whales unless an emergency situation requires that the vessel stay its course. During EBRV maneuvering, the Vessel Master shall designate at least one look-out to be exclusively and continuously monitoring for the presence of marine mammals at all times while the EBRV is approaching or departing from the NEG Port;
(3) During NEG Port operations, in the event that a whale is visually observed within 1 km of the NEG Port or a confirmed acoustic detection is reported on either of the two ABs closest to the NEG Port (western-most in the TSS array), departing EBRVs shall delay their departure from the NEG Port, unless an emergency situation requires that departure is not delayed. This departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 1 km from the NEG Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the NEG Port, or visually within 1 km from the NEG Port.
Vessel captains shall focus on reducing DP thruster power to the maximum extent practicable, taking into account vessel and Port safety, during the operation activities. Vessel captains will shut down thrusters whenever they are not needed.
(1) The Northeast Gateway shall conduct empirical source level measurements on all noise emitting from construction equipment and all vessels that are involved in maintenance/repair work.
(2) If DP systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed above.
(3) Northeast Gateway shall provide the NMFS Headquarters Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30-days notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Northeast Gateway shall continue to keep the agencies apprised of repair work plans as further details (
(1) Pipeline maintenance/repair vessels less than 300 GT traveling between the shore and the maintenance/repair area that are not generally restricted to 10 knots shall contact the MSR system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 mi (8 km) of any sighting location, when travelling in any of the seasonal management areas (SMAs) as defined above.
(2) Maintenance/repair vessels greater than 300 GT shall not exceed 10 knots, unless an emergency situation that requires speeds greater than 10 knots.
(3) Planned maintenance and repair activities shall be restricted to the period between May 1 and November 30 when most of the majority of North Atlantic right whales are absent in the area.
(4) Unplanned/emergency maintenance and repair activities shall be conducted utilizing anchor-moored dive vessel whenever operationally possible.
(5) Algonquin shall also provide the NMFS Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30-day notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Algonquin shall continue to keep the agencies apprised of repair work plans as further details (
(6) If DP systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed in (5)(b)(ii).
(7) In the event that a whale is visually observed within 0.5 mi (0.8 km) of a repair or maintenance vessel, the vessel superintendent or on-deck supervisor shall be notified immediately. The vessel's crew shall be put on a heightened state of alert and the marine mammal shall be monitored
(8) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @ 1 m or higher when a right whale is sighted within or approaching at 500 yd (457 meters) from the vessel. The source level of 139 dB corresponds to 120 dB received level at 500 yd (457 meters). Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (500 yd (457 meters)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.
(9) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @ 1 m or higher when a marine mammal other than a right whale is sighted within or approaching at 100 yd (91 m) from the vessel. Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (100 yd (91 meters)) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.
(10) Algonquin and associated contractors shall also comply with the following:
• Operations involving excessively noisy equipment (source level exceeding 139 dB re 1μPa @ 1 m) shall “ramp-up” sound sources, allowing whales a chance to leave the area before sounds reach maximum levels. In addition, Northeast Gateway, Algonquin, and other associated contractors shall maintain equipment to manufacturers' specifications, including any sound-muffling devices or engine covers in order to minimize noise effects. Noisy construction equipment shall only be used as needed and equipment shall be turned off when not in operation;
• Any material that has the potential to entangle marine mammals (
• For any material that has the potential to entangle marine mammals, such material shall be removed from the water immediately unless such action jeopardizes the safety of the vessel and crew as determined by the Captain of the vessel; and
• In the event that a marine mammal becomes entangled, the marine mammal coordinator and/or protected species observer (PSO) will notify NMFS (if outside the SBNMS), and SBNMS staff (if inside the SBNMS) immediately so that a rescue effort may be initiated.
(11) All maintenance/repair activities shall be scheduled to occur between May 1 and November 30. However, in the event of unplanned/emergency repair work that cannot be scheduled during the preferred May through November work window, the following additional measures shall be followed for Pipeline Lateral maintenance and repair related activities between December and April:
• Between December 1 and April 30, if on-board PSOs do not have at least 0.5-mile visibility, they shall call for a shutdown. At the time of shutdown, the use of thrusters must be minimized. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down;
• Prior to leaving the dock to begin transit, the barge shall contact one of the PSOs on watch to receive an update of sightings within the visual observation area. If the PSO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel shall hold for 30 minutes and again get a clearance to leave from the PSOs on board. PSOs shall assess whale activity and visual observation ability at the time of the transit request to clear the barge for release;
• Transit route, destination, sea conditions and any marine mammal sightings/mitigation actions during watch shall be recorded in the log book. Any whale sightings within 1,000 meters of the vessel shall result in a high alert and slow speed of 4 knots or less and a sighting within 750 m shall result in idle speed and/or ceasing all movement;
• The material barges and tugs used in repair and maintenance shall transit from the operations dock to the work sites during daylight hours when possible provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug shall be 5 knots; and
• All repair vessels must maintain a speed of 10 knots or less during daylight hours. All vessels shall operate at 5 knots or less at all times within 5 km of the repair area.
Vessels associated with maintaining the AB network operating as part of the mitigation/monitoring protocols shall adhere to the following speed restrictions and marine mammal monitoring requirements.
(1) In accordance with 50 CFR 224.103 (c), all vessels associated with NEG Port activities shall not approach closer than 500 yd (460 meters) to a North Atlantic right whale.
(2) All vessels shall obtain the latest DMA or right whale sighting information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other available means prior to operations.
NMFS has carefully evaluated the mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals.
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned.
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's mitigation measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization (ITA) for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. NE Gateway has provided marine mammal monitoring measures as part of the IHA application. It can be found at
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
(1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
(2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;
(3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information); and
• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
(4) An increased knowledge of the affected species; and
(5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
Vessel-based monitoring for marine mammals shall be done by trained look-outs during NEG Port and Pipeline Lateral operations and maintenance and repair activities. The observers shall monitor the occurrence of marine mammals near the vessels during NEG Port and Pipeline Lateral related activities. Lookout duties include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the activities; and documenting “take by harassment.” The vessel look-outs assigned to visually monitor for the presence of marine mammals shall be provided with the following:
(1) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic monitoring buoy detection data;
(2) Binoculars to support observations;
(3) Marine mammal detection guide sheets; and
(4) Sighting log.
All individuals onboard the EBRVs responsible for the navigation duties and any other personnel that could be assigned to monitor for marine mammals shall receive training on marine mammal sighting/reporting and vessel strike avoidance measures.
While an EBRV is navigating within the designated TSS, there shall be three people with look-out duties on or near the bridge of the ship including the Master, the Officer-of-the-Watch and the Helmsman-on-watch. In addition to the standard watch procedures, while the EBRV is transiting within the designated TSS, maneuvering within the ATBA, and/or while actively engaging in the use of thrusters, an additional look-out shall be designated to exclusively and continuously monitor for marine mammals.
All sightings of marine mammals by the designated look-out, individuals posted to navigational look-out duties, and/or any other crew member while the EBRV is transiting within the TSS, maneuvering within the ATBA and/or when actively engaging in the use of thrusters, shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master. The Master or Officer-of-the-Watch shall ensure the required reporting procedures are followed and the designated marine mammal look-out records all pertinent information relevant to the sighting.
Visual sightings made by look-outs from the EBRVs shall be recorded using a standard sighting log form. Estimated locations shall be reported for each individual and/or group of individuals categorized by species when known. This data shall be entered into a database and a summary of monthly sighting activity shall be provided to NMFS. Estimates of take and copies of these log sheets shall also be included in the reports to NMFS.
Two qualified and NMFS-approved PSOs shall be assigned to each vessel that will use DP systems during maintenance and repair related activities. PSOs shall operate individually in designated shifts to accommodate adequate rest schedules. Additional PSOs shall be assigned to additional vessels if AB data indicates that sound levels exceed 120 dB re 1 µPa, further then 100 m (328 ft) from these vessels.
All PSOs shall receive NMFS-approved marine mammal observer training and be approved in advance by NMFS after review of their resume. All PSOs shall have direct field experience on marine mammal vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.
PSOs (one primary and one secondary) shall be responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist and the secondary PSO will serve as data recorder and also assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals and sea turtles. Specifically PSO's shall:
(1) Monitor at all hours of the day, scanning the ocean surface by eye for a minimum of 40 minutes every hour;
(2) Monitor the area where maintenance and repair work is conducted beginning at daybreak using 25x power binoculars and/or hand-held binoculars. Night vision devices must be provided as standard equipment for monitoring during low-light hours and at night;
(3) Conduct general 360° visual monitoring during any given watch period and target scanning by the observer shall occur when alerted of a whale presence;
(4) Alert the vessel superintendent or construction crew supervisor of visual detections within 2 mi (3.31 km) immediately; and
(5) Record all sightings on marine mammal field sighting logs. Specifically, all data shall be entered at the time of observation, notes of activities will be kept, and a daily report prepared and attached to the daily field sighting log form. The basic reporting requirements include the following:
• Beaufort sea state;
• Wind speed;
• Wind direction;
• Temperature;
• Precipitation;
• Glare;
• Percent cloud cover;
• Number of animals;
• Species;
• Position;
• Distance;
• Behavior;
• Direction of movement; and
• Apparent reaction to construction activity.
In the event that a whale is visually observed within the 2-mi (3.31-km) ZOI
Northeast Gateway shall deploy 10 ABs within the Separation Zone of the TSS for the operational life of the Project. The ABs shall be used to detect a calling North Atlantic right whale an average of 5 nmi from each AB. The AB system shall be the primary detection mechanism that alerts the EBRV Master to the occurrence of right whales, heightens EBRV awareness, and triggers necessary mitigation actions as described above. Northeast Gateway shall conduct short-term passive acoustic monitoring to document sound levels during:
(1) The initial operational events in the 2015–2016 winter heating season;
(2) Regular deliveries outside the winter heating season should such deliveries occur; and
(3) Scheduled and unscheduled maintenance and repair activities.
Northeast Gateway shall conduct long-term monitoring of the noise environment in Massachusetts Bay in the vicinity of the NEG Port and Pipeline Lateral using marine autonomous recording units (MARUs) when there is anticipated to be more than 5 NEG shipments in a 30-day period or over 20 shipments in a 6-month period.
The acoustic data collected shall be analyzed to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback and right whales) within approximately 10 nmi of the NEG Port and shall measure and document the noise “budget” of Massachusetts Bay so as to eventually assist in determining whether or not an overall increase in noise in the Bay associated with the Project might be having a potentially negative impact on marine mammals.
Northeast Gateway shall make all acoustic data, including data previously collected by the MARUs during prior construction, operations, and maintenance and repair activities, available to NOAA. Data storage will be the responsibility of NOAA.
(1) Ten ABs that have been deployed since 2007 shall be used to continuously screen the low-frequency acoustic environment (less than 1,000 Hertz) for right whale contact calls occurring within an approximately 5-nm radius from each buoy (the AB's detection range).
(2) Once a confirmed detection is made, the Master of any EBRVs operating in the area will be alerted immediately.
NEG Port and Pipeline Lateral Planned and Unplanned/Emergency Repair and Maintenance Activities
(1) If the repair/maintenance work is located outside of the detectible range of the 10 project area ABs, Northeast Gateway and Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the work to be conducted warrants the temporary installation of an additional AB(s) to help detect and provide early warnings for potential occurrence of right whales in the vicinity of the repair area.
(2) The number of ABs installed around the activity site shall be commensurate with the type and spatial extent of maintenance/repair work required, but must be sufficient to detect vocalizing right whales within the 120-dB impact zone.
(3) Should acoustic monitoring be deemed necessary during a planned or unplanned/emergency repair and/or maintenance event, active monitoring for right whale calls shall begin 24 hours prior to the start of activities.
(4) Source level data from the acoustic recording units deployed in the NEG Port and/or Pipeline Lateral maintenance and repair area shall be provided to NMFS.
(a) Throughout NEG Port and Pipeline Lateral operations, Northeast Gateway and Algonquin shall provide a monthly Monitoring Report. The Monitoring Report shall include:
• Both copies of the raw visual EBRV lookout sighting information of marine mammals that occurred within 2 miles of the EBRV while the vessel transits within the TSS, maneuvers within the ATBA, and/or when actively engaging in the use of thrusters, and a summary of the data collected by the look-outs over each reporting period;
• Copies of the raw PSO sightings information on marine mammals gathered during pipeline repair or maintenance activities. This visual sighting data shall then be correlated to periods of thruster activity to provide estimates of marine mammal takes (per species/species class) that took place during each reporting period; and
• Conclusion of any planned or unplanned/emergency repair and/or maintenance period, a report shall be submitted to NMFS summarizing the repair/maintenance activities, marine mammal sightings (both visual and acoustic), empirical source-level measurements taken during the repair work, and any mitigation measures taken.
(b) During the maintenance and repair of NEG Port and Pipeline Lateral components, weekly status reports shall be provided to NOAA (both NMFS and SBNMS) using standardized reporting forms. The weekly reports shall include data collected for each distinct marine mammal species observed in the repair/maintenance area during the period that maintenance and repair activities were taking place. The weekly reports shall include the following information:
• Location (in longitude and latitude coordinates), time, and the nature of the maintenance and repair activities;
• Indication of whether a DP system was operated, and if so, the number of thrusters being used and the time and duration of DP operation;
• Marine mammals observed in the area (number, species, age group, and initial behavior);
• The distance of observed marine mammals from the maintenance and repair activities;
• Changes, if any, in marine mammal behaviors during the observation;
• A description of any mitigation measures (power-down, shutdown, etc.) implemented;
• Weather condition (Beaufort sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover etc.);
• Condition of the observation (visibility and glare); and
• Details of passive acoustic detections and any action taken in response to those detections.
In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by the issued IHA, such as an injury (Level A harassment), serious injury or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• The name and type of vessel involved;
• The vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• The fate of the animal(s); and
• Photographs or video footage of the animal (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with NEG and/or Algonquin to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. NEG and/or Algonquin may not resume their activities until notified by NMFS via letter, email, or telephone.
In the event that NEG and/or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that NEG or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized (if the IHA is issued) (
Prior marine mammal monitoring during NEG Port and Pipeline Lateral operation, maintenance and repair activities and monthly marine mammal observation memorandums (NEG 2010; 2015; 2016) indicate that only a small number of marine mammals were observed during these activities. Only one NEG Port operation occurred within the dates of the current IHA (starting December 23, 2015) and only one unidentified small whale was observed at a distance of 2 nmi from the NEG vessel on January 17, 2016. No other NEG Port and Pipeline Lateral related activity occurred during this period.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Only take by Level B harassment is anticipated as a result of NEG's operation and maintenance and repair activities. Anticipated take of marine mammals is associated with operation of dynamic positioning during the docking of the NEG vessels and positioning of maintenance and dive vessels, and by operations of certain machinery during maintenance and repair activities. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 108 dB. Certain species may have a behavioral reaction to the sound emitted during the activities. Hearing impairment is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the speed restriction measures that were described earlier in this document.
The full suite of potential impacts to marine mammals was described in detail in the “Potential Effects of the Specified Activity on Marine Mammals” section found earlier in this document. The potential effects of sound from the NEG Port and Pipeline Lateral operations, maintenance and repair activities might include one or more of the following: masking of natural sounds and behavioral disturbance (Richardson
For non-pulse sounds, such as those produced by operating DP thruster during vessel docking and supporting underwater construction and repair activities and the operations of various machineries that produces non-pulse noises, NMFS uses the 120 dB (rms) re 1 μPa isopleth to indicate the onset of Level B harassment.
The basis for Northeast Gateway and Algonquin's “take” estimate is the number of marine mammals that would be exposed to sound levels in excess of 120 dB, which is the threshold used by NMFS for non-pulse sounds. For the NEG Port and Pipeline Lateral operations and maintenance and repair activities, the take estimates are determined by multiplying the 120-dB ensonified area by local marine mammal density estimates, and then multiplying by the estimated number of days such activities would occur during a year-long period. For the NEG Port operations, the 120-dB ensonified area is 56.8 km
For the purposes of understanding the noise footprint of operations at the NEG Port, measurements taken to capture operational noise (docking, undocking, regasification, and EBRV thruster use) during the 2006 Gulf of Mexico field
Sound propagation calculations for operational activities were then completed at two positions in Massachusetts Bay to determine site-specific distances to the 120/160/180 dB isopleths:
• Operations Position 1—Port (EBRV Operations): 70°36.261′ W and 42°23.790′ N; and
• Operations Position 2—Boston TSS (EBRV Transit): 70°17.621′ W and 42°17.539′ N
At each of these locations sound propagation calculations were performed to determine the noise footprint of the operation activity at each of the specified locations. Updated acoustic modeling was completed using Tetra Tech's underwater sound propagation program which utilizes a version of the publicly available Range Dependent Acoustic Model (RAM). Based on the U.S. Navy's Standard Split-Step Fourier Parabolic Equation, this modeling methodology considers range and depth along with a geo-referenced dataset to automatically retrieve the time of year information, bathymetry, and seafloor geoacoustic properties along the given propagation transects radiating from the sound source. The calculation methodology assumes that outgoing energy dominates over scattered energy, and computes the solution for the outgoing wave equation. An approximation is used to provide two-dimensional transmission loss values in range and depth,
Modeling analysis conducted for the construction of the NEG Port concluded that the only underwater noise of critical concern during NEG Port construction would be from vessel noises such as turning screws, engine noise, noise of operating machinery, and thruster use. To confirm these modeled results and better understand the noise footprint associated with construction activities at the NEG Port, field measurements were taken of various construction activities during the 2007 NEG Port and Pipeline Lateral Construction period. Measurements were taken and normalized as described to establish the “loudest” potential construction measurement event. One position within Massachusetts Bay was then used to determine site-specific distances to the 120/180 dB isopleths for NEG Port maintenance and repair activities:
Construction Position 1. Port: 70°36.261′ W and 42°23.790′ N
Sound propagation calculations were performed to determine the noise footprint of the construction activity. The results showed that the estimated distance from the loudest source involved in construction activities fell to 120 dB re 1 µPa at a distance of 3,500 m.
Modeling analysis conducted during the NEG Port and Pipeline Lateral construction concluded that the only underwater noise of critical concern during such activities would be from vessel noises such as turning screws, engine noise, noise of operating machinery, and thruster use. As with construction noise at the NEG Port, to confirm modeled results and better understand the noise footprint associated with construction activities along the Pipeline Lateral, field measurements were taken of various construction activities during the 2007 NEG Port and Algonquin Pipeline Lateral construction period. Measurements were taken and normalized to establish the “loudest” potential construction measurement event. Two positions within Massachusetts Bay were then used to determine site-specific distances to the 120/160/180 dB isopleths:
• Construction Position 2. PLEM: 70°46.755′ W and 42°28.764′ N; and
• Construction Position 3. Mid-Pipeline: 70°40.842′ W and 42°31.328′ N
Sound propagation calculations were performed to determine the noise footprint of the construction activity. The results of the distances to the 120-dB are shown in Table 2.
Since the issuance of an IHA to NEG on December 22, 2015, there was only one NEG delivery at the NEG Port in January 2015. NEG expects that when the Port is under full operation, it will receive up to 65 NEG shipments per year, and would require 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Algonquin Pipeline Lateral maintenance and repair.
The density calculation methodology applied to take estimates for this application is derived from the model results produced by Roberts
Based on NEG Gateway's expectations of up to 65 NEG shipments per year, and up to 14 days for NEG Port maintenance and up to 40 days for planned and unplanned Algonquin Pipeline Lateral repair, the total estimated takes in a given year is calculated based on the following equation.
Where N is the take number for a given species with average density of D. A
On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This new guidance established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the
In this case, we performed an analysis using the new Guidance to calculate potential takes of marine mammal by Level A harassment. The results show that given the brief duration of the NEG operations, NEG Port maintenance, and Algonquin Pipeline Lateral repair activities, no marine mammals would be exposed to received noise levels that would cause auditory injury.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect
To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 4, given that the anticipated effects of NEG Port and Pipeline Lateral operations, maintenance, and repair activities on marine mammals (taking into account the prescribed mitigation) are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described separately in the analysis below.
No injuries or mortalities are anticipated to occur as a result of NEG Port and Pipeline Lateral operations, maintenance, and repair activities, and none are authorized. Additionally, animals in the area are not expected to incur hearing impairment (
Effects on marine mammals are generally expected to be restricted to avoidance of a limited area around NEG's activities and short-term changes in behavior, falling within the MMPA definition of “Level B harassment.” Mitigation measures, such as controlled vessel speed, dedicated marine mammal observers, and passive acoustic monitoring, will ensure that takes are limited to Level B harassment and that these takes are minimized. In all cases, the effects are expected to be short-term, with no lasting biological consequence.
Of the 14 marine mammal species likely to occur in the action area, North Atlantic right, humpback, fin, and sei whales are listed as endangered under the ESA. These species are also designated as “depleted” under the MMPA. None of the other species that may occur in the project area are listed as threatened or endangered under the ESA or designated as depleted under the MMPA.
The project area of the NEG and Algonquin's activities is a biologically important area (BIA) for feeding for the North Atlantic right whale in February to April, humpback whale in March to December, fin whale year-round, and minke whale in March to November (LaBrecque
Regarding adverse effects to marine mammal habitat, the major potential impact would be the loss of prey due to water intake for cooling during the NEG regasification process. Under the requested water-use scenario, it is estimated that a dry-weight biomass of 916.5 kg of zooplankton per year (including 9.2 kg of large piscivorous fish) would be lost per year. The amount of loss is minor relative to the total biomass of the trophic level in Massachusetts Bay.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammal species and stocks and their habitat, and taking into consideration the implementation of the prescribed monitoring and mitigation measures, NMFS finds that the total marine mammal take from NEG and Algonquin's NEG Port and Pipeline Lateral operation, maintenance, and repair activities in Masschusetts Bay is not expected to adversely the annual rates of recruitment or survival, and therefore will have a negligible impact on the affected marine mammal species or stocks.
The requested takes represent less than 3.6 percent of all populations or stocks potentially impacted (see Table 4 in this document). These authorized take represent the maximum percentage of each species or stock that could be taken by behavioral harassment or TTS (Level B harassment). The numbers of marine mammals authorized to be taken are small proportions of the total populations of the affected species or stocks.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no subsistence uses of marine mammals in the project area and, thus, no subsistence uses impacted by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Our November 18, 2013,
NMFS' Permits and Conservation Division has determined that the activities described in here are the same as those analyzed in the November 21, 2014, Biological Opinion. Therefore, a new consultation is not required for issuance of this IHA.
MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed NEG Port and Pipeline Lateral. NMFS was a cooperating agency (as defined by the Council on Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 2007. NMFS issued a separate Record of Decision for issuance of authorizations pursuant to section 101(a)(5) of the MMPA for the construction and operation of the NEG Port Facility in Massachusetts Bay.
We have reviewed the NEG's application for a renewed IHA for ongoing activities for 2015–16 and the 2014–15 monitoring report. Based on that review, we have determined that the action is very similar to that considered in the previous IHA. In addition, no significant new circumstances or information relevant to environmental concerns have been identified. Thus, we have determined that the preparation of a new or supplemental NEPA document is not necessary.
As a result of these determinations, NMFS has issued an IHA to Northeast Gateway and Algonquin for activities associated with Northeast Gateway's NEG Port and Algonquin's Pipeline Lateral operations and maintenance and repair activities in the Massachusetts Bay, which also includes the mitigation, monitoring, and reporting requirements described in this Notice.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Recreational Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, January 18, 2017, from 1:30 p.m. to 5:30 p.m.
The meeting will be held at the Hilton Garden Inn, 5 Park Street, Freeport, ME 04032; telephone: (207) 865–1433.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The Recreational Advisory Panel plans to discuss Fishing Year (FY) 2017 Recreational Measures for Gulf of Maine cod and haddock. They will also receive an overview of recent recreational catch and effort data. The Panel will also discuss results from the bioeconomic model to evaluate options for management measures. They will make recommendations to the Groundfish Committee on FY 2017 recreational measures for Gulf of Maine cod and haddock. The Panel also plans to receive an overview and discuss the Council's 2017 Groundfish Priorities and make recommendations to the Groundfish Committee, as appropriate. Other business will be discussed as necessary.
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 listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (MAFMC's) Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (MC) will hold a public meeting.
The meeting will be held on Thursday, January 26, 2017, from 10 a.m. to 5 p.m. For agenda details, see
The meeting will be held at the Royal Sonesta Harbor Court, 550 Light St, Baltimore, MD 21202; telephone: (410) 234–0550.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526–5255.
The Summer Flounder, Scup, and Black Sea Bass Monitoring Committee will meet to develop recommendations for commercial and recreational Annual Catch Limits (ACLs) and Annual Catch Targets (ACTs) for black sea bass for
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders at the Mid-Atlantic Council Office, (302) 526–5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Intent (NOI) to prepare a draft environmental impact statement (DEIS); request for comments.
The NMFS Southeast Region, in collaboration with the South Atlantic Fishery Management Council (Council), intends to prepare a DEIS to describe and analyze a range of alternatives for management actions to be included in Amendment 43 to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region (Amendment 43). The purpose of Amendment 43 is to respond to the most recent stock assessment for red snapper in the South Atlantic, reduce discards of red snapper, and improve the quantity and quality of data collected from private recreational fishermen. This NOI is to solicit public comments on the scope of issues to be addressed in the DEIS.
Written comments on the scope of issues to be addressed in the DEIS will be accepted until February 6, 2017.
You may submit comments, identified by NOAA–NMFS–2016–0157, by either of the following methods:
•
•
Frank Helies, NMFS Southeast Regional Office, telephone: 727–824–5305; or email:
South Atlantic red snapper were determined to be overfished and undergoing overfishing in the 2009 Southeast Data, Assessment, and Review (SEDAR) stock assessment (SEDAR 15). In response to SEDAR 15, the Council recommended and NMFS subsequently implemented a prohibition on all harvest or possession of South Atlantic red snapper through Amendment 17A to the FMP (75 FR 76874, December 9, 2010). Through management measures implemented in Amendment 28 to the FMP, limited seasons for the harvest of red snapper occurred in the 2012, 2013, and 2014 fishing years (78 FR 44461, July 24, 2013). However, red snapper removals (total landings and dead discards) in the 2014 and 2015 fishing years exceeded the acceptable biological catch (ABC) and subsequent seasons' annual catch limits (ACLs) were set to zero and harvest and possession of red snapper was not allowed in the 2015 or 2016 fishing years.
According to the most recent stock assessment, the red snapper stock in the South Atlantic is undergoing overfishing and is overfished (SEDAR 41 2016). The Council's Scientific and Statistical Committee (SSC) reviewed SEDAR 41 in May 2016 and considered the assessment to be best scientific information available. In response to SEDAR 41 and the SSC's recommendation, the Council is considering changes to the ACLs, the recreational annual catch target, and management reference points.
Discard mortality, particularly from the recreational sector, continues to be a significant source of overall mortality for red snapper. Therefore, the Council is considering methods to reduce discard mortality in Amendment 43 including spatial and temporal closures (where harvest of all snapper-grouper species would be prohibited), changes to allowable fishing gear types (
Finally, the Council is evaluating ways to improve the quantity and quality of data collected from private recreational fishermen. The goal is to improve the data that are used to assess and manage the red snapper stock in the South Atlantic. The Council is considering a Federal permit requirement for private recreational fishermen to fish for or possess snapper-grouper species and a requirement for private recreational fishermen to complete electronic logbooks.
NMFS, in collaboration with the Council, will develop a DEIS for Amendment 43 to describe and analyze alternatives to address the management needs described above, including the “no action” alternative. In accordance with the regulations issued by the Council on Environmental Quality (CEQ) for implementing the National Environmental Policy Act (NEPA; 40 CFR parts 1500–1508), NMFS, in collaboration with the Council, has identified preliminary environmental issues as a means to initiate discussion for scoping purposes only. These preliminary issues may not represent the full range of issues that eventually will be evaluated in the DEIS. A copy of the Amendment 43 draft options paper is available at:
Comments on the scope of the DEIS may be submitted in writing to NMFS (see
After the DEIS associated with Amendment 43 is completed, it will be filed with the Environmental Protection Agency (EPA). After filing, the EPA will publish a notice of availability of the DEIS for public comment in the
The Council and NMFS will consider public comments received on the DEIS in developing the final environmental impact statement (FEIS) and before adopting final management measures for the amendment. NMFS will submit the consolidated final amendment and supporting FEIS to the Secretary of Commerce (Secretary) for review as required by the Magnuson-Stevens Fishery Conservation and Management Act.
NMFS will announce, through a notification in the
NMFS will announce, through a document published in the
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for Letters of Authorization; request for comments and information.
NMFS has received a request from the Texas Parks and Wildlife Department (TPWD) for authorization to take marine mammals incidental to conducting fishery-independent monitoring activities in estuarine waters of Texas, over the course of five years. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of TPWD's request for the development and implementation of regulations governing the incidental taking of marine mammals. NMFS invites the public to provide information, suggestions, and comments on TPWD's application and request.
Comments and information must be received no later than February 6, 2017.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401.
Electronic copies of TPWD's application may be obtained online at:
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Incidental taking shall be allowed if NMFS finds that the taking will have a negligible impact on the species or stock(s) affected and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).”
On July 29, 2015, NMFS received an adequate and complete application from TPWD requesting authorization for take of marine mammals incidental to fishery-independent monitoring activities in Texas. The requested regulations would be valid for five years from the date of issuance. The proposed action requires the use of gillnets in Texas bays. Use of gillnets in Texas bays presents a reasonable likelihood of interaction with bottlenose dolphins (
TPWD conducts a long-term standardized fishery-independent monitoring program to assess the relative abundance and size of finfish and shellfish in Texas bays. This program uses gillnets deployed according to a stratified random sample design, with each Texas bay system as an independent stratum. Gillnets are set overnight during ten-week spring and fall sampling seasons, with gillnets set perpendicularly to shore.
Interested persons may submit information, suggestions, and comments concerning TPWD's request (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council (Pacific Council) is sponsoring a meeting to review new methods proposed to be used in groundfish stock assessments. The meeting is open to the public.
The Groundfish Assessment Methodology Review Meeting will commence at 8:30 a.m. PST, Wednesday, January 25, 2017, and continue until 5 p.m. or as necessary to complete business for the day. The meeting will reconvene on Thursday, January 26, 2017, starting at 8:30 a.m. PST and continue as necessary to complete business for the day.
On January 25, 2017, the Groundfish Assessment Methodology Review Meeting will be held in the auditorium at the NMFS Northwest Fisheries Science Center, 2725 Montlake Boulevard E, Seattle, WA 98112; telephone: (206) 860–3200. On January 26, 2017, the meeting will be held in the Heritage Room at the Seattle Yacht Club, 1807 East Hamlin Street, Seattle, WA 98112; telephone: (206) 325–1000. The Seattle Yacht Club is next door to the NMFS Northwest Fisheries Science Center.
Mr. John DeVore, Pacific Council; telephone: (503) 820–2413.
The purpose of the Groundfish Assessment Methodology Review Meeting is to review proposed methods for groundfish stock assessment. The specific methodologies to be reviewed are:
• Use of the Dirichlet multinomial likelihood for compositional data;
• Application of the Generalized Linear Mixed Model (GLMM) with spatial autocorrelation to survey data;
• Application of the GLMM with spatial autocorrelation to fishery catch per unit effort data;
• Revised set of priors for natural mortality;
• Revised prior for steepness; and
• New features in the revised Stock Synthesis software.
Public comments during the meeting will be received from attendees at the discretion of the chair.
Although non-emergency issues not identified in the meeting agenda may come before the meeting participants for discussion, those issues may not be the subject of formal action during this meeting. Formal action at the meeting will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the meeting participants' intent to take final action to address the emergency.
Visitors who are foreign nationals (defined as a person who is not a citizen or national of the United States) will require additional security clearance to access the NMFS Northwest Fisheries Science Center. Foreign national visitors should contact Ms. Stacey Miller at (541) 867–0535 at least two weeks prior to the meeting date to initiate the security clearance process.
This meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to Mr. Kris Kleinschmidt at 503–820–2425 at least ten days prior to the meeting date.
Wednesday, January 11, 2017, 9:30 a.m.–12:30 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
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A live webcast of the Meeting can be viewed at
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7923.
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by March 7, 2017.
You may submit comments, identified by docket number and title, by any of the following methods:
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Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Assistant Secretary of Defense for Health Affairs, ATTN: Dr. Patrice Robinson-Haley, 7700 Arlington Boulevard, Suite 5101 (CODE: FHP&R), Falls Church, VA 22042–5101, or call (703) 681–8885.
The original document is submitted one time per researcher. Once their document is on file, a researcher may reaffirm their commitment every three years electronically if they remain engaged in human subject research.
Office of Postsecondary Education, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2017.
There are three types of GPA short-term projects: (1) Short-term seminar
GPA long-term projects are advanced overseas intensive language projects that may be carried out during a full year, an academic year, a semester, a trimester, a quarter, or a summer. GPA long-term projects are designed to take advantage of the opportunities in the foreign country that are not present in the United States when providing intensive advanced foreign language training. Only participants who have successfully completed at least two academic years of training in the language to be studied are eligible for language training under this program. In addition, the language to be studied must be indigenous to the host country and maximum use must be made of local institutions and personnel (34 CFR 664.14).
Applicants may submit only one GPA short-term or GPA long-term application under this notice and must identify whether they are applying for a GPA short-term project or a GPA long-term project.
This priority is:
A group project that focuses on one or more of the following geographic regions of the world: Africa, East Asia, South Asia, Southeast Asia and the Pacific, the Western Hemisphere (Central and South America, Mexico, and the Caribbean), Eastern and Central Europe and Eurasia, and the Near East.
Under 34 CFR 75.105(c)(2)(i), we award three additional points to an application that meets Competitive Preference Priority 1; three additional points to an application that meets Competitive Preference Priority 2; one additional point to an application that meets Competitive Preference Priority 3; and up to an additional three points to an application, depending on how well the application meets Competitive Preference Priority 4. Applicants for GPA short-term projects may address Competitive Preference Priorities 1, 3, and 4. Applicants for GPA long-term projects may address Competitive Preference Priorities 2 and 3. An applicant must identify the priority or priorities that it believes it meets and provide documentation supporting its claims.
These priorities are:
Applications for GPA short-term projects from the following types of institutions and organizations:
Applications for GPA long-term advanced overseas intensive language training projects from MSIs.
Applications that propose GPA short-term or GPA long-term projects that provide substantive training and thematic focus on any of the 78 priority languages selected from the U.S. Department of Education's list of Less Commonly Taught Languages: Akan (Twi-Fante), Albanian, Amharic, Arabic (all dialects), Armenian, Azeri (Azerbaijani), Balochi, Bamanakan (Bamana, Bambara, Mandikan, Mandingo, Maninka, Dyula), Belarusian, Bengali (Bangla), Berber (all languages), Bosnian, Bulgarian, Burmese, Cebuano (Visayan), Chechen, Chinese (Cantonese), Chinese (Gan), Chinese (Mandarin), Chinese (Min), Chinese (Wu), Croatian, Dari, Dinka, Georgian, Gujarati, Hausa, Hebrew (Modern), Hindi, Igbo, Indonesian, Japanese, Javanese, Kannada, Kashmiri, Kazakh, Khmer (Cambodian), Kirghiz, Korean, Kurdish (Kurmanji), Kurdish (Sorani), Lao, Malay (Bahasa Melayu or Malaysian), Malayalam, Marathi, Mongolian, Nepali, Oromo, Panjabi, Pashto, Persian (Farsi), Polish, Portuguese (all varieties), Quechua, Romanian, Russian, Serbian, Sinhala (Sinhalese), Somali, Swahili, Tagalog, Tajik, Tamil, Telugu, Thai, Tibetan, Tigrigna, Turkish, Turkmen, Ukrainian, Urdu, Uyghur/Uigur, Uzbek, Vietnamese, Wolof, Xhosa, Yoruba, and Zulu.
Applications that propose short-term projects abroad that develop and improve foreign language studies, area studies, or both at elementary and secondary schools by including K–12 teachers or K–12 administrators as at least 50 percent of the project participants.
22 U.S.C. 2452(b)(6).
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2017 from the list of unfunded applications from this competition.
The Department is not bound by any estimates in this notice.
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You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.021A.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative,
• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch). However, you may use a 10-point font in charts, tables, figures, and graphs.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman and Arial Narrow) will not be accepted.
The 40-page limit does not apply to Part I, the Application for Federal Assistance face sheet (SF 424); the supplemental information form required by the Department of Education; Part II, Budget Information—Non-Construction Programs (ED 524); Part IV, assurances, certifications, and the response to section 427 of the General Education Provisions Act; the table of contents; the one-page project abstract; the appendices; or the line-item budget. However, the page limit does apply to all of the application narrative. If you include any attachments or appendices not specifically requested, these items will be counted as part of the application narrative for purposes of the page-limit requirement.
We will reject your application if you exceed the page limit.
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Applications for grants under this program must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through,
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via
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Applications for grants under this program must be submitted electronically unless you qualify for an exception to this requirement in accordance with the instructions in this section.
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Applications for grants under the Fulbright-Hays GPA Program, CFDA number 84.021A, must be submitted electronically using the Governmentwide
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
Please note the following:
• When you enter the
• Applications received by
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from
Once your application is successfully validated by
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement for Fulbright-Hays GPA to: Reha Mallory, Fulbright-Hays Group Projects Abroad Program, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E213, Washington, DC 20202–4260. FAX: (202) 453–7502.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
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If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.021A), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
We will not consider applications postmarked after the application deadline date.
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If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
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In addition, in making a competitive grant award, the Secretary requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
For FY 2017, GPA short-term project applications will be reviewed by separate panels according to world area. GPA long-term projects will be reviewed by one panel across world areas. A rank order from highest to lowest score will be developed for each of the two types of projects and will be used for funding purposes.
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. Grantees are required to use the electronic data instrument International Resource Information System (IRIS) to complete the final report. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
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The information provided by grantees in their performance reports submitted via IRIS will be the source of data for this measure. Reporting screens for institutions can be viewed at:
Reha Mallory, Fulbright-Hays Group Projects Abroad Program, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E213, Washington, DC 20202–4260. FAX: (202) 453–7502 or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1–800–877–8339.
This is a supplemental notice in the above-referenced proceeding Algonquin Power Sanger 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 January 18, 2017.
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 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:
Western Area Power Administration, Department of Energy.
Notice of additional public scoping meetings.
On December 18, 2015, Western Area Power Administration (WAPA), an agency of the Department of Energy (DOE), announced the Notice of Intent to prepare an Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the proposed 500-kilovolt (kV) transmission line. This proposed Project is known as the Colusa-Sutter (CoSu) 500-kV Transmission Line Project. In that previous notice, WAPA described the schedule for scoping meetings and advised the public that comments on the scope of the EIS/EIR were due by February 16, 2016. On February 5, 2016, an additional notice was published extending the due date for comments on the scope of the EIS/EIR to April 18, 2016. By this notice, WAPA announces additional public scoping meetings and reopens the period for submitting comments on the scope of the EIS/EIR.
WAPA will accept comments on the scope of the EIS/EIR from January 6, 2017 to March 7, 2017.
Written comments on the proposed scope of the Draft EIS/EIR for this proposed Project may be mailed or emailed to Mr. Andrew M. Montaño, National Environmental Policy Act (NEPA) Document Manager, Western Area Power Administration, Headquarters, P.O. Box 281213, Lakewood, CO 80228–8213, or by email:
For further information and/or to have your
For general information on DOE's NEPA review procedures or status of a NEPA review, contact Ms. Carol M. Borgstrom, Director of NEPA Policy and Compliance, GC–54, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; telephone (202) 586–4600 or (800) 472–2756; or email:
For general information on the Sacramento Municipal Utility District (SMUD) California Environmental Quality Act (CEQA) review procedures or status of the CEQA review, please contact Ms. Kim Crawford, Environmental Specialist, SMUD, 6201 S. Street, Mail Stop H201, Sacramento, CA 95852–1830; telephone (916) 732–5063; email:
On December 18, 2015, WAPA announced the Notice of Intent to prepare an EIS for the Colusa-Sutter (CoSu) 500-kV Transmission Line Project (80 FR 79037). An additional notice was published on February 5, 2016, announcing the extension of the scoping period to April 18, 2016 (81 FR 6257). The EIS/EIR will examine the potential environmental effects of the CoSu transmission line. WAPA will prepare the EIS/EIR with the SMUD, the lead state agency for CEQA. WAPA will be the lead Federal agency under NEPA.
WAPA and SMUD held public scoping meetings from December 2015 to April 2016 to gather public input on the proposed project. As a result of these original public scoping meetings and the scoping comments received, WAPA and SMUD decided to add additional project alternatives closer to the Sacramento area. The new study area is further described below.
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The EIS/EIR process includes a public scoping period and public scoping meetings; publication, public review and hearing of the Draft EIS/EIR; publication of a Final EIS/EIR; and publication of a ROD.
WAPA and SMUD will hold six additional public scoping meetings at the following times and locations:
(1) Tuesday, January 24, 2017, from 5:00 p.m. to 8:00 p.m. at the Sutter Youth Organization Center, 7740 Butte House Road, Sutter, CA 95982;
(2) Thursday, January 26, 2017, from 5:00 p.m. to 8:00 p.m. at the Colusa Casino Community Room, 3770 California 45, Colusa, CA 95932;
(3) Tuesday, January 31, 2017, from 9:00 a.m. to 12:00 p.m. at the Woodland Community and Senior Center Banquet Rooms, 2001 East Street, Woodland, CA 95776;
(4) Tuesday, January 31, 2017, from 5:00 p.m. to 8:00 p.m. at the Woodland Community and Senior Center Banquet Rooms, 2001 East Street, Woodland, CA 95776;
(5) Thursday, February 2, 2017, from 9:00 a.m. to 12:00 p.m. at the Haggin-Grant American Legion Post 521, 6700 8th Street, Rio Linda, CA 95673; and,
(6) Thursday, February 2, 2017, from 5:00 p.m. to 8:00 p.m. at the Haggin-Grant American Legion Post 521, 6700 8th Street, Rio Linda, CA 95673.
The meetings will be informal, and attendees will be able to speak directly with both WAPA and SMUD representatives about the proposed Project. Attendees also may provide comments at these meetings. For the most recent information and for announcements, please visit the Project Web site at:
At the conclusion of the NEPA process, WAPA will prepare a ROD. Persons interested in receiving future notices, proposed Project information, copies of the EIS/EIR, and other information on the NEPA review process should contact Mr. Montaño at
The purpose of the additional scoping meetings is to provide information about the proposed Project, review Project maps, answer questions, and take oral and written comments from interested parties. All meeting locations will be handicapped-accessible. Anyone needing special accommodations should contact Mr. Montaño to make arrangements.
The public will have the opportunity to provide written comments at the public scoping meetings. Written comments may also be sent to Mr. Montaño by email or U.S. Postal Service mail. To help define the scope of the EIS/EIR, comments should be received by WAPA no later than March 7, 2017. WAPA will consider any comments received from April 18, 2016 and March 7, 2017 to be timely submitted. All comments received during the public scoping period will be considered when developing project alternatives and establishing the scope of issues to be analyzed in the EIS/EIR.
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), notice is hereby given of a proposed consent decree in
Written comments on the proposed consent decree must be received by February 6, 2017.
Submit your comments, identified by Docket ID number EPA–HQ–OGC–2016–0778, online at
Charles Starrs, Air and Radiation Law Office (2322A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564–1996; email address:
The proposed consent decree would resolve a lawsuit filed by Sierra Club seeking to compel the Administrator to take actions under CAA section 505(b)(2). Under the terms of the proposed consent decree, EPA would agree to sign its response granting or denying the petition filed by Sierra Club regarding the Scrubgrass Plant, pursuant to section 505(b)(2) of the CAA, on or before May 12, 2017.
Under the terms of the proposed consent decree, EPA would expeditiously deliver notice of EPA's response to the Office of the Federal Register for review and publication following signature of such response. In addition, the proposed consent decree outlines the procedure for the Plaintiffs to request costs of litigation, including attorney fees. See the proposed consent decree for the specific details.
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed consent decree from persons who are not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines that consent to this consent decree should be withdrawn, the terms of the consent decree will be affirmed.
The official public docket for this action (identified by Docket ID No. EPA–HQ–OGC–2016–0778) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (“OEI”) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the OEI Docket is (202) 566–1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Environmental Protection Agency (EPA).
Notice of data availability (NODA); request for public comment.
The Environmental Protection Agency (EPA) is providing notice that preliminary interstate ozone transport modeling data and associated methods relative to the 2015 ozone National Ambient Air Quality Standard (NAAQS) are available for public review and comment. This information is being provided to help states develop State Implementation Plans (SIPs) to address the requirements of Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS. The information available includes: (1) Emission inventories for 2011 and 2023, supporting data used to develop those emission inventories, methods and data used to process emission inventories into a form that can be used for air quality modeling; and (2) air quality
A docket has been established to facilitate public review of the data and to track comments.
Comments must be received on or before 90 days after publication in the
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2016–0751, to the
When submitting comments, remember to:
1. Identify the notice by docket number and other identifying information (subject heading,
2. Explain your comments, why you agree or disagree; suggest alternatives and substitute data that reflect your requested changes.
3. Describe any assumptions and provide any technical information and/or data that you used.
4. Provide specific examples to illustrate your concerns, and suggest alternatives.
5. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
6. Make sure to submit your comments by the comment period deadline identified.
For additional information about the EPA's public docket, visit the EPA Docket Center homepage at
For questions on the emissions data and on how to submit comments on the emissions-related projection methodologies, contact Alison Eyth, Air Quality Assessment Division, Environmental Protection Agency, Mail code: C339–02, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; telephone number: (919) 541–2478; fax number: (919) 541–1903; email:
On October 26, 2015 (80 FR 65292), the EPA published a rule revising the 8-hour ozone NAAQS from 0.075 parts per million (ppm) to a new, more protective level of 0.070 ppm. Section 110(a)(1) of the CAA requires states to submit SIPs that provide for the implementation, maintenance, and enforcement of a NAAQS within 3 years of the promulgation of a new or revised standard. Such plans are required to address the applicable requirements of CAA section 110(a)(2) and are generally referred to as “infrastructure” SIPs. Among the requirements in CAA section 110(a)(2) that must be addressed in these plans is the “Good Neighbor” provision, section 110(a)(2)(D)(i)(I), which requires states to develop SIPs that prohibit any source or other emissions activity within the state from emitting air pollutants in amounts that will contribute significantly to nonattainment or interfere with maintenance of the NAAQS in another state. With respect to the 2015 ozone NAAQS, the Good Neighbor SIPs are due within 3 years of promulgation of the revised NAAQS, or by October 26, 2018.
On October 1, 2015, when EPA Administrator McCarthy signed the ozone NAAQS revision, the agency also issued a memorandum
The memorandum noted that the EPA believes that the Good Neighbor provision for the 2015 ozone NAAQS can be addressed in a timely fashion using the framework of the Cross-State Air Pollution Rule (CSAPR), especially given the court decisions upholding important elements of that framework.
This notice includes preliminary air quality modeling data that will help states as they develop SIPs to address the cross-state transport of air pollution under the CAA's Good Neighbor provision as it pertains to the 2015 ozone NAAQS. These data are considered preliminary because states may choose to modify or supplement these data in developing their Good Neighbor SIPs and/or EPA may update these data for the purpose of potential future analyses or regulatory actions related to interstate ozone transport for the 2015 ozone NAAQS.
The EPA has applied what it refers to as the CSAPR framework to address the requirements of the Good Neighbor provision for regional pollutants like ozone. This framework involves a 4-step process: (1) Identifying downwind receptors that are expected to have problems attaining or maintaining clean air standards (
The year 2023 was used as the analytic year for this preliminary modeling because that year aligns with the expected attainment year for Moderate ozone nonattainment areas, given that the CAA requires the EPA to finalize area designations for the 2015 ozone NAAQS in October 2017.
As noted above, this notice meets the EPA's stated intention in the October 2015 memorandum to provide information relevant to the Good Neighbor provision for the 2015 ozone NAAQS. Specifically, this notice evaluates states' contributions to downwind ozone problems relative to the screening threshold—equivalent to 1 percent of the NAAQS—that the CSAPR framework uses to identify states “linked” to downwind air quality problems for further consideration to address interstate ozone transport. The EPA believes that states will find this information useful in their development of Good Neighbor SIPs for the 2015 ozone NAAQS, and we seek their comments on it.
This notice provides an opportunity for review and comment on the agency's preliminary ozone transport modeling data relevant for the 2015 ozone NAAQS.
For this transport assessment, the EPA used a 2011-based modeling platform to develop base year and future year emissions inventories for input to air quality modeling. This platform included meteorology for 2011, base year emissions for 2011, and future year base case emissions for 2023. The 2011 and 2023 air quality modeling results were used to identify areas that are projected to be nonattainment or have problems maintaining the 2015 ozone NAAQS in 2023. Ozone source apportionment modeling for 2023 was used to quantify contributions from emissions in each state to ozone concentrations at each of the projected nonattainment and maintenance receptors in that future year.
The 2011 and 2023 emissions data and the state and federal rules included in the 2023 base case are described in detail in the documents, “Preparation of Emissions Inventories for the Version 6.3 2011 Emissions Modeling Platform”; “Updates to Emissions Inventories for the Version 6.3, 2011 Emissions Modeling Platform for the Year 2023”; and “EPA Base Case v.5.16 for 2023 Ozone Transport NODA Using IPM Incremental Documentation”; all of which are available in the docket for this notice.
In brief, the 2011 base year emissions and projection methodologies used here to create emissions for 2023 are similar to what was used in the final CSAPR Update. The key differences between the 2011 inventories used for the final CSAPR Update and the 2011 inventories used for the 2015 ozone NAAQS preliminary interstate transport modeling include updates to mobile source and electric generating unit (EGU) emissions, the inclusion of fire emissions in Canada and Mexico, and updated estimates of anthropogenic emissions for Mexico. The key differences in methodologies for projecting non-EGU sector emissions (
For EGUs, the EPA has included several key updates to the Integrated Planning Model (IPM) and its inputs for the agency's 2023 EGU projections used for the air quality modeling provided in this NODA. The updated IPM assumptions incorporated in the EPA's Base Case v.5.16 capture several market trends occurring in the power sector today, and the 2023 EGU projections reflect a continuation of these trends. Notably, natural gas prices remain historically low and are expected to remain low in the foreseeable future given that gas production and pipeline capacity continue to increase while storage is already at an all-time high. These factors have contributed to record-setting U.S. natural gas production levels for the fifth consecutive year in 2015 and record-setting consumption levels for the sixth consecutive year. Additionally, electricity demand growth (including retail sales and direct use) has slowed in every decade since the 1950s, from 9.8 percent per year from 1949 to 1959 to 0.5 percent per year from 2000 to 2015. This trend is projected to continue: AEO 2016 projects lower growth than projected in AEO 2015. In addition, these updated emission projections account for a continuing decline in the cost of renewable energy technologies such as wind and solar, as well as the recently extended production and investment tax credits that support their deployment. All of these factors result in decreased generation and capacity from conventional coal steam relative to EPA's EGU analyses that preceded these updated IPM inputs. Over the past 10 years, coal-fired electricity generation in the U.S. has declined from providing roughly half of the nation's supply to about one-third, and has been replaced with lower-cost sources such as natural gas, wind, and solar.
The updated EGU projections also include the Clean Power Plan (CPP), 80 FR 64662 (October 23, 2015). The modeling for the CSAPR Update did not include the CPP due to the former rule's focus on the 2017 ozone season,
As noted above, EGU emissions used for the air quality modeling in this NODA are based on IPM v5.16 projections. However, states may choose to use other EGU projections in developing their Good Neighbor SIPs. To continue to update and improve both EPA's and states' EGU projections, the EPA and state agencies, with the facilitation of multi-jurisdictional organizations (MJOs), have been collaborating in a technical engagement process to inform future-year emission projections for EGUs. The ongoing information exchange and data comparison have facilitated a clearer understanding of the capabilities and constraints of various tools and methods. This process will continue to inform how the EPA and states produce EGU emission projections to inform efforts to reduce ozone transport.
The EPA observes there are differences between recent emissions and generation data and the corresponding future-year projections in this NODA. The EPA's modeling directly simulates how future-year energy trends and economic signals affect the composition of the fleet. In the 2023 projections presented in this NODA, the EPA's modeling does not project the operation of a number of coal-fired and oil-fired units due to simulated future-year economic conditions, whether or not such capacity has publicly-released plans to retire.
For the final CSAPR Update, EPA used the Comprehensive Air Quality Model with Extensions (CAMx) v6.20 as the air quality model. After the EPA performed air quality modeling for the final CSAPR Update, Ramboll Environ, the CAMx model developer, released an updated version of CAMx (version 6.30). In addition, EPA has recently sponsored updates to the Carbon Bond chemical mechanism in CAMx v6.30 related to halogen chemistry reactions that deplete ozone in marine (
The ozone predictions from the 2011 and 2023 CAMx model simulations were used to project 2009–2013 average and maximum ozone design values
The base period 2009–2013 ambient and projected 2023 average and maximum design values and 2013–2015 and preliminary 2014–2016 measured design values at individual projected 2023 nonattainment receptor sites and maintenance-only receptor sites are provided in Tables 1 and 2, respectively.
The EPA performed nationwide, state-level ozone source apportionment modeling using the CAMx Ozone Source Apportionment Technology/Anthropogenic Precursor Culpability Analysis (OSAT/APCA) technique
• States—anthropogenic NO
• Biogenics—biogenic NO
• Boundary Concentrations—concentrations transported into the modeling domain from the lateral boundaries;
• Tribes—the emissions from those tribal lands for which we have point source inventory data in the 2011 NEI (we did not model the contributions from individual tribes);
• Canada and Mexico—anthropogenic emissions from sources in the portions of Canada and Mexico included in the modeling domain (contributions from Canada and Mexico were not modeled separately);
• Fires—combined emissions from wild and prescribed fires domain-wide (
• Offshore—combined emissions from offshore marine vessels and offshore drilling platforms (
The CAMx source apportionment model simulation was performed for the period May 1 through September 30 using the 2023 future base case emissions and 2011 meteorology for this time period. The hourly contributions
In CSAPR and the CSAPR Update, the EPA used a contribution screening threshold of 1 percent of the NAAQS to identify upwind states that may significantly contribute to downwind nonattainment and/or maintenance problems and which warrant further analysis to determine if emissions reductions might be required from each state to address the downwind air quality problem. The EPA determined that 1 percent was an appropriate threshold to use in the analysis for those rulemakings because there were important, even if relatively small, contributions to identified nonattainment and maintenance receptors from multiple upwind states mainly in the eastern U.S. The agency has historically found that the 1 percent threshold is appropriate for identifying interstate transport linkages for states collectively contributing to downwind ozone nonattainment or maintenance problems because that threshold captures a high percentage of the total pollution transport affecting downwind receptors.
Based on the approach used in CSAPR and the CSAPR Update, upwind states that contribute ozone in amounts at or above the 1 percent of the NAAQS threshold to a particular downwind nonattainment or maintenance receptor would be considered to be “linked” to that receptor in step 2 of the CSAPR framework for purposes of further analysis in step 3 to determine whether and what emissions from the upwind state contribute significantly to downwind nonattainment and interfere with maintenance of the NAAQS at the downwind receptors. For the 2015 ozone NAAQS, the value of a 1 percent threshold would be 0.70 ppb. The individual upwind state to downwind receptor “linkages” and contributions based on a 0.70 ppb threshold are identified in the AQM TSD for this notice.
The EPA notes that, when applying the CSAPR framework, an upwind state's linkage to a downwind receptor alone does not determine whether the state significantly contributes to nonattainment or interferes with maintenance of a NAAQS to a downwind state. While the 1 percent screening threshold has been traditionally applied to evaluate upwind state linkages in eastern states where such collective contribution was identified, the EPA noted in the CSAPR Update that, as to western states, there may be geographically specific factors to consider in determining whether the 1 percent screening threshold is appropriate. For certain receptors, where the collective contribution of emissions from one or more upwind states may not be a considerable portion of the ozone concentration at the downwind receptor, the EPA and states have considered, and could continue to consider, other factors to evaluate those states' planning obligation pursuant to the Good Neighbor provision.
The EPA has placed key information related to the air quality model applications into the electronic docket for this notice. This information includes the AQM TSD, an Excel file which contains the 2009–2013 base period and 2023 projected average and maximum ozone design values at individual monitoring sites and the
The EPA is requesting comment on the components of the 2011 air quality modeling platform, the methods for projecting 2023 ozone design value concentrations and the methods for calculating ozone contributions. The EPA is also seeking comment on the methods used to project emissions to future years, where 2023 is an example of such a year. Specifically, comments are requested regarding new datasets, impacts of existing and planned federal, state, and local control programs on emissions, and new methods that could be used to prepare more representative emissions projections. That is, EPA is seeking comments on the projection approach and data sets that are potentially useful for computing projected emissions. Commenters wishing to comment on inventory projection methods should submit to the docket comments that describe an alternative approach to the existing methods, along with documentation describing why that method is an improvement over the existing method. Summaries of the base and projected future year emission inventories are provided in the docket to aid in the review of these data. As indicated above, the comment period for this notice is 90 days from the date of publication in the
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act, of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on January 12, 2017, from 9:00 a.m. until such time as the Board concludes its business.
Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883–4009, TTY (703) 883–4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102–5090. Submit attendance requests via email to
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. Please send an email to
* Session Closed-Exempt pursuant to 5 U.S.C. Section 552b(c)(2).
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 January 24, 2017.
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National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice of a determination concerning a petition to add a class of employees from the Bliss & Laughlin Steel site in Buffalo, New York, to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA).
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 1090 Tusculum Avenue, MS C–46, Cincinnati, OH 45226–1938, Telephone 1–877–222–7570. Information requests can also be submitted by email to
[42 U.S.C. 7384q].
On December 21, 2016, the Secretary of HHS determined that the following class of employees does not meet the statutory criteria for addition to the SEC as authorized under EEOICPA:
All Atomic Weapons Employees who worked in any area at Bliss and Laughlin Steel in Buffalo, New York, from January 1, 1999, through December 31, 1999.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the Evaluation of “Effectiveness of Teen Pregnancy Prevention Programs Designed Specifically for Young Males: Columbia University Young Men's Project”. The main goal of this study is to adapt, implement, and evaluate an innovative computer-assisted motivational interviewing (CAMI–TPP) intervention to engage young males in behaviors that prevent unintended teen pregnancy.
Written comments must be received on or before March 7, 2017.
You may submit comments, identified by Docket No. CDC–2016–0122 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS–D74, Atlanta, Georgia 30329; phone: 404–639–7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
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; (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 respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
Evaluation of “Effectiveness of Teen Pregnancy Prevention Programs Designed Specifically for Young Males: Columbia University Young Men's Project”—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The Division of Reproductive Health, Centers for Disease Control and Prevention (CDC), is seeking OMB review and approval for a new information collection to carry out an evaluation of the Columbia University Young Men's Teen Pregnancy Prevention project funded by the “DP15–007 Effectiveness of Teen Pregnancy Prevention Programs Designed Specifically for Young Males” cooperative agreement. Approval is being requested for three years (Years 2–4) of a 5-year project. During Year 3, a request will be made for an extension of information collection to cover Years 4–5.
Although teen birth rates (defined as live births per 1,000 15–19-year-old U.S. females) are declining, the U.S. teen birth rate remains higher than in other developed countries (Penman-Aguilar, Carter, Snead, & Kourtis, 2013). Furthermore, geographic, socioeconomic, and racial/ethnic disparities in teen birth rates persist. In 2012, non-Hispanic black and Hispanic teen birth rates were still more than two times higher than birth rates for non-Hispanic white teens (Martin, Hamilton, Osterman, Curtin, & Mathews, 2013).
In 2014 teen fatherhood occurred at a rate of 11.3 births per 1,000 men aged 15–19 (Hamilton, Martin, Osterman, Curtin, & Mathews, 2015) and resulted in approximately 156,000 births. According to the 2006–2010 National Survey of Family Growth, 15% of males fathered a child while younger than age 20 and rates of fathering a child were highest among non-Hispanic Black and Hispanic teens (Martinez, Daniels, & Chandra, 2012). Data suggest that teen fathers attend fewer years of school and are less likely to graduate from high school than teens who are not fathers (Fletcher & Wolfe, 2012). In addition, males just beyond their teen years (aged 20–24) father a higher proportion of children born to teen mothers than males aged 19 and younger (Elo, King, & Furstenburg, 1999; Males, 1995). Thus, it is important to reach both teenage as well as young adult males in their early twenties (hereafter collectively referred to as “young men”) in teen pregnancy prevention efforts.
Initiatives to prevent teen pregnancy have focused primarily on the role of female teens; however, young men can also play an important role and should be actively engaged in preventing teen pregnancy. Partner involvement in contraceptive decision making can increase use of effective methods of pregnancy prevention, including the use of dual protection (
While programs that address male-specific risk and protective factors for teen pregnancy (
CAMI will be conducted in a racially and ethnically diverse population of young males aged 15 to 24 years in New York City, NY. Young males will be recruited at 3 sites in New York City: The Young Men's Clinic in Washington Heights and among students at the school-based health centers of two inner-city NYC high schools—George Washington Educational Campus in Washington Heights and John F. Kennedy campus in the Bronx. Participants will be assessed at baseline, immediately post-intervention (12 weeks), and at three follow-ups (24 weeks, 36 weeks, and 60 weeks) after participation in the 12-week intervention. Participants will also complete weekly online check-ins for 60 weeks from the time of enrollment in the project. Weekly check-ins have been used in past studies to increase retention during the study period and are very brief.
The knowledge generated from this project will inform the HHS Teen Pregnancy Prevention Evidence Review. If the intervention is found to be efficacious, it will provide Teen Pregnancy Prevention grantees of the Office of Adolescent Health, CDC, and Administration for Children and Families with a new intervention to reduce the number of young men who father a teen pregnancy.
OMB approval is requested for three years. Participation is voluntary and there are no costs to respondents other than their time. The total estimated annualized burden hours are 2,598.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on proposed information collections for the National Center for Health Statistics (NCHS) Youth Outreach Program. This generic information collection plan would capture outreach activities involving young people (K through college) and those who support them, such as parents, teachers, counselors etc.
Written comments must be received on or before March 7, 2017.
You may submit comments, identified by Docket No. CDC–2016–0129 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS–D74, Atlanta, Georgia 30329; phone: 404–639–7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
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; (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 respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train
The National Center for Health Statistics (NCHS) Youth Outreach Program—NEW—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
NCHS is authorized to collect data under Section 306 of the Public Health Service Act (42 U.S.C. 242k). NCHS also has a history of reaching out to young people to encourage their interest in Science, Technology, Engineering and Math (STEM). Examples of past involvement include adopting local schools, speaking at local colleges, conducting a Statistics Day for high school students, and, most recently, conducting the first NCHS Data Detectives Camp for middle school students (OMB Control No. 0920–0729, The NCHS Data Detective Camp).
The success of these programs has inspired NCHS leadership and staff to want to look for new and continuing opportunities to positively impact the lives of young people and expand their interest, understanding of and involvement in the sciences. This might include hosting the Data Detectives Camp annually or bi-annually; hosting Statistics Day annually; creating youth poster sessions for professional conferences (such as the NCHS National Conference on Health Statistics or the American Statistical Association Conference etc.); hosting a statistical or health sciences etc. fair or other STEM related competitions; organizing a STEM Career Day or similar activity; developing web-based sites or materials with youth focus as well as other programs developed to meet future youth outreach needs, particularly activities that encourage STEM.
Information will be collected using a combination of methodologies appropriate to each program. These may include: Registration forms, letters of recommendation, evaluation forms; mail surveys; focus groups; automated and electronic technology (
There is no cost to respondents other than their time.
Health Resources and Service Administration (HRSA), Department of Health and Human Services.
Notice of meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), notice is hereby given that a meeting is scheduled for National Advisory Council on the National Health Service Corps (NACNHSC). This meeting will be open to the public. Information about the NACNHSC and the agenda for this meeting can be obtained by accessing the following Web site:
The meeting will be held on January 25, 2017, from 1:00 p.m.–4:00 p.m. EST.
This meeting will be held in a webinar and conference call format. Webinar information can be found on the Web site at:
The NACNHSC will discuss the priorities of 2017. The NACNHSC final agenda will be available on the NACNHSC Web site 3 days in advance of the meeting.
Anyone requesting information regarding the NACNHSC should contact CAPT Shari Campbell, Designated Federal Official, Bureau of Health Workforce, Health Resources and Services Administration, in one of three ways: (1) Send a request to the following address: CAPT Shari Campbell, Designated Federal Official, Bureau of Health Workforce, HRSA, 5600 Fishers Lane, Room 14N108, Rockville, Maryland 20857; (2) call (301) 594–4251; or (3) send an email to
The NACNHSC makes recommendations with respect to their responsibilities under Subpart II, Part D of Title III of the Public Health Service Act, as amended (National Health Service Corps and Health Professional Shortage Area Designations), and shall review and comment upon regulations promulgated by the Secretary under Subpart II.
Members of the public will have the opportunity to provide comments. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to make oral comments or provide written comments to the NACNHSC should be sent to Monica-Tia Bullock at
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice of a determination concerning a petition to add a class of employees from the Blockson Chemical Co. site in Joliet, Illinois, to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA).
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 1090 Tusculum Avenue, MS C–46, Cincinnati, OH 45226–1938, Telephone 1–877–222–7570. Information requests can also be submitted by email to
[42 U.S.C.7384q].
On December 21, 2016, the Secretary of HHS determined that the following class of employees does not meet the statutory criteria for addition to the SEC as authorized under EEOICPA:
“All employees who worked in any area at the Blockson Chemical Co. site in Joliet, Illinois, during the period from July 1, 1960, through December 31, 1991.”
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice of a determination concerning a petition to add a class of employees from the Westinghouse Electric Corporation in Bloomfield, NJ, to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA).
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 1090 Tusculum Avenue, MS C–46, Cincinnati, OH 45226–1938, Telephone 1–877–222–7570. Information requests can also be submitted by email to
[42 U.S.C. 7384q].
On December 21, 2016, the Secretary of HHS determined that the following class of employees does not meet the statutory criteria for addition to the SEC as authorized under EEOICPA:
All Atomic Weapons Employees who worked in any area at the Westinghouse Electric Corporation in Bloomfield, New Jersey, during the time periods from January 1, 1950, through January 31, 1958; June 1,
Pursuant to Public Law 92–463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Treatment (CSAT) National Advisory Council (NAC) will meet on February 1, 2017, 9:00 a.m.–4:30 p.m. (EDT).
The meeting is open and will include consideration of minutes from the SAMHSA CSAT NAC meeting of August 24, 2016, the Director's report, a budget update, discussions of CSAT's role translating science to service, and discussion of technology assisted care.
The meeting will be held at the SAMHSA 5600 Fishers Lane, Conference Room 5 A503, Rockville, MD 20857. Attendance by the public will be limited to space available and will be limited to the open sessions of the meeting. Interested persons may present data, information, or views, orally or in writing, on issues pending before the Council. Written submissions should be forwarded to the contact person on or before January 13, 2017. Oral presentations from the public will be scheduled at the conclusion of the meeting. Individuals interested in making oral presentations are encouraged to notify the contact person on or before January 13, 2017. Five minutes will be allotted for each presentation.
The open meeting session may be accessed via telephone. To attend on site, obtain the call-in number and access code, submit written or brief oral comments, or request special accommodations for persons with disabilities, please register on-line at
Meeting information and a roster of Council members may be obtained by accessing the SAMHSA Committee Web site at
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission will describe the nature of the information collection, the categories of respondents, the estimated burden (
Comments must be submitted on or before February 6, 2017.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street SW., Washington, DC 20472–3100, or email address
This information collection previously published in the
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission will describe the nature of the information collection, the categories of respondents, the estimated burden (
Comments must be submitted on or before February 6, 2017.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street SW., Washington, DC 20472–3100, or email address
This information collection previously published in the
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the Commonwealth of the Northern Mariana Islands (FEMA–4235–DR), dated August 5, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2833.
Notice is hereby given that, in a letter dated December 21, 2016, the President amended the cost-sharing arrangements regarding Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the Commonwealth of the Northern Mariana Islands resulting from Typhoon Soudelor during the period of August 1–3, 2015, is of sufficient severity and magnitude that special cost sharing arrangements are warranted regarding Federal funds provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
Therefore, I amend my declarations of August 5, 2015, and August 24, 2015, to authorize Federal funds for hazard mitigation measures associated with sections 404 and 406 of the Stafford Act at 100 percent of total eligible costs.
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission will describe the nature of the information collection, the categories of respondents, the estimated burden (
Comments must be submitted on or before February 6, 2017.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street SW., Washington, DC 20472–3100, or email address
This proposed information collection previously published in the
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission will describe the nature of the information collection, the categories of respondents, the estimated burden (
Comments must be submitted on or before February 6, 2017.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street SW., Washington, DC 20472–3100, or email address
This information collection previously published in the
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 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), call the toll-free Title V information line at 800–927–7588 or send an email to
In accordance with the December 12, 1988 court order in
Fish and Wildlife Service, Interior.
Notice of intent; notice of public scoping meeting; request for comments.
Under the National Environmental Policy Act, we, the U.S. Fish and Wildlife Service, intend to prepare a draft environmental impact statement (EIS) for the proposed habitat conservation plan/natural community conservation plan for the City of Bakersfield, hereafter referred to as the Bakersfield Habitat Conservation Plan (BHCP). The BHCP will streamline and coordinate existing processes for review and permitting of public and private activities that potentially affect covered species, while providing long-term conservation of covered species in the plan area. The draft EIS is being prepared under the Endangered Species Act of 1973, as amended, and the California Natural Community Conservation Planning Act. We announce meetings and invite comments.
To request further information or submit written comments, please use one of the following methods, and note that your information request or comment is in reference to the Bakersfield Habitat Conservation Plan:
•
•
•
Justin Sloan, Senior Biologist, or Thomas Leeman, Chief, San Joaquin Valley Division, Sacramento Fish and Wildlife Office, by phone at (916) 414–6600 or by U.S. mail at the above address. If you use a telecommunications device for the deaf, please call the Federal Information Relay Service at (800) 877–8339.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a draft environmental impact statement (EIS) to evaluate the impacts of several alternatives related to the potential issuance of an incidental take permit (ITP), as well as impacts of the implementation of the supporting proposed habitat conservation plan/natural community conservation plan, which we will refer to as the Bakersfield Habitat Conservation Plan (BHCP). The EIS will be a joint EIS/environmental impact report (EIS/EIR), for which the Service, City of Bakersfield, and the California Department of Fish and Wildlife (CDFW) intend to gather information necessary for preparation.
The BHCP is designed to be a comprehensive regional plan that will provide long-term conservation and management of natural communities, sensitive species, and the habitats upon which those species depend, while accommodating other important uses of the land. It is intended to serve as a habitat conservation plan pursuant to the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The BHCP will address State and Federal endangered species compliance requirements for the City of Bakersfield, Kern County, California State University–Bakersfield, Bakersfield College, and individual school districts within the BHCP plan area. The plan area generally includes the San Joaquin
The Service will serve as the administrative lead for all actions related to this
The plan is being prepared under the combined efforts of the City of Bakersfield and the U.S. Fish and Wildlife Service, in coordination with Kern County and the CDFW. The BHCP will streamline and coordinate existing processes for review and permitting of public and private activities that potentially affect covered species (see Covered Species), while providing long-term conservation of covered species in the plan area.
To meet this goal, the BHCP sets out a conservation strategy that includes measures to ensure that impacts to covered species and habitats related to covered activities (see Covered Activities) are avoided, minimized, and/or mitigated, as appropriate. These covered activities encompass the range of existing and future activities that the City, County, private developers, or other permittees will implement within the permit area. These activities include urban and rural development and a variety of road, water, and other needed public infrastructure, construction, and maintenance activities. The BHCP is further intended to facilitate the role and responsibility of local government in overseeing local land use planning and decision-making while protecting endangered species in the area.
Section 9 of the Act (16 U.S.C. 1531
Section 10(a)(1)(B) of the Act contains provisions for issuing such ITPs to non-Federal entities for the take of endangered and threatened species, provided the following criteria are met:
• The take will be incidental;
• The applicants will, to the maximum extent practicable, minimize and mitigate the impact of such taking;
• The applicants will develop a proposed HCP and ensure that adequate funding for the plan will be provided;
• The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
• The applicants will carry out any other measures that the Service may require as being necessary or appropriate for the purposes of the HCP.
Thus, the purpose of issuing an ITP is to allow the applicants, under their respective regional authority, to authorize development while conserving the covered species and their habitat. Implementation of a multispecies HCP, rather than a species-by-species or project-by-project approach, will maximize the benefits of conservation measures for covered species and eliminate expensive and time-consuming efforts associated with processing individual ITPs for each project within the applicants' proposed plan area. The Service expects that the permit applicants will request ITP coverage for a period of 30 years.
The plan area proposed is 2,259,627 acres, or 3,530 square miles. This plan area was developed to ensure that the natural resources that might be affected by covered activities can be adequately assessed at a regional scale and that sufficient mitigation opportunities are available.
The northern boundary of the study area is defined by the Kern County border with Tulare and Kings Counties. The boundary encompasses land acquisition opportunities near existing protected areas on the southern San Joaquin Valley floor (
Covered activities include projects or ongoing activities that will receive incidental take authorization by the ESA and NCCP permits. Covered activities in the BHCP fall into eight general categories:
1. Urban development;
2. Transportation and circulation infrastructure;
3. Flood control;
4. Sewer and water treatment facilities;
5. Landfills;
6. Airports;
7. Conservation strategy implementation; and
8. Operations and maintenance activities in urban areas
Covered species are those species addressed in the proposed BHCP for which conservation actions will be implemented and for which the permit applicants will seek incidental take authorizations for a period of up to 30 years. Proposed covered species are expected to include threatened and endangered species listed under the Act, species listed under the CESA, and currently unlisted species that have the potential to become listed during the life of the BHCP and have some likelihood to occur within the BHCP plan area. The plan proposes coverage for 14 listed and non-listed species, which include 8 animal species and 6 plant species. These covered species are expected to be named on the ESA (Section 10) and NCCP Act (Section 2035) permits. The BHCP will provide long-term conservation and management of these species. The 14 covered species were identified on the
The following federally listed endangered wildlife species are proposed to be covered by the BHCP: Blunt-nosed leopard lizard (
The following unlisted wildlife species are proposed to be covered by the BHCP: Swainson's hawk (
Take as defined under the Act does not apply to listed plant species, and therefore cannot be authorized under a section 10 permit. However, the permit applicants propose to include plant species on the permit in recognition of the conservation benefits provided for them under an HCP. For the purposes of the plan, certain plant species are further included to meet regulatory obligations under section 7 of the Act and CESA. All species included on an ITP would receive assurances under the Service's “No Surprises” regulations found in 50 CFR 17.22(b)(5) and 17.32(b)(5). The federally listed endangered San Joaquin woollythreads (
Before deciding whether to issue the requested Federal ITP, the Service will prepare a draft EIS in order to analyze the environmental impacts associated with issuance of the ITP. In the EIS component of the EIS/EIR, the Service will consider the following alternatives: (1) The proposed action, which includes the issuance of take authorizations consistent with the proposed BHCP under section 10(a)(1)(B) of the Act; (2) no action (no permit issuance); and (3) a reasonable range of additional alternatives. The EIS/EIR will include a detailed analysis of the impacts of the proposed action and alternatives. The range of alternatives could include variations in impacts, conservation, permit duration, Covered Species, Covered Activities, Permit Area, or a combination of these elements.
The EIS/EIR will identify and analyze potentially significant direct, indirect, and cumulative impacts of our authorization of incidental take (permit issuance) and the implementation of the proposed BHCP on biological resources, land uses, utilities, air quality, water resources, cultural resources, socioeconomics and environmental justice, recreation, aesthetics, climate change and greenhouse gases, and other environmental issues that could occur with implementation of each alternative. The Service will also identify measures to avoid or minimize any significant effects of the proposed action on the quality of the human environment.
Following completion of the environmental review, the Service will publish a notice of availability and a request for comment on the draft EIS/EIR and the applicants' permit application, which will include the proposed the BHCP.
We request data, comments, new information, or suggestions from the public, other concerned governmental agencies, the scientific community, Tribes, industry, or any other interested party on this notice. We will consider these comments in developing a draft EIS/EIR and in the development of an HCP and ITP. We particularly seek comments on the following:
1. Biological information concerning species in the proposed plan area;
2. Relevant data concerning these species;
3. Additional information concerning the range, distribution, population size, and population trends of the species;
4. Current or planned activities in the subject area and their possible impacts on the species;
5. The presence of archaeological sites, buildings and structures, historic events, sacred and traditional areas, and other historic preservation concerns, which are required to be considered in project planning by the National Historic Preservation Act; and
6. Identification of any other environmental issues that should be considered with regard to the proposed development and permit action.
You may submit your comments and materials by one of the methods listed in the
Comments and materials we receive become part of the public record associated with this action; they will be available for public inspection by appointment during normal business hours (Monday through Friday, 8 a.m. to 4:30 p.m.) at the Service's Sacramento address (see
See
The primary purpose of these meetings and public comment period is to solicit suggestions and information on the scope of issues and alternatives for the Service to consider when drafting the EIS. Written comments will be accepted at the meeting. Comments can also be submitted by methods listed in the
Persons needing reasonable accommodations in order to attend and participate in the public meetings
We publish this notice under the National Environmental Policy Act (42 U.S.C. 4321
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) announces the availability of the Records of Decision (RODs) for the Approved Resource Management Plans (RMPs) for the Fortymile, Draanjik, Steese, and White Mountains planning areas located in Eastern Interior Alaska. The Alaska State Director signed the RODs on December 30, 2016, which constitutes the final decision of the BLM and makes the Approved RMPs effective immediately.
Copies of the RODs/Approved RMPs are available upon request from the Field Manager, Eastern Interior Field Office, Bureau of Land Management, 222 University Avenue, Fairbanks, Alaska 99709 or via the internet at
Jeanie Cole; telephone: 907–474–2340; address: 222 University Avenue, Fairbanks, Alaska 99709; email:
The Eastern Interior planning process resulted in four RODs and Approved RMPs covering approximately 6.5 million acres of BLM-administered lands in interior Alaska: 1.8 million acres under the Fortymile Approved RMP (including the Fortymile Wild and Scenic River); 1.3 million acres under the Steese Approved RMP (including the Steese National Conservation Area and Birch Creek Wild and Scenic River); 2.4 million acres under the Draanjik Approved RMP; and 1 million acres under the White Mountains Approved RMP (including the White Mountains National Recreation Area and Beaver Creek Wild and Scenic River). The Approved RMPs describe the actions and landscape-level conservation and management needed to meet desired resource conditions and objectives for upland and riparian vegetation, fish and wildlife habitats, cultural resources, water and wetland resources, wilderness characteristics, recreation, and mineral development. The Approved RMPs designate three Areas of Critical Environmental Concern (ACECs): the Salmon Fork ACEC in the Draanjik Approved RMP, and the Fortymile ACEC and the Mosquito Flats ACEC in the Fortymile Approved RMP. Additionally, four Research Natural Areas (RNAs) are carried forward as valid existing administrative designations in the Steese and White Mountains Approved RMPs: Big Windy Hot Springs (Steese), Mount Prindle (Steese and White Mountains), Limestone Jags (White Mountains), and Serpentine Slide (White Mountains) RNAs.
The Eastern Interior Field Office used the wild and scenic river inventory conducted for the Eastern Interior planning process to identify outstandingly remarkable values for Birch Creek, Beaver Creek, and Fortymile wild and scenic rivers because these values were not identified in the designating legislation. Section 2.1.3 of each Approved RMP identifies outstandingly Remarkable Values. Values for Birch Creek are scenic, recreation, and fisheries; values for Beaver Creek are scenic, recreation, geologic, fisheries, and wildlife; values for the Fortymile River vary by segment and include scenic, recreation, geologic, historic, and wildlife.
The Eastern Interior RMP/EIS was subject to extensive public review. The Environmental Protection Agency (EPA) published a Notice of Availability for the Eastern Interior Draft RMP/Draft EIS in the
The preferred alternative in the Draft RMP/EIS was Alternative C. The Proposed RMP/Final EIS added Alternative E as the Proposed RMP. This Alternative E was a revised version of Alternative C, based on public comment and tribal consultation. Alternative E represented the mix and variety of actions that the BLM believed best resolved the issues and management concerns in consideration of all values and programs. Alternative E was a minor variation of the alternatives analyzed in the Draft RMP/EIS and was within the spectrum of alternatives analyzed in the Draft. The Proposed RMP/Final EIS considered five rivers to be eligible for potential designation as Wild and Scenic Rivers, but the RODs do not determine them to be suitable for designation as Wild and Scenic Rivers, instead protecting them through other means.
The EPA published a Notice of Availability for the Eastern Interior Proposed RMP/Final EIS in the
On November 8, 2016, the Governor appealed the BLM Alaska State Director's decision to not accept his recommendations to the BLM Director. In the Governor's appeal letter, the State of Alaska requested the BLM Director to reconsider the issues and recommendations raised in the Governor's Consistency Review letter. The BLM Director issued a final response to the Governor affirming the State Director's decision.
As a result of protests and internal reviews, the BLM made minor modifications, corrections, and clarifications in preparing the Approved RMPs. These modifications provide further clarification of some of the decisions and future monitoring efforts. Clarifications correct typographical errors in the Proposed RMP and clarify language of some decisions.
The following decisions are appealable under 43 CFR, part 4:
The appeal should state the specific items on which the decision is being appealed. The appeal must be filed with the Eastern Interior Field Manager at the above listed address. Please consult the appropriate regulations (43 CFR, part 4, subpart E) for further appeal requirements.
40 CFR 1506.6.
Bureau of Land Management, Interior.
Notice.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Draft Resource Management Plan (RMP) Amendment and Draft Environmental Impact Statement (EIS) for Oil and Gas Leasing and Development for the Central Coast Field Office and by this notice is announcing the opening of the comment period.
To ensure that comments will be considered, the BLM must receive written comments on the Draft RMP Amendment/Draft EIS within 90 days following the date the Environmental Protection Agency publishes its notice of the Draft RMP Amendment/Draft EIS in the
You may submit comments related to the Draft Central Coast RMP Amendment and Draft EIS for Oil and Gas Leasing by any of the following methods:
Copies of the Central Coast Draft RMP Amendment and Draft EIS for Oil and Gas Leasing are available in the Central Coast Field Office, formerly the Hollister Field Office, at 940 2nd Avenue, Marina, CA 93933; the California State Office at 2800 Cottage Way, Rm. W–1623, Sacramento, CA 95825; and at the BLM's Web site
Melinda Moffitt, Project Manager, telephone: 916–978–4376; address: 2800 Cottage Way, Room W–1618, Sacramento, CA 95825; email:
The Draft RMP Amendment and Draft EIS describe and analyze alternatives for the planning and management of oil and gas leasing and development on public lands and Federal mineral estate administered by the BLM, Central Coast Field Office (CCFO). The former Hollister Field Office (HFO) moved to a new location in Marina, California and is now called the Central Coast Field Office. The Planning Area is located in central California and comprises approximately 6.8 million acres of land. Within the Planning Area, the BLM administers approximately 284,000 acres of surface estate and 793,000 acres of Federal mineral estate. Planning decisions in the RMP will apply only to the BLM-administered public lands and Federal mineral estate in the Planning Area.
Through this RMP Amendment, the BLM is revising the existing HFO Resource Management Plan for the Southern Diablo Mountain Range and Central Coast of California (2007) to analyze the effects of alternative oil and gas management approaches on lands with Federal mineral estate. New circumstances and information regarding oil and gas exploration and development, including unconventional reservoirs and well stimulation techniques, have prompted the BLM to prepare this Draft RMP Amendment and Draft EIS.
In 2014, the BLM conducted scoping to solicit input from the public and
To assist the agency decision maker and the public in focusing on appropriate solutions to planning issues, the Draft RMP Amendment and Draft EIS considers five alternative RMPs.
Under each action alternative, CSU stipulations would apply to all lands open to leasing. The CSU stipulations would mitigate impacts to sensitive resources such as protected, sensitive, and priority species, critical and priority habitat, cultural resources, and water resources by requiring special operational constraints on surface use to protect these resources.
Alternative C has been identified as the Preferred Alternative as described in 40 CFR 1502.14(e). Identification of this alternative, however, does not represent final agency direction, and the Proposed RMP may reflect changes or adjustments based on information received during public comment, new information, or changes in BLM policies or priorities. The Proposed RMP may include objectives and actions described in the other analyzed alternatives. For this reason, the BLM invites and encourages comments on all alternatives, objectives, and actions described in the Draft RMP Amendment and Draft EIS.
Please note that public comments and information submitted, including names, street addresses, and email addresses of persons who submit comments, will be available for public
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—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.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has signed the Northwestern and Coastal Oregon Record of Decision (ROD)/Resource Management Plan (RMP) and Southwestern Oregon ROD/RMP, and by this notice is announcing their availability. The Deputy Director of Operations for the Bureau of Land Management signed the RODs.
The BLM signed the Northwestern and Coastal Oregon ROD/RMP and Southwestern Oregon ROD/RMP on August 5, 2016. These RODs/RMPs were effective immediately upon signing.
Copies or notification of the electronic availability of the Northwestern and Coastal Oregon ROD/RMP and the Southwestern Oregon ROD/RMP have been sent to affected Federal, State, tribal, and local government agencies and to other stakeholders including interested parties that previously requested a copy. Copies of the RODs/RMPs are available for public inspection at the Coos Bay, Eugene, Medford, Roseburg, and Salem District Offices and the Lakeview District's Klamath Falls Field Office. Interested persons may also access the RODs/RMPs on the Internet at:
Mr. Mark Brown, Western Oregon RMPs Project Manager, telephone (503) 808–6233; address 1220 SW 3rd Avenue, (P.O. Box 2965, zip code 97208), Portland, OR, 97204; or email
The Northwestern and Coastal Oregon ROD/RMP and Southwestern Oregon ROD/RMP were developed through a collaborative planning process to design management for western Oregon BLM lands that would: produce a sustained yield of timber products, contribute to the conservation and recovery of threatened and endangered species, provide for clean water, restore fire-adapted ecosystems, provide for recreation opportunities, and coordinate management of lands surrounding the Coquille Forest with the Coquille Tribe.
The RMPs include land use allocations that reserve lands for the protection of resource values (Congressionally Reserved, District-Designated Reserve, Late-Successional Reserve, Riparian Reserve) and include land use allocations that prioritize timber harvest and multiple use management (Harvest Land Base, Eastside Management Area). The Northwestern and Coastal Oregon ROD/RMP revises the following BLM RMPs completed in 1995: Coos Bay, Eugene, Roseburg, and Salem. The Southwestern Oregon ROD/RMP revises the following BLM RMPs completed in 1995: Klamath Falls, Medford, and Roseburg. These six RMPs incorporated the land use allocations and standards and guidelines from the Northwest Forest Plan.
The decision areas for the Northwestern and Coastal Oregon ROD/RMP and Southwestern Oregon ROD/RMP encompass approximately 2.5 million acres of BLM-administered lands and 69,000 acres of split-estate lands in western Oregon.
A Notice of Availability (NOA) for the Proposed RMP/Final Environmental Impact Statement (EIS) for the RMPs for Western Oregon was published in the
The BLM Oregon Acting State Director received a Governor's Consistency Review letter from the State of Oregon Governor on June 14, 2016. This letter included requests for minor clarifications, which the BLM accepted. The Acting State Director issued a response to the Governor on June 23, 2016.
The Proposed RMP was selected in the RODs as the Approved RMP, with some minor modifications and clarifications based on protests received on the Proposed RMP/Final EIS, review from the Oregon State Governor's Office, and Endangered Species Act (ESA) consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service. No substantive changes to the Proposed RMP resulted from protests, the Governor's review, or ESA consultation.
Copies of the Northwestern and Coastal Oregon ROD/RMP are available upon request and are available for public inspection at:
Copies of the Southwestern Oregon ROD/RMP are available upon request and are available for public inspection at:
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2
Bureau of Reclamation, Interior.
Notice of availability.
The Bureau of Reclamation has made available for public review and comment the Draft Environmental Impact Statement (DEIS) for the Pojoaque Basin Regional Water System. The DEIS analyzes the potential environmental impacts of five alternatives in planning, designing, and constructing the regional water system and alternatives for the connected actions in the Pojoaque Basin in north-central New Mexico, as authorized by the Aamodt Litigation Settlement Act (Title VI of the Claims Resolution Act of 2010; Pub. L. 111–291, Title VI; 124 Stat. 3065).
Written comments on the DEIS should be submitted on or before Monday, February 27, 2017. Four public meetings to provide information and receive oral or written comments will be held on:
1. Wednesday, February 15, 2017, 6:00 p.m. to 8:00 p.m., Santa Fe, New Mexico.
2. Thursday, February 16, 2017, 6:00 p.m. to 8:00 p.m., Tesuque, New Mexico.
3. Tuesday, February 21, 2017, 6:00 p.m. to 8:00 p.m., Nambé, New Mexico.
4. Wednesday, February 22, 2017, 6:00 p.m. to 8:00 p.m., Santa Fe, New Mexico.
Send written comments or requests for copies of the DEIS to Mr. Larry Moore, Environmental Protection Specialist, Bureau of Reclamation, Albuquerque Area Office, 555 Broadway NE., Suite 100, Albuquerque, New Mexico 87102; or via email to
Public meetings will be held at the following locations:
1. Santa Fe—Pojoaque Valley High School, 1574 NM–502, Santa Fe, New Mexico 87506.
2. Tesuque—Tesuque Valley Elementary School, 1555 Bishops Lodge Road, Tesuque, New Mexico 87574.
3. Nambé—Nambe Community Center, 180A State Road 503, Nambé, New Mexico 87506.
4. Santa Fe—Santa Fe Community College, 6401 Richards Avenue, Santa Fe, New Mexico 87508.
Electronic copies of the DEIS may be viewed at the Bureau of Reclamation's Web site at
Mr. Larry Moore, Environmental Protection Specialist, Bureau of Reclamation,
The Bureau of Reclamation (Reclamation) prepared this DEIS in cooperation with the U.S. Bureau of Indian Affairs, U.S. Indian Health Service, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, Pueblo de San Ildefonso, Pueblo of Nambé, Pueblo of Pojoaque, Pueblo of Tesuque, New Mexico Department of Transportation, Santa Fe County, and the City of Santa Fe.
The Pojoaque Basin Regional Water System (RWS) is described in and authorized by the Aamodt Litigation Settlement Act (Settlement Act). The Settlement Act authorizes and ratifies the Aamodt Litigation Settlement Agreement (Settlement Agreement), dated January 19, 2006, as conformed to the Settlement Act and amendments. The settlement parties are the United States; the State of New Mexico; Santa Fe County; City of Santa Fe; Pueblo de San Ildefonso, Pueblo of Nambé, Pueblo of Pojoaque, Pueblo of Tesuque (Settlement Pueblos); and other individuals. The Settlement Agreement resolves the water rights claims of the Settlement Pueblos.
Among other provisions, the RWS and 2,220 acre-feet per year of new water supply to the basin are included in the Settlement Agreement in exchange for the Pueblos agreeing to reduce their claims to water within the basin and to limit their priority calls against existing non-Pueblo water users. The Settlement Agreement also addresses funding for other water-related projects on the Settlement Pueblos.
The proposed federal action is to plan, design, and construct a regional water system in accordance with the Settlement Agreement, consisting of water diversion from the Rio Grande and water treatment facilities on the Pueblo de San Ildefonso, along with storage tanks, transmission and distribution pipelines, and well fields that are necessary to supply up to 4,000 acre-feet of water annually to customers in the Pojoaque Basin.
The purpose of Reclamation's proposed action is to reliably provide a firm, safe supply of treated drinking water for distribution in the Pojoaque Basin, in compliance with the Settlement Act. The need for Reclamation's action is to reduce reliance on groundwater in the Pojoaque Basin and to allow the Settlement Pueblos to receive a portion of the water provided under the Settlement Act. Reclamation's action would also enable the Settlement Pueblos to use funding made available in the Settlement Act for certain water-related infrastructure improvements, if requested. This funding can be requested prior to substantial completion of the RWS and used for water-related improvements that would be more cost effective when implemented in conjunction with RWS construction if approved by the Secretary (Settlement Act, Section 615[d][7][A][ii]).
The DEIS assesses the potential environmental effects of five alternatives. These include the No Action Alternative (Alternative A), and four action alternatives (Alternatives B, C, D, and E) that vary in six main components or project elements:
1. Firm, reliable water supply.
2. Primary source water collection.
3. Water treatment.
4. Short-term storage.
5. Water transmission and distribution system, including pipelines, pumping plants, forebay tanks, and other associated facilities.
6. Electrical power service
The No Action Alternative is the “no build” alternative. Under this alternative, the RWS would not be constructed, the Settlement Agreement would be nullified, and Aamodt litigation over water rights claims would likely resume. A firm, reliable water supply would not be provided to residents of the Pojoaque Basin. Under the No Action Alternative, the benefits of the proposed RWS would not be realized. Use of domestic wells would continue to reduce groundwater and surface water supplies in the Pojoaque Basin. The Pueblos would continue to rely on their existing separate water systems, rather than integrating their systems into one regional system.
Alternative B incorporates the RWS facilities and components described in a 2008 Engineering Report prepared by HKM Engineering, Inc., as updated through surveys and public input. The HKM Engineering Report served as the preliminary RWS concept for the Settlement Act. Under this alternative, the RWS would consist of these components:
1. The firm, reliable water supply would be provided by diverting surface flows from the Rio Grande, supplemented by operational planning and scheduling of San Juan-Chama Project water supplies, as well as one of the following three backup aquifer storage and recovery water supply options:
• Three deep injection and recovery wells for injecting raw or treated surface water into an aquifer and recovering it for use in the RWS; or
• Three shallow injection and recovery wells for injecting raw or treated surface water into an aquifer and recovering it for use in the RWS; or
• Three shallow passive infiltration reaches and recovery wells for infiltrating raw surface water into an aquifer and recovering it for use in the RWS.
2. A side-channel surface diversion structure and pumping plant with a sediment removal and return system on the east bank of the Rio Grande on Pueblo de San Ildefonso lands, just north of the Otowi Bridge.
3. A water treatment plant and pumping plant on the Pueblo de San Ildefonso on the south side of State Highway 502, approximately 0.75 mile east of the Otowi Bridge.
4. Eleven new short-term storage tanks in addition to 13 existing storage tanks.
5. A water transmission and distribution system including approximately 194 miles of pipelines, seven pumping plants, and pressure-reducing and flow-control valves.
6. Approximately 14.7 miles of new electrical distribution lines.
Under this alternative, the RWS would consist of the following major components:
1. The firm, reliable water supply would be provided by collecting flows from the hyporheic zone of the Rio Grande, supplemented by operational planning and scheduling of San Juan-Chama Project water supplies.
2. A parallel river interceptor drain in the alluvium, below the water table in the bosque and on the east side of the Rio Grande north of the Otowi Bridge.
3. A water treatment plant on the eastern portion of the Pueblo de San Ildefonso, on the east side of County Road 101D, near the El Rancho power substation.
4. Eleven new short-term storage tanks in addition to 13 existing storage tanks.
5. A water transmission and distribution system including approximately 188.9 miles of pipelines, one surge tank, six pumping plants, and pressure-reducing and flow-control valves.
6. Approximately 7 miles of new electrical distribution lines supplemented by distributed solar generation.
Under Alternative D, the RWS would consist of the following major components:
1. The firm, reliable water supply would be provided by collecting flows from the scheduling of San Juan-Chama Project water supplies.
2. An infiltration gallery (an estimated 180 horizontal drains to collect groundwater) on the east bank to the Rio Grande.
3. A water treatment plant on the eastern portion of the Pueblo de San Ildefonso, on the east side of County Road 101D, near the El Rancho power substation.
4. Sixteen new short-term storage tanks in addition to 13 existing tanks.
5. A water transmission and distribution system, including approximately 188.1 miles of pipelines, one surge tank, six pumping plants, and pressure-reducing and flow-control valves.
6. Approximately 6.4 miles of new electrical distribution lines, supplemented by distributed solar generation.
Under this alternative, the RWS would consist of the following major components:
1. The firm, reliable water supply would be provided by collecting flows from the hyporheic zone of the Rio Grande and supplementing it with operational planning and scheduling of San Juan-Chama Project water supplies, as well as a combination of new and existing conjunctive use wells to allow water to be withdrawn when sufficient supply may not be available from the subsurface water source.
2. Four horizontal radial well collectors on the east bank of the Rio Grande, on the Pueblo de San Ildefonso, north of the Otowi Bridge.
3. A water treatment plant located on the west side of County Road 101D, north of State Highway 502.
4. Nine new short-term storage tanks, in addition to 15 existing storage tanks.
5. A water transmission and distribution system, including approximately 165.5 miles of pipelines, 6 pumping plants, and pressure-reducing and flow-control valves.
6. Approximately 6.5 miles of new overhead and buried electrical distribution lines, supplemented by distributed solar generation.
The DEIS also includes analyses of three connected actions: (1) The Rio Pojoaque irrigation improvement project, (2) the Pueblo de San Ildefonso future project which consists of a wastewater system and water distribution infrastructure, and (3) the Rio Tesuque channel modification project. Each of the connected actions have been analyzed in the DEIS to the extent that the details of the projects have been developed.
The DEIS may be viewed at the Reclamation's Web site at
1. Bureau of Reclamation, Albuquerque Area Office, 555 Broadway NE., Suite 100, Albuquerque, New Mexico 87102.
2. Natural Resources Library, U.S. Department of the Interior, 1849 C Street NW., Main Interior Building, Washington, DC 20240–0001.
3. Santa Fe County Pojoaque Satellite Office, 5 West Gutierrez, Suite 9, Pojoaque, New Mexico 87506 (in the Pojoaque Pueblo Plaza).
If special assistance is required at the public meetings, please contact Ms. Mary Carlson at (505) 462–3576, or via email at
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you 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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to (19 CFR 210.8(b)) of the Commission's Rules of Practice and Procedure filed on behalf of Lifetime Products, Inc. on December 30, 2016. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain basketball backboard components and products containing the same. The complaint names as respondents Russel Brands, LLC d/b/a Spalding of Bowling Green, KY and Reliable Sports Equipment (Wujiang) Co., Ltd. of China. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3191”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 2, 2016, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Flying Arrow Archery, LLC of Belgrade, Montana. Supplements to the Complaint were filed on December 19, 20, and 22, 2016. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain arrowheads with arcuate blades and components thereof by reason of infringement of U.S. Patent No. 8,920,269 (“the '269 patent”); U.S. Patent No. D713,919 (“the D'919 patent”); and U.S. Patent No. D729,336 (“the D'336 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain arrowheads with arcuate blades and components thereof by reason of infringement of one or more of claims 5 and 25 of the '269 patent; the claim of the D'919 patent; and the claim of the D'336 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337.
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436.
(3) For the investigation so instituted, the Chief Administrative Law Judge,
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nature McGinn, ACA Permit Officer, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Or by email:
On November 18 and 15, 2016, the National Science Foundation published notices in the
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nature McGinn, ACA Permit Officer, Division of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Or by email:
On November 23, 2016 the National Science Foundation published a notice in the
National Science Foundation.
Notice of permit modification request.
The National Science Foundation (NSF) is required to publish a notice of requests to modify permits issued to conduct activities regulated under the Antarctic Conservation Act of 1978. This is the required notice of a requested permit modification.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by February 6, 2017. Permit applications may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Nature McGinn, ACA Permit Officer, at the above address or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95–541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
Now the permit holder proposes a modification to his permit to include waste management activities associated with the operation of unmanned aircraft systems (UAS) used to collect photographs of individual whales for health assessment purposes. The permit holder is requesting this modification in the unlikely event that the UAS is lost during the conduct of science missions. The UAS will be operated by experienced pilots according to protocols designed to ensure safe operations and to minimize the risk of loss of the UAS. The UAS are powered by lithium polymer batteries and do not require any fuels.
Nuclear Regulatory Commission.
License amendment application; withdrawal by applicant.
The U.S. Nuclear Regulatory Commission (NRC) has granted the request of Exelon Generation Company, LLC (Exelon, the licensee), to withdraw its application dated August 11, 2016, for a proposed amendment to Facility Operating License No. NPF–62. The proposed amendment request would have eliminated the on-shift positions not needed for storage of the spent fuel in the spent fuel pool during the initial decommissioning period and the emergency response organization positions not needed to respond to credible events. Additionally the licensee proposed to revise the emergency action levels (EALs) to reflect those conditions applicable when the unit is in a permanently defueled condition.
Please refer to Docket ID NRC–2016–0245 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:
•
•
•
Eva A. Brown, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–2315, email:
The NRC has granted the request of Exelon to withdraw its application dated August 11, 2016 (ADAMS Accession No. ML16224A895), for a proposed amendment to Facility Operating License No. NPF–62 for the Clinton Power Station, Unit 1, located in DeWitt County, Illinois. The proposed amendment request would eliminated the on-shift positions not needed for storage of the spent fuel in the spent fuel pool during the initial decommissioning period and the emergency response organization positions not needed to respond to credible events. Additionally the licensee is proposing to revise the EALs to reflect those conditions applicable when the unit is in a permanently defueled condition. The Commission has previously issued a proposed finding that the amendment involves no significant hazards consideration published in the
For the Nuclear Regulatory Commission.
Week of January 2, 2017.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), Postponement of Mandatory Hearing (Tentative).
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at 301–415–0442 or via email at
By a vote of 3–0 on January 4, 2017, the Commission determined pursuant to U.S.C. 552b(e) and '9.107(a) of the Commission's rules that the above referenced Affirmation Session be held with less than one week notice to the public. The meeting is scheduled on January 4, 2017.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301–415–1969), or email
Nuclear Regulatory Commission.
License amendment application; withdrawal by applicant.
The U.S. Nuclear Regulatory Commission (NRC) has granted the request of Exelon Generation Company, LLC (Exelon, the licensee), to withdraw its application dated July 28, 2016, for a proposed amendment to Facility Operating License No. NPF–62. The proposed amendment request would have changed the organization, staffing, and training requirements contained in Section 5.0 of the Technical Specifications after the license no longer authorizes operation of the reactor or placement or retention of fuel in the reactor pressure vessel.
Please refer to Docket ID NRC–2016–0207 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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•
•
Eva A. Brown, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–2315, email:
The NRC has granted the request of Exelon to withdraw its application dated July 28, 2016, as supplemented by letter dated November 4, 2016 (ADAMS Accession Nos. ML16210A300 and ML16309A013, respectively), for a proposed amendment to Facility Operating License No. NPF–62 for the Clinton Power Station, Unit 1, located in DeWitt County, Illinois. The proposed amendment request would have changed the organization, staffing, and training requirements contained in Section 5.0 of the Technical Specifications after the licensee submits both certifications in accordance with Title 10 of the Code of Federal Regulations, Sections 50.82(a)(1)(i) and 50.82(a)(1)(ii).
The Commission has previously issued a proposed finding that the amendment involves no significant hazards consideration published in the
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
On December 29, 2016, the Postal Service filed the FY 2016 Performance Report and FY 2017 Performance Plan with its FY 2016 Annual Compliance Report. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
Each fiscal year, the Postal Service must discuss its performance goals in its annual performance plan and annual performance report. 39 U.S.C. 2803 and 2804. The Postal Service must submit its most recent annual performance plan and annual performance report to the Commission.
Each year, the Commission must evaluate whether the Postal Service met the performance goals established in the annual performance plan and annual performance report. 39 U.S.C. 3653(d). The Commission may also “provide recommendations to the Postal Service related to the protection or promotion of public policy objectives set out in” title 39.
In past years, the Commission evaluated whether the Postal Service met its performance goals in the Annual Compliance Determination (ACD). The Commission later determined that its evaluation of the Postal Service's performance under 39 U.S.C. 3653(d) is distinguishable from its determination of compliance or non-compliance in the ACD under 39 U.S.C. 3653(b). In Docket Nos. ACR2013, ACR2014, and ACR2015, the Commission issued separate reports evaluating whether the Postal Service met its performance goals.
As it did in recent years, the Commission will evaluate whether the Postal Service met its FY 2016 performance goals in a report separate from the FY 2016 ACD. To facilitate this review, the Commission invites public comment on the following issues:
• Did the Postal Service meet its performance goals in FY 2016?
• Do the FY 2016 Annual Performance Report and the FY 2017 Annual Performance Plan meet applicable statutory requirements, including 39 U.S.C. 2803 and 2804?
• What recommendations should the Commission provide to the Postal Service that relate to protecting or promoting public policy objectives in title 39?
• What recommendations or observations should the Commission make concerning the Postal Service's strategic initiatives?
• What other matters are relevant to the Commission's analysis of the FY 2016 Annual Performance Report and the FY 2017 Annual Performance Plan under 39 U.S.C. 3653(d)?
Comments by interested persons are due no later than February 8, 2017. Reply comments are due no later than February 22, 2017. Pursuant to 39 U.S.C. 505, Katalin K. Clendenin is appointed to serve as Public Representative to represent the interests of the general public in this docket with respect to issues related to the Commission's analysis of the FY 2016 Annual Performance Report and the FY 2017 Annual Performance Plan.
1. The Commission invites public comment on the Postal Service's FY 2016 Annual Performance Report and FY 2017 Annual Performance Plan.
2. Pursuant to 39 U.S.C. 505, the Commission appoints Katalin K. Clendenin to serve as Public Representative to represent the interests of the general public in this proceeding with respect to issues related to the Commission's analysis of the FY 2016 Annual Performance Report and the FY 2017 Annual Performance Plan.
3. Comments are due no later than February 8, 2017.
4. Reply comments are due no later than February 22, 2017.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Postal Service has filed an Annual Compliance Report on the costs, revenues, rates, and quality of service associated with its products in fiscal year 2016. Within 90 days, the Commission must evaluate that information and issue its determination as to whether rates were in compliance with title 39, chapter 36, and whether service standards in effect were met. To assist in this, the Commission seeks public comments on the Postal Service's Annual Compliance Report.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
On December 29, 2016, the United States Postal Service (Postal Service) filed with the Commission, pursuant to 39 U.S.C. 3652, its Annual Compliance Report (ACR) for fiscal year (FY) 2016.
The filing begins a review process that results in an Annual Compliance Determination (ACD) issued by the Commission to determine whether Postal Service products offered during FY 2016 were in compliance with applicable title 39 requirements.
The FY 2016 ACR includes a discussion by class of each market dominant product, including costs, revenues, and volumes, workshare discounts, and passthroughs responsive to 39 U.S.C. 3652(b), and FY 2016 incentive programs.
In response to the Commission's FY 2010 ACD directives, the Postal Service states that it is providing information regarding: (a) All operational changes designed to reduce flats costs and the estimated financial effects of such changes (
The Commission also invites public comment on the cost coverage matters the Postal Service addresses in its filing; service performance results; levels of customer satisfaction achieved; and such other matters that may be relevant to the Commission's review.
1. The Commission establishes Docket No. ACR2016 to consider matters raised by the United States Postal Service's FY 2016 Annual Compliance Report.
2. Pursuant to 39 U.S.C. 505, the Commission appoints James Waclawski as an officer of the Commission (Public Representative) in this proceeding to represent the interests of the general public.
3. Comments on the United States Postal Service's FY 2016 Annual Compliance Report to the Commission are due on or before February 2, 2017.
4. Reply comments are due on or before February 13, 2017.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
On September 28, 2016, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend NYSE Arca Equities Rule 7.35 to widen Auction Collars
Under the proposal, if as of 9:00 a.m. Eastern Time, the E-mini S&P 500 Futures are +/− 2% from the prior day's closing price of the E-mini S&P 500 Futures, or if the Exchange determines that it is necessary or appropriate for the maintenance of a fair and orderly market, the Auction Collar for the Core Open Auction would be 10%, regardless of the Auction Reference Price. If the Exchange determines to widen Auction Collars under the “fair and orderly” provision, the Exchange would announce by Trader Update the widened collars before the Core Open Auction.
The Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission notes that, according to the Exchange, the proposed Auction Collars would allow for additional price movement during periods of market-wide volatility, and at the same time continue to prevent auctions from occurring at prices significantly away from the Auction Reference Price.
Moreover, according to the Exchange, the proposal would permit it to widen Auction Collars under the “fair and orderly” provision when the E-Mini S&P 500 Futures are not +/-2% from the prior day's closing price as of 9:00 a.m. Eastern Time, but widening the Auction Collars would otherwise be warranted.
Based on the Exchange's representations, the Commission believes that the proposed rule change, as modified by Amendment No. 1, would help to promote orderly and efficient Core Open Auctions on volatile days and would provide transparency on such days regarding the Core Open Auction parameters. Based on the foregoing, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE MKT Equities Price List (“Price List”) and the NYSE Amex Options Fee Schedule (“Fee Schedule”) to modify the fees related to four bundles of co-location services (“Partial Cabinet Solution bundles”) in connection with the Exchange's co-location services. The Exchange proposes to implement the fee changes effective January 1, 2017. The proposed change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Exchange's Price List and Fee Schedule to modify the fees related to Partial Cabinet Solution bundles in connection with the Exchange's co-location services.
The Exchange offers the four Partial Cabinet Solution bundles in order to attract smaller Users, including those with minimal power or cabinet space demands or those for which the costs attendant with having a dedicated
The Exchange is not proposing any other changes to the Partial Cabinet Solution bundles other than this proposed extension of the 50% reduction in the MRC. Users that purchase a Partial Cabinet Solution bundle would still be subject to a 90-day minimum commitment, after which period they are subject to a 60-day rolling time period.
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule changes provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities, and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, because the Exchange proposes to offer the 50% reduction in the MRC to all Users equally. As is currently the case, the purchase of any colocation service (including Partial Cabinet Solution bundles) is completely voluntary. All Users that order a bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months.
The Exchange believes that extending the 50% reduction in the MRC for Partial Cabinet Solution bundles is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers because the Partial Cabinet Solution bundles would continue to offer four different Partial Cabinet Solution bundles with options with respect to cabinet footprint and network connections. Users that require
In addition, the Exchange believes that its proposal would remove impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest because the proposed extension of the 50% reduction in MRC would continue to make it more cost effective for Users to utilize co-location by creating a convenient way to create a colocation environment, through four Partial Cabinet Solution bundles with options with respect to cabinet footprint and network connections. The Exchange expects that such Users would include those with minimal power or cabinet space demands and Users for which the costs attendant with having a dedicated cabinet or greater network connection bandwidth are too burdensome.
The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,
The Exchange believes that it is reasonable that Users that order a Partial Cabinet Solution bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months because it is reasonable to continue to offer such reduction as an incentive to Users to utilize the service. As noted above, the Exchange anticipates that Users of the Partial Cabinet Solution bundles would include those with minimum power or cabinet space demands and Users for which the costs attendant with having a dedicated cabinet or greater network connection bandwidth are too burdensome. The Exchange believes that it is reasonable to continue to have a reduced minimum commitment period for the Partial Cabinet Solution bundle to further reduce the cost commitment for such Users as a continued incentive to Users to utilize the new service.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that extending the 50% reduction in the MRC will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such access will continue to satisfy User demand for cost effective options for smaller Users that choose to utilize co-location. All Users that order a bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months. Providing entities with the additional option of the Partial Cabinet Solution bundle will allow them to select the relationship and type of service that better corresponds to their needs and resources.
The proposed changes will also enhance competition by making it more cost effective for Users that purchase a Partial Cabinet Solution bundle to utilize co-location by creating a convenient way to create a colocation environment, through Partial Cabinet Solution bundles with options with respect to cabinet footprint and network connections at a reduced MRC for the first 12 months. Such Users may choose to pass on such cost savings to their customers.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. In such an environment, the Exchange must continually review, and consider adjusting, its services and related fees and credits to remain competitive with other exchanges.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• 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 following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of December 2016. A copy of each application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
The Commission: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Hae-Sung Lee, Attorney-Adviser, at (202) 551–7345 or Chief Counsel's Office at (202) 551–6821; SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE., Washington, DC 20549–8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Arca Equities Rule 7.35(d)(4) to provide that the Exchange would not report an Official Closing Price, as defined under NYSE Arca Equities Rule 1.1(gg)(1), if there were no consolidated last-sale eligible trades on a trading day. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend NYSE Arca Equities Rule 7.35(d)(4) to provide that the Exchange would not report an Official Closing Price, as defined under NYSE Arca Equities Rule 1.1(gg)(1), if there were no consolidated last-sale eligible trades on a trading day. This proposed rule change would not change how the Official Closing Price would be determined and disseminated if the Exchange is unable to conduct a closing transaction in one or more securities due to a systems or technical issue, as described in NYSE Arca Equities Rules 1.1(gg)(2)–(4).
The Exchange reports an Official Closing Price to the securities information processor (“SIP”) as an “M” sale condition.
The Exchange is proposing to amend NYSE Arca Equities Rule 7.35(d)(4) to provide that an Official Closing Price, as defined in NYSE Arca Equities Rule 1.1(gg)(1), would not be reported for a security if there were no consolidated last-sale eligible trades in such security on a trading day.
Accordingly, this proposed rule change is intended to amend NYSE Arca Equities Rule 7.35(d)(4) to provide that the Exchange would not report an Official Closing Price, as defined in Rule 1.1(gg)(1), in a security as an “M” sale condition to the SIP if there were no consolidated last-sale eligible trades in such security on a trading day. And, as noted above, this proposed rule change would not alter how the Official Closing Price would be disseminated under NYSE Arca Equities Rules 1.1(gg)(2)–(4).
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would provide transparency of when the Exchange's would not report a price to the SIP as an “M” sale condition. The Exchange believes that the proposed rule change is consistent with the Act because the “M” sale condition does not contribute to the consolidated last sale price for a security, the high or low price of a security, or reported volume for a security, and therefore is an informational value. The Exchange further believes that this proposed rule change is consistent with the protection of investors and the public interest because it would reduce confusion by eliminating publication to the SIP of a price that may conflict with how an index provider or mutual fund determines that value for a security if there are no consolidated last-sale eligible trades on a trading day. Finally, the Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would apply only when the Exchange is fully operational. If the Exchange is unable to conduct a closing transaction due to a systems or technical issue, current NYSE Arca Equities Rule 1.1(gg)(2)–(4) would govern, with no change.
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 is not designed to address any competitive issues, but rather to specify that the Exchange would not be required to report an Official Closing Price to the SIP as an “M” sale condition if there has not been a consolidated last-sale eligible trade on a trading day.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (the “Options Fee Schedule”) and the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (the “Equities Fee Schedule” and, together with the Options Fee Schedule, the “Fee Schedules”) to modify the fees related to four bundles of co-location services (“Partial Cabinet Solution bundles”) in connection with the Exchange's co-location services. The Exchange proposes to implement the fee changes effective January 1, 2017. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Exchange's Fee Schedules to modify the fees related to Partial Cabinet Solution bundles in connection with the Exchange's co-location services.
The Exchange offers the four Partial Cabinet Solution bundles in order to attract smaller Users, including those with minimal power or cabinet space demands or those for which the costs attendant with having a dedicated cabinet or greater network connection bandwidth are too burdensome.
The Exchange is not proposing any other changes to the Partial Cabinet Solution bundles other than this proposed extension of the 50% reduction in the MRC. Users that purchase a Partial Cabinet Solution bundle would still be subject to a 90-day minimum commitment, after which period they are subject to a 60-day rolling time period.
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule changes provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities, and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, because the Exchange proposes to offer the 50% reduction in the MRC to all Users equally. As is currently the case, the purchase of any colocation service (including Partial Cabinet Solution bundles) is completely voluntary. All Users that order a bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months.
The Exchange believes that extending the 50% reduction in the MRC for Partial Cabinet Solution bundles is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers because the Partial Cabinet Solution bundles would continue to offer four different Partial Cabinet Solution bundles with options with respect to cabinet footprint and network connections. Users that require other sizes or combinations of cabinets, network connections and cross connects could still request them.
In addition, the Exchange believes that its proposal would remove impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest because the proposed extension of the 50% reduction in MRC would continue to make it more cost effective for Users to utilize co-location by creating a convenient way to create a colocation environment, through four Partial Cabinet Solution bundles with
The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,
The Exchange believes that it is reasonable that Users that order a Partial Cabinet Solution bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months because it is reasonable to continue to offer such reduction as an incentive to Users to utilize the service. As noted above, the Exchange anticipates that Users of the Partial Cabinet Solution bundles would include those with minimum power or cabinet space demands and Users for which the costs attendant with having a dedicated cabinet or greater network connection bandwidth are too burdensome. The Exchange believes that it is reasonable to continue to have a reduced minimum commitment period for the Partial Cabinet Solution bundle to further reduce the cost commitment for such Users as a continued incentive to Users to utilize the new service.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that extending the 50% reduction in the MRC will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such access will continue to satisfy User demand for cost effective options for smaller Users that choose to utilize co-location. All Users that order a bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months. Providing entities with the additional option of the Partial Cabinet Solution bundle will allow them to select the relationship and type of service that better corresponds to their needs and resources.
The proposed changes will also enhance competition by making it more cost effective for Users that purchase a Partial Cabinet Solution bundle to utilize co-location by creating a convenient way to create a colocation environment, through Partial Cabinet Solution bundles with options with respect to cabinet footprint and network connections at a reduced MRC for the first 12 months. Such Users may choose to pass on such cost savings to their customers.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. In such an environment, the Exchange must continually review, and consider adjusting, its services and related fees and credits to remain competitive with other exchanges.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the Exchange's Price List to modify the fees related to four bundles of co-location services (“Partial Cabinet Solution bundles”) in connection with the Exchange's co-location services. The Exchange proposes to implement the fee changes effective January 1, 2017. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Exchange's Price List to modify the fees related to Partial Cabinet Solution bundles in connection with the Exchange's co-location services.
The Exchange offers the four Partial Cabinet Solution bundles in order to attract smaller Users, including those with minimal power or cabinet space demands or those for which the costs attendant with having a dedicated cabinet or greater network connection bandwidth are too burdensome.
The Exchange is not proposing any other changes to the Partial Cabinet Solution bundles other than this proposed extension of the 50% reduction in the MRC. Users that purchase a Partial Cabinet Solution bundle would still be subject to a 90-day minimum commitment, after which period they are subject to a 60-day rolling time period.
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule changes provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities, and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, because the Exchange proposes to offer the 50% reduction in the MRC to all Users equally. As is currently the case, the purchase of any colocation service (including Partial Cabinet Solution bundles) is completely voluntary. All Users that order a bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months.
The Exchange believes that extending the 50% reduction in the MRC for Partial Cabinet Solution bundles is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers because the Partial Cabinet Solution bundles would continue to offer four different Partial Cabinet Solution bundles with options with respect to cabinet footprint and network connections. Users that require other sizes or combinations of cabinets, network connections and cross connects could still request them.
In addition, the Exchange believes that its proposal would remove impediments to, and perfects the mechanisms of, a free and open market and a national market system and, in general, protects investors and the public interest because the proposed extension of the 50% reduction in MRC would continue to make it more cost
The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,
The Exchange believes that it is reasonable that Users that order a Partial Cabinet Solution bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months because it is reasonable to continue to offer such reduction as an incentive to Users to utilize the service. As noted above, the Exchange anticipates that Users of the Partial Cabinet Solution bundles would include those with minimum power or cabinet space demands and Users for which the costs attendant with having a dedicated cabinet or greater network connection bandwidth are too burdensome. The Exchange believes that it is reasonable to continue to have a reduced minimum commitment period for the Partial Cabinet Solution bundle to further reduce the cost commitment for such Users as a continued incentive to Users to utilize the new service.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that extending the 50% reduction in the MRC will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such access will continue to satisfy User demand for cost effective options for smaller Users that choose to utilize co-location. All Users that order a bundle on or before December 31, 2017 would have their MRC reduced by 50% for the first 12 months. Providing entities with the additional option of the Partial Cabinet Solution bundle will allow them to select the relationship and type of service that better corresponds to their needs and resources.
The proposed changes will also enhance competition by making it more cost effective for Users that purchase a Partial Cabinet Solution bundle to utilize co-location by creating a convenient way to create a colocation environment, through Partial Cabinet Solution bundles with options with respect to cabinet footprint and network connections at a reduced MRC for the first 12 months. Such Users may choose to pass on such cost savings to their customers.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. In such an environment, the Exchange must continually review, and consider adjusting, its services and related fees and credits to remain competitive with other exchanges.
For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Decatur Central Railroad, L.L.C. (DC), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to assume operations of a rail line located between milepost 14.22 in Cisco, Piatt County, Ill., and milepost 27.63 (Green's Switch) near Decatur, Macon County, Ill., a distance of approximately 13 miles (the Line). The Line is currently leased to and operated by Decatur Junction Railway Co. (DJRC), which consents to the proposed change in operators. DC will become a rail carrier as a result of this transaction.
DC describes itself as a joint venture between OmniTRAX Holdings Combined, Inc. and Topflight Grain Cooperative, Inc., which each own 50% of DC. DJRC has agreed to relinquish to DC, and DC has agreed to assume, the exclusive common carrier obligation over the Line.
DC states that the agreement by which it will assume operations does not contain any provision that prohibits DC from interchanging traffic with a third party or limits DC's ability to interchange traffic with a third party railroad.
DC certifies that the proposed transaction will not result in DC's becoming a Class II or Class I rail carrier. DC will become a Class III carrier upon consummation of the proposed transaction, but the projected annual revenue of DC will not exceed $5 million. Under 49 CFR 1150.32(b), a change in operator requires that notice be given to shippers. DC certifies that it has provided notice of the proposed change in operator to the only shipper on the Line.
The earliest this transaction can be consummated is January 21, 2017, the effective date of the exemption.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than January 13, 2017 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36080, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on Karl Morell, Karl Morell & Associates, Suite 225, 655 Fifteenth Street NW., Washington, DC 20005.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
CSX Transportation, Inc. (CSXT), filed a verified notice of exemption under 49 CFR pt. 1152 subpart F—
CSXT has certified that: (1) No local traffic has moved over the Line for at least two years; (2) because the Line is not a through route, no overhead traffic has operated, and, therefore, none needs to be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is pending either with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) to subsidize continued rail service has been received, this exemption will be effective on February 7, 2017, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA to subsidize continued rail service under 49 CFR 1152.27(c)(2)
A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void ab initio.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that it has received an application from Dillon Transportation LLC (Dillon) for an exemption from certain provisions of the Agency's hours-of-service (HOS) regulations. Dillon proposes that its team drivers be granted an exemption from the HOS rules pertaining to use of a sleeper berth (SB). Dillon proposes that its team drivers be allowed to take the equivalent of 10 consecutive hours off duty by splitting SB time into two periods totaling 10 hours, provided neither of the two periods is less than 3 hours. FMCSA requests public comment on Dillon's application for exemption.
Comments must be received on or before February 6, 2017.
You may submit comments identified by Federal Docket Management System Number FMCSA–2016–0443 by any of the following methods:
•
•
•
•
Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
For information concerning this notice, please contact Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Telephone: (614) 942–6477; Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA–2016–0443), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). 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
Dillon states that it operates a fleet of 103 vehicles with 50 team drivers. Dillon is a privately-owned and operated company that delivers products to 48 states from a diversified customer base, and is known for their high level of service as an on-time carrier. They recruit only experienced, professional drivers. Dillon operates on a routine weekly cycle; each workweek contains a regular subset of daily cycles dispatching and returning long, medium and short range trips. According to Dillon, the majority of the fleet drivers are home weekly with 34–48 hours off. The fact that some divers stay out longer is their choice to do so; Dillon does not require their drivers to stay on the road for more than 5 days.
Dillon's tractors are equipped with double-bunk sleepers in the event both drivers need or want to rest at the same time. Drivers are allowed to make their own decisions about when and where to take short rest breaks based on their personal needs and preferences in conformance with regulatory requirements. Dillon asserts that it takes safety, health and wellness seriously, and only hires well-qualified drivers who go through a comprehensive orientation/new-hire training program. Dillon's trucks are all equipped with electronic logging devices for monitoring hours-of-service (HOS) compliance.
Dillon requests an exemption from the current regulations for its operations to eliminate the requirement that SB time include a period of at least 8 but less than 10 consecutive hours in the SB and a separate period of at least 2 but less than 10 consecutive hours either in the SB or off duty, or any combination thereof (49 CFR 395.1(g)(1)(ii)(A)(1) and (2)). Dillon proposes that its team drivers be allowed to split SB time into two periods totaling at least 10 hours, provided neither of the two periods is less than 3 hours in length. The drivers would be able to choose between either a 3/7, 4/6, or 5/5 “split” hour break to complete the required 10 hour break. The exemption would be limited to drivers in team operations. The request by Dillon is for a 2-year exemption period.
Dillon states that it is common knowledge that sleeping in a moving vehicle is more difficult than for a single driver who is able to stop the truck during their sleeper time. According to Dillon, having the flexibility to switch with a partner allows each driver to take advantage of shorter driver periods when they feel fatigued even though they have available driving time. This will result in a more flexible work pattern improving personal and vehicular safety. The exemption request would not apply to trips driven by a single driver.
Dillon identified some countermeasures it would take to maintain safe operations if the exemption is granted. The safeguards would include, but not be limited to:
• Drive time would be reduced from 11 hours to 10 hours. Team drivers would be limited to 10 hours of driving prior to completing their required 10 hours total SB. Solo drivers will continue to operate under current HOS regulations.
• Dillon trucks are equipped with Qualcomm communications and electronic logging. Their drivers will continue to utilize Qualcomm electronic communications and tracking to maintain HOS compliance.
• All of Dillon's tractors are equipped with speed limiters.
Dillon believes that by allowing its team drivers to exercise flexibility in their SB requirements, they will experience better quality rest as a result of this exemption. To support its request for the exemption, Dillon cited the results of a recent study conducted by Gregory Belenky, MD at the Sleep and Performance Research Center, which concluded that when consolidated nighttime sleep is not possible, split sleeper berth time is preferable to consolidated daytime sleep (
A copy of Dillon's application for exemption is available for review in the docket for this notice.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that Daimler Trucks North America (Daimler) has requested an exemption for one commercial motor vehicle (CMV) driver, Kai Zeuner, from the Federal requirement to hold a commercial driver's license (CDL) issued by one of the States. This project engineer holds a valid German commercial license and wants to test-drive Daimler vehicles on U.S. roads to better understand product requirements for these systems in “real world” environments, and verify results. Daimler believes the requirements for a German commercial license ensure that holders of the license will likely achieve a level of safety equal to or greater than that of drivers who hold a U.S. State-issued CDL.
Comments must be received on or before February 6, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA–2012–0032 using any of the following methods:
•
•
•
•
Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 614–942–6477. Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA–2012–0032), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, 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
Daimler has applied for an exemption for one of its engineers from 49 CFR 383.23, which prescribes licensing requirements for drivers operating CMVs in interstate or intrastate commerce. This driver, Kai Zeuner, holds a valid German commercial license but is unable to obtain a CDL in any of the U.S. States due to residency requirements. A copy of the application is in Docket No. FMCSA–2012–0032.
The exemption would allow Mr. Zeuner to operate CMVs in interstate or intrastate commerce to support Daimler field tests designed to meet future vehicle safety and environmental requirements and to develop improved safety and emission technologies. According to Daimler, Mr. Zeuner will typically drive for no more than 6 hours per day for 2 consecutive days, and 10 percent of the test driving will be on two-lane State highways, while 90 percent will be on interstate highways. The driving will consist of no more than 200 miles per day, for a total of 400 miles during a two-day period on a quarterly basis. He will in all cases be accompanied by a holder of a U.S. CDL who is familiar with the routes to be traveled. Daimler requests that the exemption cover the maximum allowable duration.
Daimler has explained in prior exemption requests that the German knowledge and skills tests and training program ensure that Daimler's drivers operating under the exemption will achieve a level of safety that is equivalent to, or greater than, the level of safety obtained by complying with the U.S. requirement for a CDL.
FMCSA has previously determined that the process for obtaining a German commercial license is comparable to, or as effective as, the requirements of part 383, and adequately assesses the driver's ability to operate CMVs in the U.S. Since 2012, FMCSA has granted Daimler drivers similar exemptions [May 25, 2012 (77 FR 31422); July 22, 2014 (79 FR 42626); March 27, 2015 (80 FR 16511); October 5, 2015 (80 FR 60220); December 7, 2015 (80 FR 76059); December 21, 2015 (80 FR 79410)].
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of 3 individuals and 2 entities whose property and interests in property are blocked pursuant to Executive Order 13581 of July 24, 2011, “Blocking Property of Transnational Criminal Organizations.”
The designations by the Acting Director of OFAC, pursuant to Executive Order 13581, of the 3 individuals and 2 entities identified in this notice were effective on December 30, 2016.
The Department of the Treasury's Office of
This document and additional information concerning OFAC are available from OFAC's Web site (
On July 24, 2011, the President issued Executive Order 13581, “Blocking Property of Transnational Criminal Organizations” (the “Order”), pursuant to,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, of persons listed in the Annex to the Order and of persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to satisfy certain criteria set forth in the Order.
On December 30, 2016, the Acting Director of OFAC, in consultation with the Attorney General and the Secretary of State, designated, pursuant to one or more of the criteria set forth in subparagraphs (a)(ii)(A) through (a)(ii)(C) of Section 1 of the Order, 3 individuals and 2 entities whose property and interests in property are blocked pursuant to the Order.
The listings for these individuals and entities on OFAC's List of Specially Designated Nationals and Blocked Persons appear as follows:
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Direct final rule.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including residential central air conditioners and heat pumps. EPCA also requires the U.S. Department of Energy (DOE) to periodically determine whether more-stringent, amended standards would be technologically feasible and economically justified, and would save a significant amount of energy. In this direct final rule, DOE adopts amended energy conservation standards for residential central air conditioners and heat pumps.
The effective date of this rule is May 8, 2017 unless adverse comment is received by April 26, 2017. If adverse comments are received that DOE determines may provide a reasonable basis for withdrawal of the direct final rule, a timely withdrawal of this rule will be published in the
The docket, which includes
A link to the docket Web page for residential central air conditioners and heat pumps can be found at:
For further information on how to submit a comment or review other public comments and the docket, contact the Appliance and Equipment Standards staff at (202) 586–6636 or by email:
Mr. Antonio Bouza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE–5B, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–4563. Email:
Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC–33, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 287–6307. Email:
Title III, Part B
Pursuant to EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)(B)) The statute also provides that not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended or a notice of proposed rulemaking including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) Once complete, this rulemaking will satisfy these statutory requirements.
In light of the above and under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule amending the energy conservation standards for residential central air conditioners and heat pumps. The amendments outlined in this document reflect the culmination of a DOE rulemaking that included the following notices and stakeholder comments thereon: November 2014 request for information (RFI) (79 FR 65603 (Nov. 5, 2014)); August 2015 notice of data availability (NODA) (80 FR 52206 (August 28, 2015)); and the 2015–2016 Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) central air conditioners and heat pumps working group negotiations, hereinafter referred to as “the Negotiations” (80 FR 40938 (July 14, 2015)). See section II.B.2 for a detailed history of the current rulemaking.
The consensus reached by the CAC/HP ASRAC Working Group, hereinafter referred to as “the CAC/HP Working Group,” on amended energy conservation standards is outlined in the ASRAC Working Group Term Sheet, hereinafter referred to as “the Term Sheet.” (ASRAC Working Group Term Sheet, Docket No. EERE–2014–BT–STD–0048, No. 0076) After carefully considering the Term Sheet, DOE determined that the recommendations contained therein are compliant with 42 U.S.C. 6295(o), as required by 42 U.S.C. 6295(p)(4)(A)(i) for the issuance of a direct final rule. As required by 42 U.S.C. 6295(p)(4)(A)(i), DOE is simultaneously publishing a NOPR proposing that the identical standard levels contained in this direct final rule be adopted. Consistent with the statute, DOE is providing a 110-day public comment period on the direct final rule. (42 U.S.C. 6295(p)(4)(B)) If DOE determines that any comments received provide a reasonable basis for withdrawal of the direct final rule under 42 U.S.C. 6295(o), DOE will continue the rulemaking under the NOPR. (42 U.S.C. 6295(p)(4)(C)) See section II.A for more details on DOE's statutory authority.
This direct final rule documents DOE's analyses to objectively and independently evaluate the energy savings potential, technological feasibility, and economic justification of the standard levels recommended in the Term Sheet, as per the requirements of 42 U.S.C. 6295(o).
DOE conducted separate test procedure rulemakings simultaneously with the energy conservation standard rulemaking to amend the DOE central air conditioners and heat pumps test procedure. The amended DOE CAC/HP test procedure and associated rulemakings are discussed in detail in section III.F. As per the request of the CAC/HP Working Group, the analyses documented in this direct final rule are based on the DOE test procedure at the time of the 2015–2016 Negotiations. Efficiency levels selected on the basis of these analyses were then translated to efficiency levels based on the amended test procedure. This methodology was first advocated by Carrier/United Technologies Corporation (UTC) and adopted by stakeholders during the Negotiations. (ASRAC Public Meeting, No. 87 at p. 48) This methodology is also reflected in the Term Sheet. Recommendation #8 of the Term Sheet includes standard levels based on the test procedure at the time of the 2015–2016 Negotiations. (ASRAC Term Sheet, No. 76 at pp. 4–5) The standard levels established by this direct final rule are translated levels based on the test procedure established by the test procedure final rule issued by DOE on November 30, 2016, hereinafter referred to as the “November 2016 test procedure final rule,” (which is codified in 10 CFR part 430, subpart B, appendix M1).
Ultimately, DOE found that the standard levels recommended in the Term Sheet would result in significant energy savings and are technologically feasible and economically justified. Table I–1 documents the amended standards for central air conditioners and heat pumps based on the DOE test procedure at the time of the 2015–2016 Negotiations. The amended standards correspond to the recommended trial standard level (TSL) (as described in section V.A) and are expressed in terms of Seasonal Energy Efficiency Ratio (SEER), Energy Efficiency Ratio (EER), and Heating Seasonal Performance Factor (HSPF). The amended standards are the same as those recommended by the Working Group. These amended standards apply to all central air conditioners and heat pumps listed in Table I–1 and manufactured in, or imported into, the United States starting on January 1, 2023. The amended
DOE notes that the amended standard levels presented in Table I–1 are in terms of the test procedure that was in place at the time of the CAC/HP Working Group Negotiations. That test procedure did not include the amendments adopted in the November 2016 TP final rule, which are outlined in section III.F. In section V.C, the amended standard levels are translated to and presented in terms of the test procedure established by the November 2016 test procedure final rule. Accordingly, the standard levels included in the regulatory text of this direct final rule are presented in terms of the test procedure established by the November 2016 test procedure final rule.
DOE is not amending the off mode standards for central air conditioners and heat pumps at this time. The June 2011 direct final rule included the first standards for off mode electric power consumption, with a compliance date of January 1, 2015. 76 FR 37408 (June 27, 2011); 10 CFR 430.32(c)(5). However, DOE subsequently issued an enforcement policy statement on July 8, 2014 regarding off mode standards for central air conditioners and heat pumps specifying that DOE would not assert its civil penalty authority for violation of the off mode standard until 180 days following publication of a final rule establishing a test method for measuring off mode electrical power consumption.
Table I–2 presents DOE's evaluation of the economic impacts of the energy conservation standards on consumers of central air conditioners and heat pumps, as measured by the average life-cycle cost (LCC) savings and the simple payback period (PBP).
DOE's analysis of the impacts of the amended standards on consumers is described in further detail in section IV.F of this document.
The industry net present value (INPV) is the sum of the discounted cash flows to the industry from the base year through the end of the 30-year analysis period.
DOE's analysis of the impacts of the amended standards on manufacturers is described in further detail in sections IV.J and V.B.2 of this direct final rule.
DOE's analyses indicate that the energy conservation standards being adopted in this direct final rule for central air conditioners and heat pumps would save a significant amount of energy. Relative to the case without amended standards (referred to as the “no-new-standards case”), the lifetime energy savings for central air conditioners and heat pumps purchased in the 30-year period that begins in the anticipated first full year of compliance with the amended standards (2023–2052) amount to 3.2 quadrillion British thermal units (Btu), or “quads.”
The cumulative national net present value (NPV) of total consumer costs and savings for the amended standards for central air conditioners and heat pumps ranges from $2.5 billion (at a 7-percent discount rate) to $12.2 billion (at a 3-percent discount rate). This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased product and installation costs for central air conditioners and heat pumps purchased in 2023–2052.
In addition, the standards for central air conditioners and heat pumps that are being adopted in this direct final rule are expected to yield significant environmental benefits. DOE estimates the standards to result in cumulative emission reductions (over the same period as for energy savings) of 188.3 million metric tons (Mt)
The value of the CO
Table I–3 summarizes the economic benefits and costs expected to result from the amended energy conservation standards for central air conditioners and heat pumps.
The benefits and costs of the amended energy conservation standards, for central air conditioners and heat pumps sold in 2023–2052, can also be expressed in terms of annualized values. The monetary values for the total annualized net benefits are the sum of: (1) The national economic value of the benefits in reduced operating costs, minus (2) the increases in product purchase and installation costs, plus (3) the value of the benefits of CO
The national operating savings are domestic private U.S. consumer monetary savings that occur as a result of purchasing the covered products. The national operating cost savings is measured for the lifetime of central air conditioners and heat pumps shipped in 2023–2052. The CO
Estimates of annualized benefits and costs of the amended standards are shown in Table I–4. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
DOE's analysis of the national impacts of the adopted standards is described in further detail in section IV.H of this direct final rule.
DOE has determined that the statement containing recommendations with respect to energy conservation standards for central air conditioners and heat pumps was submitted jointly by interested persons that are fairly representative of relevant points of view, in accordance with 42 U.S.C. 6295(p)(4)(A). After considering the analysis and weighing the benefits and burdens, DOE has determined that the recommended standards are in accordance with 42 U.S.C. 6295(o), which contains the criteria for prescribing new or amended standards. Specifically, the Secretary has determined that the adoption of the recommended standards would result in the significant conservation of energy and is technologically feasible and economically justified. In determining whether the recommended standards are economically justified, the Secretary has determined that the benefits of the recommended standards exceed the burdens. Namely, the Secretary has concluded that the recommended standards, when considering the benefits of energy savings, positive NPV of consumer benefits, emission reductions, the estimated monetary value of the emissions reductions, and positive average LCC savings, would yield benefits outweighing the negative impacts on some consumers and on manufacturers, including the conversion
Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule amending the energy conservation standards for residential central air conditioners and heat pumps. Consistent with this authority, DOE is also publishing elsewhere in this
The following sections briefly discuss the statutory authority underlying this direct final rule, as well as the historical background related to the establishment of standards for residential central air conditioners and heat pumps.
Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94–163 (42 U.S.C. 6291–6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances (collectively referred to as “covered products”), which includes the residential central air conditioners and heat pumps that are the subject of this rulemaking. (42 U.S.C. 6292(a)(3))
Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling, and DOE implements the remainder of the program. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product prior to the adoption of a new or amended energy conservation standard. (42 U.S.C. 6295(o)(3)(A) and (r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for central air conditioners and heat pumps appear at title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix M and M1.
The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100–12) included amendments to EPCA that established the original energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(1)–(2)) EPCA, as amended, also requires DOE to conduct two cycles of rulemakings to determine whether to amend the energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(3)) The first cycle culminated in a final rule published in the
EPCA requires DOE to periodically review its already established energy conservation standards for a covered product. Not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed standards. (42 U.S.C. 6295(m)(1)) Pursuant to this requirement, the next review that DOE would need to conduct must occur no later than six years from the issuance of the 2011 direct final rule. This direct final rule fulfills that requirement.
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including residential central air conditioners and heat pumps. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and (3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including residential central air conditioners and heat pumps, if no test procedure has been established for the product, or (2) if DOE determines by rule that the proposed standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)–(B)) In deciding whether a proposed standard is economically justified, after receiving comments on the proposed standard, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination by, to the greatest extent practicable, considering the following seven factors:
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)–(VII))
DOE notes that the current energy conservation standards for central air conditioners and heat pumps (set forth at 10 CFR 430.32(c)) contain requirements for seasonal energy efficiency ratio (SEER), heating seasonal performance factor (HSPF), energy efficiency ratio (EER), and average off mode power consumption. Standards based upon the latter two metrics were newly adopted in the June 27, 2011 DFR for the reasons stated in that rulemaking. 76 FR 37408. As discussed below in section II.B.1 and section II.B.3, DOE has chosen to specify performance standards based on EER and SEER for only the southwest region of the country. Pursuant to its mandate under 42 U.S.C. 6295(m)(1), this DOE rulemaking has considered amending the existing energy conservation standards for central air conditioners and heat pumps, and DOE is adopting the amended standards contained in this direct final rule.
EPCA, as codified, also contains what is known as an “anti-backsliding”
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) DOE generally considers these criteria as part of its analysis but consistently conducts a more thorough analysis of a given standard's projected impacts that extends beyond this presumption.
Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. In this case, DOE must specify a different standard level for a type or class of covered product that has the same function or intended use, if DOE determines that products within such group: (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature that other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Under 42 U.S.C. 6295(o)(6), which was added to EPCA by section 306(a) of the Energy Independence and Security Act of 2007 (EISA 2007; Public Law. 110–140), DOE may consider the establishment of regional standards for central air conditioners and heat pumps. Specifically, in addition to a base national standard for a product, DOE may for central air conditioners and heat pumps, establish one or two more-restrictive regional standards. (42 U.S.C. 6295(o)(6)(B)) The regions must include only contiguous States (with the exception of Alaska and Hawaii, which may be included in regions with which they are not contiguous), and each State may be placed in only one region (
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)–(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).
Pursuant to further amendments to EPCA contained in EISA 2007, Pub. L. 110–140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) The SEER and HSPF metrics for central air conditioners and heat pumps already account for standby mode energy use, and the current standards include limits on off mode energy use. Section III.E further discusses standby mode and off mode energy use.
As mentioned previously, EISA 2007 amended EPCA, in relevant part, to grant DOE authority to issue a final rule (hereinafter referred to as a “direct final rule”) establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates), as determined by the Secretary, that contains recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). (42 U.S.C. 6295(p)(4)) Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly-submitted recommendation for an energy or water conservation standard satisfies 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable.
A notice of proposed rulemaking (NOPR) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule, and DOE must provide a public comment period of at least 110 days on this proposal. (42 U.S.C. 6295(p)(4)(A)–(B)) While DOE typically provides a comment period of 60 days on proposed standards, in this case, DOE provides a comment period of the same length as the comment period on the direct final rule—
Typical of other rulemakings, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, the substance of any adverse comment(s) received will be weighed against the anticipated benefits of the jointly-submitted recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that, to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. Nevertheless, if the Secretary makes such a determination, DOE must withdraw the direct final rule
This section briefly summarizes the history leading up to and including the conception of the current standards for residential air conditioners and heat pumps. Congress initially prescribed statutory standard levels for residential central air conditioners and heat pumps through amendments to EPCA included in the National Appliance Energy Conservation Act of 1987 (NAECA), Public Law 100–12. (42 U.S.C. 6295(d)(1)–(2)) DOE was required to subsequently conduct two rounds of rulemaking to consider amended standards for these products. (42 U.S.C. 6295(d)(3)) The first cycle culminated in a final rule published in the
DOE completed the second of the two rulemaking cycles by publishing a direct final rule on June 27, 2011. 76 FR 37408. The June 2011 DFR combined the rulemakings for residential furnaces, central air conditioners, and heat pumps; divided the country into three regions for CAC/HP: Southeast “hot humid” region, southwest “hot-dry” region, and northern “rest of country” (national standard); and amended standards, including different standards for each region, for central air conditioners and heat pumps manufactured on or after January 1, 2015.
On October 31, 2011, DOE published a notice of effective date and compliance dates for the direct final rule responding to comments it received. 76 FR 67037. Ultimately, DOE determined that the comments received in response to the direct final rule for amended energy conservation standards for residential central air conditioners and heat pumps did not provide a reasonable basis for withdrawal of the DFR.
The current standards, which differ by region, were published in the June 27, 2011 DFR. 76 FR 37408, 37546–47. These standards are codified in DOE's regulations in the Code of Federal Regulations (CFR) at 10 CFR 430.32(c)(2)–(5). The standards consist of a minimum SEER for each class of air conditioner and a minimum SEER and HSPF for each class of heat pump. 10 CFR 430.32(c)(2)–(3). In addition, the June 2011 DFR also established regional standards on EER for the southwest region
The June 2011 DFR also established off mode energy conservation standards for residential central air conditioners and heat pumps, as summarized in Table II.2 and described in section III.E.
This section provides an overview of the history of the current central air conditioner and heat pump rulemaking following the June 2011 DFR up to this direct final rule.
Following DOE's adoption of the June 2011 DFR, the American Public Gas Association (APGA) filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit, seeking to invalidate the June 2011 DFR as it pertained to non-weatherized gas furnaces (NWGFs) and mobile home gas furnaces (MHGFs). Petition for Review,
On April 24, 2014, the Court granted a motion that approved a settlement agreement reached between DOE, APGA, and the various intervenors.
On August 26, 2014, DOE published a notice of open meetings for the central air conditioner and heat pump regional standards enforcement working group, which was tasked to discuss and reach consensus on a proposed rule
According to the Energy Policy and Conservation Act's 6-year review requirement (42 U.S.C. 6295(m)(1)), DOE must publish a notice of proposed rulemaking to propose new standards for residential central air conditioner and heat pump products or a notice of determination that the existing standards do not need to be amended by June 6, 2017. On November 5, 2014, DOE initiated efforts pursuant to the 6-year lookback requirement by publishing a request for information (RFI) regarding central air conditioners and heat pumps to solicit comments on whether to amend the current energy conservation standards for residential central air conditioner and heat pump products. 79 FR 65603. The November 2014 RFI also described the procedural and analytical approaches that DOE anticipated using in order to evaluate potential amended energy conservation standards for central air conditioners and heat pumps.
On August 28, 2015, DOE published a notice of data availability (NODA) describing analysis to be used in support of the central air conditioners and heat pumps standards rulemaking. 80 FR 52206. The analysis for this notice provided the results of a series of DOE provisional analyses regarding potential energy savings and economic impacts of amending the central air conditioner and heat pump energy conservation standards. These analyses were conducted for the following categories: Engineering, consumer impacts, national impacts, and manufacturer impacts.
In response to the November 2014 RFI, Lennox formally requested that DOE convene a negotiated rulemaking to address potential amendments to the current standards, which would help ensure that all stakeholders have input into the discussion, analysis, and outcome of the rulemaking. (Lennox, No. 22) Other key industry stakeholders made similar suggestions. (American Council for an Energy-Efficient Economy, No. 23; Air Conditioning Contractors of America, No. 25; Heating, Air Conditioning & Refrigeration Distributors International, No. 26) ASRAC carefully evaluated this request, and the Committee voted to charter a working group to support the negotiated rulemaking effort requested by these parties.
Subsequently, DOE determined that the complexity of the CAC/HP rulemaking necessitated a combined effort to address these equipment types to ensure a comprehensive vetting of all issues and related analyses to support any final rule setting standards. To this end, DOE solicited the public for membership nominations to the CAC/HP Working Group that would be formed under the ASRAC charter by issuing a Notice of Intent to Establish the Central Air Conditioners and Heat Pumps Working Group To Negotiate a
DOE received 26 nominations for membership. Ultimately, the CAC/HP Working Group consisted of 15 members, including one member from ASRAC and one DOE representative.
During the CAC/HP Working Group discussions, participants discussed setting new standards for single-package air conditioners. Specifically, arguments were made against raising the standard level for single-package systems due to the unavailability of full product lines, which span the entire range of cooling capacities, with efficiencies that are only modestly greater (
The CAC/HP Working Group successfully reached consensus on recommended energy conservation standards, as well as test procedure amendments for CACs and HPs. On January 19, 2016, the CAC/HP Working Group submitted the Term Sheet to ASRAC outlining its recommendations, which ASRAC subsequently adopted.
This section summarizes the standard levels recommended in the Term Sheet submitted by the CAC/HP Working Group for CAC/HP standards and the subsequent procedural steps taken by DOE. Recommendation #8 of the Term Sheet recommends standard levels based on the test procedure at the time of the 2015–2016 Negotiations. (ASRAC Term Sheet, No. 76 at pp. 4–5) These recommended standard levels are presented in Table II–3. Note that the test procedure at the time of the 2015–2016 Negotiations did not include the amendments adopted in the November 2016 test procedure final rule, which are outlined in section III.F. Recommendation #9 tabulates the translated standard levels based on the amended test procedure (ASRAC Term Sheet, No. 76 at p. 5). Details of the other Term Sheet recommendations can be found in the Term Sheet posted in the docket.
After carefully considering the consensus recommendations for amending the energy conservation standards for CACs and HPs submitted by the CAC/HP Working Group and adopted by ASRAC, DOE has determined that these recommendations are in accordance with the statutory requirements of 42 U.S.C. 6295(p)(4) for the issuance of a direct final rule.
More specifically, these recommendations comprise a statement submitted by interested persons who are fairly representative of relevant points of view on this matter. In reaching this determination, DOE took into consideration the fact that the CAC/HP Working Group, in conjunction with ASRAC members who approved the recommendations, consisted of representatives of manufacturers of the covered equipment at issue, States, and efficiency advocates—all of which are groups specifically identified by Congress as relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the Term Sheet was signed and submitted by a broad cross-section of interests, including the manufacturers who produce the subject products, trade associations representing these manufacturers and installation contractors, environmental and energy-efficiency advocacy organizations, and electric utility companies. Although States were not direct signatories to the Term Sheet, the ASRAC Committee approving the CAC/HP Working Group's recommendations included at least two members representing States—one representing the National Association of State Energy Officials (NASEO) and one representing the State of California.
DOE also evaluated whether the recommendation satisfies 42 U.S.C. 6295(o), as applicable. In making this determination, DOE conducted an analysis to evaluate whether the potential energy conservation standards under consideration achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified and result in significant energy conservation. The evaluation is the same comprehensive approach that DOE typically conducts whenever it considers potential energy conservation standards for a given type of product or equipment.
Upon review, the Secretary determined that the Term Sheet comports with the standard-setting criteria set forth under 42 U.S.C. 6295(p)(4)(A). Accordingly, the consensus-recommended efficiency levels were included as the “recommended TSL” for CACs/HPs (see section V.A for description of all of the considered TSLs). The details regarding how the consensus-recommended TSLs comply with the standard-setting criteria are discussed and demonstrated in the relevant sections throughout this document.
In sum, as the relevant criteria under 42 U.S.C. 6295(p)(4) have been satisfied, the Secretary has determined that it is appropriate to adopt the consensus-recommended amended energy conservation standards for CACs and HPs through this direct final rule. Also in accordance with the provisions described in section II.A, DOE is simultaneously publishing a NOPR proposing that the identical standard levels contained in this direct final rule be adopted.
This section covers subjects that are not explicitly discussed in other sections but provide additional necessary context for understanding this direct final rule.
When DOE initiated this rulemaking, DOE had intended to rate and certify split-system central air conditioners based on a blower-coil configuration. This approach was reflected in the August 2015 NODA TSD. However, in the June 2016 test procedure final rule, DOE adopted a different approach based on CAC/HP Working Group recommendations. 81 FR 36992, 37001–03 (June 8, 2016). At its meeting on November 19, 2015, DOE presented two potential regulatory approaches, one based on both coil only and blower-coil configurations (approach 1, similar to the existing regulatory structure) and one based on blower-coil configurations (approach 2), both of which DOE regarded as feasible. During discussion, the CAC/HP Working Group generally supported approach 1 based on concerns with approach 2. Working Group members' primary concern with approach 2 is that the majority of sales are for coil-only installations, so blower-coil only ratings would not be representative of the majority of field installations, which could contribute to consumer confusion. (ASRAC Public Meeting, No. 85 at pp. 6–42)
For the August 2015 NODA, DOE developed cost-efficiency relationships in the engineering analysis for blower coil systems. Then DOE established a correlation between blower coil system efficiency and coil-only efficiency based on ratings from the AHRI database. DOE used this correlation to calculate the cost-efficiency relationship for coil-only systems. Given the revised regulatory approach for this DFR, DOE analyzed coil-only cost-efficiency directly. Section IV.C describes in detail how DOE determined the cost-efficiency relationship for coil-only systems in this DFR.
EPCA prescribes a five-year period between the standard's publication date and the compliance date (42 U.S.C. 6295(m)(4)(A)(i)). The compliance date for the 2011 DFR is January 1, 2015. The statute further provides that no manufacturer shall be required to apply new standards to a product to which other new standards have been required during the prior six-year period (42 U.S.C. 6295(m)(4)(B)). Given these statutory provisions, the earliest date that DOE could require compliance with amended standards would be January 1, 2021 (
For the Recommended TSL, the CAC/HP Working Group recommended a compliance date of January 1, 2023. While this implies a period between the
As described previously, EISA 2007 amended EPCA to allow for the establishment of one or two more-restrictive regional standards in addition to the base national standard for residential central air conditioners and heat pumps. (42 U.S.C. 6295(o)(6)(B)) The regions must include only contiguous States (with the exception of Alaska and Hawaii, which can be included in regions with which they are not contiguous), and each State may be placed in only one region (
Further, EPCA mandates that a regional standard must produce significant energy savings in comparison to a single national standard, and provides that DOE must determine that the additional standards are economically justified and consider the impact of the additional regional standards on consumers, manufacturers, and other market participants, including product distributors, dealers, contractors, and installers. (42 U.S.C. 6295(o)(6)(D)) In the 2011 Direct Final Rule, DOE considered the above-delineated impacts of regional standards in addition to national standards for central air conditioners and heat pumps, and the analyses indicated that regional standards will provide additional positive impacts. See chapter 10 of the 2011 DFR TSD.
Consistent with the consensus agreement
Residential central air conditioners and heat pumps currently on the market primarily utilize R-410A as the refrigerant. R-410A is a mixture of hydrofluorocarbons (HFCs), specifically HFC-32 (R-32) and HFC–125 (R-125) with a 50 percent/50 percent mass ratio. Stakeholders have raised concern that the high global warming potential of HFCs has put pressure on the industry to phase out HFC-containing refrigerants in favor of alternatives with a lower global warming potential (GWP). In response to the November 2014 RFI, ACEEE recommended that DOE consider the potential impact of changes in refrigerants on the standards. (ACEEE, No. 21 at p.3) Lennox suggested that DOE consider equipment redesigns resulting from the transition to alternate refrigerants. (Lennox, No. 10 at p. 4) Southern Co. suggested that DOE also model efficiencies using low-Global Warming Potential (GWP) refrigerants. (Southern Co., No. 11 at p. 2) EIA strongly urged DOE to consider the use of low-GWP refrigerants and alternative refrigerants such as CO2, and indirect evaporative cooling technology. (EIA, No. 12 at p. 1) Rheem suggested that DOE reevaluate the efficacy of design options with respect to the elimination of R410a. (Rheem, No. 17 at p. 3).
In response, DOE is aware that the U.S. Environmental Protection Agency (EPA) has proposed and finalized amendments to its lists of approved refrigerants under its significant new alternatives policy program
As such, DOE did not conduct additional analysis based on alternative
As noted in section II.A of this document, any final rule for amended or new energy conservation standards for consumer products that is published on or after July 1, 2010 must address standby mode and off mode energy use. (42 U.S.C. 6295(gg))
As set forth in 10 CFR 430.2,
(1) Is connected to a main power source; and
(2) Offers one or more of the following user-oriented or protective functions:
(i) To facilitate the activation or deactivation of other functions (including active mode) by remote switch (including remote control), internal sensor, or timer; or
(ii) Continuous functions, including information or status displays (including clocks) or sensor-based functions.
For residential central air conditioners and heat pumps, the standby mode refers to the state when a system is connected to the power supply but the compressor and fans are not running (
As set forth in 10 CFR 430.2,
For the current direct final rule, DOE further researched the four technologies considered as design options in the June 2011 DFR. DOE was able to find thermostatically-controlled and self-regulating crankcase heaters in commercially-available central air conditioners and heat pumps. However, manufacturer specifications do not provide detailed wattage information for DOE to determine if these technologies could lower the off mode energy use for central air conditioners and heat pumps based on the existing off mode standards. Toroidal transformers may have higher efficiencies than conventional laminate transformers, but their savings potential is small compared to the precision of the test procedure as applied to baseline products. Crankcase heater wattage, rather than transformer loss, represents most of the measured off mode power input. DOE also believes that compressor covers can reduce heat loss and, therefore, reduce the off mode energy consumption. However, the existing off mode standards established by the June 2011 Direct Final Rule are already consistent with the energy use achievable using these technologies, and DOE does not have evidence to indicate that further energy savings based on these technologies are achievable.
In addition to the four technologies considered in the June 2011 Direct Final Rule, DOE identified another two technologies that could potentially reduce the off mode energy use for central air conditioners and heat pumps: (1) Hermetic crankcase heaters and (2) integral compressor motor heaters. However, DOE did not find any commercially-available applications of these two technologies in central air conditioners and heat pumps and did not consider these technologies further. More details on these technologies can be found in chapter 3 of the DFR TSD.
As such, DOE concludes that amending the off mode energy conservation standards at this time is not justified. This review satisfies, for off mode energy conservation standards for CAC/HP products, the periodic review of energy conservation standards required by EPCA. (42 U.S.C. 6295(m)(1))
This section provides a brief overview of DOE's requirements with respect to test procedures as well as the history of the most recent central air conditioner and heat pump test procedure rulemakings and an overview of the significant changes adopted.
EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product.
DOE notes that Appendix A established procedures, interpretations, and policies to guide DOE in the consideration and promulgation of new or revised appliance efficiency standards under EPCA. (See section 1 of 10 CFR of 430 subpart C, appendix A) These procedures are a general guide to the steps DOE typically follows in promulgating energy conservation standards. The guidance recognizes that DOE can and will, on occasion, deviate from the typical process. (See 10 CFR part 430, subpart C, appendix A, section 14(a)) In this particular instance, DOE deviated from its typical process by conducting a negotiated rulemaking process, per the request of multiple key stakeholders and as chartered by ASRAC. The CAC/HP Working Group met ten times (nine times in-person and once by teleconference) and successfully reached consensus on recommended amended energy conservation standards, as well as test procedure amendments for CACs and HPs. On January 19, 2016, the CAC/HP Working Group submitted the Term Sheet to ASRAC outlining its recommendations, which ASRAC subsequently adopted. As discussed in section II.B.3, the Term Sheet meets the criteria of a consensus recommendation, and DOE has determined that these recommendations are in accordance with the statutory requirements of 42 U.S.C. 6295(p)(4) for the issuance of a direct final rule. DOE ultimately adopted many of the test procedure provisions and recommended standard levels that the CAC/HP Working Group included in the Term Sheet, which
The most recent test procedure rulemaking included the following key rulemaking documents: The June 2016 test procedure final rule (81 FR 36992), the August 2016 test procedure SNOPR (81 FR 58164), and the November 2016 test procedure final rule (Docket No. EERE–2016–BT–TP–0029). This section does not address specific comments received on these test procedure documents, as those comments are addressed in the three notices listed. Rather, the main purpose of this section is to provide context for understanding the efficiency levels used in analyses for this direct final rule and the translated levels following the walkdown analysis. To reiterate, efficiency levels used throughout the analyses for this DFR are based on the test procedure in effect at the time of the CAC/HP Working Group negotiations, which did not include the changes outlined in this section. Standard levels set in this final rule have a compliance date simultaneous with the date that the test procedure as modified by the November 2016 test procedure final rule must be used to represent product efficiency. The translation of these standard levels based on the November 2016 test procedure final rule—which does include the changes outlined in this section—is presented in section V.C.1.
DOE initiated a test procedure rulemaking for central air conditioners and heat pumps in advance of the June 2011 DFR, publishing a NOPR on June 2, 2010 (June 2010 test procedure NOPR). 75 FR 31224. In this NOPR, DOE proposed adding calculations for the determination of sensible heat ratio, incorporating of a method to evaluate off mode power consumption, and also adding parameters for establishing regional measures of energy efficiency.
DOE published a supplemental notice of proposed rulemaking (SNOPR) regarding the test procedure for central air conditioners and heat pumps on April 1, 2011. 76 FR 18105. In this SNOPR, DOE proposed to amend the testing requirements for off mode power consumption in response to the comments DOE received on the June 2010 test procedure NOPR. DOE also discussed issues related to low-voltage transformers used when testing coil-only units, and the use of a regional standard efficiency metric.
DOE received further comments regarding the off mode testing requirement for central air conditioners and heat pumps after the publication of the April 2011 test procedure SNOPR. In response to these comments, DOE published a second SNOPR on October 24, 2011. 76 FR 65616. In the October 2011 test procedure SNOPR, DOE addressed comments only related to off mode testing for central air conditioners and heat pumps.
DOE received comments on the October 2011 test procedure SNOPR, as well as comments relevant to the test procedure in response to the November 2014 RFI. In response to these comments, DOE published a third SNOPR on November 9, 2015. 80 FR 69278. DOE proposed the following in the November 2015 test procedure SNOPR:
• A new basic model definition as it pertains to central air conditioners and heat pumps and revised rating requirements;
• Revised alternative efficiency determination methods;
• Termination of active waivers and interim waivers;
• Revised procedures to determine off mode power consumption;
• Changes to the test procedure that would improve test repeatability and reduce test burden;
• Clarifications to ambiguous sections of the test procedure intended also to improve test repeatability;
• Inclusion of, amendments to, and withdrawals of test procedure revisions proposed in published test procedure notices in the rulemaking effort leading to this SNOPR; and
• Changes to the test procedure that would improve field representativeness.
Some of these proposals also included incorporation by reference of updated industry standards.
On June 8, 2016, DOE published a final rule with amendments to the test procedure that did not change the measured energy efficiency of central air conditioners and heat pumps when compared to the test procedure previously in effect. 81 FR 36992. Broadly, amendments included revisions to:
• Definitions, testing, rating, and compliance of basic models;
• Requirements for Alternative Efficiency Determination Methods (AEDMs);
• Procedures for specific products that had been granted test procedure waivers (
• Test methods and calculations for off mode power; and
• Specific procedures concerning test repeatability and test burden, including for example, setting fan speeds, determining the maximum speed for variable-speed compressors, charging refrigerant lines, and determining the coefficient of cyclic degradation (C
In the June 2016 test procedure final rule, DOE did not finalize several proposals of the November 2015 SNOPR that were intended to improve field representativeness, opting instead to revise these proposals and obtain further stakeholder input on them. DOE did this by publishing a SNOPR on August 24, 2016, which proposed amendments to the test procedure established by the June 2016 test procedure final rule. 81 FR 58164 DOE indicated that several of these amendments would change the measured energy efficiency of central air conditioners and heat pumps, while others would provide additional improvements for clarity and consistency. Amendments of the August 2016 SNOPR that would change measured efficiency were proposed for a new appendix M1 that would be required for representations coincident with the compliance date of the new efficiency standards These included proposals to:
• Increase minimum external static pressure requirements for most products, but limit the increase for certain products;
• For coil-only systems, introduce a new default fan power based on the new minimum external static pressure, and a unique, lower default fan power for manufactured home coil-only systems;
• Revise the heating load line slope factor and the heating load line zero-load temperature to better reflect field heating loads; and
• Revise certain aspects of the calculation procedures for calculating HSPF, including modified and clarified requirements regarding compressor speeds used for testing variable-speed heat pumps, and allowing use of a 5 °F test as an option for variable-speed heat pumps.
Other proposed changes to improve clarity and consistency, which DOE proposed as amendments to the current appendix M, as well as in sections of 10 CFR part 429, were to take effect 30 days after publication of the final rule. These included:
• Additional changes to definitions and compliance requirements;
• Extending the requirements for no-match testing to other kinds of outdoor units that are predominantly installed as
• Revision to the off-mode test procedure for systems with self-regulating crankcase heaters.
• A revised calculation for variable-speed heat pumps for calculating maximum speed performance below 17 °F;
• A revised method for calculating EER and COP for all variable-speed units, when operating at an intermediate compressor speed;
• Modifications to the outdoor air enthalpy method;
• New restrictions on refrigerant pressure measurement system internal volume;
• A new limit on indoor coil surface area; and
• Clarifying amendments addressing break-in periods, multi-split system part load requirements, and cased coil installation requirements.
On November 30, 2016 DOE issued a test procedure final rule that adopted most of the amendments proposed in the August 2016 SNOPR, many of these with revisions addressing stakeholder comments. Changes in final implementation of the amendments as compared to the proposals of the August 2016 SNOPR included:
• No adoption of restrictions on indoor coil surface area;
• Delay in implementation of certain amendments, moving them to appendix M1, including the change to the off-mode test procedure and some of the provisions for testing of variable-speed heat pumps;
• Revisions to specific requirements for determining whether an outdoor unit must be tested using the no-match test procedure;
• For all secondary test methods (not just for the outdoor air enthalpy method as proposed), requiring a match to confirm primary capacity measurements only for certain tests, rather than for all tests;
• Modifications reducing the restrictions on refrigerant pressure system internal volumes;
• A change in the required external static pressure used for testing for one kind of product; and
• Extending optional use of a 5 °F test to single- and two-speed heat pumps in addition to variable-speed.
Note that, as discussed in section I, the analyses conducted to support this direct final rule were based on the test procedure at the time of the 2015–2016 ASRAC negotiations, per the request of the CAC/HP Working Group. Consequently, the efficiency ratings and levels referenced throughout this document are not impacted by the test procedure amendments described above for the November 2016 test procedure final rule. However, central air conditioners and heat pumps will be required to be certified to the efficiency levels selected in this direct final rule and based on the test procedure established by the November 2016 test procedure final rule. The selected efficiency levels—presented throughout this document in terms of the test procedure at the time of the 2015–2016 ASRAC negotiations—are translated to levels in terms of the November 2016 test procedure final rule following the walk down analysis in section V.C.1.
In each energy conservation standards rulemaking, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. (See chapter 3 of the direct final rule Technical Support Document (“TSD”) for a discussion of the list of technology options that DOE identified.) DOE then determines which of those efficiency-improving options are technologically feasible. DOE considers technologies incorporated in commercially-available products or in working prototypes to be technologically feasible. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(i).
Once DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; and (3) adverse impacts on health or safety. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(ii)–(iv). Additionally, it is DOE policy not to include in its analysis any proprietary technology that is a unique pathway to achieving a certain efficiency level. Section IV.B of this direct final rule discusses the results of the screening analysis for residential central air conditioners and heat pumps, particularly the designs DOE considered, those it screened out, and those that are the basis for the trial standard levels (TSLs) in this rulemaking. For further details on the screening analysis for this rulemaking, see chapter 4 of this direct final rule's TSD.
DOE notes that these screening criteria do not directly address the proprietary status of design options. As noted previously, DOE only considers efficiency levels achieved with the use of proprietary designs in the engineering analysis if they are not part of a unique path to achieve that efficiency level (
When DOE proposes to adopt an amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such a product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (“max-tech”) improvements in energy efficiency for central air conditioners and heat pumps, using the design parameters for the most-efficient products available on the market or in working prototypes (see chapter 5 of the direct final rule TSD). The max-tech levels considered for the analysis represent commercially-available products. For most of the product classes, these max-tech products are listed in the AHRI Directory.
The max-tech levels that DOE determined for this rulemaking are presented in Table III–1. Note that these max-tech levels are in terms of the efficiency metrics measured consistent with the test procedure at the time of the 2015–2016 ASRAC negotiations.
For each TSL, DOE projected energy savings from the application of the TSL to the central air conditioners and heat pumps that are the subject of this rulemaking purchased in the 30-year period that begins in the year of expected compliance with amended standards (2021–2050 or 2023–2052).
DOE used its national impact analysis (NIA) spreadsheet model to estimate national energy savings (NES) from potential amended standards for central air conditioners and heat pumps. The NIA spreadsheet model (described in section IV.H of this direct final rule and chapter 10 of the TSD) calculates energy savings in terms of site energy, which is the energy directly consumed by products at the locations where they are used. For electricity, DOE calculates national energy savings on an annual basis in terms of primary (source) energy savings, which is the savings in the energy that is used to generate and transmit electricity to the site. To calculate primary energy savings from site electricity savings, DOE derives annual conversion factors from data provided in the Energy Information Administration's (EIA) most recent
DOE also calculates NES in terms of full-fuel-cycle (FFC) energy savings. As discussed in DOE's statement of policy, the FCC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To adopt any new or amended standards for a covered product, DOE must determine that such action would result in “significant” energy savings. (42 U.S.C. 6295(o)(3)(B)) Although the term “significant” is not defined in the Act, the U.S. Court of Appeals for the District of Columbia Circuit, in
As discussed in section II.B., EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(I)–(VII)) The following sections discuss how DOE has addressed each of those seven factors in this rulemaking.
In quantifying the impacts of a potential amended standard on manufacturers, DOE conducts a manufacturer impact analysis (MIA), as discussed in section IV.J, using an annual cash-flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include: (1) Industry net present value (INPV), which values the industry on the basis of expected future cash flows; (2) cash flows by year; (3) changes in revenue
For individual consumers, measures of economic impact include the changes in LCC and payback period (PBP) associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the consumer costs and benefits expected to result from particular standards. DOE also evaluates the LCC impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a national standard.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducts this comparison in its LCC and PBP analyses.
The LCC is the sum of the purchase price of a product (including its installation) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and consumer discount rates. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value. For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with amended standards.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with amended standards. The LCC savings for the considered efficiency levels are calculated relative to a case that reflects projected market trends in the absence of amended standards.
DOE's LCC and PBP analyses are discussed in further detail in section IV.F.
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III)) As discussed in section IV.H, DOE uses the NIA spreadsheet to project national energy savings.
In establishing product classes and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) Based on data available to DOE, the standards considered in this document would not reduce the utility or performance of the products under consideration in this rulemaking.
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a proposed standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(ii)) DOE will transmit a copy of this direct final rule to the Attorney General with a request that the Department of Justice (DOJ) provide its determination on this issue. DOE will consider DOJ's comments on the rule in determining whether to proceed with the direct final rule. DOE will also publish and respond to the DOJ's comments in the
DOE also considers the need for national energy conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) The energy savings from the amended standards are likely to provide improvements to the security and reliability of the nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the Nation's needed power generation capacity, as discussed in section IV.M.
The amended standards also are likely to result in environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases (GHGs) associated with energy production and use. DOE conducts an emissions analysis to estimate how the amended standards may affect these emissions, as discussed in section IV.K the emissions impacts are reported in section V.5 of this document. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L.
EPCA allows the Secretary of Energy, in determining whether an energy conservation standard is economically justified, to consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) To the extent interested parties submit any relevant information regarding economic justification that does not fit into the other categories described above, DOE could consider such information under “other factors.”
In developing the direct final rule, DOE has also considered the submission of the jointly-submitted Term Sheet from the CAC/HP Working Group, as approved by ASRAC. In DOE's view, the Term Sheet sets forth a statement by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered equipment, States, and efficiency advocates) and contains recommendations with respect to energy conservation standards that are in accordance with 42 U.S.C. 6295(o), as required by EPCA's direct
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii), EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of a product that meets the standard is less than three times the value of the first full year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effects that potential energy conservation standards would have on the payback period for consumers. These analyses include, but are not limited to, the 3-year payback period contemplated under the rebuttable-presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section IV.F.3 of this document.
This section addresses the analyses DOE has performed for this rulemaking with regard to residential central air conditioners and heat pumps. Each subsection will address a component of DOE's analyses.
DOE used several analytical tools to estimate the impact of the amended standards. The first tool is a spreadsheet that calculates the LCC and PBP of amended energy conservation standards. The national impacts analysis (NIA) requires a second spreadsheet set that provides shipments forecasts and calculates national energy savings and net present value resulting from amended energy conservation standards. DOE used the third spreadsheet tool, the Government Regulatory Impact Model (GRIM), to assess manufacturer impacts of amended standards. These three spreadsheet tools are available on the DOE Web site.
In conducting a market and technology assessment, DOE develops information that provides an overall picture of the market for covered products. This overall picture includes the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used. DOE uses both quantitative and qualitative assessments, based primarily on publicly-available information. The market and technology assessment for this residential central air conditioning and heat pump rulemaking covers issues that include: (1) A determination of the scope of the rulemaking and product classes; (2) manufacturers and industry structure; (3) quantities and types of products sold and offered for sale; (4) retail market trends; (5) regulatory and non-regulatory programs; and (6) technologies or design options that could improve the energy efficiency of the product(s) under examination. The key findings of DOE's market assessment are summarized below. For additional detail, see chapter 3 of the DFR TSD.
A residential central air conditioner or heat pump is an important component of a home's central heating and cooling system, providing cooled and/or heated air to the conditioned space, often through ductwork. Split-system air conditioners are comprised of an indoor unit, which contains the indoor coil and may contain the indoor fan (blower); and an outdoor unit, which contains the compressor, outdoor coil, and outdoor fan. The indoor unit either includes its own blower (“blower-coil unit”) or uses the furnace fan (“coil-only unit”) to circulate air over the indoor coil, transferring heat between the circulating air and the refrigerant. The cooled (or heated) air is then distributed via ductwork to the conditioned space. The compressor raises the refrigerant pressure, which raises its saturation temperature so that it is warm enough to transfer heat either to the ambient air (for cooling mode) or the indoor air (for heat-pump mode). Single-package systems contain all of these components in a single-package. A residential central heat pump utilizes the same components as a central air conditioner, but also includes a reversing valve and other components that allow it to reverse the functions of the indoor and outdoor coils, thus operating in heat pump mode.
EPCA defines a central air conditioner as a product, other than a packaged terminal air conditioner,
EPCA defines a “heat pump” as a product, other than a packaged terminal heat pump,
In this DFR, DOE is amending energy conservation standards for the products covered by DOE's current standards for central air conditioners and heat pumps, specified at 10 CFR 430.32(c)(2), which DOE adopted in the June 2011 DFR.
DOE's current standards for central air conditioners are expressed as the minimum seasonal energy efficiency ratio (SEER), the minimum heating seasonal performance factor (HSPF) for heat pumps, and the maximum off-mode power (P
When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used, by capacity, or by another performance-related feature that justifies a different standard. In making a determination whether a performance-related feature justifies a different standard, DOE must consider factors such as the utility to the consumer of the feature. (42 U.S.C. 6295(q)). DOE has divided residential central air conditioners and heat pumps into seven product classes:
In the November 2014 RFI, DOE requested feedback on whether it should consider any changes the existing product classes for central air conditioners and heat pumps. 79 FR 65603, 65605 (Nov. 5, 2014). In response, AHRI and Southern Co. commented that they supported retaining the listed product classes used in the previous rulemaking (
For this rulemaking, DOE has retained the product classes associated with the 2011 DFR that were listed in the November 2014 RFI. In response to NEEA & NPCC, DOE sees no need for the suggested change because variable capacity products have no difficulty meeting the current standards—or the standards set in this notice. In response to Rheem's comment, DOE has not found evidence that the capability for heat recovery for water heating reduces a product's ability to meet a given efficiency level, and Rheem's comment did not indicate that this is the case, nor did it explain why such product might have a different efficiency level when tested according to the DOE test procedure for central air conditioners and heat pumps (which does not include transfer of heat to water). Hence, DOE believes that the threshold for setting separate product classes for these products under EPCA is not met. 42 U.S.C. 4295(q)(B)
As part of the market and technology assessment performed for the November 2014 RFI and for this DFR, DOE developed a comprehensive list of technologies to improve the energy efficiency of central air conditioners and heat pumps. Chapter 3 of the DFR TSD contains a detailed description of each technology that DOE identified.
DOE received comments on the technology options proposed in the November 2014 RFI. ACEEE requested that DOE consider the addition of multi-stage systems to the list of design options. (ACEEE, No. 21 at p.3) Southern Co. also commented that it supported design options associated with variable speed operation because of humidity control considerations. (Southern Co., No. 19 at p. 2) NEEA and NPCC, as well as PG&E, suggested that DOE add a design options for the reduction of off and standby-mode energy use and for control systems. (NEEA & NPCC, No. 19 at p. 10; PG&E, No. 15 at p. 2) Rheem proposed that DOE add combined appliance technology to the list of design options. (Rheem, No. 17 at p. 3) On the other hand, AHRI commented that DOE should consider only design options that DOE included for central air conditioners in the June 2011 DFR. (AHRI, No. 13 at p. 3). ACEEE also suggested that DOE conduct a systematic evaluation of the energy savings potential of products used in the Southeast and Southwest, particularly the benefits of enhanced latent heat work to condition the air. (ACEEE, No. 21 at p. 3)
In response to the comments made by ACEEE and Southern Co., DOE has included both two-stage and variable speed compressors as design options. Regarding the addition of design options for reducing off and standby-mode energy use, DOE conducted a market and technology assessment (as described in section IV.A.3) and has found that the design options used in the June 2011 DFR are the same ones that are viable today. Additionally, DOE refers to discussions during the CAC/HP CAC/HP Working Group Negotiations, in which no objections were raised by stakeholders to the proposed design option list. (ASRAC Public Meeting, No. 88 at p. 188) Further discussion regarding the viability of the technology options is provided in chapter 4 of the TSD. Regarding the NEEA and NPPC comment regarding controls, there are many ways that controls might be employed to improve rated efficiency, but NEEA and NPPC's comment does not specify, nor could DOE infer from the comment, what type of control design option should be considered. DOE notes that it considered a comprehensive scope of technologies in its market and tech assessment, and is confident that its engineering analysis accounts for these controls. In response to Rheem, EPCA defines “central air conditioner” as a product that is air-cooled. (42 U.S.C. 6291(21)(B)) In contrast, combination appliances reject heat to water. Hence, water-heating operation of such appliances is not covered by DOE's regulations for central air conditioners and heat pumps. In response to ACEEE's comment about creating a design option for higher or lower latent capacity, any differential benefit for systems designed for a different latent capacity or different return air humidity would also not be captured in DOE's current or amended test procedures, and hence was not considered as part of the analysis to establish amended efficiency levels. Finally, in response to all of the comments suggesting specific design options, DOE conducted an efficiency-level-based engineering analysis based on existing product designs. While DOE has assembled a specific list of design options that reflect known design differences among these existing products, there are other design differences that affect the rated efficiencies used in the analysis that
These comments, as well as others, were addressed during the CAC/HP Working Group Negotiations. Based on the RFI comments and the 2015–2016 CAC/HP Working Group discussions, DOE constructed a list of technology options for consideration in the analysis for this direct final rule. Table IV–1 compiles this list.
DOE expanded the “higher efficiency compressor” technology option to indicate that, in addition to consideration of compressors with higher energy efficiency ratio (EER, the compressor capacity divided by its power input at the compressor rating condition expressed in Btu/h-W), manufacturers can also consider use of two-capacity or variable-speed compressors. DOE limited the specific technology options for heat exchangers to only larger-size heat exchangers because most heat exchanger technology (
After identifying potential technology options for improving the efficiency of residential central air conditioners and heat pumps, DOE performed the screening analysis (see section IV.B of this direct final rule or chapter 4 of the DFR TSD) on these technologies to determine which could be considered further in the analysis and which should be eliminated. DOE uses the following four screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
1.
2.
3.
4.
If DOE determines that a technology, or a combination of technologies, fails to meet one or more of the above four criteria, it will be excluded from further consideration in the engineering analysis. DOE found that all of the identified technologies listed in Table IV–1 met all four screening criteria and consequently, are suitable for further examination in DOE's analysis. For off-mode technologies, DOE determined that there is no commercial application for the hermetic crankcase heater and the integral compressor motor heater in central air conditioners and heat pumps. Therefore, DOE screened out these two technologies. For additional details, please see chapter 4 of the direct final rule TSD.
The engineering analysis establishes a relationship between energy efficiency and manufacturing production cost (MPC) for units that will be impacted by amended energy conservation standards. This relationship serves as the basis of cost-benefit analyses for individual consumers, manufacturers, and the Nation.
DOE began the engineering analysis by identifying energy efficiency levels to analyze. The current energy conservation standard served as the baseline efficiency level from which DOE analyzed possible energy efficiency improvements. In addition to the baseline, DOE identified higher efficiency levels that correspond to higher-efficiency products available on the market, including the most efficient, or max-tech, products. Using a variety of data sources, DOE estimated market-weighted MPCs at the baseline efficiency level and the market-weighted incremental MPC increases required to achieve each higher efficiency level, for each product class. Following the quantification of MPCs, DOE estimated the additional costs to residential consumers from markups by the manufacturers, distributors, and contractors. This information was then used in the downstream analyses to examine the costs and benefits associated with increased equipment efficiency.
For the August 2015 NODA, DOE used a top-down analysis approach in which an exponential curve-fit was applied to a database of MPC vs. efficiency values to generate a cost-efficiency relationship for each representative capacity in each product class. 80 FR 52206 (Aug. 28, 2015). DOE did not receive comments on the NODA specifically regarding the NODA engineering analysis methodologies and results. During the CAC/HP Working Group meetings, however, DOE's engineering analysis was discussed in detail. ASRAC Working Group members expressed concern that the approach used in the August 2015 NODA did not reflect critical aspects of the relationship between MPC and efficiency. Ingersoll Rand and Southern Company requested to see efficiency levels differentiated by single speed and two-speed products. (ASRAC Public Meeting, No. 40 at p. 232, 248)
In response, DOE agrees that switching from a single speed to two-speed design could result in a considerable increase in manufacturer production cost. DOE also understands that not all manufacturers choose to make this switch at the same point in the efficiency range. For example, one manufacturer may be able to achieve 15 SEER with a single speed design and need to switch to a two-stage design to achieve above 15 SEER, while other manufacturers may only be able to achieve 14.5 SEER with a single speed design, which would require them to switch to a two-stage design. DOE's NODA cost-efficiency relationships reflect the industry and therefore, represent multiple manufacturers. Step functions in single manufacturer's cost-efficiency relationship occurring at different points in the range of efficiency resulted in the smoother, continuous industry cost-efficiency curves that DOE used in the NODA. For these reasons, DOE does not believe its NODA cost-efficiency relationships are inappropriate, but does recognize that they may not perfectly represent the increase in cost associated with switching from single speed to two-stage designs in the range of efficiency in which manufacturers are making these design changes. In response to the CAC/HP working group discussions, DOE revised its engineering analysis to better reflect the impacts on manufacturer production cost of switching from a single speed to a two-stage design, which is reflected in this direct final rule. DOE's revised direct final rule engineering analysis is described in more detail in the subsequent paragraphs of this section.
Today's direct final rule engineering analysis is different from the August 2015 NODA analysis in five main ways. First, DOE analyzed single speed and two-stage split systems separately (
Third, DOE based the manufacturer-specific cost-efficiency relationships used in this direct final rule analysis on the least-cost units offered at each efficiency level, as opposed to all units offered at each efficiency level. DOE believes this approach results in cost-efficiency relationships that better reflect the design decisions manufacturers will make in response to new standards. The fourth key difference was that DOE analyzed coil-only and blower-coil systems separately for this direct final rule. This approach is aligned with the certification requirements finalized in the June 2016 CAC TP final rule, which require compliance for all indoor/outdoor unit combinations and also require certification of at least one coil-only combination for all single speed and two-stage outdoor units. 81 FR 36992 (June 8, 2016).
The final critical difference was that this engineering analysis was conducted based on efficiencies as measured according to the test procedure in place at the time of the CAC/HP Working Group meetings, the October 2007 CAC TP final rule. 72 FR 59906 (Oct. 22, 2007). Following downstream analyses, DOE translated the chosen efficiency levels to minimum standards based on measurement according to the November 2016 test procedure final rule, which is summarized in section III.F. DOE notes that the August 2015 NODA
For a more detailed description of the methodology used to determine the efficiency levels and manufacturer production costs as well as the key similarities and differences from the August 2015 NODA, please refer to Chapter 5 of the DFR TSD.
For the purpose of the engineering analysis, DOE further divided product classes into many segments to capture important differences in the cost-efficiency relationships. As a primary example, DOE recognizes that the cost-efficiency relationship between central air conditioners and heat pumps varies by capacity. For this direct final rule analysis, DOE performed separate analyses for two-ton, three-ton and five-ton split system air conditioners and heat pumps in order to characterize the efficiency levels at different representative capacities. For single-package air conditioner and heat pump product classes, DOE developed a cost-efficiency relationship based on three-ton capacity units. For space-constrained and small-duct high-velocity (SDHV) air conditioners, DOE used systems in the two to two-and-a-half-ton capacity range.
As described in the introduction to this section, DOE further segmented each split-system air conditioner representative capacity into blower coil and coil-only systems. All split-system product classes were further divided into single speed and two-stage outdoor units.
Within each single-package representative capacity, DOE segmented products according to two heat exchanger types—all-aluminum with microchannel or tube-and-fin geometries or copper-tube aluminum fin heat exchangers. This followed the approach DOE had previously taken in the August 2015 NODA. 80 FR 52206. DOE has found that the reduced cost of aluminum per pound results in significantly different cost-efficiency relationships between products employing the two different heat exchanger types.
This section describes the RFI comments received with regard to and the ultimate methodology adopted for
In response to the November 2014 RFI, ACEEE suggested that DOE consider technologically feasible and economically justifiable efficiency levels based on capacity. (ACEEE, No. 21 at p. 3) DOE has considered variation of efficiency level with capacity in its analysis for split systems, and has adopted some variation of standard levels with capacity, as recommended by the CAC/HP Working Group.
AHRI suggested DOE consider the impacts of the final rule for residential furnace fans on the baseline and max-tech levels for each product class. (AHRI, No. 13 at pp. 3–4) In response, DOE notes that it has developed default fan power levels for testing of coil-only systems, which reflect the improved efficiency of the furnaces likely to be used with the air conditioners considered in the analysis—the November 2016 test procedure final rule discusses this topic in greater detail. (November 2016 Test Procedure Final Rule, pp. 104, 105). These default fan power levels account for higher efficiency fan motors and increased external static pressure, and thus are higher than the previous default fan power used for testing of coil-only systems.
NEEA & NPCC agreed with the proposed baseline and max-tech levels. They did, however, urge DOE to consider “high-tech” design options for small duct high velocity (SDHV) systems. (NEEA & NPCC, No. 19 at p. 3) In response, DOE did evaluate “high-tech” design options for SDHV systems, but did not find increased efficiency levels for such systems to be cost-effective, based on review of efficiency levels attained by existing products.
Rheem commented that max-tech efficiency levels proposed for all product classes in the November 2014 RFI could not be economically justified within any climate zone in the US. Rheem also questioned the max-tech efficiency differential between split system CAC/HPs, SDHVs, and space constrained AC/HPs. (Rheem, No. 17 at p. 4) In response, DOE notes that its economic analysis is consistent with Rheem's assertion that max-tech efficiency levels are not economically justified, and has not set standard levels at max-tech efficiency. DOE notes that the max-tech efficiency differentials as reported in the RFI have been adjusted in this DFR analysis based on more a thorough review of available products.
PG&E recommended that DOE account for larger evaporator coil areas when evaluating max tech levels for small duct high velocity systems and space-constrained systems due to the special constraints and limited heat transfer associated with lower volumetric flow rates. (PG&E, No. 15 at p. 2). In response, DOE notes that its efficiency-level-based engineering analysis was based on existing product designs. DOE found that for the higher-efficiency products of these classes, evaporator coil areas were larger. However, as discussed, this analysis did not show that increasing the efficiency level of these products was cost-effective.
First, DOE characterized the baseline efficiency levels. Generally, the baseline unit in each product class: (1) Represents the basic characteristics of equipment in that class; (2) just meets the current Federal energy conservation standards, if any; and (3) provides basic consumer utility. For the covered product classes analyzed in this direct final rule, the baseline efficiency levels are represented by the standards that were set in the June 2011 Direct Final Rule and codified at 10 CFR 430.32(c). 76 FR 37408 (June 27, 2011). The baseline efficiency levels are reference points for each product class, against which changes in product cost and energy use resulting from potential amended energy conservation standards are compared.
Next, DOE established intermediate efficiency levels at 0.5 SEER increments increasing from each baseline efficiency level. DOE did not analyze intermediate efficiency levels for which there are few products available on the market. DOE also determined the maximum improvement in energy efficiency that is technologically feasible (max-tech) for central air conditioners and heat pumps, as required under 42 U.S.C. 6295(p)(1). DOE selected max-tech efficiency levels for most of the product classes equal to the highest efficiency levels reported in the AHRI Directory of Certified Product Performance. For space-constrained air conditioners, DOE selected the max-tech efficiency level based on the efficiency reported in product literature. The resulting efficiency levels for all product classes considered are tabulated with MPCs in section IV.C.4IV.C.4.
As discussed in section II.A, DOE also uses EER to characterize CAC/HP efficiency. During the CAC/HP Working Group meetings, some parties suggested dropping EER as a metric all together. These parties argued that the proposed SEER value would be high enough to ensure that the EER level would be at or above the current standard. They also stated that EER requirements are an additional burden and could discourage two-stage and variable speed product designs for which SEER and EER values have a higher divergence than single speed designs. Other parties were firm about keeping EER because it would mitigate peak load issues and improve the health of the utility grid. They added that EER can be a better descriptor than SEER for energy use in certain regions, such as the Southwest. (ASRAC Public Meeting, No. 81 at pp. 10–73; ASRAC Public Meeting, No. 82 at pp. 10–93; ASRAC Public Meeting, No. 83 at pp. 11, 22, 36, 39–42)
Eventually, the CAC/HP Working Group decided to retain the current minimum EER requirements for split-system air conditioners and single-package air conditioners in the Southwest region with a SEER less than 15.2 and a relaxed EER requirement for split-system air conditioners and single-package air conditioners in the Southwest region with a SEER greater than 15.2. (ASRAC Term Sheet, No. 76 at p. 4, Recommendation #8) The CAC/HP Working Group's decision was based on negotiation rather than any analysis to quantify the impacts of increasing EER along with SEER and/or HSPF or the lower EER level for systems with SEER of 16 or higher. Maintaining an EER requirement in the Southwest region aligns with the position of EER advocates, while not increasing the EER requirement and relaxing it for higher SEER products addresses the concerns of the parties that recommended eliminating the EER requirement. DOE did not explicitly analyze the impact of increasing EER on total installed cost, energy consumption, or life-cycle cost for this direct final rule. Consequently, DOE did not define EER-based efficiency levels.
To set the heating mode efficiency levels for residential heat pumps, DOE developed correlations for split-system and single-package heat pumps relating HSPF to SEER based on ratings in the AHRI Directory of Certified Product Performance. Using the correlations, DOE assigned an HSPF value to each SEER-based efficiency level. For split-system products, DOE based the correlations on pairings of outdoor units with indoor units designated in the AHRI Directory as the highest sales volume indoor units. DOE also conducted the split-system analysis for units with two-ton, three-ton and five-ton capacities. The analysis showed that the relationship between SEER and HSPF does not differ significantly across these capacities. Hence, DOE did not differentiate HSPF standards by capacity in this direct final rule. For single-package units, DOE used all the rated two-ton units to develop the
During the 2015 CAC/HP Negotiations, the CAC/HP Working Group recommended HSPF standards for both split-system and single package heat pumps—8.8 and 8.0 HSPF, respectively. (ASRAC Term Sheet, Docket No. EERE–2014–BT–STD–0048, No. 0076). For split-system heat pumps, the recommendation was higher than the 8.5 HSPF value determined at 15 SEER by DOE's HSPF/SEER correlation. DOE reviewed available data from the BOMs and specification sheets used for its analysis to assess whether this HSPF differential would impact costs. In this review, DOE looked beyond the least-cost units used for its primary analysis, evaluating costs for 15 SEER split-system heat pumps with HSPF between 8.3 and 9.0. The MPCs calculated for 15 SEER systems within this HSPF range show that the cost differential for the HSPF increase from 8.5 to 8.8 is negligible. Hence, DOE did not in its analysis make an adjustment in its MPCs to reflect this HSPF differential. For single-package heat pumps, the selected standard level, 8.0 HSPF, was only slightly higher than the correlated value, 7.9 HSPF. As for split systems, DOE did not make an adjustment in its MPC to reflect this differential. Section IV.E provides details on how DOE used HSPF levels to analyze the energy use of heat pumps.
For this DFR analysis, DOE determined a marketshare-weighted MPC at each efficiency level for each representative capacity of each product class and, as described previously in section IV.C.1, separately for split-system air conditioner blower coil and coil-only units as well as single speed and two-stage systems.
To calculate MPCs, DOE first compiled a database of split-system air conditioner and heat pump indoor and outdoor units, single-package air-conditioners and heat pumps, space-constrained air conditioners, and SDHV air conditioners from a variety of manufacturers. For each product class and representative capacity, the database included indoor, outdoor and packaged units from multiple manufacturers that represented a majority of the market and that spanned the range of available efficiencies, to the best extent possible. For split systems, DOE analyzed all possible matches of indoor and outdoor units in its database that are listed in the AHRI Directory of Certified Performance. As such, DOE believes the database of units and systems to be representative of the market.
DOE then performed either a physical teardown or a catalog teardown on each unit in the database. A physical teardown involves reverse-engineering the unit in a laboratory. A catalog teardown involves analyzing manufacturer specification sheets and supplementary component data relative to data collected through a similar physical teardown or other catalog teardown to determine the major physical differences between a product that has been physically disassembled and another similar product for which catalog data are available. The objective of both approaches is to build a “bottom-up” manufacturing cost assessment based on a detailed bill of materials.
From the teardowns, DOE generated a bill of materials (BOM) for each unit in the database. The BOM lists all required components and manufacturing steps to describe the product manufacturing in detail. DOE then used the BOM data as inputs to develop a cost model that calculates the MPC for each unit based on its detailed BOM. For split-system air conditioners and heat pumps, DOE generated split-system MPCs by adding the MPC of indoor and outdoor units for matches listed in the AHRI Directory.
DOE then used the cost model outputs to generate marketshare-weighted cost-efficiency relationships for each representative capacity of each product class. The resulting cost-efficiency relationships were used in the downstream analyses and are presented in section IV.C.4.
For product classes other than split-systems—single-package, space-constrained, and small-duct high-velocity—the methodology for calculating MPCs at each efficiency level matched the methodology used in the August 2015 NODA analysis with updated material prices and based on efficiency levels defined by the DOE test procedure at the time of the CAC/HP Working Group Meetings. The results are also tabulated in section IV.C.4.
DOE's market-weighted cost-efficiency relationships for central air conditioners and heat pumps are shown in Table IV.3 through Table IV.15. DOE used these results as inputs for the LCC and payback period analyses.
DOE calculated the manufacturer selling price (MSP) for central air conditioners and heat pumps by multiplying the MPC at each efficiency level (determined from the cost model) by the manufacturer markup (to account for non-production costs and profit) and adding the product shipping costs at the given efficiency level. The MSP is the price at which the manufacturer can recover all production and non-production costs and earn a profit.
DOE estimated the manufacturer markup based on publicly available financial information for manufacturers of residential central air conditioners and heat pumps as well as comments from manufacturer interviews. DOE assumed the average manufacturer markup—which includes SG&A expenses, R&D expenses, interest expenses, and profit—to be 1.34 for split-system air conditioners, 1.35 for split-system heat pumps, and 1.32 for single-package air conditioners and single-package heat pumps. Further details on manufacturer markups can be found in section IV.J and in chapter 12 of the direct final rule TSD.
Manufacturers of HVAC products typically pay for the freight (shipping) to the first step in the distribution chain. Freight is not a manufacturing cost, but because it is a substantial cost incurred by the manufacturer, DOE accounts for shipping costs separately from other non-production costs that comprise the manufacturer markup. DOE calculated shipping costs at each efficiency level based on a typical 53-foot straight-frame trailer with a storage volume of roughly 4,000 cubic feet. See chapter 5 of the direct final rule TSD for more details about the methodology DOE used to determine the shipping costs.
DOE uses distribution channel markups and sales taxes (where appropriate) to convert the manufacturer selling cost estimates from the engineering analysis to consumer prices, which are then used in the LCC, PBP, and the manufacturer impact analyses. The markups are multipliers that are applied to the purchase cost at each stage in the distribution channel.
DOE characterized two distribution channels to describe how central air conditioners and heat pumps pass from manufacturers to residential consumers: replacement market and new construction. The replacement market channel is characterized as follows:
Manufacturer → Wholesaler → Mechanical contractor → Consumer
The new construction distribution channel is characterized as follows:
Manufacturer → Wholesaler → Mechanical contractor → General contractor → Consumer
To develop markups for the parties involved in the distribution of the product, DOE utilized several sources, including: (1) The Heating, Air-Conditioning & Refrigeration Distributors International (HARDI) 2013 Profit Report
For wholesalers and contractors, DOE developed baseline and incremental markups based on the product markups at each step in the distribution chain. The baseline markup relates the change in the manufacturer selling price of baseline models to the change in the consumer purchase price. The incremental markup relates the change in the manufacturer selling price of higher-efficiency models (the incremental cost increase) to the change in the consumer purchase price.
In addition to the markups, DOE derived state and local taxes from data provided by the Sales Tax Clearinghouse.
Chapter 6 of the direct final rule TSD provides further detail on the estimation of markups.
The purpose of the energy use analysis is to assess the energy requirements of residential central air conditioners and heat pumps at different efficiencies in representative U.S. single-family homes and multi-family residences, and to assess the energy savings potential of increased product efficiency.
DOE estimated the annual energy consumption of central air conditioners and heat pumps at specified energy efficiency levels across a range of climate zones, building characteristics, and cooling applications. DOE's analysis estimated the energy use of central air conditioners and heat pumps in the field (
In its analysis of the recommended TSL, DOE applied a higher HSPF value to split-system heat pumps than indicated by the SEER and HSPF correlations discussed in section IV.C.2. The higher value, 8.8 HSPF, was recommended by the CAC/HP Working Group. At Efficiency Level 2, the recommended TSL for split-system heat pumps, the HSPF should be 8.5 rather than the recommended value of 8.8. Since increasing the HSPF increases the heating efficiency of the equipment, additional energy savings are realized.
As also noted in section IV.C.2, DOE did not analyze EER-based efficiency levels in the engineering analysis. DOE also did not analyze the impact of EER on energy consumption or on life-cycle cost.
In the November 2014 RFI, DOE requested comment on whether it should analyze the use of central air conditioners and heat pumps in commercial buildings in the residential central air conditioning rulemaking. AHRI and Southern Co. commented that they did not recommend considering commercially-used equipment because central air conditioners are not utilized significantly in commercial buildings. (AHRI, No. 13 at p. 4; Southern Co., No. 11 at p. 2) Rheem stated that commercial applications of residential equipment are less than 5 percent of the market, which would not be a significant enough percentage of the market to warrant special consideration of the application in the analysis for this rulemaking. (Rheem, No. 17 at p. 6)
As presented to the CAC/HP Working Group, DOE did not consider commercial-sector applications of residential central air conditioners and heat pumps because these represent a very small share of the overall market.
To determine the field energy use of residential central air conditioners and heat pumps used in homes, DOE used a subset of 7,283 households using a central air conditioner or heat pump from the Energy Information Administration's (EIA) 2009 Residential Energy Consumption Survey (RECS 2009).
RECS does not provide information on the type of central air conditioner or heat pump, its capacity, or the number of units installed (in particularly hot or humid locations more than one central air conditioner/heat pump unit may be installed in a home). DOE assigned the number and capacity of central air conditioner/heat pump unit(s) based on the assumption of one ton of cooling capacity installed per 500 square feet of cooled floor space. For homes with more than one story and an estimated cooling capacity of between 3 and 5 tons, DOE assigned a 2-ton and a 3-ton unit, under the assumption that home owners installed a second unit to provide separate thermostatic control for each floor. For households with estimated cooling capacity between 5 and 8 tons, DOE assigned a 3-ton and a 5-ton unit, regardless of the number of stories. These assumptions resulted in a distribution of national central air conditioner/heat pump by capacity very similar to that of AHRI shipment data from 2007 to 2013 (30 percent 2-ton, 39 percent 3-ton, and 32 percent 5-ton). DOE's assignment method resulted in just over one-quarter of households having at least two central air conditioner/heat pump units installed, with one RECS household (representing 33,000 national households) assigned five 5-ton units.
For single-package central air conditioners and heat pumps, DOE only used RECS households with 3-ton and 5-ton units because single-package equipment is concentrated in these sizes. To analyze space-constrained central air conditioners, DOE only used RECS multi-family households with air conditioning because this equipment is targeted for multi-family applications. To analyze small-duct high-velocity air conditioners, DOE only used RECS single-family detached homes sized with cooling requirements of 3-tons because this equipment is targeted for single-family residences with moderate cooling requirements.
To estimate the annual energy consumption of central air conditioners and heat pumps meeting the considered efficiency levels, DOE first estimated the SEER of the existing equipment based on its age and the average SEER of new central air conditioner/heat pump shipments by year from AHRI data. For heat pumps, the HSPF of the existing equipment was based on the SEER–HSPF correlation developed in the Engineering Analysis and described in section IV.C.2.
For each sampled household, DOE adjusted the energy use estimated for 2009 to “normal” weather by using ten-year CDD and HDD data for each geographical region.
DOE accounted for change in building shell characteristics and building size (square footage) between 2009 and 2021 by applying separate building shell indexes for existing and new homes in the National Energy Modeling System (NEMS) associated with
For each sample housing unit, DOE estimated the cooling load, and heating load for heat pumps, in 2021 by multiplying the estimated cooling and heating energy use in 2021 by the SEER and HSPF of the existing central air conditioner or heat pump. The 2021 cooling and heating loads are then used to estimate the energy use from replacing the existing equipment with new central air conditioner or heat pump units conforming to higher efficiency levels.
Chapter 7 of the direct final rule TSD provides further detail on the general approach to the energy use analysis.
As discussed in section III.A, DOE had intended to rate and certify split-system central air conditioners based on a blower-coil configuration. However, the CAC/HP Working Group recommended that DOE adopt an approach, similar to the current one, of rating and certifying split-system central air conditioners based on any configuration (
Coil-only central air conditioner installations consist of the condensing unit and an evaporative coil. For rating purposes, a default fan power consumption is applied to determine the SEER. In the June 8, 2016 test procedure final rule, DOE designated the default fan power for the rating of coil-only central air conditioner split-systems to be 365 Watts per CFM, which is equivalent to a furnace fan using a permanent split capacitor (PSC) motor. Because the energy use analysis had to account for the actual furnace fan in the existing house to properly represent the rated SEER of the coil-only central air conditioner installation, DOE developed “factory-to-field” adjustment factors to convert the coil-only rated SEER to a coil-only “field SEER”.
To develop such factors, DOE used a furnace fan-motor mix of 77-percent PSC, 9-percent constant torque brushless permanent magnet (CT–BPM), and 15-percent constant speed brushless permanent magnet (CS–BPM). The above furnace fan mix is based on data developed for DOE's furnace fan
After the assignment of the furnace fan type to the RECS household, the “factory-to-field” adjustment factor was applied to convert the rated SEER to a “field SEER.” The “factory-to-field” adjustment factors were developed as a function of the coil-only rated SEER; the central air conditioner cooling capacity; and the type of furnace fan in the existing household. For example, in the case of a 3-ton coil-only central air conditioner unit with a rated SEER of 15 utilizing a PSC indoor blower-motor, if the unit was installed as a coil-only unit into a household with a CT–BPM furnace fan, then the “factory-to-field” adjustment factor accounted for the reduction in fan power associated with utilizing a CT–BPM indoor blower-motor instead of a PSC furnace fan.
Table IV–15 shows the “factory-to-field” adjustment factors for converting coil-only rated SEER to a coil-only “field SEER.” Appendix 7E of the direct final rule TSD provides details on exactly how the “factory-to-field” adjustment factors were determined.
In the August 2015 NODA, the analysis assumed that coil-only installations would consist of a new condensing unit and a new evaporative coil utilizing the blower of the furnace. Data presented to the CAC/HP Working Group by AHRI showed that there are far more shipments of condensing units than evaporative coils, indicating that new condensing units are not always paired with a new evaporative coil, and instead some installations use the existing evaporative coil. The AHRI data suggested that approximately 25 percent of installations use the existing evaporative coil. (ASRAC Public Meeting, No. 88 at pp. 175–214)
In the analysis for this DFR, DOE assumed that 25 percent of coil-only installations use the existing evaporative coil. Based on a characterization of the stock of evaporative coils, DOE assumed that 25 percent of the existing evaporative coils are from a system rated at 10 SEER (the efficiency standard effective in 1992) and 75 percent are from a system rated at 13 SEER (the efficiency standard effective in 2006). The analysis paired a new condensing unit at each considered efficiency level with an evaporative coil at either 10 or 13 SEER, so the system efficiency is less than would be the case with a new evaporative coil. DOE used an equipment simulation model, the DOE/Oak Ridge National Laboratory (ORNL) Heat Pump Design Model, Mark VI version,
The SEER and HSPF efficiency metrics account for fan energy use to provide space cooling and space heating, respectively. These metrics do not account for fan energy use in continuous operation.
To accomplish the accounting of continuous fan operation, DOE relied on inputs from the rulemaking for furnace fans. Specifically, DOE used the wattage reduction from certain fan technologies, the hours of operation in continuous mode for households that use that mode, and the fraction of households that require such continuous operation.
Higher-efficiency central air conditioners and heat pumps can reduce the operating costs for a consumer, which DOE understands could lead to greater use of the product. A direct rebound effect occurs when a piece of equipment that is made more efficient is used more intensively, such that the expected energy savings from the efficiency improvement may not fully materialize. In this DFR analysis, DOE examined a 2009 review of empirical estimates of the rebound effect for various energy-using products.
In its comments on the November 2014 RFI, NEEA and NPCC stated that DOE's proposed test procedure change for variable-speed units may have a significant impact on energy savings. (NEEA & NPCC, No. 19 at p. 10) As discussed in section III.F, DOE is amending the testing requirement for systems with a variable speed compressor. As noted in section III.F, however, the analyses conducted to support this direct final rule were based on the test procedure at the time of the CAC/HP Working Group negotiations, per the request of the CAC/HP Working Group.
Commenting on the RFI, AHRI urged DOE to evaluate the impact of changes in SEER and EER on cooling energy savings once the 2011 DFR standards are effective (in 2015). AHRI stated that DOE cannot determine whether additional improvements will save energy without evaluating whether the standards that have been adopted have actually resulted in the energy savings predicted in the 2011 DFR analysis. According to AHRI, if those savings are not in fact realized, DOE cannot have a basis for concluding that further changes will result in additional significant energy savings. (AHRI, No. 13 at p. 4)
In response, DOE expects that manufacturers will comply with the 2011 DFR standards and that the units sold at the rated SEER and EER levels will generally perform as expected. DOE's estimation of the energy use of standards-compliant units in representative use in U.S. homes was extensively reviewed in the 2011 DFR rulemaking, and it is reasonable to expect that the efficiency improvements required by the 2011 DFR will yield energy savings roughly in accord with DOE's projections.
In determining whether an energy efficiency standard is economically justified, DOE considers the economic impact of potential standards on consumers. The effect of new or amended standards on individual consumers usually includes a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:
• LCC (life-cycle cost) is the total consumer cost of an appliance or product, generally over the life of the appliance or product, including purchase and operating costs. The latter costs consist of maintenance, repair, and energy costs. Future operating costs are discounted to the time of purchase and summed over the lifetime of the appliance or product.
• PBP (payback period) measures the amount of time it takes consumers to recover the assumed higher purchase price of a more energy-efficient product through reduced operating costs.
For any given efficiency level, DOE measures the change in LCC relative to the efficiency levels estimated for the no-standards case, which reflects the market in the absence of amended energy conservation standards, including market trends for equipment that exceeds the current energy conservation standards.
DOE analyzed the net effect of potential amended central air conditioner and heat pump standards on consumers by calculating the LCC savings and PBP for each household by efficiency level. Inputs to the LCC calculation include the installed cost to the consumer (purchase price, including sales tax where appropriate, plus installation cost), operating costs (energy expenses, repair costs, and maintenance costs), the lifetime of the product, and a discount rate. Inputs to the payback period calculation include the installed cost to the consumer and first-year operating costs.
DOE performed the LCC and PBP analyses using a spreadsheet model combined with Crystal Ball
EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated under the test procedure in place for that standard. (42 U.S.C. 6295(o)(B)(ii)) For each considered efficiency level, DOE determines the value of the first year's energy savings by calculating the quantity of those savings in accordance with the applicable DOE test procedure, and multiplying that amount by the average energy price forecast for the year in which compliance with the amended standards would be required.
As discussed in section IV.E, DOE developed nationally-representative household samples from 2009 RECS. For each sampled building, DOE determined the energy consumption of the central air conditioner or heat pump and the appropriate energy prices in the area where the building is located.
DOE calculated the LCC and PBP for all central air conditioner or heat pump consumers as if the consumers were to purchase the product in the year that compliance with amended standards is required. Because the analysis was conducted when 2021 was the expected first year of compliance, it used that year for all the considered TSLs, including the Recommended TSL.
At the October 14, 2015 CAC/HP Working Group meeting, AHRI presented an LCC sensitivity analysis demonstrating the impact of several inputs, including manufacturer production costs, distribution channel markups, consumer discount rates, and expected time of ownership, on the LCC savings of more-efficient split system CACs and HPs. AHRI's analysis demonstrated that the LCC savings are highly sensitive to the above inputs. (ASRAC Public Meeting, No. 89 at pp. 225–239). Although AHRI did question the above inputs that DOE used in the LCC analysis, the purpose of their analysis was to demonstrate that the LCC savings were highly sensitive to changes in the inputs. As a result of AHRI's analysis, DOE requested feedback and made revisions to the above inputs based on member recommendations during subsequent CAC/HP Working Group meetings. The inputs to the LCC analysis which were the focus of AHRI's sensitivity analysis are described in sections above (manufacturer production costs and markups) or below (discount rates and product lifetime). In the case of the manufacturer production costs, DOE details how stakeholder recommendations were considered in the development of the costs. As a result of the Working Group's efforts to provide meaningful input and insights for all of the input into the LCC analysis, DOE believes the LCC results presented in section V.B.1 accurately represent the consumer impacts of the amended standards for CACs and HPs.
The primary inputs for establishing the total installed cost are the baseline consumer product price, standard-level consumer price increases, and installation costs (labor and material cost). Baseline consumer prices and standard-level consumer price increases were determined by applying markups to manufacturer selling price estimates, including sales tax where appropriate. The installation cost is added to the consumer price to produce a total installed cost.
The manufacturer selling price estimated in the engineering analysis refers to the current price. Economic literature and historical data suggest that the real prices of many products may trend downward over time according to “learning” or “experience” curves. Experience curve analysis focuses on entire industries and aggregates over many causal factors that may not be well characterized.
For the default price trend for residential central air conditioner and heat pump, DOE derived an experience rate based on an analysis of long-term historical data. As a proxy for manufacturer price, DOE used Producer Price Index (PPI) data for unitary air conditioners from the Bureau of Labor Statistics for 1978 through 2013.
DOE then derived a price factor index, with the price in 2013 equal to 1, to forecast prices in the compliance year for the LCC and PBP analysis, and, for the NIA, for each subsequent year in the 30-year shipments period. The index value in each year is a function of the experience rate and the cumulative production through that year. To derive the latter, DOE combined the historical shipments data with projected shipments from the NIA (see section IV.H of this notice).
As discussed, DOE determined the type, capacity and number of central air conditioner/heat pump units for each RECS household in order to assign the correct equipment price. For packaged systems, DOE only developed manufacturer costs for 3-ton systems, so it used these costs for all packaged systems to arrive at equipment prices.
As discussed, the energy use analysis had to address the field installation of coil-only installations use the existing evaporative coil. For these installations, the equipment price was based solely on the condensing unit.
Installation cost includes labor, overhead, and any miscellaneous materials and parts needed to install the equipment.
DOE developed installation labor costs for different central air conditioner and heat pump capacities from
Commenting on the November 2014 RFI, AHRI stated that installation costs are generally scalable with equipment size and weight. (AHRI, No. 13 at p. 4) Southern Co. stated that installation cost scales with weight. (Southern Co., No. 11 at p. 2) In contrast, Rheem does not believe that installation costs scale with equipment weight. According to Rheem, DOE should analyze the installation costs as increasing with efficiency due to duct modifications that are required for larger indoor coils. (Rheem, No. 17 at p. 6)
DOE initially determined that the change in weight from the minimum efficiency unit to maximum efficiency unit is not large enough to require an increase in the number of people in the crew to move and position the unit—two people are sufficient.
The CAC/HP Working Group requested that ACCA conduct a survey of its members to provide insight regarding the degree to which installation costs are higher for more-efficient equipment. ACAA conducted a survey and presented it to the CAC/HP Working Group. Based on the survey, ACCA concluded that DOE was not fully covering installation costs, including the costs of changing wiring and thermostats, checking ducting, and start-up costs to commission a higher efficiency product. (ASRAC Public Meeting, No. 85 at pp. 43–79) In response, DOE notes that the number of survey respondents was small (44 out of approximately 4,000 member contractors). Therefore, DOE chose to retain its estimates of installation costs.
Commenting on the November 2014 RFI, AHRI suggested that DOE include costs incurred by contractors and consumers associated with installation limitations such as local fire code access restrictions and indoor space constraints. (AHRI, No. 13 at p. 4) In response, DOE notes that it currently has space-constrained central air conditioner and space-constrained heat pump product classes specifically for products that may have installation limitations due to space constraints. Therefore, contractor and consumer costs due to space constraints were not considered for the other non-space-constrained product classes.
For each sample household, DOE determined the energy consumption for a central air conditioner or heat pump at different efficiency levels using the approach described above in section IV.E.
As discussed in section IV.E, DOE is taking into account the rebound effect associated with more-efficient residential central air conditioner and heat pump. The take-back in energy consumption associated with the rebound effect provides consumers with increased value (
DOE used marginal and average prices which vary by season, region and household consumption level. DOE estimated these prices using data published with the Edison Electric Institute (EEI) Typical Bills and Average Rates reports for summer and winter 2014.
Regional weighted-average values for each type of price were calculated for the nine census divisions and four large States (CA, FL, NY and TX). Each EEI utility in a region was assigned a weight based on the number of residential consumers it serves. Consumer counts were taken from the most recent EIA Form 861 data.
DOE assigned seasonal average and marginal prices to each household in the LCC sample based on its location and its baseline monthly electricity consumption for an average summer or winter month. For a detailed discussion of the development of seasonal average and marginal energy prices, see appendix 8–F of the direct final rule TSD.
To estimate future prices, DOE used the projected annual changes in average residential electricity prices in the Reference case projection in
Maintenance costs are associated with maintaining the proper operation of the equipment, whereas repair costs are associated with repairing or replacing components that have failed.
The maintenance cost for an air conditioner or heat pump unit includes a preventative annual check done by HVAC professionals, and preventative maintenance performed by home owners such as filter changes.
Commenting on the November 2014 RFI, Rheem stated that more efficient products do not require additional maintenance. (Rheem, No. 17 at p. 7) Southern Co. stated that time and cost of routine maintenance should be higher for variable speed units. (Southern Co., No. 11 at p. 3)
DOE reviewed
DOE calculated the cost of repair by totaling the cost of replacing the major components in central air conditioner or heat pump that are expected to fail during the life of the equipment. Higher efficiency units have more expensive components, and the estimated repair costs are higher. The major components included in the analysis are the indoor coil, outdoor coil, indoor blower (except for coil-only unit), outdoor fan, indoor TXV, outdoor TXV (heat pump only), reversing valve (heat pump only), and controls. Compressor failures were not considered in the LCC and PBP analysis but, rather, were included in the shipments and national impact analyses. DOE assumed that compressor failure is the principal driver for a consumer to either replace or repair the unit (see section IV.G). For investors, which are often used in variable-speed compressors, manufacturers offer the same warranty term for inverters and compressors together, so DOE assumed inverters have approximately the same reliability as compressors.
DOE developed component failure rates from proprietary industry data. The associated material cost and labor costs were initially developed from
Commenting on the November 2014 RFI, AHRI stated that higher efficiency products have more complex and expensive components necessitating longer repair times by more experienced technicians, and repair costs are generally directly proportional with equipment price. (AHRI, No. 13 at p. 4–5) Rheem stated that with the exception of evaporator and condenser coils, repair costs vary with replacement component prices and not product price. Rheem noted that with more complex technologies to achieve higher efficiency, the number of components increases and the number of repairs per system is likely to increase. (Rheem, No. 17 at p. 7) Southern Co. stated that inverters tend to have shorter lives than compressors and evaporators, and costs for inverter replacements should be separately modeled. (Southern Co., No. 11 at p. 3)
The cost of replacing the major components in a central air conditioner or heat pump that are expected to fail during the life of the equipment and the component failure rates were presented to the CAC/HP Working Group. Based on input from the CAC/HP Working Group, DOE revised its estimates. (ASRAC Public Meeting, No. 84 at pp. 83–100) Failure rates and material costs were revised based on further discussion with industry experts. All components besides fan motors were marked up with a mechanical contractor markup. Fan motor costs were taken from Grainger.
Product lifetime is the age at which an appliance is retired from service. DOE estimated the lifetime of central air conditioners and heat pumps as part of the shipments analysis. The method that DOE used to develop lifetime estimates is described in section IV.G. DOE developed separate lifetime distributions for the three considered regions. Table IV–16 shows the average lifetimes.
In the calculation of LCC, DOE applies discount rates to estimate the present value of future operating costs. The discount rate used in the LCC analysis represents the individual consumer's perspective.
To establish discount rates for residential consumers, DOE identified all relevant household debt or asset classes in order to approximate a consumer's opportunity cost of funds related to appliance operating cost savings. DOE's primary data source was the Federal Reserve Board's
See chapter 8 in the direct final rule TSD for further details on the development of discount rates for the LCC analysis.
To accurately estimate the share of consumers that would be affected by a standard at a particular efficiency level, DOE estimates the distribution of product efficiencies that consumers would purchase in the case without new or amended energy efficiency standards (referred to as the no-new-standards case) in the year compliance with the standard is required. DOE develops such an efficiency distribution for each of the considered product classes.
For the June 2011 DFR, AHRI provided historical shipment-weighted efficiency data by product class through 2009.
AHRI submitted data on market share for 2015 by SEER for the three regions for split-systems.
For package systems, AHRI did not provide recent data on market share by SEER, so DOE retained the approach developed for the August 2015 NODA. First, DOE altered the efficiency distributions it developed for the June 2011 DFR by rolling-up the market shares for products between 13 and 13.99 SEER to 14 SEER, the new standard level effective in 2015. To estimate the efficiency distributions in 2021, DOE applied an efficiency growth rate that was half that observed from 1993 to 2002 to the shipment-weighted SEER estimated in 2015. After determining the shipment-weighed SEER in 2015, DOE then allocated market shares to the efficiency levels being analyzed for this rule so that the resultant shipment-weighted SEER matched the value determined from the application of the estimated growth rate from 2015 to 2021.
The payback period is the amount of time it takes the consumer to recover the additional installed cost of more efficient products, compared to baseline products, through energy cost savings. The simple payback period does not account for changes in operating expense over time or the time value of money. Payback periods that exceed the life of the product mean that the increase in total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation are the total installed cost of the equipment to the customer for each efficiency level and the average annual operating expenditures for each efficiency level. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed. The results of DOE's PBP analysis are presented in section V.B.1.
For the rebuttable presumption PBP, for each considered efficiency level, DOE determined the value of the first year's energy savings by calculating the quantity of those savings in accordance with the applicable DOE test procedure, and multiplying that amount by the average energy price forecast for the year in which compliance with the amended standard would be required.
Shipments of covered equipment are a key input to estimates of the national energy savings under a proposed standard. The goal of the shipments model is to provide projections of the total number of units of shipped during the analysis period, and to estimate how those shipments may be affected by the equipment price and operating cost changes induced by a standard.
The shipments model is factored into two segments: Estimation of the total number of shipments of a given product type across all efficiencies available in the market, and distribution of these shipments over efficiency bins. Consumer decisions with respect to repairs and equipment switching only affect the total number of units shipped.
The shipments model produces separate projections for each of four equipment classes: Split and packaged central air conditioners (central air conditioners), and split and packaged heat pumps (heat pumps). To capture potential effects of regional standards, a separate shipments projection is calculated for each of the three regions considered in the analysis: North (N), hot-humid (HH) and hot-dry (HD). For each equipment class and each region the total shipments are divided into three market segments: (1) New shipments to new buildings, (2) new shipments to existing buildings, and (3) replacement shipments to existing buildings. Buildings are defined as single-family residences. More detail on the input data to the shipments model is provided in the next section.
The model is initialized in 1983 using historic shipments from 1953 to 1982 to define the initial distribution of stock by vintage. The model is run from 1983 to 2009, and compared with historical shipments, to calibrate the lifetime distribution parameters. The calibrated model is run from 1983 to 2021 to provide, for each region and product class, an estimate of the distribution of equipment stock by vintage in the start year of the analysis period. DOE's analysis of market saturation data shows slowly increasing heat pump saturations and slowly decreasing central air conditioner saturations, which lead to slight change in the market share of central air conditioners vs. heat pumps in the projections beyond 2021.
New shipments to new buildings are calculated as the product of new housing starts times the new construction market saturation. Shipments to new buildings comprise approximately 20 percent of total central air conditioner shipments and 29 percent of total heat pump shipments in 2021.
New shipments to existing buildings represent new purchases of the equipment by households that did not previously own it. The data show that the market for central air conditioners is essentially saturated, but market penetration is still growing for heat pumps. Shipments to this market segment (
Replacement shipments constitute the largest segment of total shipments. Replacements are determined by using a survival function to calculate the number of units in the stock that fail in each year. The survival function defines the probability that a unit will fail as a function of the unit's age. This analysis uses a Weibull survival function, adjusted to account for the difference in operating hours in the three analysis regions, as described below in section IV.G.2.
Shipments for each product class and market segment are calculated for the no-new-standards case and for each of the considered standard levels. The calculations proceed in three steps.
First, the total shipments across all regions and product classes are calculated for the no-new-standards case, which assumes that the future shipments are driven entirely by new construction, growth in market saturations, and replacements of failed units. This shipments projection is then used to estimate an product price trend using a price-learning approach.
In the second step, within each region and product class, the product distribution model is used to estimate the distribution of shipments across efficiency bins for each TSL. Relative market share is determined using a logit model, which defines the product utility as the sum of total installed cost plus discounted operating costs. The implicit discount rate and product price sensitivity are estimated from historic data as described in the next section. This estimation step uses the average total installed cost, efficiency and annual operating cost calculated for each efficiency level in the LCC. The operating cost depends on the annual operating hours and electricity price, both of which vary by region. The product price trend is applied to the product price, and the electricity price trend (taken from
In the third step, the total shipments are recalculated for each product class, region and TSL to determine the deviation from no-new-standards case shipments. This deviation is caused by the fact that, when the price of new products increases, some consumers will opt to repair rather than replace failed units. These “excess repairs” are numerically equal to the drop in shipments. The inputs to the estimation are the market-share weighted product price and annual operating cost for each product class and region, at each TSL. These are used to calculate a market-weighted average utility. The utility is defined as the purchase price plus the discounted operating cost over the lifetime of the product. The consumer discount rate for future operating costs was taken from the decision model used in the residential demand module of NEMS. This utility function is used to estimate the change in shipments, assuming that the percent change in shipments is equal to the percent change in utility times a price elasticity. DOE used a price elasticity equal to −0.34, which is an average value estimated from an analysis of available data for consumer purchases of household appliances (see appendix 9A). The change in shipments is only estimated for replacement shipments, as it is unlikely that shipments to new construction would be affected by the adopted standards. Repaired units are estimated to survive an additional number of years (extended lifetime), which is on average about half of the original lifetime, and then trigger a new replacement shipment.
Commenting on the November 2014 RFI, AHRI stated that there is evidence that the past rulemaking on residential central air conditioners and heat pumps (the 2006 standards) had a negative impact on shipments. It noted that the significant price increase of 13 SEER units (compared to 10 SEER) pushed consumers to find cheaper alternatives including repairing old equipment or switching to room air conditioners. (AHRI, No. 13 at p. 5) Rheem made a similar comment, and stated that currently homeowners are deciding to repair old inefficient air conditioners, and are also replacing central air conditioners with less efficient window air conditioners. (Rheem, No. 17 at pp. 1, 8) During the October 26, 2015 CAC/HP Working Group meeting, several parties expressed concern on how repairs were accounted for in the shipments model (ASRAC Public Meeting, No. 68 at pp. 82–103) One stakeholder mentioned that if DOE made the SEER requirements too high, the market for repairing would grow substantially and DOE needed to account for it. (ASRAC Public Meeting, No. 68 at p. 102)
DOE is aware that some consumers may respond to higher prices for central air conditioners and heat pumps by repairing the unit (compressor replacement) or, in the case of central air conditioners, by purchasing room air conditioners.
In response to the August 2015 NODA, the Edison Electric Institute (EEI) commissioned a nationwide builder survey, performed by the NAHB Home Innovation Research Labs, on the fuel and technology impacts of higher residential heat pump energy conservation standards. The survey asked installers to identify the price increase for a heat pump that would lead to switching to a other types of heating systems, including gas and oil furnaces and boilers, and identified the fractions of installations that would switch at different levels of price increase. (EEI, No. 33, NAHB Heat Pump Survey Final Tabulations July 2015) For the price increases associated with heat pumps that comply with the
In response, DOE notes that since a heat pump provides space cooling and space heating, switching away from a heat pump would require a consumer to purchase and install a central air conditioner as well as another type of heating product. Therefore, a decision to switch would be influenced by the price differential between a heat pump and a combination of a central air conditioner and alternative heating system, not simply the price increase for a heat pump. Because DOE is adopting standards for central air conditioners that have a greater estimated price increase than the increase estimated for heat pumps, DOE reasons that consumers would not switch from heat pumps to a combination of a furnace and a central air conditioner.
The principal inputs to the shipments model are the projections of housing stock and housing starts, market saturations, price-learning parameters, equipment lifetime (survival function), and logit model parameters.
The American Housing Survey (AHS), conducted every two years, was used to determine the total housing stock and the saturation of central air conditioners and heat pumps, in both new and existing buildings, from 1983 to 2011.
The calibration of the no-new-standards case shipments projection provides an estimate of the Weibull lifetime distribution parameters
The product service lifetimes for central air conditioners and heat pumps were presented to the CAC Working Group and were discussed in detail. Members expressed general concern about the long-tailed distribution for central air conditioner and heat pump lifetimes, given that the long lifetimes have a very low probability of occurrence. (ASRAC Public Meeting, No. 68 at pp. 85–103) In response, DOE notes that the Weibull lifetime parameters were estimated to produce a match to historical shipments from 1983 to 2009, which were the most recent data DOE could access. DOE could not find, nor did it receive any other shipments data, and thus DOE used the same Weibull parameters and product service lifetimes presented to the CAC/HP Working Group in the analysis for this DFR.
DOE used the total installed costs and annual operating cost of the products with different efficiency levels, combined with their respective market shares in the no-new-standards case in 2021, to calibrate the logit model parameters (alpha for total installed costs and beta for annual operating cost). These two parameters describe consumers' sensitivities to first costs and operating costs. These costs were then used to project consumer choices among efficiency levels in the analysis period.
DOE presented the results of its latest shipments analysis to the CAC/HP Working Group for discussion. (ASRAC Public Meeting, No. 68 at pp. 77–127) During the meetings, certain members of the CAC Working Group noted that DOE's projected shipments for split-system heat pumps were markedly higher than in the June 2011 DFR. (ASRAC Public Meeting, No. 84 at pp. 103–117) DOE reviewed the two sets of projections and determined that the primary driver for higher forecasted heat pump shipments in the most recent analysis versus the 2011 DFR analysis was the higher saturation of heat pumps in new construction shown in more recent data from the Census' Characteristics of New Housing. The latest data also show a corresponding drop in new construction saturation for central air conditioners. DOE found that, in addition, heat pump shipments were also higher due to the relatively shorter product lifetime in the hot-humid region, where much of the increase in new housing occurs.
For details on DOE's shipments analysis, see chapter 9 of the direct final rule TSD.
The national impact analysis (NIA) assesses the national energy savings (NES) and the net present value (NPV) from a national perspective of total consumer costs and savings expected to result from new or amended energy conservation standards at specific efficiency levels. To make the analysis more accessible and transparent to all interested parties, DOE used a spreadsheet model to calculate the energy savings and the national consumer costs and savings from each TSL.
A key component of the NIA is the trend in energy efficiency forecasted for the no-new-standards case and each of the standards cases. Section IV.F.2.f of this direct final rule describes how DOE developed an energy efficiency distribution for the no-new-standards case for each of the considered product classes for the expected first full year of compliance. To project the efficiency distribution over the 30-year shipments period, DOE used the product distribution model described in section IV.G. This model was calibrated based on product cost information and the efficiency distribution for 2021. The projected efficiency trends vary by product class and region, as illustrated in chapter 10 of the direct final rule TSD.
In the standards cases, the market share of products with efficiencies in the no-new-standards case that do not meet a potential amended standard level is allocated to the particular standard level, and the market shares of products at efficiencies above the standard level under consideration are projected using the consumer choice model. This approach provides a reasonable estimate of the potential energy savings in the standards cases by including consumers' sensitivities to total installed costs and annual operating costs, and accounting for equipment price trend and electricity price trend during the 30-year analysis period.
Details on how the consumer choice model was developed are in chapter 10 of the direct final rule TSD.
As discussed in section IV.F.1, DOE used an experience curve method to project future product price trends. Application of the price index results in a decline of 22 percent in central air conditioner and heat pump prices (in real terms) from 2021 to 2050. In addition to the default trend described in section IV.F.1, which shows a modest rate of decline, DOE performed price trend sensitivity calculations in the NIA to examine the dependence of the analysis results on different analytical assumptions. The price trend sensitivity analysis considered a trend with a greater rate of decline than the default trend and a trend with constant prices. The derivation of these trends is described in appendix 10C of the direct final rule TSD.
As discussed in section IV.G.1, DOE introduced “excess repairs” in the standards cases, assuming that when the price of new equipment increases, some consumers will opt to repair rather than replace broken units. The repair is assumed to consist of replacement of the compressor. The repaired units are assumed to live an additional number of years (extended lifetime), which is on average about half of the original lifetime. For these “excess repair” units, the cost of the repair is a one-time replacement cost for the compressor that varies depending on the capacity of the unit. The annual energy use of the repaired units is calculated as the average energy use for all of the units that were installed in the same year as the repaired unit. More details on accounting for repaired units are described in chapter 10 of the direct final rule TSD.
To develop the NES, DOE calculated annual energy consumption for the no-new-standards case and the standards cases. DOE calculated the annual energy consumption for each case using the appropriate per-unit annual energy use data multiplied by the projected central air conditioner and heat pump shipments for each year. The per-unit annual energy use is adjusted with the building shell improvement index, which results in a decline of 12 percent in the cooling load from 2021 to 2050, and the climate index, which results in an increase of 6.6 percent in the cooling load. In the standards cases, there are fewer shipments of central air conditioners or heat pumps compared to the no-new-standards case because of repair rather than replacement.
As explained in section IV.E, DOE incorporated a rebound effect for central air conditioners and heat pumps by reducing the site energy savings in each year by 15 percent.
To estimate the national primary energy savings from amended central air conditioner and heat pump standards, DOE used a multiplicative factor to convert site electricity consumption (at the home) into primary energy consumption (the energy required to convert and deliver the site electricity). These conversion factors account for the energy used at power plants to generate electricity and energy losses during transmission and distribution. The factors vary over time due to changes in generation sources (
In response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Science, in 2011 DOE announced its intention to use full-fuel-cycle (FFC) measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (August 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
To develop the national NPV of consumer benefits from potential energy conservation standards, DOE calculated projected annual operating costs (energy costs and repair and maintenance costs) and annual installation costs for the no-new-standards case and the standards cases. DOE calculated annual product expenditures by multiplying the price per unit times the projected shipments in each year.
DOE calculated annual energy expenditures from annual energy consumption using forecasted energy prices in each year. In this direct final rule, DOE used the projected annual changes in national-average residential
The aggregate difference each year between operating cost savings and increased installation costs is the net savings or net costs. DOE multiplies the net savings in future years by a discount factor to determine their present value. DOE estimates the NPV of consumer benefits using both a 3-percent and a 7-percent real discount rate, in accordance with guidance provided by the Office of Management and Budget (OMB) to Federal agencies on the development of regulatory analysis.
As noted, in determining national energy savings, DOE is accounting for the rebound effect estimated for more-efficient central air conditioners and heat pumps.
In analyzing the potential impacts of new or amended standards on consumers, DOE evaluated the impacts on two identifiable subgroups of consumers, low-income consumers and senior citizens, that may be disproportionately affected by amended standards. DOE analyzed the LCC impacts and PBP for those particular consumers from alternative standard levels using subsets of the RECS 2009 sample comprised of households that meet the criteria for the two subgroups for both central air conditioners and heat pumps, along with the appropriate inputs for these groups.
Chapter 11 of the direct final rule TSD describes the consumer subgroup analysis and its results.
DOE performed a Manufacturer Impact Analysis (MIA) to estimate the impacts of an energy conservation standard on manufacturers. The MIA has both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (GRIM), an industry cash-flow model with inputs specific to this rulemaking. The key GRIM inputs are data on the industry cost structure, manufacturer productions costs, shipments, and assumptions about markups and conversion expenditures. The key output is the industry net present value (INPV). DOE uses the GRIM to calculate cash flows using standard accounting principles and to compare changes in INPV between a scenario in which there is no new standard (the no-new-standards case) and each TSL (the standards case). The difference in INPV between the no-new-standards case and a standards case represents the financial impact of energy conservation standards on central air conditioner and heat pump manufacturers. DOE uses different sets of assumptions (markup scenarios) to represent the uncertainty surrounding potential impacts on prices and manufacturer profitability as a result of standards. Different sets of assumptions produce a range of INPV results. The qualitative part of the MIA addresses the amended standard's potential impacts on manufacturing capacity and industry competition, as well as factors such as product characteristics, impacts on particular subgroups of firms, and important market and product trends.
The MIA for central air conditioners and heat pumps in this direct final rule focuses on split-system air conditioners, split-system heat pumps, single-package air conditioners, and single-package heat pumps. Since this rule does not propose to amend standards for space-constrained air conditioners, space-constrained heat pumps, or small-duct high-velocity systems, these products were not evaluated. The complete MIA is outlined in chapter 12 of the direct final rule TSD.
DOE conducted the MIA for this rulemaking in three phases. In Phase 1 of the MIA, DOE prepared a profile of the residential central air conditioner and heat pump industry. This industry characterization was developed using publicly available information, such as Securities and Exchange Commission (SEC) 10–K reports,
In Phase 2 of the MIA, DOE prepared an industry cash-flow analysis to quantify the potential impacts of amended energy conservation standards on manufacturers. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways: (1) Create a need for increased investment; (2) raise production costs per unit; and (3) alter revenue due to higher per-unit prices and/or possible changes in sales volumes. To quantify these impacts, DOE used the GRIM to perform a cash-flow analysis for the industry using financial values derived during Phase 1 and the shipment scenario used in the NIA.
DOE also conducted interviews with manufacturers. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to validate assumptions used in the GRIM and to identify key issues or concerns. These topics were discussed again during the course of CAC/HP Working Group meetings, which enabled DOE to further refine inputs to the MIA, including MPCs and shipments forecasts.
In Phase 3, DOE evaluated subgroups of manufacturers that may be disproportionately impacted by energy conservation standards or that may not be represented accurately by the average cost assumptions used to develop the industry cash-flow analysis. For example, small manufacturers, niche players, or manufacturers exhibiting a cost structure that largely differs from the industry average could be more negatively affected. DOE identified one subgroup for a separate impact analysis: Small business manufacturers. The small business subgroup is discussed in section VI.B, “Review under the Regulatory Flexibility Act,” and in chapter 12 of the direct final rule TSD.
DOE uses the GRIM in its standards rulemakings to quantify the changes in cash flow due to amended standards that result in a higher or lower industry value. The GRIM uses a standard, annual discounted cash-flow analysis that incorporates manufacturer costs, markups, shipments, and industry financial information as inputs. The GRIM models changes in costs, distribution of shipments, investments, and manufacturer margins that could result from an amended energy conservation standard. The GRIM spreadsheet uses the inputs to arrive at a series of annual cash flows, beginning in 2016 (the base year of the analysis) and continuing to 2050.
The GRIM calculates cash flows using standard accounting principles and compares changes in INPV between the no-new-standards case and each standards case. The difference in INPV between the no-new-standards case and a standards case represents the financial impact of the amended energy conservation standard on manufacturers. As discussed previously, DOE developed critical GRIM inputs using a number of sources, including publicly available data, results of the engineering analysis, and information gathered from industry stakeholders during the course of manufacturer interviews and subsequent CAC/HP Working Group meetings. The GRIM results are presented in section V.B.2. Additional details about the GRIM, the discount rate, and other financial parameters can be found in chapter 12 of the direct final rule TSD.
Manufacturing more efficient equipment is typically more expensive than manufacturing baseline equipment due to the use of more complex components, which are typically more costly than baseline components. The changes in the manufacturer production costs (MPCs) of covered products can affect the revenues, gross margins, and cash flow of the industry.
In the MIA, DOE used the MPCs for each considered efficiency level calculated in the engineering analysis, as described in section IV.C and further detailed in chapter 5 of the direct final rule TSD. The engineering analysis developed multiple MPCs for split-system air conditioners based on representative capacities (
The GRIM estimates manufacturer revenues based on total unit shipment forecasts and the distribution of those shipments by efficiency level. Changes in sales volumes and efficiency mix over time can significantly affect manufacturer finances. For this analysis, the GRIM uses the NIA's annual shipment forecasts derived from the shipments analysis from 2016 (the base year) to 2050 (the end year of the analysis period). See chapter 9 of the direct final rule TSD for additional details.
An amended energy conservation standard would cause manufacturers to incur conversion costs to bring their production facilities and equipment designs into compliance. DOE evaluated the level of conversion-related expenditures that would be needed to comply with each considered efficiency level in each product class. For the MIA, DOE classified these conversion costs into two major groups: (1) Product conversion costs; and (2) capital conversion costs. Product conversion costs are investments in research, development, testing, marketing, and other non-capitalized costs necessary to make product designs comply with amended energy conservation standards. Capital conversion costs are investments in property, plant, and equipment necessary to adapt or change existing production facilities such that new compliant product designs can be fabricated and assembled.
To evaluate the level of capital conversion expenditures manufacturers would likely incur to comply with amended energy conservation standards, DOE used manufacturer interviews to request feedback on the anticipated level of capital investment that would be required at each efficiency level. However, DOE received very limited feedback on likely capital investments from manufacturers. As a result, DOE developed conversion cost estimates based on estimates of capital expenditure requirements derived from the product teardown analysis and engineering analysis described in chapter 5 of the DFR TSD.
To evaluate the level of product conversion costs manufacturers would likely incur to comply with amended energy conservation standards, DOE integrated data from quantitative and qualitative sources. As with capital conversion costs, DOE requested feedback from manufacturers regarding potential product conversion costs. Based on feedback received, DOE applied a scaling factor to estimate product conversion costs based on the magnitude of capital conversion costs. DOE estimated that product conversion costs account for 40 percent of total conversion costs.
In general, DOE assumes that all conversion-related investments occur between the year of publication of the final rule and the year by which manufacturers must comply with the new standard. The conversion cost figures used in the GRIM can be found in section V.B.2 of this notice. For additional information on the estimated capital and product conversion costs, see chapter 12 of the direct final rule TSD.
MSPs include direct manufacturing production costs (
Under the preservation of gross margin percentage scenario, DOE applied a single uniform “gross margin percentage” markup across all efficiency levels, which assumes that manufacturers would be able to maintain the same amount of profit as a percentage of revenues at all efficiency levels within a product class. As production costs increase with efficiency, this scenario implies that the absolute dollar markup will increase as well. Based on publicly available financial information for manufacturers of residential central air conditioners and heat pumps as well as comments from manufacturer interviews, DOE assumed the average non-production cost baseline markup—which includes SG&A expenses, R&D expenses, interest, and profit—to be 1.34 for split-system air conditioners, 1.35 for split-system heat pumps, and 1.32 for single-package air conditioners and single-package heat pumps. Because the preservation of gross margin percentage markup scenario assumes manufacturers would be able to maintain their gross margin percentage markups as production costs increase in response to amended energy conservation standards, it represents a high bound to industry profitability.
Under the tiered markup scenario, DOE modeled a situation in which manufacturers set markups based on three tiers of products. These tiers can be described as “good, better, best” or “value, standard, premium.” Under this tiered structure, high-volume “value” product lines typically offer fewer features, lower efficiency, and lower markups, while “premium” product lines offer more features, higher efficiency, and higher markups. The tiered markup scenario evaluates impacts on manufacturers when the breadth of their product portfolios shrinks as higher energy conservation standards “demote” higher-tier products to lower tiers. In this scenario, higher-efficiency products that previously commanded “standard” and “premium” markups are reassigned “value” and “standard” markups respectively. This markup scenario represents the low bound to industry profitability under an amended energy conservation standard.
A comparison of industry financial impacts under the two markup scenarios is presented in section V.B.2.a of this notice.
During the RFI stage, Lennox commented that manufacturers of central air conditioners and heat pumps face a significant cumulative regulatory burden and urged DOE both to consider the impact on manufacturers of multiple regulations and to take action to minimize the associate economic burden. (Lennox, No.10 at p. 4) In response, DOE has performed an analysis of cumulative regulatory burden (CRB) in section V.B.2.e of this notice. The CRB analysis is intended to identify rulemakings that could be aligned or combined to minimize total burden. As such, the CRB section focuses on regulations that take effect within three years of the effective date of this rulemaking. Rulemakings addressed in the CRB include those for: Commercial Packaged Air Conditioners and Heat Pumps (Air-Cooled) (81 FR 2420), Residential Boilers (81 FR 2320), Commercial and Industrial Pumps (80 FR 17826), Portable Room Air Conditioners (81 FR 38398), Residential Furnace Fans (80 FR 13120), and Commercial Warm Air Furnaces (81 FR 2420).
Additionally, Lennox commented that given the complexities associated with regional standards and regulating central air conditioners and heat pumps, DOE should utilize a negotiated rulemaking approach. Lennox requested that DOE consider the pace and timing of rulemakings to ensure stakeholders can provide meaningful comments and analysis. (Lennox, No.10 at p. 3) As discussed throughout this document, DOE established a CAC/HP Working Group to negotiate amended standards for central air conditioners and heat pumps. The recommendations made by the CAC/HP Working Group are presented in this direct final rule.
The emissions analysis consists of two components. The first component estimates the effect of potential energy conservation standards on power sector and site (where applicable) combustion emissions of CO
The analysis of power sector emissions uses marginal emissions factors calculated using a methodology based on results published for the
Combustion emissions of CH
The emissions intensity factors are expressed in terms of physical units per MWh or MMBtu of site energy savings. Total emissions reductions are estimated using the energy savings calculated in the national impact analysis.
For CH
The
SO
EIA was not able to incorporate CSAPR into
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Under existing EPA regulations, any excess SO
Beginning in 2016, however, SO
CAIR established a cap on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, the increase in electricity demand associated with the residential furnace efficiency levels would be expected to increase mercury emissions. DOE estimated mercury emissions using emissions factors based on
As part of the development of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
The social cost of carbon (SCC) is an estimate of the monetized damages associated with an incremental increase
Under section 1(b)(6) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993), agencies must, to the extent permitted by law, “assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” The purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO2 emissions into cost-benefit analyses of regulatory actions. The estimates are presented with an acknowledgement of DOE acknowledges that there are many uncertainties involved in the estimates and with a clear understanding that they should be updated over time to reflect increasing knowledge of the science and economics of climate impacts.
As part of the interagency process that developed the SCC estimates, technical experts from numerous agencies met on a regular basis to consider public comments, explore the technical literature in relevant fields, and discuss key model inputs and assumptions. The main objective of this process was to develop a range of SCC values using a defensible set of input assumptions grounded in the existing scientific and economic literatures. In this way, key uncertainties and model differences transparently and consistently inform the range of SCC estimates used in the rulemaking process.
When attempting to assess the incremental economic impacts of carbon dioxide emissions, the analyst faces a number of challenges. A recent report from the National Research Council
Despite the limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing carbon dioxide emissions. The agency can estimate the benefits from reduced (or costs from increased) emissions in any future year by multiplying the change in emissions in that year by the SCC value appropriate for that year. The net present value of the benefits can then be calculated by multiplying each of these future benefits by an appropriate discount factor and summing across all affected years.
It is important to emphasize that the interagency process is committed to updating these estimates as the science and economic understanding of climate change and its impacts on society improves over time. In the meantime, the interagency group will continue to explore the issues raised by this analysis and consider public comments as part of the ongoing interagency process.
In 2009, an interagency process was initiated to offer a preliminary assessment of how best to quantify the benefits of reducing carbon dioxide emissions. To ensure consistency in how benefits were evaluated across agencies, the Administration sought to develop a transparent and defensible method, specifically designed for the rulemaking process, to quantify avoided climate change damages from reduced CO
After the release of the interim values, the interagency group reconvened on a regular basis to calculate improved SCC estimates. Specifically, the group considered public comments and further explored the technical literature in relevant fields. The interagency group relied on three integrated assessment models commonly used to estimate the SCC: The FUND, DICE, and PAGE models. These models are frequently cited in the peer-reviewed literature and were used in the last assessment of the Intergovernmental Panel on Climate Change (IPCC). Each model was given equal weight in the SCC values that were developed.
Each model takes a slightly different approach to model how changes in emissions result in changes in economic damages. A key objective of the interagency process was to enable a consistent exploration of the three models, while respecting the different approaches to quantifying damages taken by the key modelers in the field. An extensive review of the literature was conducted to select three sets of input parameters for these models: Climate sensitivity, socio-economic and emissions trajectories, and discount rates. A probability distribution for climate sensitivity was specified as an input into all three models. In addition, the interagency group used a range of scenarios for the socio-economic parameters and a range of values for the discount rate. All other model features were left unchanged, relying on the model developers' best estimates and judgments.
In 2010, the interagency group selected four sets of SCC values for use in regulatory analyses. Three sets of values are based on the average SCC from three integrated assessment models, at discount rates of 2.5 percent, 3 percent, and 5 percent. The fourth set, which represents the 95th-percentile SCC estimate across all three models at a 3-percent discount rate, is included to represent higher-than-expected impacts from climate change further out in the tails of the SCC distribution. The values grow in real terms over time. Additionally, the interagency group determined that a range of values from 7 percent to 23 percent should be used to adjust the global SCC to calculate domestic effects, although preference is given to consideration of the global benefits of reducing CO
The SCC values used for this document were calculated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature, as described in the 2013 update from the interagency working group (revised July 2015).
Table IV–18 shows the updated sets of SCC estimates from the latest interagency update in five-year increments from 2010 to 2050. Appendix 14–B of the direct final rule TSD provides the full set of values. The central value that emerges is the average SCC across models at a 3-percent discount rate. However, for purposes of capturing the uncertainties involved in regulatory impact analysis, the interagency group emphasizes the importance of including all four sets of SCC values.
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable since they will evolve with improved scientific and economic understanding. The interagency group also recognizes that the existing models are imperfect and incomplete. The National Research Council report describes tension between the goal of producing quantified estimates of the economic damages from an incremental ton of carbon and the limits of existing efforts to model these effects. There are a number of analytical challenges that are being addressed by the research community, including research programs housed in many of the Federal agencies participating in the interagency process to estimate the SCC. The interagency group intends to periodically review and reconsider those estimates to reflect increasing knowledge of the science and economics of climate impacts, as well as improvements in modeling.
In summary, in considering the potential global benefits resulting from reduced CO
DOE multiplied the CO
As noted previously, DOE has estimated how the considered energy conservation standards would reduce power sector NO
DOE estimated the monetized value of NO
DOE multiplied the emissions reduction (in tons) in each year by the associated $/ton values, and then discounted each series using discount rates of 3 percent and 7 percent as appropriate. DOE will continue to evaluate the monetization of avoided NO
DOE is evaluating appropriate monetization of avoided SO
The utility impact analysis estimates several effects on the electric power generation industry that would result from the adoption of new or amended energy conservation standards. The utility impact analysis estimates the changes in installed electrical capacity and generation that would result for each TSL. The analysis is based on published output from the NEMS associated with
The output of this analysis is a set of time-dependent coefficients that capture the change in electricity generation, primary fuel consumption, installed capacity and power sector emissions due to a unit reduction in demand for a given end use. These coefficients are multiplied by the stream of electricity savings calculated in the NIA to provide estimates of selected utility impacts of new or amended energy conservation standards.
Employment impacts from new or amended energy conservation standards include direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the products subject to standards; the MIA addresses those impacts. Indirect employment impacts are changes in national employment that occur due to the shift in expenditures and capital investment caused by the purchase and operation of more-efficient appliances. Indirect employment impacts from standards consist of the jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated, due to: (1) Reduced spending by end users on energy; (2) reduced spending on new energy supply by the utility industry; (3) increased consumer spending on the purchase of new products; and (4) the effects of those three factors throughout the economy.
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by the Labor Department's Bureau of Labor Statistics (BLS). BLS regularly publishes its estimates of the number of jobs per million dollars of economic activity in different sectors of the economy, as well as the jobs created elsewhere in the economy by this same economic activity. Data from BLS indicate that expenditures in the utility sector generally create fewer jobs (both directly and indirectly) than expenditures in other sectors of the economy.
DOE estimated indirect national employment impacts for the standard levels considered in this direct final rule using an input/output model of the U.S. economy called Impact of Sector Energy
For more details on the employment impact analysis, see chapter 16 of the DFR TSD.
This section addresses the results from DOE's analyses with respect to amended energy conservation standards for central air conditioners and heat pumps. It addresses the trial standard levels examined by DOE, the projected impacts of each of these levels if adopted as energy conservation standards for central air conditioners and heat pumps, and the standards levels that DOE is adopting in this direct final rule.
For this DFR, DOE analyzed the benefits and burdens of seven TSLs for central air conditioners and heat pumps. These TSLs were developed using combinations of efficiency levels for each of the product classes analyzed by DOE. DOE presents the results for those TSLs in this document. The results for all efficiency levels that DOE analyzed are in the direct final rule TSD.
Table V–1 presents the TSLs and the corresponding efficiency levels for the central air conditioner and heat pump product classes. TSL 4 represents the maximum technologically feasible (“max-tech”) for all product classes. TSL 3 represents the maximum energy savings, considering a national standard. TSL 2, the Recommended TSL, represents the maximum national NPV, considering regional standards. TSL 1 represents a minimal increase in SEER for split-system product classes only, considering regional standards.
DOE analyzed the economic impacts on central air conditioner and heat pump consumers by looking at the effects potential amended standards at each TSL would have on the LCC and PBP. DOE also examined the impacts of potential standards on selected consumer subgroups. These analyses are discussed below.
In general, higher-efficiency products affect consumers in two ways: (1) Purchase price increases, and (2) annual operating costs decrease. Inputs used for calculating the LCC and PBP include total installed costs (
Table V–2 through show the LCC and PBP results for the TSLs considered for each product class. In the first of each pair of tables, the simple payback is measured relative to consumer use of the baseline product. In the second table, the LCC impacts are measured relative to the consumer LCCs projected for the no-new-standards case in the compliance year (see section IV.F.2.f). Because some consumers purchase products with higher efficiency in the no-new-standards case, the average savings are less than the difference between the average LCC of EL 0 and the average LCC at each TSL. The savings refer only to consumers who are affected by a standard at a given TSL. Those who already purchase a product with an efficiency at or above a given TSL are not affected. Consumers for whom the LCC increases at a given TSL experience a net cost.
In the consumer subgroup analysis, DOE estimated the impacts of the considered TSLs on low-income households and senior-only households. The average LCC savings and simple payback periods for low-income and senior-only households are compared to the results for all consumers of split air conditioners and split heat pumps in Table V–12 and Table V–13. In most cases, the average LCC savings and PBP for low-income households and senior-only households at the considered efficiency levels are not substantially different from the average for all households. Chapter 11 of the direct final rule TSD presents detailed results of the consumer subgroup analysis.
As discussed in section III.J.2, EPCA establishes a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for a product that meets the standard is less than three times the value of the first-year energy savings resulting from the standard. In calculating a rebuttable presumption payback period for each of the considered TSLs, DOE used discrete values rather than distributions for input values, and, as required by EPCA, based the energy use calculation on the DOE test procedures for central air conditioners and heat pumps. In contrast, the PBPs presented in section V.B.1.a were calculated using distributions that reflect the range of energy use in the field.
Table V–14 presents the rebuttable-presumption payback periods for the considered TSLs. While DOE examined the rebuttable-presumption criterion, it considered whether the standard levels considered for this rule are economically justified through a more detailed analysis of the economic impacts of those levels, pursuant to 42 U.S.C. 6295(o)(2)(B)(i), that considers the full range of impacts to the consumer, manufacturer, Nation, and environment. The results of that analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level, thereby supporting or rebutting the results of any preliminary determination of economic justification.
DOE performed a manufacturer impact analysis (MIA) to estimate the impact of amended energy conservation standards on central air conditioner and heat pump manufacturers. The following section describes the expected impacts on manufacturers at each considered TSL. Chapter 12 of the direct final rule TSD explains the analysis in further detail.
Table V–15 and Table V–16 depict the estimated financial impacts (represented by changes in industry net present value, or INPV) of amended energy conservation standards on manufacturers of central air conditioners and heat pumps, as well as the conversion costs that DOE expects manufacturers would incur at each TSL.
As discussed in section 2.b, DOE modeled two different markup scenarios to evaluate the range of cash flow impacts on the central air conditioner and heat pump industry: (1) The preservation of gross margin percentage markup scenario; and (2) the tiered markup scenario.
To assess the less severe end of the range of potential impacts on industry profitability, DOE modeled a preservation of gross margin percentage markup scenario, in which a uniform “gross margin percentage” markup is applied across all potential efficiency levels. In this scenario, DOE assumed that a manufacturer's absolute dollar markup would increase as production costs increase in the standards case.
To assess the more severe end of the range of potential impacts on industry profitability, DOE modeled a tiered markup scenario. In this scenario, the breadth of manufacturers' product portfolios shrinks as higher energy conservation standards increase the efficiency of baseline products. In this scenario, products in more efficient tiers that previously commanded higher markups are “demoted” to lower efficiency tiers that command lower markups. The contraction in markups in this scenario reduces manufacturers' per-unit revenues.
Each of the markup scenarios results in a unique set of cash flows and corresponding industry values at each TSL. In the following discussion, the INPV results refer to the difference in industry value between the no-new-standards case and each standards case that result from the sum of discounted cash flows from the base year (2016) through the end of the analysis period (2050). To provide perspective on the short-run cash flow impact, DOE includes in the discussion of results a comparison of free cash flow between the no-new-standards case and the standards case at each TSL in the year before amended standards would take effect. This figure provides an understanding of the magnitude of required conversion costs relative to cash flows calculated by the industry in the no-new-standards case.
At TSL 1, DOE estimates impacts on INPV to range from −$644.1 million to −$29.9 million, or a change of −14.3 percent to −0.7 percent. DOE projects that in the absence of new standards, 57 percent of central air conditioner and heat pump shipments would already meet or exceed the efficiency levels prescribed by TSL 1 in the compliance
At TSL 1, under the preservation of gross margin percentage scenario, the shipment-weighted average price per unit increases by 1.8 percent relative to the no-new-standards-case price per unit in the year of compliance (2021). This slight price increase would mitigate a portion of the $101.7 million in conversion costs estimated at TSL 1, resulting in slightly negative INPV impacts under this scenario. Under the tiered markup scenario, the industry markup structure is compressed as the least efficient products are eliminated from the market. Under amended standards, products in higher efficiency tiers that previously commanded higher markups are demoted to lower efficiency tiers that command lower markups. At TSL 1, this markup scenario results in a weighted average price increase of 0.3 percent. This relatively modest price increase is outweighed by the expected conversion costs and slight decrease in total shipments, resulting in more severe INPV impacts at TSL 1.
At TSL 2, the TSL recommended by the ASRAC CAC/HP Working Group, DOE estimates impacts on INPV to range from −$692.3 million to −$114.2 million, or a change in INPV of −15.4 percent to −2.5 percent. DOE projects that in the absence of new standards, 32 percent of central air conditioner and heat pump shipments would already meet or exceed the efficiency levels prescribed by TSL 2 in the compliance year (2023). DOE estimates total industry conversion costs of $342.6 million would be required to bring the balance of shipments into compliance with a new standard. These conversion costs drive an estimated decrease in industry free cash flow in the year before the compliance date (2022). In the more severe tiered markup scenario, DOE estimates a decrease in industry free cash flow of up to $150.8 million, or a change of −35.3 percent relative to the no-new-standards case value of $426.8 million in the year before compliance (2022). At TSL 2, DOE also projects higher unit prices will result in a slight decrease in total shipments over the period beginning with the compliance year (2023) and ending in 2050. DOE estimates a change in shipments of −0.03 percent relative to the no-new-standards case.
At TSL 2, under the preservation of gross margin percentage scenario, the shipment-weighted average price per unit increases by 4.4 percent relative to the no-new-standards-case price per unit in the year of compliance (2023). In this scenario, manufacturers are able to fully pass on the increase in MPC to consumers. However, this price increase is outweighed by the $342.6 million in conversion costs estimated at TSL 2, resulting in slightly negative INPV impacts under this scenario. Under the tiered markup scenario, the weighted average price per unit increases by 2.9 percent. This price increase is offset by the expected conversion costs and slight decrease in total shipments, resulting in more severe INPV impacts at TSL 2.
At TSL 3, DOE estimates impacts on INPV to range from −$1,114.2 million to $16.1 million, or a change in INPV of −24.8 percent to 0.4 percent. DOE projects that in the absence of new standards, 8 percent of central air conditioner and heat pump shipments would meet or exceed the efficiency levels prescribed by TSL 3 in the compliance year (2021). DOE estimates total industry conversion costs of $563.1 million would be required to bring the balance of shipments into compliance with a new standard. These conversion costs drive an estimated decrease in industry free cash flow in the year before the compliance date (2020). In the more severe tiered markup scenario, DOE estimates a decrease in industry free cash flow in the year prior to compliance of $220.3 million, or a change of −53.5 percent relative to the no-new-standards case. At TSL 3, DOE also projects higher unit prices will result in a slight decrease in total shipments over the period beginning with the compliance year (2021) and ending in 2050. DOE estimates a change in shipments of −0.24 percent relative to the no-new-standards case.
At TSL 3, under the preservation of gross margin percentage scenario, the shipment-weighted average price per unit increases by 20.9 percent relative to the no-new-standards-case price per unit in the year of compliance (2021). Under this scenario, the higher unit price offsets conversion costs and the slight decrease in shipments to produce slightly positive INPV impacts. Under the tiered markup scenario, the weighted average price increases by 17.9 percent. This price increase is not sufficient to offset the expected conversion costs and slight decrease in total shipments, resulting in negative INPV impacts at this level.
At TSL 4, DOE estimates impacts on INPV to range from −$1,135.6 million to $393.5 million, or a change in INPV of −25.3 percent to 8.8 percent. DOE projects that in the absence of new standards, 3 percent of central air conditioner and heat pump shipments would meet or exceed the efficiency levels prescribed by TSL 4 in the compliance year (2021). DOE estimates total industry conversion costs of $621.6 million would be required to bring the balance of shipments into compliance with a new standard. These conversion costs drive an estimated decrease in industry free cash flow in the year before the compliance date (2020). In the more severe tiered markup scenario, DOE estimates a decrease in industry free cash flow in the year prior to compliance of approximately $243.2 million, or a change of −59.0 percent relative to the no-new-standards case. At this level, DOE also projects higher prices will result in a slight decrease in total shipments over the period beginning with the compliance year (2021) and ending in 2050. DOE estimates a change in shipments of −0.29 percent relative to the no-new-standards case.
At TSL 4, under the preservation of gross margin percentage scenario, the shipment-weighted average price per unit increases by 43.2 percent relative to the no-new-standards-case price per unit in the year of compliance (2021). Under this scenario, the higher unit price offsets conversion costs and the slight decrease in shipments to produce positive INPV impacts. Under the tiered markup scenario, the weighted average price per unit increases by 39.2 percent. This increase is outweighed by the expected conversion costs and a decrease in total shipments, resulting in negative INPV impacts at TSL 4.
To quantitatively assess the potential impacts of amended energy conservation standards on direct employment, DOE used the GRIM to estimate the domestic labor expenditures and number of direct employees in the no-new-standards case and at each TSL from the base year of the analysis (2016) through the end of the analysis (2050). DOE used statistical
The total labor expenditures in the GRIM were then converted to domestic production employment levels by dividing production labor expenditures by the annual payment per production worker (production worker hours times the labor rate found in the U.S. Census Bureau's 2014 Annual Survey of Manufacturers). The production worker estimates in this section only cover workers up to the line-supervisor level who are directly involved in fabricating and assembling a product within an OEM facility. Workers performing services that are closely associated with production operations, such as materials handling tasks using forklifts, are also included as production labor. DOE's estimates only account for production workers who manufacture the specific products covered by this rulemaking.
To estimate an upper bound to employment change, DOE assumes all domestic manufacturers would choose to continue producing products in the U.S. and would not move production to foreign countries. To estimate a lower bound to employment, DOE considers the case where all manufacturers choose to relocate production overseas rather than make the necessary conversions at domestic production facilities. A complete description of the assumptions used to calculate these upper and lower bounds can be found in chapter 12 of the direct final rule TSD.
In the absence of amended energy conservation standards, DOE estimates that the residential central air conditioner and heat pump industry would employ 10,379 and 10,708 domestic production workers in 2021 and 2023, respectively. Table V–17 shows the range of impacts of potential amended energy conservation standards on U.S. production workers of central air conditioners and heat pumps.
The upper end of the range estimates the maximum increase and/or minimum decrease in the estimated number of domestic production workers in the residential central air conditioner and heat pump industry after implementation of amended energy conservation standards. It assumes manufacturers would continue to produce the same scope of covered products within the United States.
The lower end of the range represents the maximum decrease in the total number of U.S. production workers that could result from an amended energy conservation standard. In interviews, manufacturers stated that the residential HVAC industry has seen increasing migration to foreign production facilities, often located in Mexico. Many manufacturers of central air conditioners and heat pumps already have foreign production facilities. Some manufacturers indicated a change in standard would lead to a re-evaluation of production in other countries, where it may be possible to mitigate capital investments and/or to reduce the cost of labor inputs. As a result, the lower bound of direct employment impacts assumes domestic production of covered products ceases as manufacturers shift production abroad in search of reduced manufacturing costs.
This conclusion is independent of any conclusions regarding indirect employment impacts in the broader United States economy, which are documented in chapter 15 of the direct final rule TSD.
In interviews and in discussions during the CAC/HP Working Group meetings, manufacturers of residential central air conditioners and heat pumps did not indicate that amended energy conservation standards would significantly constrain manufacturing production capacity.
As discussed above, using average cost assumptions to develop an industry cash flow estimate is not adequate for assessing differential impacts among subgroups of manufacturers. Small manufacturers, niche players, or manufacturers exhibiting a cost structure that differs largely from the industry average could be affected differently. DOE used the results of the industry characterization to group manufacturers exhibiting similar characteristics. Specifically, DOE identified small business manufacturers as a subgroup for a separate impact analysis.
For the small business subgroup analysis, DOE applied the small business size standards published by the Small Business Administration (SBA) to determine whether a company is considered a small business. The size standards are codified at 13 CFR part 121. To be categorized as a small business under North American Industry Classification System (NAICS) code 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing,” a residential central air conditioner and heat pump manufacturer and its affiliates may employ a maximum of 1,250 employees. The 1,250-employee threshold includes all employees in a business's parent company and any other subsidiaries. The small business subgroup analysis is discussed in
While any one regulation may not impose a significant burden on manufacturers, the combined effects of several impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. Multiple regulations affecting the same manufacturer can strain profits and can lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.
For the cumulative regulatory burden analysis, DOE looks at other regulations that could affect manufacturers of central air conditioners and heat pumps during the compliance period, from 2017 to 2023, or those that will take effect approximately three years after the 2023 compliance date of amended energy conservation standards for central air conditioners and heat pumps. In interviews, manufacturers cited federal regulations on equipment other than central air conditioners and heat pumps that contribute to their cumulative regulatory burden. The compliance years and expected industry conversion costs of relevant amended energy conservation standards are indicated in Table V–18.
DOE also identified federal energy conservation standards for residential water heaters, residential room air conditioners, and commercial packaged air conditioners and heat pumps (water and evaporative cooled) as sources of cumulative regulatory burden for manufacturers of central air conditioners and heat pumps. However, NOPRs have not yet been published for those standards so information on manufacturer impacts is not yet available.
In addition to the energy conservation standards listed, manufacturers cited increasing ENERGY STAR
Manufacturers also cited the U.S. EPA Significant New Alternatives Policy (SNAP) Program as a source of regulatory burden. The SNAP Program evaluates and regulates substitutes for ozone-depleting chemicals (such as air conditioning refrigerants) that are being phased out under the stratospheric ozone protection provisions of the Clean Air Act. On April 10, 2015, the EPA issued a final rule allowing the use of three flammable refrigerants (HFC-32 (R-32), Propane (R-290), and R-441A) as new acceptable substitutes, subject to use conditions, for refrigerant in the Household and Light Commercial Air Conditioning class of equipment. 80 FR 19454 (April 10, 2015). However, DOE notes that the use of alternate refrigerants by manufacturers of residential central air conditioners and heat pumps would not be required as a direct result of this rule. Hence, alternate refrigerants were not considered in this analysis.
More information on the cumulative regulatory burden can be found in chapter 12 of the direct final rule TSD.
To estimate the energy savings attributable to potential standards for central air conditioners and heat pumps, DOE compared the energy consumption of those products under the base case to
OMB Circular A–4
Table V–21 shows the consumer NPV of the total costs and savings for consumers that would result from each TSL considered for central air conditioners and heat pumps disaggregated by product class. As noted above in the presentation of national energy savings results, because TSL 1 and the Recommended TSL are comprised of regional standards for split system central air conditioners, the national energy savings results for this product class are disaggregated by region. The impacts cover the lifetime of products purchased in 2021–2050. In accordance with OMB's guidelines on regulatory analysis,
The NPV results based on the aforementioned nine-year analytical period are presented in Table V–22. The impacts are counted over the lifetime of products purchased in 2021–2029. As mentioned previously, such results are presented for informational purposes only and is not indicative of any change in DOE's analytical methodology or decision criteria.
The above results reflect the use of the default decreasing price trend (see section IV.H.2) to estimate the change in price for central air conditioners and heat pumps over the analysis period. DOE also conducted a sensitivity analysis that considered one scenario with a constant price trend and one scenario with a slightly higher rate of price decline than the reference case. The results of these alternative cases are presented in appendix 10–C of the direct final rule TSD.
DOE expects amended energy conservation standards for central air conditioners and heat pumps to reduce energy costs for consumers, with the resulting net savings being redirected to other forms of economic activity. Those shifts in spending and economic activity could affect the demand for labor. As described in section IV.N, DOE used an input/output model of the U.S. economy to estimate indirect employment impacts of the TSLs that DOE considered in this rulemaking. DOE understands that there are uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Therefore, DOE calculated results for near-term time frames (2021 to 2026), where these uncertainties are reduced.
The results suggest that the amended standards are likely to have a negligible impact on the net demand for labor in the economy. The net change in jobs is so small that it would be imperceptible in national labor statistics and might be offset by other, unanticipated effects on employment. Chapter 16 of the direct final rule TSD presents results regarding anticipated indirect employment impacts.
DOE has concluded that the amended standards it is adopting in this direct final rule would not lessen the utility or performance of central air conditioners and heat pumps. Manufacturers of these products currently offer central air conditioner and heat pump that meet or exceed the amended standards.
As discussed in section III.I.1.e, EPCA directs DOE to consider any lessening of competition that is likely to result from standards. It also directs the Attorney General of the United States (Attorney General) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination in writing to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. To assist the Attorney General in making this determination, DOE provided the Department of Justice (DOJ) with copies of the NOPR and the TSD for review. In its assessment letter responding to DOE, DOJ concluded that the proposed energy conservation standards for central air conditioners and heat pumps are unlikely to have a significant adverse impact on competition. DOE is publishing the Attorney General's assessment at the end of this direct final rule.
Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts of energy production. Reduced electricity demand due to energy conservation standards is also likely to reduce the cost of maintaining the reliability of the electricity system, particularly during peak-load periods. As a measure of this reduced demand, chapter 15 in the direct final rule TSD presents the estimated reduction in generating capacity, relative to the base case, for the TSLs that DOE considered in this rulemaking.
Energy conservation resulting from amended standards for central air conditioners and heat pumps are expected to yield environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases. Table V–23 provides DOE's estimate of cumulative reductions in air pollutant emissions resulting from each of the TSLs. The tables include both power sector emissions and upstream emissions. The emissions were calculated using the multipliers discussed in section IV.K. DOE reports annual emissions impacts for each TSL in chapter 13 of the direct final rule TSD.
As part of the analysis for this rule, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table V–24 presents the global value of CO
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated the cumulative monetary value of the economic benefits associated with NO
The Secretary of Energy, in determining whether a standard is economically justified, may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) No other factors were considered in this analysis.
The NPV of the monetized benefits associated with emissions reductions can be viewed as a complement to the NPV of the consumer savings calculated for each TSL considered in this rulemaking. Table V–26 presents the NPV values that result from adding the estimates of the potential economic benefits resulting from reduced CO
The national operating cost savings are domestic U.S. monetary savings that occur as a result of purchasing the covered products. The CO
When considering new or amended energy conservation standards, the standards that DOE adopts for any type (or class) of covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
For this direct final rule, DOE considered the impacts of amended standards for central air conditioners and heat pumps at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next-most-efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
To aid the reader in understanding the benefits and/or burdens of each TSL, tables in this section summarize the quantitative analytical results for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a standard and impacts on employment.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. There is evidence that consumers undervalue future energy savings as a result of: (1) A lack of information; (2) a lack of sufficient salience of the long-term or aggregate benefits; (3) a lack of sufficient savings to warrant delaying or altering purchases; (4) excessive focus on the short term, in the form of inconsistent weighting of future energy cost savings relative to available returns on other investments; (5) computational or other difficulties associated with the evaluation of relevant tradeoffs; and (6) a divergence in incentives (for example, renter versus owner or builder versus purchaser). Other literature indicates that with less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off at a higher than expected rate between current consumption and uncertain future energy cost savings. This undervaluation suggests that regulation that promotes energy efficiency can produce significant net private gains (as well as producing social gains by, for example, reducing pollution).
In DOE's current regulatory analysis, potential changes in the benefits and costs of a regulation due to changes in consumer purchase decisions are included in two ways. First, if consumers forego a purchase of a product in the standards case, this decreases sales for product manufacturers, and the cost to manufacturers is included in the MIA. Second, DOE accounts for energy savings attributable only to products actually used by consumers in the standards case; if a standard decreases the number of products purchased by consumers, this decreases the potential energy savings from an energy conservation standard. DOE provides estimates of changes in the volume of product purchases in chapter 9 of the direct final rule TSD. DOE's current analysis does not explicitly control for heterogeneity in consumer preferences,
While DOE is not prepared at present to provide a fuller quantifiable framework for estimating the benefits and costs of changes in consumer purchase decisions due to an energy conservation standard, DOE is committed to developing a framework that can support empirical quantitative tools for improved assessment of the consumer welfare impacts of appliance standards. DOE has posted a paper that discusses the issue of consumer welfare impacts of appliance standards, and potential enhancements to the methodology by which these impacts are defined and estimated in the regulatory process.
Table V–27 and Table V–28 summarize the quantitative impacts estimated for each TSL for central air conditioners and heat pumps. The national impacts are measured over the lifetime of central air conditioners and heat pumps purchased in the 30-year period that begins in the anticipated first year of compliance with any amended standards (2021–2050 or, in the case of the recommended TSL, 2023–2052). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A.
First, DOE considered TSL 4, which would save an estimated total of 14.2 quads of energy, an amount DOE considers significant. TSL 4 has an estimated NPV of consumer benefit of −$31.4 billion using a 7-percent discount rate, and −$28.1 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 4 are 841 Mt of CO
At TSL 4, the average LCC savings is −$304 for split air conditioners, −$425 for split heat pumps, −$80 for package air conditioners, $115 for package heat pumps, $58 for space-constrained air conditioners, and −$540 for small-duct high-velocity air conditioners. The simple PBP is 19.2 years for split air conditioners, 14.9 years for split heat pumps, 12.3 years for package air conditioners, 5.2 years for package heat pumps, 11.6 years for space-constrained air conditioners, and 34.3 years for small-duct high-velocity air conditioners. The share of consumers experiencing a net LCC cost is 75 percent for split air conditioners, 79 percent for split heat pumps, 69 percent for package air conditioners, 39 percent for package heat pumps, 60 percent for space-constrained air conditioners, and 90 percent for small-duct high-velocity air conditioners.
At TSL 4, the projected change in INPV ranges from a decrease of $1,135.6 million to an increase of $393.5 million. If the more severe range of impacts is reached, TSL 4 could result in a net loss of up to 25.3 percent of INPV for manufacturers.
After considering the analysis and weighing the benefits and the burdens, the Secretary has concluded that, at TSL 4 for central air conditioner and heat pump standards, the benefits of energy savings and emissions reductions would be outweighed by the negative NPV of total consumer benefits at a 3-percent and 7-percent discount rate, negative average consumer LCC savings for most product classes, and the reduction in industry value.
Next, DOE considered TSL 3, which would save an estimated total of 8.6 quads of energy, an amount DOE considers significant. TSL 3 has an estimated NPV of consumer benefit of −$10 billion using a 7-percent discount rate, and $1.1 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 3 are 508.7 Mt of CO
At TSL 3, the average LCC savings is −$122 for split air conditioners, −$25 for split heat pumps, $43 for package air conditioners, and $115 for package heat pumps. The simple PBP is 15.2 years for split air conditioners, 9.4 years for split heat pumps, 8.9 years for package air conditioners, and 5.2 years for package heat pumps. The share of consumers experiencing a net LCC cost is 63 percent for split air conditioners, 54 percent for split heat pumps, 53 percent for package air conditioners, and 39 percent for package heat pumps. There are no impacts on space-constrained air conditioners or small-duct high-velocity air conditioners at TSL 3.
At TSL 3, the projected change in INPV ranges from a decrease of $1,114.2 million to an increase of $16.1 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 24.8 percent of INPV for manufacturers.
After considering the analysis and weighing the benefits and the burdens, the Secretary has concluded that at TSL 3 for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit at a 3-percent discount rate, and emissions reductions would be outweighed by the negative NPV of consumer benefit at a 7-percent discount rate, negative average LCC savings for most product classes, and the potential reduction in INPV for manufacturers.
Next, DOE considered the Recommended TSL, which would save an estimated total of 3.2 quads of energy, an amount DOE considers significant. The Recommended TSL has an estimated NPV of consumer benefit of $2.5 billion using a 7-percent discount rate, and $12.2 billion using a 3-percent discount rate.
The cumulative emissions reductions under the Recommended TSL are 188.3 Mt of CO
Under the Recommended TSL, the average LCC savings for split air conditioners is $43 in the north region, $150 in the hot dry region, $39 in the hot humid region, and $131 for split heat pumps. The simple payback period for split air conditioners is 10.5 years in the north region, 7.6 years in the hot dry region, 7.7 years in the hot humid region, and 4.9 years for split heat pumps. The share of consumers experiencing a net LCC cost for split air conditioners is 25 percent in the north region, 42 percent in the hot dry region, 45 percent in the hot humid region, and 20 percent for split heat pumps. There are no impacts to packaged air conditioners, packaged heat pumps, space-constrained air conditioners, and small-duct high-velocity air conditioners under the Recommended TSL.
Under the Recommended TSL, the projected change in INPV ranges from a decrease of $692.3 million to a decrease of $114.2 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 15.4 percent of INPV for manufacturers.
After considering the analysis and weighing the benefits and the burdens, the Secretary has concluded that under the Recommended TSL for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit, positive impacts on consumers (as indicated by positive average LCC savings and favorable PBPs), and emission reductions, would outweigh the negative impacts on some consumers and the potential reduction in INPV for manufacturers.
Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this direct final rule that establishes amended energy conservation standards for central air conditioners and heat pumps at the Recommended TSL. The amended energy conservation standards for central air conditioners and heat pumps as determined by the DOE test procedure at the time of the 2015–2016 ASRAC negotiations are presented in Table V–29.
Table V–30 shows the amended energy conservation standards for central air conditioners and heat pumps as determined by the November 2016 test procedure final rule.
The following paragraph describes how DOE translated the energy conservation standards in Table V–29—which are in terms of SEER, HSPF, and EER as determined by the DOE test procedure at the time of the 2015–2016 ASRAC Negotiations—to the energy conservation standard levels in Table V–30—which are in terms of SEER2, HSPF2, and EER2 as determined by the November 2016 test procedure final rule. DOE used a methodology consistent with the recommendations of the CAC/HP Working Group to translate the SEER standard levels to SEER2 standard levels for the split-system and single-package product classes. Note that the heating load line slope factor established by the November 2016 test procedure final rule is different than the heating load line slope factors used by the CAC/HP Working Group in their Term Sheet recommendation #9. DOE translated the HSPF standard levels to HSPF2 standard levels for split-system and single-package heat pumps by adjusting for the intermediate heating load line slope factor established by the November 2016 test procedure final rule using interpolation. (November 2016 Test Procedure Final Rule, pp. 127–130)
Comments in response to the provisional translations for HSPF2 for split system and single-package heat pumps are summarized in the November 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 127–130) Commenters agreed with the translation for split-system heat pumps, but industry commenters felt that the 6.8 value was too high for single-package heat pumps. Alternative HSPF2 values that were suggested in comments ranged from 6.5 (Docket No. EERE–2016–BT–TP–0029, Lennox, No. 25 at p. 10) to 6.7 (Docket No. EERE–2016–BT–TP–0029, Goodman, No. 39 at p. 10) Data provided under confidentiality supports the range suggested in comments. DOE combined that data with the data it used to validate its interpolated value of 6.8. DOE found that the combined data shows that 6.7 HSPF2 is an appropriate translation. For this reason, DOE is adopting 6.7 HSPF2 for single-package heat pumps in this direct final rule.
The August 2016 test procedure SNOPR and November 2016 test procedure final rule did not include translated levels for small-duct high velocity (SDHV) and space-constrained products. Neither did Recommendation #9 of the Term Sheet. Recommendation #9 did, however, state that the energy conservation standards for those product classes should remain unchanged from current levels (
In written comments, manufacturers and AHRI expressed support for DOE's provisional translations for SDHV products. Unico stated that it reviewed all of its test reports from the previous two years and found its range of results validated DOE's translations for SDHV products. (Unico, No. 95 at p. 2). AHRI and Lennox also expressed support for DOE's SEER and HPSF to SEER2 and HSPF2 levels for SDHV products. (AHRI, No. 94 at p. 1; Lennox, No. 97 at p. 1) EEI commented that it did not agree with DOE's translation because the HSPF appears to drop by approximately 15.3%, even though there has been no change to the product. (EEI, No. 96 at p. 2).
Regarding the concern expressed by EEI, DOE's translations do not assume nor reflect any change to product design. EPCA requires DOE to consider changes in energy conservation standards if a test procedure change alters the measurement, but does not prohibit a test procedure change that alters the measurement. (42 U.S.C. 6293(e)) In the November 2016 test procedure final rule, DOE adopted provisions that amend the test procedure required to determine representations for CAC/HP, including SDHV products. These provisions impact the value of the test procedure results. For instance, the November 2016 test procedure final rule assumes higher heating loads for heat pumps in colder outdoor conditions, which will typically result in lower HSPF2 ratings. (November 2016 Test Procedure Final Rule, pp. 110–127) Simply stated, an SDHV product tested in accordance with the test procedure at the time of the 2015–2016 ASRAC Negotiations will get a different rating than the same SDHV product (without design changes) tested in accordance with the test procedure adopted in the November 2016 test procedure final rule. DOE's translations are intended to reflect these differences. DOE is using “SEER2”, “HSPF2”, and “EER2” to distinguish ratings determined by the November 2016 test procedure from the SEER, HSPF and EER ratings determined by past test procedures to mitigate confusion that may result from the possibility that products available before and after the November 2016 test procedure final rule may have a different SEER2/HSPF2/EER2 than SEER/HSPF/EER rating despite no changes to design.
Unico's SDHV data validate DOE's translations, which are also supported by AHRI and Lennox. DOE did not receive any other comments or data suggesting that its translations for SDHV products are inappropriate. For these reasons, DOE is adopting the SDHV translations presented in the October 2016 NODA in this final rule.
AHRI is concerned that the SEER2 translation DOE presented for space-constrained air conditioners is too high by 0.1. AHRI calculated SEER2 to be 11.7 at 0.30 in. wc. rather than 11.8. AHRI provided data for 4 space-constrained products to illustrate its results. (AHRI, No. 94 at p. 2). Lennox also commented that DOE's SEER2 translation for space-constrained air conditioners is too high by 0.1. (Lennox, No. 97 at p. 2) AHRI and Lennox also commented that DOE should adopt the same SEER2 standard for space-constrained air conditioners and heat pumps (AHRI, No. 94 at p.2; Lennox, No. 97 at p. 2) First Co. strongly disagrees with DOE's proposed translation of SEER to SEER2 values for space-constrained air conditioners because DOE's methodology for determining SEER2 fails to account for the significant SEER reduction resulting from what they claim to be “new” coil-only testing requirements for space-constrained air conditioners. First Co. is referring to amendments to the certification requirements of 10 CFR 429 adopted for CAC/HP in the June 2016 test procedure final rule, which became effective in July 2016 and are required for representations starting December 5, 2016. (10 CFR 429.16(a)(1)) First Co. stated that prior to the June 2016 test procedure final rule, space constrained units, which are manufactured and sold only for installation with blower coil indoor units, have been tested with blower coil units with high-efficiency motors (ECMs). The high-efficiency motors average 200W/1000 scfm or less for indoor power compared with the default fan power value of 365W/1000 scfm applied under the “coil- only” test. First Co. claims that the impact of the “coil-only” test alone is approximately a 10% reduction in SEER of these products from 12 SEER to 10.8 SEER, and that DOE's methodology is flawed because it uses a starting point of 365W/1000 (
DOE appreciates the space-constrained air conditioner translation data provided by AHRI. DOE combined AHRI's data with the data DOE used to develop DOE's provisional translations. Note that after the October 2016 NODA, DOE issued the November 2016 test procedure final rule in which it adopted a minimum external static pressure requirement of 0.3 in. wc. for space-constrained air conditioners and heat pumps. (November 2016 Test Procedure Final Rule, pp. 97–99) Consequently, DOE combined AHRI's data with DOE's data reflective of performance at that operating condition. Once combined, the data validates AHRI's assertion that 11.7 is the appropriate SEER2 level for space-constrained air conditioners at 0.3 in. wc. Thus, DOE is adopting 11.7 SEER2 as the standard level for space-constrained air conditioners in this final rule. DOE disagrees with AHRI and Lennox that 11.7 SEER2 should also be used for space-constrained heat pumps. While space-constrained air conditioners are required to certify at least one coil-only combination that is representative of the least efficient coil-only combination distributed in commerce, space-constrained heat pumps have no coil-only requirement. (10 CFR 429.16(a)(1)) AHRI derived 11.7 SEER2 using 406 W/1000 scfm (the default fan power at 0.3 in. wc.) for indoor fan power consumption. As discussed in the November 2015 test procedure SNOPR and subsequently referenced in the November 2016 test procedure final rule, this default fan power value is reflective of the weighted-average performance of indoor fan by motor type distribution projected for the effective date of this standard, which includes a significant majority of lower-efficiency PSC motors. 80 FR 69319–20 and (November 2016 Test Procedure Final Rule, pp. 104–110) First
DOE provided a response to First Co.'s comment regarding the required coil-only test for testing of space constrained products in the November 30, 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 146–148)
The benefits and costs of the amended standards can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) The annualized national economic value (expressed in 2015$) of the benefits from operation of products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of emission reductions, including CO
Estimates of annualized benefits and costs of the amended standards for central air conditioners and heat pumps, expressed in 2015$, are shown in Table V–32. The results under the primary estimate are as follows.
Using a 7-percent discount rate for benefits and costs other than CO
Using a 3-percent discount rate for all benefits and costs and the average SCC series that uses a 3-percent discount rate ($40.6/t in 2015), the estimated cost of the standards adopted in this rule is $747 million per year in increased product costs, while the estimated benefits are $1,488 million per year in reduced product operating costs, $337 million per year in CO
DOE also notes that, using a 7-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $300 million per year. Using a 3-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $741 million per year.
Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems that the standards set forth in this direct final rule are intended to address are as follows:
(1) Insufficient information and the high costs of gathering and analyzing relevant information leads some consumers to miss opportunities to make cost-effective investments in energy efficiency.
(2) In some cases, the benefits of more-efficient equipment are not realized due to misaligned incentives between purchasers and users. An example of such a case is when the equipment purchase decision is made by a building contractor or building owner who does not pay the energy costs.
(3) There are external benefits resulting from improved energy efficiency of appliances and equipment that are not captured by the users of such products. These benefits include externalities related to public health, environmental protection, and national energy security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming. DOE attempts to quantify some of the external benefits through use of social cost of carbon values.
The Administrator of the Office of Information and Regulatory Affairs (OIRA) in the OMB has determined that this regulatory action is a significant regulatory action under section (3)(f) of Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(B) of the Order, DOE has provided to OIRA: (i) The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need; and (ii) An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate. DOE has included these documents in the rulemaking record.
In addition, the Administrator of OIRA has determined that the regulatory action is an “economically” significant regulatory action under section (3)(f)(1) of Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(C) of the Order, DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the regulatory action, together with, to the extent feasible, a quantification of those costs; and an assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, and an explanation why the planned regulatory action is preferable to the identified potential alternatives. These assessments can be found in the technical support document for this rulemaking.
DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. 76 FR 3281 (January 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, OIRA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this direct final rule is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE has undertaken this rulemaking pursuant to 42 U.S.C. 6295(d)(3), which requires DOE to conduct a second round of amended standards rulemaking for residential central air conditioners and heat pumps. The Energy Policy and Conservation Act of 1975 (EPCA), as amended by the Energy Independence and Security Act of 2007 (EISA 2007), requires that not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of the determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards. (42 U.S.C. 6295(m)(1)) DOE's last final rule for residential central air conditioners and heat pumps was issued on June 27, 2011, so as a result, DOE must act by June 27, 2017.
As described in section II.A above, Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94–163 (42 U.S.C. 6291–6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances (collectively referred to as “covered products”), which includes the residential central air conditioners and heat pumps that are the subject of this rulemaking. (42 U.S.C. 6292(a)(3))
The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100–12) included amendments to EPCA that established the original energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(1)–(2)) EPCA, as amended, also requires DOE to conduct two cycles of rulemakings to determine whether to amend the energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(3)) The first cycle culminated in a final rule published in the
EPCA requires DOE to periodically review its already established energy conservation standards for a covered product. Not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed standards. (42 U.S.C. 6295(m)(1)) Pursuant to this requirement, the next review that DOE would need to conduct must occur no later than six years from the issuance of the 2011 direct final rule. This direct final rule fulfills that requirement.
For manufacturers of residential central air conditioners and heat pumps, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of this rule. The size standards are codified at 13 CFR part 121. The standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at:
Residential central air conditioner and heat pump manufacturing is classified under NAICS 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” The SBA sets a threshold of 1,250 employees or fewer for an entity to be considered a small business for this category.
DOE reviewed the potential standard levels considered in today's direct final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. During its market survey, DOE used publicly available information to identify small manufacturers. DOE's research involved industry trade association membership directories (
DOE identified 30 manufacturers of central air conditioner and heat pump products affected by this direct final rule. Of these, DOE identified three as domestic small businesses.
DOE contacted the identified small businesses to invite them to take part in a manufacturer impact analysis interview. DOE was able to reach and discuss potential standards with one small business. DOE also obtained information about small businesses and potential impacts on small businesses while interviewing large manufacturers.
Seven large manufacturers supply over 95 percent of the market for central air conditioners and heat pumps. Of the three domestic small businesses identified, DOE's research indicates that all three are independent coil manufacturers (ICMs). DOE defines an ICM as a manufacturer of indoor units that does not manufacture single-package units or outdoor units. ICMs match their indoor evaporators or air handlers with condensing units from original equipment manufacturers (OEMs). For the purpose of this rulemaking, DOE did not identify any domestic small businesses that are OEMs of central air conditioner and heat pump products impacted by this direct final rule.
As discussed in section 2.a, manufacturers of central air conditioners and heat pumps may incur conversion costs to bring their manufacturing facilities and product designs into compliance with amended standards. Because DOE did not identify any small business OEMs of products impacted by this direct final rule, the following discussion of small business impacts focuses on the potential impacts facing small business ICMs. Like OEMs, ICMs operate factories and equipment and, accordingly, would be responsible for updating manufacturing practices to ensure products comply with amended energy conservation standards.
To evaluate impacts facing small ICMs, DOE used data from its engineering analysis and product teardown analysis to estimate investments in equipment and tooling that ICMs may incur as a result of this direct final rule. Indoor coils do not have SEER ratings on their own because they are a component of split-systems. Consequently, their rated efficiency depends on their interaction with the outdoor units with which they are paired. Generally, all else being equal, split-systems with larger indoor coils will be more efficient because the indoor coil has a larger heat transfer surface area. Accordingly, DOE estimated investments in equipment and tooling ICMs may make in response to this direct final rule to increase the heat transfer surface area of their indoor coils and, in turn, increase the overall efficiency of split-systems. DOE used the least-cost coil-only units from its engineering analysis to determine the typical size of indoor coil used by manufacturers at each efficiency level analyzed. DOE then estimated potential capital conversion costs (
Using publicly available data, DOE estimated the average annual revenue of the three small ICMs to be $29.7 million. As negotiated by the CAC/HP Working Group, this direct final rule will not take effect until 2023. DOE therefore expects ICMs will be able to spread their conversion costs over the six-year period between publication of this direct final rule and the compliance year. Given these assumptions, DOE estimates total conversion costs resulting from this direct final rule to be 2.2 percent of small ICMs' six-year revenues.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rule being considered today.
The discussion in the previous section analyzes impacts on small businesses that would result from the recommended standards, represented by TSL 2. In reviewing alternatives to the adopted standards, DOE examined energy conservation standards set at both lower and higher efficiency levels than those recommended in this direct final rule. TSL 1 would establish less stringent efficiency levels, potentially reducing impacts on small business manufacturers. However, it would come at the expense of a reduction in energy savings. Where TSL 2 is projected to save 3.2 quads of energy, TSL 1 would save only 1.3 quads of energy, or 41% of the savings achieved at TSL 2. In addition to TSL 1, DOE examined more stringent efficiency levels at TSLs 3 and 4. These levels would achieve significantly higher energy savings of 8.6 and 14.2 quads respectively; however, the financial burden facing manufacturers, including small businesses, would also be more severe at these levels. (See section V.B.2.a for a more detailed discussion of financial impacts facing manufacturers at each TSL.) DOE believes that establishing standards at the recommended level, TSL 2, balances the benefits of energy savings with the potential burdens placed on manufacturers of covered products, including small business manufacturers. Accordingly, DOE is not adopting one of the other TSLs considered in the analysis, or the other policy alternatives examined as part of the regulatory impact analysis and included in chapter 17 of the direct final rule TSD.
Additional compliance flexibilities for small business manufacturers may be available through other means. For example, individual manufacturers may petition for a waiver of the applicable test procedure. (See 10 CFR 431.401) Further, EPCA provides that a manufacturer whose annual gross revenue from all of its operations does not exceed $8 million may apply for an exemption from all or part of an energy conservation standard for a period not longer than 24 months after the effective date of a final rule establishing the standard. Additionally, Section 504 of the Department of Energy Organization Act, 42 U.S.C. 7194, provides authority for the Secretary to adjust a rule issued under EPCA in order to prevent “special hardship, inequity, or unfair distribution of burdens” that may be imposed on that manufacturer as a result of such rule. Manufacturers
Manufacturers of central air conditioners and heat pumps must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for central air conditioners and heat pumps, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including central air conditioners and heat pumps. 76 FR 12422 (March 7, 2011); 80 FR 5099 (January 30, 2015). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910–1400. Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has determined that this direct final rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)–(5). The proposed rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this proposed rule. DOE's CX determination for this rule is available at
Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this rule and has determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 61 FR 4729 (February 7, 1996). Regarding the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104–4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause 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 (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
DOE has concluded that this direct final rule may require expenditures of $100 million or more by the private sector. Such expenditures may include: (1) Investment in research and development and in capital expenditures by central air conditioner and heat pump manufacturers in the years between the final rule and the compliance date for the new standards,
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the rule. (2 U.S.C. 1532(c)) The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, the Department is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. (2 U.S.C. 1535(a)) DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law. In accordance with the statutory provisions discussed in this document, this rule would establish amended energy conservation standards for central air conditioners and heat pumps that are designed to achieve the maximum improvement in energy efficiency that DOE has determined to be both technologically feasible and economically justified. A full discussion of the alternatives considered by DOE is presented in chapter 17 of the TSD for this rule.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 15, 1988), DOE has determined that this rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this direct final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has concluded that this regulatory action, which adopts amended energy conservation standards for central air conditioners and heat pumps, is not a significant energy action because the standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (January 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.”
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report” dated February 2007 has been disseminated and is available at the following Web site:
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this direct final rule prior to its effective date. The report will state that it has been determined that the rule is a “major rule” as defined by 5 U.S.C. 804(2). DOE also will submit the supporting analyses to the Comptroller General in the U.S. Government Accountability Office (“GAO”) and make them available to each House of Congress.
The Secretary of Energy has approved publication of this direct final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
For the reasons set forth in the preamble, DOE is amending part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
(c)
(2) In addition to meeting the applicable requirements in paragraph (c)(1) of this section, products in product class (i) of paragraph (c)(1) of this section (
(3)(i) In addition to meeting the applicable requirements in paragraph (c)(1) of this section, products in product classes (i) and (iii) of paragraph (c)(1) of this section (
(ii) Any outdoor unit model that has a certified combination with a rating below 14 SEER or the applicable EER cannot be installed in this region. The least-efficient combination of each basic model must comply with this standard.
(5) Central air conditioners and central air conditioning heat pumps manufactured on or after January 1, 2023, must have a Seasonal Energy Efficiency Ratio 2 and a Heating Seasonal Performance Factor 2 not less than:
(6)(i) In addition to meeting the applicable requirements in paragraph (c)(5) of this section, products in product classes (i) and (iii) of paragraph (c)(5) of this section (
(ii) Any outdoor unit model that has a certified combination with a rating below the applicable standard level(s) for a region cannot be installed in that region. The least-efficient combination of each basic model must comply with this standard.
Army Corps of Engineers, DoD.
Final rule.
The U.S. Army Corps of Engineers (Corps) is reissuing 50 existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also issuing two new NWPs and one new general condition. The effective date for the new and reissued NWPs is March 19, 2017. These NWPs will expire on March 18, 2022. The NWPs will protect the aquatic environment and the public interest while effectively authorizing activities that have no more than minimal individual and cumulative adverse environmental effects.
These NWPs, general conditions, and definitions will go into effect on March 19, 2017.
U.S. Army Corps of Engineers, Attn: CECW–CO–R, 441 G Street NW., Washington, DC 20314–1000.
Mr. David Olson at 202–761–4922 or access the U.S. Army Corps of Engineers Regulatory Home Page at
The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize certain activities that require Department of the Army permits under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The purpose of this regulatory action is to reissue 50 existing NWPs and to issue two new NWPs. In addition, one new general condition is being issued. The NWPs can only be issued for a period of no more than five years and cannot be extended. These 52 NWPs go into effect on March 19, 2017 and expire on March 18, 2022.
The NWPs authorize activities that have no more than minimal individual and cumulative adverse environmental effects. The NWPs authorize a variety of activities, such as aids to navigation, utility line crossings, erosion control activities, road crossings, stream and wetland restoration activities, residential developments, mining activities, commercial shellfish aquaculture activities, and agricultural activities. The two new NWPs authorize the removal of low-head dams and the construction and maintenance of living shorelines. Some NWP activities may proceed without notifying the Corps, as long as those activities comply with all applicable terms and conditions of the NWPs, including regional conditions imposed by division engineers. Other NWP activities cannot proceed until the project proponent has submitted a pre-construction notification to the Corps, and for most NWPs that require pre-construction notifications the Corps has 45 days to notify the project proponent whether the activity is authorized by NWP.
The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that will result in no more than minimal individual and cumulative adverse environmental effects. The NWPs can only be issued for a period of five years or less, unless the Corps reissues those NWPs (see 33 U.S.C. 1344(e) and 33 CFR 330.6(b)). We are reissuing 50 existing NWPs and issuing two new NWPs. These NWPs will go into effect on March 19, 2017, and will expire on March 18, 2022. Division engineers will add regional conditions to these NWPs to ensure that, on a regional basis, these NWPs only authorize activities that have no more than minimal individual and cumulative adverse environmental effects.
Section 404(e) of the Clean Water Act provides the statutory authority for the Secretary of the Army, after notice and opportunity for public hearing, to issue general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States. The Secretary's authority to issue general permits has been delegated to the Chief of Engineers and his or her designated representatives. Nationwide permits are a type of general permit issued by the Chief of Engineers and are designed to regulate with little, if any, delay or paperwork certain activities in jurisdictional waters and wetlands that have no more than minimal adverse environmental impacts (see 33 CFR 330.1(b)). Activities authorized by NWPs and other general permits must be similar in nature, cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment (see 33 U.S.C. 1344(e)(1)). Nationwide permits can also be issued to authorize activities pursuant to Section 10 of the Rivers and Harbors Act of 1899 (see 33 CFR 322.2(f)). The NWP program is designed to provide timely authorizations for the regulated public while protecting the Nation's aquatic resources.
The phrase “minimal adverse environmental effects when performed separately” refers to the direct and indirect adverse environmental effects caused by a specific activity authorized by an NWP. The phrase “minimal cumulative adverse effect on the environment” refers to the collective direct and indirect adverse environmental effects caused by the all the activities authorized by a particular NWP during the time period that NWP is in effect (which can be no more than 5 years) in a specific geographic region. The appropriate geographic area for assessing cumulative effects is determined by the decision-making authority for the general permit. For each NWP, Corps Headquarters prepares national-scale cumulative effects analyses. Division engineers consider cumulative effects on a regional basis (
When Corps Headquarters issues or reissues an NWP, it conducts a national-scale cumulative impact assessment in accordance with the National Environmental Policy Act (NEPA) definition of “cumulative impact” at 40 CFR part 1508.7. The NEPA cumulative effects analysis prepared by Corps Headquarters for an NWP examines the impact on the environment which results from the incremental impact of its action (
Corps Headquarters fulfills the requirements of NEPA when it finalizes the environmental assessment in its national decision document for the issuance or reissuance of an NWP. An NWP verification issued by a district engineer does not require separate NEPA documentation. (See 53 FR 3126, the Corps' final rule for implementing the National Environmental Policy Act, which was published in the February 3, 1988, issue of the
If an NWP authorizes discharges of dredged or fill material into waters of the United States, the Corps also conducts a national-scale cumulative effects analysis in accordance with the Clean Water Act section 404(b)(1) Guidelines. The 404(b)(1) Guidelines approach to cumulative effects analysis for the issuance or reissuance of general permits is described at 40 CFR part 230.7(b).
For each NWP, Corps Headquarters issues a decision document, which includes a NEPA environmental assessment, a public interest review, and if applicable, a 404(b)(1) Guidelines analysis. Each NWP is a stand-alone general permit.
When the Corps issues or reissues an NWP, Corps divisions are required to prepare supplemental decision documents to provide regional analyses of the environmental effects of that NWP. Those supplemental decision documents are not subject to a public notice and comment process. The supplemental decision documents also support the division engineer's decision to modify, suspend, or revoke the NWP in a particular region. An NWP is modified on a regional basis through the addition of regional conditions, which restricts the use of the NWP in the geographic area(s) where those regional conditions apply. The supplemental decision document includes a regional cumulative effects analysis, and if the NWP authorizes discharges of dredged or fill material into waters of the United States, a regional 404(b)(1) Guidelines cumulative effects analysis. The geographic region used for the cumulative effects analyses in a supplemental decision document is at the division engineer's discretion. In the supplemental decision document, the division engineer may evaluate cumulative effects of the NWP at the scale of a Corps district, state, or other geographic area, such as a watershed or ecoregion. If the division engineer is not suspending or revoking the NWP in a particular region, the supplemental decision document also includes a statement finding that the use of that NWP in the region will cause only minimal individual and cumulative adverse environmental effects.
For some NWPs, the project proponent may proceed with the NWP activity as long as he or she complies with all applicable terms and conditions, including applicable regional conditions. When required, Clean Water Act section 401 water quality certification and/or Coastal Zone Management Act consistency concurrence must be obtained or waived (see general conditions 25 and 26, respectively). Other NWPs require project proponents to notify Corps district engineers of their proposed activities prior to conducting regulated activities, so that the district engineers can make case-specific determinations of NWP eligibility. The notification takes the form of a pre-construction notification (PCN). The purpose of a PCN is to give the district engineer an opportunity to review a proposed NWP activity (generally 45 days after receipt of a complete PCN) to ensure that the proposed activity qualifies for NWP authorization. If it does not qualify for NWP authorization, the district engineer will inform the applicant and advise him or her on the process for applying for another form of Department of the Army (DA) authorization. The PCN requirements for the NWPs are stated in the text of those NWPs, as well as a number of general conditions, especially general condition 32. Paragraph (b) of general condition 32 lists the information required for a complete PCN.
Twenty-one of the NWPs require PCNs for all activities, including the two new NWPs. Twelve of the proposed NWPs require PCNs for some authorized activities. Nineteen of the NWPs do not require PCNs, unless pre-construction notification is required to comply with certain general conditions or regional conditions imposed by division engineers. All NWPs require PCNs for any proposed NWP activity undertaken by a non-federal entity that might affect listed species or designated critical habitat under the Endangered Species Act (see general condition 18 and 33 CFR part 330.4(f)(2)). All NWPs require PCNs for any proposed NWP activity undertaken by a non-federal entity that may have the potential to cause effects to historic properties listed, or eligible for listing in, the National Register of Historic Places (see general condition 20 and 33 CFR part 330.4(g)(2)).
Except for NWPs 21, 49, and 50, and activities conducted by non-Federal permittees that require PCNs under paragraph (c) of general conditions 18 and 20, if the Corps district does not respond to the PCN within 45 days of a receipt of a complete PCN the activity is authorized by NWP (see 33 CFR 330.1(e)(1)). Regional conditions imposed by division engineers may also add PCN requirements to one or more NWPs.
When a Corps district receives a PCN, the district engineer reviews the PCN and determines whether the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects. The district engineer applies the criteria in paragraph 2 of section D, “District Engineer's Decision.” If the district engineer reviews the PCN and determines that the proposed activity will result in more than minimal individual and cumulative adverse environmental effects, he or she will notify that applicant and offer the prospective permittee the opportunity to submit a mitigation proposal to reduce the adverse environmental effects so that they are no more than minimal (see 33 CFR 330.1(e)(3)).
Mitigation requirements for NWP activities can include permit conditions
At the conclusion of his or her review of the PCN, the district engineer prepares a decision document to explain his or her conclusions. The decision document explains the rationale for adding conditions to the NWP authorization, including mitigation requirements that the district engineer determines are necessary to ensure that the verified NWP activity results in no more than minimal individual and cumulative adverse environmental effects. The decision document includes the district engineer's consideration of cumulative adverse environmental effects resulting from the use of that NWP within a watershed, county, state, or a Corps district. If an NWP verification includes multiple authorizations using a single NWP (
Because the required NEPA cumulative effects and 404(b)(1) Guidelines cumulative effects analyses are conducted by Corps Headquarters in its decision documents for the issuance or reissuance of the NWPs, district engineers do not need to do comprehensive cumulative effects analyses for each NWP verification. For an NWP verification, the district engineer only needs to evaluate the cumulative adverse environmental effects of the applicable NWP(s) at an appropriate geographic scale (
Some NWP activities that require PCNs also require agency coordination (see paragraph (d) of general condition 32). If, in the PCN, the applicant requests a waiver of an NWP limit that the terms of the NWP allow the district engineer to waive (
If the district engineer determines, after considering mitigation, that there will be more than minimal cumulative adverse environmental effects, he or she will exercise discretionary authority and require an individual permit for the proposed activity. That determination will be based on consideration of the information provided in the PCN and other available information. Discretionary authority may also be exercised in cases where the district engineer has sufficient concerns for any of the Corps public interest review factors (see 33 CFR 330.4(e)(2)).
Regional conditions may be imposed on the NWPs by division engineers to take into account regional differences in aquatic resource functions and services across the country and to restrict or prohibit the use of NWPs to protect those resources. Through regional conditions, a division engineer can modify an NWP to require submission of PCNs for certain activities. Regional conditions may also restrict or prohibit the use of an NWP in certain waters or geographic areas, if the use of that NWP in those waters or areas might result in more than minimal individual or cumulative adverse environmental effects. Regional conditions may not be less stringent than the NWPs.
A district engineer may impose activity-specific conditions on an NWP authorization to ensure that the NWP activity will result in no more than minimal individual and cumulative adverse effects on the environment and other public interest review factors. In addition, activity-specific conditions will often include mitigation requirements, including avoidance and minimization, and possibly compensatory mitigation, to reduce the adverse environmental effects of the proposed activity so that they are no more than minimal. Compensatory mitigation requirements for NWP activities must comply with the applicable provisions of 33 CFR part 332. Compensatory mitigation may include the restoration, establishment, enhancement, and/or preservation of wetlands. Compensatory mitigation may also include the rehabilitation, enhancement, or preservation of streams, as well as the restoration, enhancement, and protection/maintenance of riparian areas next to streams and other open waters. District engineers may also require compensatory mitigation for impacts to other types of aquatic resources, such as seagrass beds, shallow sandy bottom marine areas, and coral reefs.
Compensatory mitigation can be provided through mitigation banks, in-lieu fee programs, and permittee-responsible mitigation. If the required compensatory mitigation will be provided through mitigation bank or in-lieu fee program credits, the conditions in the NWP verification must comply with the requirements at 33 CFR 332.3(k)(4), and specify the number and resource type of credits that need to be secured by the permittee. If the required compensatory mitigation will be provided through permittee-responsible mitigation, the conditions added to the NWP authorization must comply with 33 CFR 332.3(k)(3).
Today's final rule reissuing the 50 existing NWPs with some modifications and issuing two new NWPs reflects the Corps commitment to environmental protection. In response to the comments received on the June 1, 2016, proposed rule, we made changes to the text of the NWPs, general conditions, and definitions so that they are clearer and can be more easily understood by the regulated public, government personnel, and interested parties. The terms and conditions of these NWPs protect the aquatic environment and other public interest review factors. The changes to the NWPs, general conditions, definitions, and other provisions are discussed below.
Making the text of the NWPs clearer and easier to understand will also facilitate compliance with these permits, which will also benefit the aquatic environment. The NWP program allows the Corps to authorize activities with only minimal adverse environmental impacts in a timely manner. The NWP program also provides incentives to project proponents to design their activities to avoid and minimize adverse impacts to jurisdictional waters and wetlands to qualify for the streamlined NWP authorization. In FY 2016, the average
The NWPs provide benefits by encouraging project proponents to minimize their proposed impacts to waters of the United States and design their projects within the scope of the NWPs, rather than applying for individual permits for activities that could result in greater adverse impacts to the aquatic environment. The NWPs also benefit the regulated public by providing convenience and time savings compared to standard individual permits. The minimization encouraged by terms and conditions of an NWP, as well as compensatory mitigation that may be required for specific activities authorized by an NWP, helps reduce adverse environmental effects to jurisdictional waters and wetlands, as well as resources protected under other laws, such as federally-listed endangered and threatened species and designated critical habitat, as well as historic properties. For an analysis of the monetized benefits of the NWPs, refer to the Regulatory Impact Analysis which is available at
The costs of the NWPs relate to the paperwork burden associated with completing the PCNs. See the section on Paperwork Reduction Act for a response to comments and additional discussion of the paperwork burden.
An activity completed under the authorization provided by a 2012 NWP continues to be authorized by that NWP (see 33 CFR part 330.6(b)). Activities authorized by the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, will have one year (
In response to the June 1, 2016, proposed rule, several commenters requested that the Corps provide a longer grandfathering period for activities authorized under the 2012 NWPs. A few commenters suggested changing the grandfather period to 2 years and some commenters recommended changing it to 3 years.
The one-year grandfathering period in 33 CFR 330.6(b) was established in the November 22, 1991, final rule amending 33 CFR part 330 (see 56 FR 59110). It would require a separate rulemaking to change section 330.6(b) to establish a longer grandfathering period for authorized NWP activities. We believe the one-year period is sufficient for project proponents to complete their NWP activities. If they determine more time is needed to complete the NWP activity, the one-year period gives them sufficient time to request verification under the reissued NWP(s). If a proposed activity was authorized by the 2012 NWPs, but is no longer authorized by these new or reissued NWPs, then the project proponent should apply for an individual permit during the grandfather period to try to obtain the individual permit before the one-year grandfather period expires.
The NWPs issued today will become effective on March 19, 2017. This
After the 60-day period, the latest version of any written position taken by a state, Indian Tribe, or U.S. EPA on its WQC for any of the NWPs will be accepted as the state's, Indian Tribe's, or EPA's final position on those NWPs. If the state, Indian Tribe, or EPA takes no action by March 7, 2017, WQC will be considered waived for those NWPs.
After the 90-day period, the latest version of any written position taken by a state on its CZMA consistency determination for any of the NWPs will be accepted as the state's final position on those NWPs. If the state takes no action by April 6, 2017, CZMA consistency concurrence will be presumed for those NWPs.
In response to the June 1, 2016,
Many commenters expressed general support for the proposed rule, as well as the NWP program as a whole. Several commenters voiced their concerns about the proposed NWPs being able to be issued before the 2012 NWPs expire. One commenter said the NWPs are duplicative of state and local government permit programs. Another commenter requested that the final NWPs include a statement informing the public that many of the categories of activities authorized by NWP are also regulated by state or local government wetland regulatory programs. A commenter stated that Corps district engineers should not have the authority to add conditions to NWPs or be able to suspend NWP authorizations. One commenter expressed appreciation of the policy statements included in the NWPs, stating that such statements promote consistency in program implementation among Corps districts. One commenter requested that the Corps issue the NWPs for a period of ten years. One commenter stated that because of the effects of climate change, the predictability and confidence in the use of the NWPs are likely to decline, and recommend shortening the renewal cycle for certain NWPs, and require more frequent monitoring of specific
We worked to develop and issue the final NWPs before the 2012 NWPs expire on March 18, 2017. While there are a number of states that have aquatic resource regulatory programs that are similar to the Corps regulatory program, there are often important differences between the Corps' regulatory program and those state regulatory programs. In states where there is close alignment between the Corps and state regulatory programs, programmatic general permits can be developed and issued by district engineers to reduce duplication and streamline the authorization process for the regulated public. In areas where local governments also have adopted regulatory programs to protect aquatic resources, there is likely to be variability from the Corps regulatory program. Despite the existence of state and local regulatory programs in some areas, the Corps still has the responsibility for implementing section 404 of the Clean Water Act, as well as section 10 of the Rivers and Harbors Act of 1899. For section 404 of the Clean Water Act, Michigan and New Jersey are exceptions where they have assumed the section 404 program. We appreciate the acknowledgment that policy statements made through the NWP program help improve Corps regulatory program consistency.
The ability for division and district engineers to modify, suspend, or revoke NWPs on a regional or case-by-case basis is a key tool for ensuring that the NWPs only authorize activities that cause no more than minimal individual and cumulative adverse environmental effects. There is substantial variation in aquatic resource types across the country, as well as a large amount of variability among geographic regions in the quantity of those resources. Those regional differences require division and district engineers to have the authority to tailor the NWPs to address regional and site-specific concerns. The NWPs can only be issued for a period of 5 years because of the statutory language in section 404(e) of the Clean Water Act, as well as the Corps' regulations at 33 CFR 330.6(b). Section 330.6(b) states that if “an NWP is not modified or reissued within five years of its effective date it automatically expires and becomes null and void.” Nationwide permits are an important tool for adapting to the effects of climate change, by authorizing a variety of activities such as utility line crossings, road crossings, bank stabilization activities, living shorelines, and aquatic habitat restoration and enhancement activities. The 5-year cycle for reissuing the NWPs is sufficient time to make necessary changes to the NWPs to ensure the NWPs only authorize those activities that result in no more than minimal individual and cumulative adverse environmental effects.
Many commenters objected to the proposed NWPs, stating that they authorize activities that result in more than minimal individual and cumulative adverse environmental effects and that they do not authorize categories of activities that are similar in nature. A few commenters said that since the Corps does not require pre-construction notifications (PCNs) for all NWP activities, it could not ensure that NWP activities result in no more than minimal individual and cumulative adverse environmental effects. One commenter said that Corps districts should improve their tracking of cumulative impacts. A number of commenters opposed the NWPs, stating that they authorize activities associated with larger projects that have substantial environmental impacts. Several commenters said that the NWPs should either not authorize activities that impact streams and rivers occupied by anadromous salmon, or compensatory mitigation should always be required for those activities. One commenter stated that the NWPs should not be used in areas with substantial cumulative impacts, such as essential fish habitat and areas inhabited by ESA-listed species.
The NWP program provides a three-tiered approach to ensure compliance with section 404(e) of the Clean Water Act. Those three tiers are: (1) The terms and conditions of the NWPs issued by Corps Headquarters; (2) the authority of division engineers to modify, suspend, or revoke NWPs on a regional basis; and (3) the authority of district engineers to modify, suspend, or revoke NWPs on a case-by-case basis. We interpret the requirement for general permits to authorize categories of activities that are similar in nature broadly, to provide program efficiency, to keep the number of NWPs manageable, and to facilitate implementation by the Corps and project proponents that need to obtain Department of the Army (DA) authorization for activities that have only minimal adverse environmental effects.
The NWP activities that do not require PCNs are those activities that have characteristics that do not result in more than minimal adverse environmental effects, such as small structures in navigable waters subject to section 10 of the Rivers and Harbors Act of 1899 or minor fills in waters of the United States associated with maintenance activities or temporary impacts. While we recognize that many NWP activities are components of larger overall projects, the Corps' authorities under the NWP program are limited to discharges of dredged or fill material into waters of the United States that are regulated under Section 404 of the Clean Water Act, and structures and work in navigable waters that are regulated under Section 10 of the Rivers and Harbors Act of 1899. The Corps does not regulate other components of those larger overall projects, such as activities that occur in upland areas. In many cases, the NWPs are authorizing minor features that are part of those larger overall projects.
Division engineers can impose regional conditions on the NWPs to protect rivers and streams inhabited by anadromous fish, including salmon. For those salmonids that are listed as endangered or threatened under the Endangered Species Act (ESA), general condition 18 requires PCNs for all NWP activities that might affect those listed species or their designated critical habitat, or that occur in their designated critical habitat. District engineers have the discretion to require compensatory mitigation to offset stream losses caused by NWP activities. A division engineer also has the authority to modify, suspend, or revoke one or more NWPs in a geographic region if he or she determines the use of that NWP or NWPs will result in more than minimal cumulative adverse environmental effects. An area that has essential fish habitat or is inhabited by ESA-listed species is not necessarily experiencing more than minimal cumulative impacts due to activities authorized by NWPs. The physical, chemical, and biological characteristics of essential fish habitat may be altered by a variety of human activities other than the activities authorized by NWPs. Essential fish habitat may be altered by land use and land cover changes in the watershed, point source and non-point source pollution, excess nutrients, resource extraction activities, introductions and removals of species, and changing environmental conditions, including climate change. Species may be listed as endangered or threatened because of habitat destruction and modification, overexploitation, disease or predation, the inadequacy of existing regulatory mechanisms, and other man-made or natural factors affecting their continued existence (see section 4(a)(1)(A)–(E) of the Endangered Species Act).
One commenter said the NWPs should not authorize activities that result in adverse environmental impacts. A commenter asserted that the
Section 404(e) of the Clean Water Act recognizes that activities authorized by general permits, including NWPs, will result in adverse environmental impacts, but limits those adverse impacts so that they can only be no more than minimal. Regulated activities that occur in marine and estuarine waters often result in no more than minimal adverse environmental effects, as long as they comply with the NWP terms and conditions that are imposed on such activities. We have adopted terms and conditions for the NWPs to be sufficiently protective of the aquatic environment while allowing activities that result in only minimal adverse environmental effects to be conducted. The NWPs are already subject to multi-agency peer review process, through the rulemaking requirements of Executive Order 12866, Regulatory Planning and Review.
Requiring public notices for PCNs would be contrary to the purpose of the general permit program established through section 404(e) of the Clean Water Act, for a streamlined authorization process for activities that result in no more than minimal individual and cumulative adverse environmental effects. In addition, it is unlikely that there would be any meaningful public comment submitted to Corps districts in response to public notices for the minor activities authorized by these NWPs that would warrant the reduction in permitting efficiency providing such a comment period would cause. Compensatory mitigation can only be required by the district engineer after he or she reviews the PCN and determines that compensatory mitigation is necessary to comply with the “no more than minimal adverse environmental effects” requirement for NWPs (see 33 CFR 330.1(e)(3)). There is no federal statute or regulation that requires “no net loss” of aquatic resources. The “no overall net loss” goal for wetlands articulated in the 1990 U.S. EPA-Army Memorandum of Agreement for mitigation for Clean Water Act section 404 permits states that the section 404 permit program will contribute to that national goal. The 1990 Memorandum of Agreement only applies to standard individual permits.
The NWP program provides valuable protection to the Nation's aquatic resources by establishing incentives to avoid and minimize losses of jurisdictional waters and wetlands in order to qualify for the streamlined NWP authorizations. A large majority of authorized fills in jurisdictional waters and wetlands authorized by general permits and individual permits are less than 1/10-acre (Corps-EPA 2015, Figure 5). The 2017 NWPs use the term “no more than minimal adverse environmental effects” to be consistent with the text of section 404(e) of the Clean Water Act and 33 CFR 322.2(f)(1). When making no more than minimal adverse environmental effects determinations for proposed NWP activities, the district engineer considers the adverse effects to the aquatic environment and any other factor of the public interest (
One group of commenters requested a public hearing on the proposed NWPs because of their concerns about the permitting of oil and gas pipelines. Another organization requested a public hearing because of the proposal to reissue NWP 48. We denied the requests for a public hearing on the proposed 2017 NWPs because we determined that a public hearing is unlikely to provide information that was not already provided through the thousands of comments we received on the proposal to reissue NWP 12, and the many comments we received on the proposed NWP 48. See our responses to comments on NWP 12 and 48 below for more information.
One commenter said that Corps districts should not be allowed to suspend NWPs to use regional general permits (RGPs) instead of the NWPs if the overall project crosses state lines or international boundaries. Regional general permits are an acceptable permitting mechanism to authorize activities requiring Department of the Army (DA) authorization that are part of an overall larger project that crosses state boundaries or international boundaries. The NWPs already provide an expedited review process for regulated activities that result in no more than minimal adverse environmental effects, although we recognize that it takes more time to issue NWP verifications that require compliance with other federal laws, such as section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act. For an NWP activity that requires Clean Water Act section 401 water quality certification and/or Coastal Zone Management Act (CZMA) consistency concurrence, the district engineer may issue a provisional NWP verification, but that activity is not authorized by NWP until the project proponent obtains the required water quality certification or waiver, and/or the required CZMA consistency concurrence or presumption of concurrence.
A few commenters suggested that the Corps develop procedures to expedite the review of proposed NWP activities and that additional mitigation should not be required in states that have regulatory programs similar to the Corps regulatory program. One commenter said that there should be waivers in NWPs for activities reviewed and permitted by states. When an NWP activity that also requires authorization under state law requires compensatory mitigation, the Corps district is encouraged to work with its state counterparts to develop compensatory mitigation requirements that satisfy both federal and state permit requirements. Waivers for NWP authorization or NWP limits cannot be issued solely on the basis that activities may be regulated by both the Corps and state regulatory agencies. The requirements in Section 404(e) of the Clean Water Act for general permits, including NWPs, may be different from the requirements for state-issued general permits. For categories of activities authorized by NWPs, those NWPs satisfy the permitting requirements of section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899.
One commenter said that the expiration dates of NWP verification letters issued by Corps districts do not correspond to the expiration date of the NWPs themselves. Another commenter stated that individual permits, rather than NWPs, should be required for all wetland fills. One commenter requested an expedited review process for emergency projects. One commenter requested information on how cumulative impacts are assessed by the Corps.
On January 28, 2013 (78 FR 5733), we issued a final rule amending 33 CFR 330.6(a)(3)(ii) to allow district engineers to issue NWP verifications that expire on the same date the NWPs expire, unless the district engineer modifies, suspends, or revokes the NWP authorization. Not all wetland fills result in more than minimal adverse environmental effects, so authorization by NWP is appropriate when the wetland fill activity is authorized by an NWP and complies with all applicable terms and conditions, including any regional conditions imposed by the division engineer and any activity-specific conditions imposed by the district engineer. Those activity-specific conditions may cover wetland compensatory mitigation requirements. Emergency projects that are not covered by NWPs or regional general permits may be addressed under the Corps' emergency permitting procedures at 33 CFR 325.2(e)(4). Our general approach for evaluating cumulative effects in the NWP program is described above in this final rule.
We have prepared a decision document for each NWP. Each decision document contains an environmental assessment (EA) to fulfill the requirements of the National Environmental Policy Act (NEPA). The EA includes the public interest review described in 33 CFR part 320.4(b). The EA generally discusses the anticipated impacts the NWP will have on the human environment and the Corps' public interest review factors. If a proposed NWP authorizes discharges of dredged or fill material into waters of the United States, the decision document also includes an analysis conducted pursuant to the Clean Water Act section 404(b)(1), in particular 40 CFR part 230.7. These decision documents evaluate, from a national perspective, the environmental effects of each NWP.
The final decision document for each NWP is available on the internet at:
For the NWPs, the assessment of cumulative effects occurs at three levels: National, regional, and the activity-specific verification stage. Each national NWP decision document includes a national-scale NEPA cumulative effects analysis. Each supplemental decision document has a cumulative effects analysis conducted for the geographic region covered by the supplemental decision document, which is usually a state or Corps district. When a district engineer issues an NWP verification letter in response to a PCN or a voluntary request for a NWP verification, the district engineer prepares a brief decision document. That decision document explains the district engineer's determination whether the proposed NWP activity, after considering permit conditions which might include mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects.
If the NWP is not suspended or revoked in a state or a Corps district, the supplemental decision document includes a certification that the use of the NWP in that district, with any applicable regional conditions, will result in no more than minimal cumulative adverse environmental effects. When a division engineer adds regional conditions to one or more NWPs, the district engineer announces those regional conditions in a public notice.
After the NWPs are issued or reissued, district engineers will monitor the use of NWPs, and those evaluations may result the district engineer recommending that the division engineer modify, suspend, or revoke one or more NWPs in a particular geographic region or watershed. For such recommendations, the district engineer would present information indicating that the use of one or more NWPs in a particular geographic area may result in more than minimal individual or cumulative adverse environmental effects. In such cases, the division engineer will amend the applicable supplemental decision documents to account for the modification, suspension, or revocation of those NWPs, and issue a public notice announcing the new regional conditions or the suspension or revocation of the applicable NWP(s).
A few commenters said that the Corps' cumulative effects analyses were properly conducted, and a few commenters expressed opinions that those analyses were inadequate. One commenter said that cumulative effects analyses should not be limited to the NWP verification stage, but should also be conducted at national and regional scales to improve resource protection. One commenter stated that in its draft decision documents, the Corps failed to assess the cumulative impacts of the NWPs and did not take into account the full scope of adverse impacts to the nation's waters. Another commenter said that the Corps' cumulative effects analysis did not properly consider past actions and reasonably foreseeable future actions.
All of the national decision documents have a cumulative impact analysis conducted in accordance with the Council on Environmental Quality's NEPA regulations at 40 CFR 1508.7 (see section 4.3 of each national decision document). For those NWPs that authorize discharges of dredged or fill material into waters of the United States, each the national decision document includes a cumulative effects analysis conducted under 40 CFR 230.7(b)(3). Cumulative effects analyses are also conducted at regional scales, in the supplemental decision documents approved by division engineers. When issuing an NWP verification, the district engineer makes a determination confirming that the use of the NWP will result in no more than minimal cumulative adverse environmental effects. If the district engineer determines, after considering mitigation proposed by the applicant, that the use
The cumulative impact analyses in the national decision documents, especially the NEPA cumulative effects analyses, examine the wide variety of activities that affect the structure, dynamics, and functions of the nation's waters and wetlands. The ecological functionality or ecological condition of those waters and wetlands are directly and indirectly affected by many types of human activities, not just discharges of dredged or fill material regulated under section 404 of the Clean Water Act or structures or work regulated under section 10 of the Rivers and Harbors Act of 1899. The Corps' NEPA cumulative effects analyses considers past actions in the aggregate, consistent with the Council on Environmental Quality's 2005 guidance entitled “Guidance on the Consideration of Past Actions in Cumulative Effects Analyses.” The aggregate effects of past actions includes the present effects of past actions that were authorized by earlier versions of the NWPs, as well as other DA permits. In the national decision documents, the Corps added more discussion of the contribution of reasonably foreseeable future actions to NEPA cumulative effects, based on general information on reasonably foreseeable future actions that can be discerned at a national scale for categories of activities associated with NWP activities. Many of the reasonably foreseeable future actions related to the operation of the facility, after the permitted activities were completed. The Corps does not have the authority to regulate the operation of facilities that may be been constructed under activities authorized by NWPs or other DA permits, unless those operation activities involve discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States.
One commenter declared that NWP verifications do not need to include NEPA analyses because compliance with NEPA is accomplished through the national decision documents issued by Corps Headquarters. Another commenter expressed the opinion that the national decision documents, the supplemental decision documents signed by division engineers, and NWP verifications issued by district engineers do not comply with NEPA. A number of commenters said that making the draft decision documents available for public review during the comment period for the proposed NWPs does not comply with NEPA requirements. One commenter said that the comment period for the draft decision documents should be 90 days. A few commenters asserted that the draft decision documents prematurely made a “finding of no significant impact.” One commenter said the national decision documents support a “finding of no significant impact” under NEPA for each of the NWPs. Several commenters stated that each NWP requires an environmental impact statement.
When district engineers evaluate NWP PCNs, they are not required to conduct NEPA analyses because the Corps fulfills the requirements of NEPA through the environmental assessments in the combined decision documents prepared by Corps Headquarters when an NWP is issued, reissued, or modified. The NWP verification can be simply confirmation that a proposed NWP activity complies with the terms and conditions of applicable NWP(s), and will result in no more than minimal individual and cumulative adverse environmental effects. The administrative record for an NWP verification will include a brief document explaining the district engineer's determination regarding the NWP authorization for that activity, and whether the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects. The requirements of NEPA are fulfilled by the national decision documents issued by Corps Headquarters. The supplemental decision documents signed by division engineers and the NWP verifications issued by district engineers are part of the tiered decision-making process to demonstrate compliance with the “no more than minimal individual and cumulative adverse environmental effects” requirements for general permits. This tiered process is consistent with the requirements under section 404(e) of the Clean Water Act and for NWPs issued under the authority of section 10 of the Rivers and Harbors Act of 1899, 33 CFR 322.2(f).
The Council on Environmental Quality's NEPA regulations require agencies to “involve environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments” (40 CFR 1501.4(b)) but do not require that environmental assessments be made available in draft form for public comment. However, the Corps' NWP regulations require that the draft decision documents prepared by Corps Headquarters are made available for public comment (see 33 CFR 330.5(b)(3)). Thus we made them available for public review and comment. We believe that 60 days is a sufficient comment period for the public to provide meaningful comments on the draft decision documents.
In its draft decision documents for these proposed NWPs, the Corps did not make a “finding of no significant impact”; the draft decision documents had place-holders stating that those decisions could be made for the final NWPs. The Corps' “finding of no significant impact” in each national decision document for an issued or reissued NWP marks the completion of the NEPA process. When the Corps issues an EA with a finding of no significant impact, the NEPA process is concluded and an environmental impact statement is not necessary. Because the NWPs only authorize activities that have no more than minimal adverse environmental effects, individually and cumulatively, the issuance or reissuance of an NWP does not result in significant impacts to quality of the human environment and does not trigger the requirement to prepare an environmental impact statement.
One commenter said that a purpose and need statement should be included in each national decision document. This commenter also stated that the Corps' alternatives analysis and its evaluation of direct, indirect, and cumulative impacts is inadequate. One commenter stated that the division engineer's supplemental decision documents and the imposition of regional conditions does not comply with NEPA and the Clean Water Act. Several commenters recommended that the final decision documents discuss impacts to climate change.
The NWPs authorize categories of activities that generally satisfy specific purposes (
The NWPs are issued in accordance with Section 404(e) of the Clean Water Act and 33 CFR part 330. Section 404(e)(1) allows the Corps to issue nationwide permits for “categories of activities that are similar in nature.” We interpret the “similar in nature” requirement to be applied in a broad manner, as a general category, rather than as a requirement that NWP activities must be identical to each other. We believe that this approach is consistent with implementing this general permit program in a practical, efficient manner.
Nationwide permits, as well as other general permits, are intended to reduce administrative burdens on the Corps and the regulated public while maintaining environmental protection, by efficiently authorizing activities that have no more than minimal adverse environmental effects, consistent with Congressional intent in the 1977 amendments to the Federal Water Pollution Control Act. Keeping the number of NWPs manageable is a key component for making the NWPs protective of the environment and streamlining the authorization process for those general categories of activities that have no more than minimal individual and cumulative adverse environmental effects.
The various terms and conditions of these NWPs, including the NWP regulations at 33 CFR 330.1(d) and 33 CFR 330.4(e), allow district engineers to exercise discretionary authority to modify, suspend, or revoke NWP authorizations to ensure compliance with Section 404(e) of the Clean Water Act. District engineers also have the authority to exercise discretionary authority and require an individual permit for any proposed activity that will result in more than minimal individual and cumulative adverse environmental effects. For each NWP that may authorize discharges of dredged or fill material into waters of the United States, the national and supplemental decision documents include national and regional 404(b)(1) Guidelines analyses, respectively. The 404(b)(1) Guidelines analyses are conducted in accordance with 40 CFR 230.7.
The 404(b)(1) Guidelines analyses in the national and supplemental decision documents also include cumulative effects analyses, in accordance with 40 CFR 230.7(b)(3). A 404(b)(1) Guidelines cumulative effects analysis is provided in addition to the NEPA cumulative effects analysis because the implementing regulations for NEPA and the 404(b)(1) Guidelines define “cumulative impacts” or “cumulative effects” differently.
Many commenters asserted that the proposed NWPs will authorize activities that will cause more than minimal adverse environmental effects. Several commenters stated that the proposed NWPs do not comply with the 404(b)(1) Guidelines. Several commenters said that the proposed NWPs authorize activities with only minimal adverse environmental effects. One commenter indicated that the proposed NWPs authorize categories of activities that are not similar in nature. Another commenter said eliminating the NWPs that authorize separate and distant crossings of waters of the United States by separate NWP authorization would violate the Clean Water Act. One commenter stated that activities authorized by NWPs have resulted in significant degradation of waters of the United States. One commenter suggested that NWP PCNs should include an alternatives analysis.
The terms and conditions of the NWPs, including the PCN requirements that are in many of the NWPs, are designed to ensure that the NWPs authorize only those categories of activities that have no more than minimal individual and cumulative adverse environmental effects. For those NWPs that authorize discharges of dredged or fill material into waters of the United States, each national decision document includes a 404(b)(1) Guidelines analysis. As stated above, we interpret the “categories of activities that are similar in nature” requirement broadly to keep the NWP program manageable in terms of the number of NWPs. With the NWPs issued today, for linear projects (
In the June 1, 2016, proposed rule, we solicited comments from NWP users and other interested parties on how the revisions to the definition of “waters of the United States” published in the June 29, 2015, edition of the
Many commenters recommended writing the final NWPs so that they are neutral with respect to any particular regulation defining “waters of the United States” pending the outcome of the litigation that is occurring for the June 29, 2015, final rule. These commenters suggested that the final NWPs should use general terms relating to jurisdiction that would be applied using whichever regulation is in effect at the time a PCN or voluntary request for NWP verification is being processed and evaluated by the district engineer. Many commenters stated that the Corps should not implement the 2015 final rule until the litigation is completed. Several commenters expressed support for implementing the 2015 final rule. Several commenters said that the Corps should delay issuing the final NWPs until after the litigation on the 2015 final rule has concluded.
We have changed the text of some NWPs, general conditions, and definitions so that they do not cite specific provisions of 33 CFR part 328, unless those provisions were not addressed in the 2015 final rule. We continue to rely on general terms relating to jurisdiction, such as “adjacent” and “ordinary high water mark,” which have been used in the Corps regulatory program and the NWP program for many years. When a Corps district receives a PCN or a voluntary request for NWP verification, the district
Many commenters suggested that the Corps conduct additional rulemaking to modify the NWPs if the stay of the 2015 final rule is lifted. Many commenters recommended increasing the acreage limits and PCN thresholds for the NWPs in case the 2015 final rule goes back into effect. Several commenters said the Corps should retain the current acreage limits, PCN thresholds, and general conditions until the litigation concerning the 2015 final rule is concluded. Several commenters requested that the Corps withdraw the proposed NWP rule until the litigation on the definition of “waters of the United States” is resolved. Several commenters said that it was inappropriate for the Corps to seek comment on the effects of the 2015 final rule on the NWPs because the 2015 final rule was only in effect for several weeks before the stay was issued by the Sixth Circuit. They said that there was not sufficient time to collect data and examples of the effects of the 2015 final rule on the utility of the NWPs, and to provide meaningful comment to the Corps.
If the Corps determines that the NWPs issued today need to be modified to address changes in the geographic scope of Clean Water Act jurisdiction or other regulation changes, the Corps will conduct rulemaking in accordance with the Administrative Procedure Act prior to making those changes. We are retaining the proposed acreage limits and PCN thresholds for these NWPs. It would not be prudent to withdraw the proposed NWPs pending the outcome of the litigation on the 2015 final rule because the 2012 NWPs expire on March 18, 2017, and cannot be extended. We appreciate the challenges with providing data on the effects of the 2015 final rule on the proposed NWPs, but we believe it was necessary to ask those questions because of concerns that were expressed by multiple stakeholders since the 2015 final rule was issued.
Many commenters requested that the Corps clarify the definitions of “adjacent” and “waterbody” regardless of whichever regulatory definition of “waters of the United States” is in effect. One commenter asked that the Corps define what constitutes a valid waste treatment system. One commenter stated that if the 2015 final rule goes back into effect, more activities will be regulated and thus may require NWP authorization, which will increase financial burdens on the regulated public. Another commenter said that under an increased number of waters and wetlands subject to Clean Water Act jurisdiction, the NWPs would no longer be consistent with Congressional intent for a streamlined permitting process for activities resulting in no more than minimal individual and cumulative adverse environmental effects. One commenter said that any substantial changes to the final NWPs that are made in response to comments must comply with the notice and comment requirements of the Administrative Procedure Act.
We do not believe it would be appropriate to clarify the definition of “adjacent” in these NWPs. When evaluating a PCN or voluntary request for NWP verification, Corps districts will apply the definition of “adjacent” that is in effect at the time the PCN or NWP verification request is received. We have modified the definition of “waterbody” to remove references to specific regulations. Wetlands adjacent to a waterbody will be identified through the regulations and guidance in effect when the PCN or NWP verification is being reviewed by the district engineer. Waste treatment systems will be identified on a case-by-case basis by district engineers to determine when the waste treatment exclusion applies under the Clean Water Act. Notwithstanding which regulations defining “waters of the United States” are in effect at a particular time, the NWPs continue to provide a streamlined authorization process for categories of regulated activities that result in no more than minimal adverse environmental effects. We believe that the changes made for the final NWPs are a logical outgrowth of the proposed rule and are reasoned responses to comments received on the June 1, 2016, proposed rule.
In the June 1, 2016, proposed rule we requested comment on whether to retain the
The proportion of commenters stating that the acreage limits for the NWPs should be unchanged was roughly the same as the proportion of commenters recommending increases in acreage limits. Many of the commenters favoring increases in acreage limits did so because of their concerns regarding the effect of the 2015 final rule defining “waters of the United States” on the NWPs if the stay issued by the Sixth Circuit is lifted. Several commenters said the
We are retaining the current acreage limits for those NWPs that have acreage limits. Comments suggesting changes to the acreage limits of a specific NWP are summarized in the section of the preamble that discusses the comments received on that NWP. We believe the current acreage limits, along with the current PCN thresholds, provide effective environmental protection while allowing district engineers flexibility to take into account site-
Two commenters stated that the limits of the NWPs should be based on the quality of the aquatic resources that would be impacted by the NWP activities. Another commenter said there should be no acreage limits on the NWPs. Several commenters said that the acreage limits should not include temporary impacts. Two commenters recommended increasing the acreage limit for NWPs that authorize activities associated with renewable energy generation and transmission projects. One commenter said the
Basing the limits of NWPs on the quality of aquatic resources that would be impacted by a proposed NWP activity is not practical because the rapid ecological assessment methods that would be needed to implement such an approach are not uniformly available across the country for all types of jurisdictional waters and wetlands. Acreage limits are necessary for some NWPs because the type of activity authorized by NWPs with acreage limits are not self-limiting due to the nature of the category of the activity authorized by the NWP. For example, NWP 29, which authorizes discharges of dredged of fill material into waters of the United States to construct residential developments, requires an acreage limit to satisfy the “no more than minimal adverse environmental effects” requirement because residential developments can vary substantially in size and in the amount of losses of jurisdictional waters and wetlands they can cause. Under the NWP definition of “loss of waters of the United States” temporary impacts are not applied to the acreage limit; only permanent adverse effects are applied. We are retaining the
Section 404(e) of the Clean Water Act states that NWPs and other general permits may only authorize activities that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. 1433(e). Section 404(e) does not define the term “minimal,” so we consider common definitions of “minimal,” experience, and sound judgement when addressing compliance with section 404(e) through the establishment of acreage and other limits for the NWPs.
For a program that is national in scope, such as the NWP program, defining “minimal” is extremely challenging because of the substantial variation in the structure, functions, and dynamics exhibited by the various types of aquatic resources found across the country subject to regulation under the Corps' permitting authorities. The value that society places on those aquatic resources also varies substantially across the country, and from person to person. In paragraph 2 of Section D, District Engineer's Decision, we have identified a number of factors for district engineers to consider when making their “no more than minimal adverse environmental effects” determinations for proposed NWP activities. All the factors listed above result in a degree of complexity that makes it infeasible to use a quantitative scientific approach to define an acreage limit that will be applied across the country and will ensure that NWP activities will have no more than minimal individual and cumulative adverse environmental effects. Since a quantitative scientific approach is not feasible, we have to rely on other approaches for establishing acreage and other limits and ensuring compliance with section 404(e) of the Clean Water Act.
The
The regional conditioning process provides division engineers with the opportunity to lower acreage limits on a regional basis to take into account local variations in aquatic resource type, functions, and services. In addition, the PCN requirements allow district engineers evaluate proposed activities on a case-by-case basis and impose conditions to ensure that those activities cause no more than minimal adverse environmental effects. In response to a PCN, a district engineer can also exercise discretionary authority to require an individual permit if mitigation cannot be done to satisfy the “no more than minimal adverse environmental effects” requirement for NWPs.
Several commenters expressed support for retaining the 300 linear foot limit for losses of stream bed that is in a number of NWPs. A few commenters suggested increasing the 300 linear foot limit, and one commenter said that limit should be 500 linear feet. Several other commenters recommended removing the 300 linear foot limit for stream losses and relying solely on the
We have retained the 300 linear foot limit for losses of stream bed in those NWPs that have that limit. The 300 linear foot limit is used in conjunction with the
Because the physical, chemical, and biological processes in streams occur within the area occupied by the stream channel (with contributions of areas outside the stream channel, such as floodplains, riparian areas, and hyporheic zones), acres are appropriate for quantifying stream impacts. The use of acres to quantify losses of stream bed is discussed in more detail in the “Definitions” section preamble for the definition of “loss of waters of the United States.” Regulated activities that result in the loss of ephemeral streams that are determined to be waters of the United States are subject to the terms and conditions of the NWPs, including any applicable acreage or linear foot limits. Limiting stream impacts using a classification system based on stream order or stream type would requiring choosing a classification system that would be applied across the country for the NWP program. We believe that is not a practical option for complying with the “no more than minimal adverse environmental effects” requirement because of challenges in relating stream order to the degree of adverse environmental effects. When evaluating PCNs, district engineers can take into account the stream type and the location of the stream in the watershed when determining whether a proposed activity is authorized by NWP. They can also use appropriate stream assessment tools, if such tools are available.
We also solicited comments on changing the PCN thresholds for those NWPs that require pre-construction notification. Many commenters said the current PCN thresholds should remain unchanged. Several commenters expressed support for the use of PCNs to provide flexibility and help ensure that NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse environmental effects. Two commenters stated that PCNs are an important tool in helping to assess the cumulative impacts of NWP activities. Several commenters recommended that PCNs be required for all NWP activities so that the impacts of the NWP program can be fully evaluated. One commenter said that PCNs should be made available to the public.
In this final rule, we have retained the PCN thresholds that were in the proposal rule. We acknowledge that PCNs are an important mechanism to ensure that the NWPs only authorize those activities that have no more than minimal individual and cumulative adverse environmental effects. Pre-construction notifications allow district engineers to evaluate the activity- and site-specific circumstances of proposed NWP activities to decide whether those activities are eligible for NWP authorization or require individual permits. In addition, PCNs provide district engineers with the opportunity to impose activity-specific conditions on the NWPs, including mitigation requirements, to comply with the general permit requirements. Pre-construction notifications also facilitate compliance with section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act. In our automated information system, we record all NWP PCNs and voluntary requests for NWP verification, which assists in our monitoring of cumulative impacts that result from activities authorized by NWPs. For those NWPs that do not require PCNs or are not voluntarily reported to the Corps, we estimate their contribution to cumulative impacts.
A number of categories of NWP activities do not require PCNs because they are unlikely to cause more than minimal cumulative adverse environmental effects. However, division engineers may modify these NWPs on a regional basis to require PCNs if they have concerns about the potential for more than minimal cumulative adverse environmental effects occurring as a result of those NWP activities. Requiring PCNs for all NWP activities is not practical and would be contrary to the streamlined authorization process envisioned by section 404(e) of the Clean Water Act. Specific activities authorized by NWPs do not require public notices and making those PCNs available to the public would add no value to the verification process. The public notice and comment process for the NWPs takes place at the appropriate phase: The rulemaking process for the issuance or reissuance of an NWP. If the Corps were to accept public comment on PCNs, it would turn the general permit process into an individual permit process.
Several commenters recommended increasing the PCN thresholds for a number of NWPs. Some commenters suggested increasing the PCN threshold for all NWPs. A few commenters said that PCN thresholds should be raised only if the Sixth Circuit lifts its stay on the 2015 final rule defining “waters of the United States.” One commenter stated that PCNs should not be required for NWP activities that only result in temporary impacts. One commenter objected to the use of PCNs, stating that PCNs reduce the efficiency of the NWPs. One commenter said that reliance on the PCN process to determine whether a proposed NWP activity results in no more than minimal adverse environmental effects violates section 404(e) of the Clean Water Act.
Recommendations for changing PCN thresholds for specific NWPs are discussed below, in the preamble discussion for each NWP. Most of the PCN thresholds apply to “losses of waters of the United States” which are based on permanent losses, not temporary impacts that are restored after completion of the authorized work. We believe the PCN process increases the efficiency of the NWP program, by allowing district engineers to determine whether activities will have no more than minimal adverse environmental effects. If the NWP PCN process were not available, the acreage and other limits of the NWPs would probably have to be decreased to ensure compliance with section 404(e) of the Clean Water Act. That would result in more activities requiring individual permits. Section 404(e) of the Clean Water Act is silent
In the June 1, 2016, proposal to reissue the NWPs, we announced our commitment to improve our tracking of waivers issued by district engineers, by adding a field to our automated information system to indicate whether a waiver was issued for an NWP verification. We also requested comments on five aspects of the use of waivers in the NWPs. This tool allows district engineers to waive certain NWP limits when they find that proposed activities, after agency coordination, will result in no more than minimal adverse environmental effects.
We solicited comments on these five topics relating to waivers: (1) Changing the numeric limits that can be waived; (2) whether to retain the authority of district engineers to issue activity-specific waivers of certain NWP limits; (3) whether to impose a linear foot cap on waivers to the 500 linear foot limit for NWPs 13 and NWP 54 or the 20 foot limit in NWP 36; (4) whether to impose a linear foot cap on losses of intermittent and ephemeral stream bed potentially eligible for waivers of the 300 linear foot limit for losses of stream bed; and (5) whether to require compensatory mitigation to offset all losses of stream bed authorized by waivers of the 300 linear foot limit for the loss of stream bed in NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. We also requested that commenters provide data and other information supporting their views on these questions.
Many commenters expressed support for the current waivers and the processes for evaluating waiver requests. A few commenters said there should not be any changes to the existing waivable limits of the NWPs. Many commenters opposed the use of waivers. Several commenters expressed support for the Corps' commitment to modify its automated information system to explicitly track the use of waivers, beginning with the 2017 NWPs. Several commenters stated that the Corps should issue annual reports on the approval of waivers in NWP verifications. A few commenters said that agency coordination should be required for all PCNs requesting waivers of certain NWP limits. A few commenters stated that public notices should be issued for waiver requests.
We are retaining the waiver provisions in the 2017 NWPs as they were proposed in the June 1, 2016,
In response to several commenters and in keeping with our overall commitment toward increasing transparency of regulatory decisions, we will develop quarterly reports that show overall summary statistics pertaining to the use of each NWP, aggregated per Corps District, and display it on our Web site. Some statistics that may be reported regarding the NWPs may include number of verifications provided per quarter, acres of waters of the United States permanently lost, as well as including summary information on the use of waivers during the previous quarter. All data provided will be aggregated by NWP and all information on waivers will pertain only to those NWPs that include a waiver provision. With the exception of NWP 36 (boat ramps), all PCNs requesting waivers of specific limits must be coordinated with the resource agencies in accordance with paragraph (d) of general condition 32. We do not believe agency coordination is necessary for requested waivers under NWP 36 because the width of a boat ramp or the amount of fill used to construct a boat ramp will not be much larger than the 20 foot width limit or the 50 cubic yard limit. Requiring public notices for waiver requests would be inconsistent with the general principles of general permits. We believe that agency coordination is sufficient to obtain additional information to assist in the district engineer's decision on activity-specific waiver requests.
Many commenters said that there should be no caps on waivers, but several commenters suggested that there should be waiver caps on all NWPs. One commenter stated that the limits under which a waiver can occur should be increased if the Sixth Circuit's stay of the 2015 rule defining “waters of the United States” is lifted and that rule goes back into effect. One commenter stated that all NWPs should have waivable limits. Several commenters indicated that some of the acreage limits of the NWPs should be able to be waived by district engineers. A few of those commenters recommended allowing district engineers to waive the
We have not added any additional caps to waivers, because the PCN process, the agency coordination process, and the requirement for district engineers to make written determinations in response to waiver requests are sufficient to ensure that NWPs that include waiver provisions continue to comply with section 404(e) of the Clean Water Act. Many of the NWPs that have waiver provisions have a
Several commenters said that compensatory mitigation should not be required for all waivers, and should only be required on a case-by-case basis. A few commenters recommended requiring compensatory mitigation for waivers for losses of stream bed. One commenter supported the use of alternative approaches for providing compensatory mitigation for waivers.
District engineers will continue to make case-by-case determinations on whether compensatory mitigation is necessary to offset losses of waters of the United States authorized by NWPs, including losses authorized by waivers of certain NWP limits. Those decisions will be made in accordance with 33 CFR 330.1(e)(3) and general condition 23, mitigation. Regional conditions added
In the June 1, 2016, proposed rule (see 81 FR 35192–35195), the Corps explained that the NWP regulations at 33 CFR 330.4(f) and NWP general condition 18, endangered species, ensure that all activities authorized by NWPs comply with section 7 of the Endangered Species Act (ESA). Section 330.4(f)(2) and paragraph (c) of general condition 18 require non-federal permittees to submit PCNs “if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat.” Federal permittees should follow their procedures for ESA section 7 compliance (see 33 CFR 330.4(f)(1)). The Corps evaluates the non-federal permittee's PCN and makes an effect determination for the proposed NWP activity for the purposes of ESA section 7. The Corps established the “might affect” threshold in 33 CFR 330.4(f)(2) and paragraph (c) of general condition 18 because it is more stringent than the “may affect” threshold for section 7 consultation in the U.S. Fish and Wildlife Service's (FWS) and National Marine Fisheries Service's (NMFS) ESA Section 7 consultation regulations at 50 CFR part 402. The word “might” is defined as having “less probability or possibility” than the word “may” (Merriam-Webster's Collegiate Dictionary, 10th edition).
Paragraph (b)(7) of general condition 32 requires the project proponent to identify, in the PCN, the listed species that might be affected by the proposed NWP activity or utilizes the designated critical habitat in which the NWP activity is proposed to occur. If the project proponent is required to submit a PCN because the proposed activity might affect listed species or critical habitat, the activity is not authorized by NWP until either the Corps district makes a “no effect” determination or makes a “may affect” determination and completes formal or informal ESA section 7 consultation.
When evaluating a PCN, the Corps either will make a “no effect” determination or a “may affect” determination. If the Corps makes a “may affect” determination, the district will notify the non-federal applicant and the activity is not authorized by NWP until ESA Section 7 consultation has been completed. If the non-federal project proponent does not comply with 33 CFR 330.4(f)(2) and general condition 18, and does not submit the required PCN, then the activity is not authorized by NWP. In such situations, it is an unauthorized activity and the Corps district will determine an appropriate course of action to respond to the unauthorized activity.
Federal agencies, including state agencies (
On October 15, 2012, the Chief Counsel for the Corps issued a letter to the FWS and NMFS (the Services) clarifying the Corps' legal position regarding compliance with the ESA for the February 13, 2012, reissuance of 48 NWPs and the issuance of two new NWPs. That letter explained that the issuance or reissuance of the NWPs, as governed by NWP general condition 18 (which applies to every NWP and which relates to endangered and threatened species), and 33 CFR part 330.4(f), results in “no effect” to listed species or critical habitat, and therefore the reissuance/issuance action itself does not require ESA section 7 consultation. Although the reissuance/issuance of the NWPs has no effect on listed species or their critical habitat and thus requires no ESA section 7 consultation, the terms and conditions of the NWPs, including general condition 18, and 33 CFR 330.4(f) ensure that ESA consultation will take place on an activity-specific basis wherever appropriate at the field level of the Corps, FWS, and NMFS. The principles discussed in the Corps' October 15, 2012, letter apply to the 2017 NWPs as well.
Division engineers can add regional conditions to the NWPs to protect listed species and critical habitat, and to facilitate compliance with general condition 18. For the 2017 NWPs, Corps districts coordinated with regional or local offices of the FWS and NMFS to identify regional conditions for these NWPs. Regional conditions can add PCN requirements to one or more NWPs in areas inhabited by listed species or where designated critical habitat occurs. Regional conditions can also be used to establish time-of-year restrictions when no NWP activity can take place to ensure that individuals of listed species are not adversely affected by such activities. Corps districts will continue to consider through regional consultations, local initiatives, or other cooperative efforts additional information and measures to ensure protection of listed species and critical habitat, the requirements established by general condition 18 (which apply to all uses of all NWPs), and other provisions of the Corps regulations ensure full compliance with ESA section 7.
In the Corps regulatory program's automated information system (ORM2), the Corps collects data on all individual permit applications, all NWP PCNs, all voluntary requests for NWP verifications where the NWP or general conditions do not require PCNs, and all verifications of activities authorized by regional general permits. For all written authorizations issued by the Corps, the collected data include authorized impacts and required compensatory mitigation, as well as information on all consultations conducted under section 7 of the ESA. Every year, the Corps districts evaluate over 30,000 NWP PCNs and requests for NWP verifications when PCNs are not required, and provides written verifications for those activities when district engineers determine those activities result in no more than minimal adverse environmental effects. During the evaluation process, district engineers assess potential impacts to listed species and critical habitat and conduct ESA section 7 consultations whenever they determine proposed NWP activities may affect listed species or designated critical habitat. District engineers will exercise discretionary authority and require individual permits when proposed NWP activities will result in more than minimal adverse environmental effects.
Each year, the Corps conducts thousands of ESA section 7 consultations with the FWS and NMFS
In response to the June 1, 2016, proposed rule many commenters expressed their support for the Corps' “no effect” determination for the issuance or reissuance of the NWPs for the purposes of ESA section 7. Several commenters recommended that, for the 2017 NWPs, the Corps conduct national programmatic ESA section 7 consultations with the FWS and NMFS. A few commenters said ESA section 7 consultation is required for the issuance or reissuance of the NWPs. Several commenters stated their agreement with the Corps' determination that the issuance or reissuance of NWPs does not trigger a need to consult under ESA section 7. One commenter said that the Corps should not conduct a voluntary national programmatic ESA section 7 consultation for the NWPs. One commenter asked why the Corps uses the term “might affect” instead of “may affect” in its regulations at 33 CFR 330.4(f)(2) and in general condition 18.
The Corps has not changed its position, as articulated in the June 1, 2016, proposed rule, that the issuance or reissuance of the NWPs by Corps Headquarters has “no effect” on listed species or critical habitat. Therefore, ESA section 7 consultation is not required whenever Corps Headquarters issues or reissues NWPs. As discussed above and in the June 1, 2016, proposed rule, when district engineers evaluate PCNs or voluntary requests for NWP verification, they will determine whether the proposed activities “may affect” listed species or designated critical habitat, and will conduct ESA section 7 consultation for any proposed NWP activity that “may affect” listed species or designated critical habitat. Project proponents that want to use NWPs for activities that require DA authorization are required to submit PCNs whenever their proposed activities might affect listed species or designated critical habitat, or if listed species or designated critical habitat are in the vicinity of the proposed activity, so that district engineers can determine whether those proposed activities will have “no effect” on listed species or critical habitat, or whether they “may affect” listed species or critical habitat and thus require either informal or formal ESA section 7 consultation. The requirements of ESA section 7 may also be fulfilled through programmatic section 7 consultations. As discussed above, the term “might affect” is a lower threshold than “may affect.”
One commenter asked whether activities authorized by the 2012 NWPs, for which ESA section 7 consultation was conducted, would be grandfathered under the 2017 NWPs. One commenter said that the Corps should allow state agencies, who can act as federal sponsors, to make their own effects determinations for listed species and critical habitat. A few commenters requested that activity-specific ESA section 7 consultations be completed within 30 to 60 days.
Activities authorized under the 2017 NWPs must comply with general condition 18. If ESA section 7 consultation was conducted for an activity authorized under one of the 2012 NWPs and the project proponent needs more time to complete the authorized activity, there is a possibility that the previous section 7 consultation could continue to apply to the 2017 NWP authorization. The project proponent should discuss that situation with the district engineer to determine whether the previous section 7 consultation applies or whether a new ESA section 7 consultation is needed. Unless a state agency is a department of transportation which the Federal Highway Administration has assigned its responsibilities pursuant to 23 U.S.C. 327, it remains the Corps' responsibility to make ESA section 7 effect determinations for activities authorized by the NWPs that will be conducted by non-federal permittees. The timeframes for formal ESA section 7 consultation are established by the statute, as well as the FWS's and NMFS's interagency consultation regulations at 50 CFR part 402. The Corps cannot change those timeframes. For informal ESA section 7 consultations, there are no timeframes in law or regulation. Under informal section 7 consultation, the Corps must obtain written concurrence from the FWS and/or NMFS for the informal consultation process to be completed.
The NWP program's compliance with the essential fish habitat (EFH) consultation requirements of the Magnuson-Stevens Fishery Conservation and Management Act is achieved through EFH consultations between Corps districts and NMFS regional offices. This approach continues the EFH Conservation Recommendations provided by NMFS Headquarters to Corps Headquarters in 1999 for the NWP program. Corps districts that have EFH designated within their geographic areas of responsibility coordinate with NMFS regional offices, to the extent necessary, to develop NWP regional conditions that conserve EFH and are consistent the NMFS regional EFH Conservation Recommendations. For NWP activities, Corps districts will conduct consultations in accordance with the EFH consultation regulations at 50 CFR 600.920. Division engineers may add regional conditions to the NWPs to address the requirements of the Magnuson-Stevens Act.
The Corps has determined that the NWP regulations at 33 CFR 330.4(g) and NWP general condition 20, historic properties, ensure that all activities authorized by NWPs comply with section 106 of the NHPA. General condition 20 requires non-federal permittees to submit PCNs for any activity that might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. The Corps then evaluates the PCN and makes an effect determination for the proposed NWP activity for the purposes of NHPA section 106. We established the “might have the potential to cause effects” threshold in paragraph (c) of general condition 20 to require PCNs for those activities so that the district engineer can evaluate the proposed NWP activity and determine whether it has no potential to cause effects to historic properties or whether it has potential to cause effects to historic properties and thus require section 106 consultation.
If the project proponent is required to submit a PCN and the proposed activity might have the potential to cause effects to historic properties, the activity is not authorized by NWP until either the Corps district makes a “no potential to cause effects” determination or completes NHPA section 106 consultation.
When evaluating a PCN, the Corps will either make a “no potential to cause effects” determination or a “no historic
The only activities that are immediately authorized by NWPs are “no potential to cause effect” activities under section 106 of the NHPA, its implementing regulations at 36 CFR part 800, and the Corps' “Revised Interim Guidance for Implementing Appendix C of 33 CFR part 325 with the Revised Advisory Council on Historic Preservation Regulations at 36 CFR part 800,” dated April 25, 2005, and amended on January 31, 2007. Therefore, the issuance or reissuance of NWPs does not require NHPA section 106 consultation because no activities that might have the potential to cause effects to historic properties can be authorized by NWP without first completing activity-specific NHPA Section 106 consultations, as required by general condition 20. Programmatic agreements (see 36 CFR 800.14(b)) may also be used to satisfy the requirements of the NWPs in general condition 20 if a proposed NWP activity is covered by that programmatic agreement.
NHPA section 106 requires a federal agency that has authority to license or permit any undertaking, to take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register, prior to issuing a license or permit. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking. Thus, in assessing application of NHPA section 106 to NWPs issued or reissued by the Corps, the proper focus is on the nature and extent of the specific activities “authorized” by the NWPs and the timing of that authorization.
The issuance or reissuance of the NWPs by the Chief of Engineers imposes express limitations on activities authorized by those NWPs. These limitations are imposed by the NWP terms and conditions, including the general conditions that apply to all NWPs regardless of whether pre-construction notification is required. With respect to historic properties, general condition 20 expressly prohibits any activity that “may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places,” until the requirements of section 106 of the NHPA have been satisfied. General condition 20 also states that if an activity “might have the potential to cause effects” to any historic properties, a non-federal applicant must submit a PCN and “shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that consultation under Section 106 of the NHPA has been completed.” Permit applicants that are Federal agencies should follow their own requirements for complying with section 106 of the NHPA (see 33 CFR 330.4(g)(1) and paragraph (b) of general condition 20), and if a PCN is required the district engineer will review the federal agency's NHPA section 106 compliance documentation and determine whether it is sufficient to address NHPA section 106 compliance for the NWP activity.
Thus, because no NWP can or does authorize an activity that may have the potential to cause effects to historic properties, and because any activity that may have the potential to cause effects to historic properties must undergo an activity-specific consultation before the district engineer can verify that the activity is authorized by NWP, the issuance or reissuance of NWPs has “no effect” on historic properties. Accordingly, the action being “authorized” by the Corps (
To help ensure protection of historic properties, general condition 20 establishes a higher threshold than the threshold set forth in the Advisory Council's NHPA section 106 regulations for initiation of section 106 consultation. Specifically, while section 106 consultation must be initiated for any activity that “has the potential to cause effects to” historic properties, for non-federal permittees general condition 20 requires submission of a PCN to the Corps if “the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties.” General condition 20 also prohibits the proponent from conducting the NWP activity “until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that consultation under Section 106 of the NHPA has been completed.” (See paragraph (c) of general condition 20.) The PCN must “state which historic property might have the potential to be affected by the proposed activity or include a vicinity map indicating the location of the historic property.” (See paragraph (b)(8) of general condition 32.)
During the process for developing regional conditions, Corps districts can coordinate or consult with State Historic Preservation Officers, Tribal Historic Preservation Officers, and tribes to identify regional conditions that can provide additional assurance of compliance with general condition 20 and 33 CFR 330.4(g)(2). Such regional conditions can add PCN requirements to one or more NWPs where historic properties occur. Corps districts will continue to consider through regional consultations, local initiatives, or other cooperative efforts and additional information and measures to ensure protection of historic properties, the requirements established by general condition 20 (which apply to all uses of all NWPs), and other provisions of the Corps regulations and guidance ensure full compliance with NHPA section 106.
Based on the fact that NWP issuance or reissuance has no potential to cause effects on historic properties and that any activity that “has the potential to cause effects” to historic properties will undergo activity-specific NHPA section 106 consultation, there is no requirement that the Corps undertake programmatic consultation for the NWP program. Regional programmatic agreements can be established by Corps districts and State Historic Preservation Officers and/or Tribal Historic Preservation Officers to comply with the requirements of section 106 of the NHPA.
We received a number of comments from tribes regarding NWP general condition 17, which addresses tribal rights. One commenter said that general condition 17 does not adequately reflect the Corps' responsibility to uphold tribal treaty rights. Another commenter said that general condition 17 should be modified to ensure that all reserved tribal treaty rights are not impaired, not just reserved water rights and treaty fishing and hunting rights. The general condition should be expanded to address all tribal rights provided under federal law, either through statute or by common law. For example, general
In response to these comments, and to address the full suite of tribal rights, we have made changes to general condition 17 to make this general condition consistent with the 1998 Department of Defense American Indian and Alaska Native Policy (1998 DoD Policy) and therefore cover all tribal rights, including protected tribal resources and tribal lands. We have revised general condition 17 as follows: “No NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.” The 1998 DoD Policy is available at:
To assist users of the NWPs in complying with general condition 17, we have added definitions for the following terms to Section F, Definitions: protected tribal resources, tribal rights, and tribal lands. These definitions were taken from the 1998 DoD Policy.
We believe that the revised general condition will not change the number of activities that qualify for NWP authorization. Compared to prior versions of this general condition, the revised general condition more clearly identifies the tribal rights that must be considered by district engineers. The proposed general condition 17 applied to all tribal rights, and provided some examples of those tribal rights: “. . . including, but not limited to, reserved water rights and treaty fishing and hunting rights.” In other words, the proposed general condition 17 and the general condition that was in prior sets of NWPs was not limited to those examples of tribal rights. In general condition 17 for the 2017 NWPs, we have replaced those examples to more explicitly cover the suite of tribal rights, including treaty rights, protected tribal resources, and tribal lands. We also believe that replacing the word “impair” with “no more than minimal adverse effects on” will provide more clarity and consistency in application, because it is congruous with the threshold for general permit authorization, that is, an NWP activity can cause no more than minimal individual and cumulative adverse environmental effects.
The threshold for consultation with tribes established by the 1998 DoD Policy is actions that “may have the potential to significantly affect” protected tribal resources, tribal rights, and tribal lands. The 1998 DoD Policy uses the word “significantly” as a synonym for “material” or “important.” For the modification of general condition 17, we have replaced the word “impair” with the phrase “cause more than minimal adverse effects” to be consistent with the threshold for general permits established by section 404(e) of the Clean Water Act. In other words, under general condition 17 no “NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.” If the district engineer reviews an NWP PCN or a voluntary request for an NWP verification, and determines that the proposed NWP activity will cause more than minimal adverse effects to tribal rights (including treaty rights), protected tribal resources, or tribal lands, and the applicant's mitigation proposal cannot reduce the adverse effects to that they are no more than minimal, he or she will exercise discretionary authority and require an individual permit for the proposed activity.
Under section 404(e) of the Clean Water Act, NWPs can only be issued for those activities that result in no more than minimal individual and cumulative adverse environmental effects. For activities that require authorization under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f) have a similar requirement. An important mechanism for ensuring compliance with these requirements is regional conditions imposed by division engineers to address local environmental concerns. Coordination with federal and state agencies and Tribes, and the solicitation of public comments, assist division and district engineers in identifying and developing appropriate regional conditions for the NWPs. Effective regional conditions protect local aquatic ecosystems and other resources and helps ensure that the NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse effects on the aquatic environment, and are not contrary to the public interest.
There are two types of regional conditions: (1) Corps regional conditions and (2) water quality certification/Coastal Zone Management Act consistency determination regional conditions.
Corps regional conditions may be added to NWPs by division engineers after a public notice and comment process and coordination with appropriate federal, state, and local agencies, as well as Tribes. The process for adding Corps regional conditions to the NWPs is described at 33 CFR 330.5(c).
Corps regional conditions approved by division engineers cannot remove or reduce any of the terms and conditions of the NWPs, including general conditions. Corps regional conditions cannot decrease PCN requirements. In other words, Corps regional conditions can only be more restrictive than the NWP terms and conditions established by Corps Headquarters when it issues or reissues an NWP.
Water quality certification (WQC) regional conditions are added to the NWPs as a result of water quality certifications issued by states, Tribes, or the U.S. EPA. Regional conditions are also added to the NWPs through the state Coastal Zone Management Act consistency review process. These WQC/CZMA regional conditions are reviewed by Corps division engineers to determine whether they are consistent with the Corps regulations for permit conditions at 33 CFR 325.4. Regulatory Guidance Letter 92–4, issued on September 14, 1992, provides additional guidance and information on WQC and CZMA conditions for the NWPs.
For the 2017 NWPs, the division engineer will issue supplemental decision documents for each NWP in a specific region (
After the division engineer approves the Corps regional conditions, each Corps district will issue a final public notice for the NWPs. The final public notice will announce both the final Corps regional conditions and any final WQC/CZMA regional conditions. The final public notices will also announce the final status of water quality certifications and CZMA consistency determinations for the NWPs. Corps districts may adopt additional regional conditions after following public notice and comment procedures, if they identify a need to add or modify regional conditions, and the division engineer approves those regional conditions. Information on regional conditions and the suspension or revocation of one or more NWPs in a particular geographic area can be obtained from the appropriate district engineer.
In cases where a Corps district has issued a regional general permit that authorizes similar activities as one or more NWPs, during the regional conditioning process the district will clarify the use of the regional general permit versus the NWP(s). For example, the division engineer may revoke the NWP(s) that authorize the same categories of activities as the regional general permit so that only the regional general permit is available for use to authorize those activities.
Two commenters supported the use of regional conditions for the NWPs. Three commenters said that there is inconsistency in regional conditions and that those inconsistencies add delays and costs in obtaining NWP verifications. A few commenters said that Corps Headquarters should review and approve regional conditions, as well as other requirements districts impose on NWP activities. One commenter requested that the Corps compile all regional conditions into one document to assist users of the NWPs that do work in more than one Corps district. One commenter stated that districts should not propose regional conditions until after the final NWPs are issued because there are changes made to the NWPs in response to public comments.
There is substantial variation in aquatic resources across the country, the ecological functions and services those aquatic resources provide, and the values local people place on those aquatic resources. Because of that regional variability, there will be differences in regional conditions among Corps divisions and districts. Regional conditions that may be appropriate in one Corps district might not be appropriate in another Corps district, even if that Corps district is located in the same Corps division. Regional conditions are critical for ensuring that the NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse environmental effects. Corps divisions and districts have the best understanding of aquatic resources in their geographic areas of responsibility, so Corps Headquarters review and approval of regional conditions is not necessary for the regional conditioning process. After the regional conditions are approved by the division engineer, the Corps district should post those regional conditions on its Web site.
There are not sufficient resources available for Corps Headquarters to compile and maintain a single document with all the NWP regional conditions, including Corps regional conditions and WQC/CZMA regional conditions, and revising that document whenever regional conditions are changed. Proposing regional conditions at nearly the same time as the proposed NWPs are published in the
One commenter said that reissuance of the NWPs in a timely manner is critical for state water quality certification programs. Regardless of when the final NWPs are issued, states will have 60 days to make their water quality certification decisions for the 2017 NWPs. If there are less than 60 days between the date the final NWPs are issued and March 19, 2017 (
One commenter inquired about the CZMA consistency determination process for lands held in trust by the United States for tribes, and whether the state has a role in making a consistency determination for those lands. One commenter asked if a tribe has adopted coastal zone management regulations under the tribal government's inherent authority, would the Corps seek a consistency concurrence from that tribe? Or would the Corps defer to the tribal permitting process to protect coastal resources?
For lands held in trust by the federal government for a tribe, NWP activities occurring on those lands that directly affect the coastal zone must be consistent, to the maximum extent practicable, with the approved state coastal zone management program (see 33 CFR 320.4(h)). Under the Coastal Zone Management Act, only states have the authority to develop coastal zone management programs and make determinations regarding consistency with those state coastal zone management programs. If a tribe has developed its own coastal management regulations, the Corps will not seek consistency concurrence from that tribe because the Coastal Zone Management Act only gives states the authority to develop coastal zone management programs and make consistency determinations. Tribal permit requirements are an alternative means of protecting coastal resources on tribal lands.
Certain NWPs require the permittee to submit a PCN, and thus request confirmation from the district engineer prior to commencing the proposed NWP activity, to ensure that the NWP activity complies with the terms and conditions of the NWP. The requirement to submit a PCN is identified in the NWP text, as well as certain general conditions. General condition 18 requires non-federal permittees to submit PCNs for any proposed activity that might affect ESA-listed species or designated critical habitat, if listed species or designated critical habitat are in the vicinity of the proposed activity, or if the proposed activity is located in critical habitat. General condition 20 requires non-federal permittees to submit PCNs for any proposed activity that may have the potential to cause effects to any historic
In the PCN, the project proponent must specify which NWP or NWPs he or she wants to use to provide the required Department of Army authorization under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. For voluntary NWP verification requests (where a PCN is not required), the request should also identify the NWP(s) the project proponent wants to use. The district engineer should verify the activity under those NWP(s), as long as the proposed activity complies with all applicable terms and conditions, including any applicable regional conditions imposed by the division engineer. All NWPs have the same general requirements: that the authorized activities can only cause no more than minimal individual and cumulative adverse environmental effects. Therefore, if the proposed activity complies with the terms and all applicable conditions of the NWP the applicant wants to use, then the district engineer should issue the NWP verification unless he or she exercises discretionary authority and requires an individual permit. If the proposed activity does not meet the terms and conditions of the NWP identified by the applicant in his or her PCN, and that activity meets the terms and conditions of another NWP identified by the district engineer, the district engineer will process the PCN under the NWP identified by the district engineer. If the district engineer exercises discretionary authority, he or she should explain to the applicant why the proposed activity is not authorized by NWP.
Pre-construction notification requirements may be added to NWPs by division engineers through regional conditions to require PCNs for additional activities. For an activity where a PCN is not required, a project proponent may submit a PCN voluntarily, if he or she wants written confirmation that the activity is authorized by NWP. Some project proponents submit permit applications without specifying the type of authorization they are seeking. In such cases, district engineer will review those applications and determine if the proposed activity qualifies for NWP authorization or another form of DA authorization, such as a regional general permit (see 33 CFR 330.1(f)).
In response to a PCN or a voluntary NWP verification request, the district engineer reviews the information submitted by the prospective permittee. If the district engineer determines that the activity complies with the terms and conditions of the NWP, he or she will notify the permittee. Activity-specific conditions, such as compensatory mitigation requirements, may be added to an NWP authorization to ensure that the NWP activity results in only minimal individual and cumulative adverse environmental effects. The activity-specific conditions are incorporated into the NWP verification, along with the NWP text and the NWP general conditions. In general, NWP verification letters will expire on the date the NWP expires (see 33 CFR 330.6(a)(3)(ii)), although district engineers have the authority to issue NWP verification letters that will expire before the NWP expires, if it is in the public interest to do so.
If the district engineer reviews the PCN or voluntary NWP verification request and determines that the proposed activity does not comply with the terms and conditions of an NWP, he or she will notify the project proponent and provide instructions for applying for authorization under a regional general permit or an individual permit. District engineers will respond to NWP verification requests, submitted voluntarily or as required through PCNs, within 45 days of receiving a complete PCN. Except for NWPs 21, 49, and 50, and for proposed NWP activities that require Endangered Species Act section 7 consultation and/or National Historic Preservation Act section 106 consultation, if the project proponent has not received a reply from the Corps within 45 days, he or she may assume that the project is authorized, consistent with the information provided in the PCN. For NWPs 21, 49, and 50, and for proposed NWP activities that require ESA Section 7 consultation and/or NHPA Section 106 consultation, the project proponent may not begin work before receiving a written NWP verification. If the project proponent requested a waiver of a limit in an NWP, the waiver is not granted unless the district engineer makes a written determination that the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects, and issues an NWP verification.
Climate change represents one of the greatest challenges our country faces with profound and wide-ranging implications for the health and welfare of Americans, economic growth, the environment, and international security. Evidence of the warming of climate system is unequivocal and the emission of greenhouse gases from human activities is the primary driver of these changes (IPCC 2014). Already, the United States is experiencing the impacts of climate change and these impacts will continue to intensify as warming intensifies. It will have far-reaching impacts on natural ecosystems and human communities. These effects include sea level rise, ocean warming, increases in precipitation in some areas and decreases in precipitation in other areas, decreases in sea ice, more extreme weather and climate events including more floods and droughts, increasing land surface temperatures, increasing ocean temperatures, and changes in plant and animal communities (IPCC 2014). Climate change also affects human health in some geographic area by increasing exposure to ground-level ozone and/or particulate matter air pollution (Luber et al. 2014). Climate change also increases the frequency of extreme heat events that threaten public health and increases risk of exposure to vector-borne diseases (Luber et al. 2014). Climate impacts affect the health, economic well-being, and welfare of Americans across the country, and especially children, the elderly, and others who are particularly vulnerable to specific impacts. Climate change can affect ecosystems and species through a number of mechanisms, such as direct effects on species, populations, and ecosystems; compounding the effects of other stressors; and the direct and indirect effects of climate change mitigation or adaptation actions (Staudt et al. 2013). Other stressors include land use and land cover changes, natural resource extraction (including water withdrawals), pollution, species introductions, and removals of species (Staudt et al. 2013, Bodkin 2012, MEA 2005d) and changes in nutrient cycling (Julius et al. 2013).
Mitigation and adaptation can reduce the risk of impacts caused climate change (IPCC 2014). Mitigation actions reduce emissions of greenhouse gases and help avert the most damaging impacts of climate change. Activities authorized by NWPs, such as the construction of land-based renewable energy generation facilities authorized by NWP 51 and the construction and maintenance of utility lines authorized by NWP 12 to transport and transmit natural gas and electricity will support activities that help mitigate the impacts of climate change by supporting reductions in greenhouse gas emissions.
Adaptation can reduce risks associated with climate change and help protect communities and ecosystems. Adaptation occurs at various levels, including individuals, local
The adaptation actions described above comprise only a partial list taken from a report on climate change adaptation (NRC 2010). Those actions were selected from the report because some of those actions may be authorized by one or more NWP(s), if those actions involve discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States. The NWPs are, and will be, and important tool for climate change adaptation, to fulfill the needs of society and communities, and to avoid and minimize adverse effects to jurisdictional waters and wetlands that help provide resilience to changing environmental conditions.
NWP 1.
NWP 2.
NWP 3.
Many commenters supported all proposed modifications of NWP 3. Several commenters objected to the reissuance of this NWP, and some stated that it does not authorize a category of activities that is similar in nature. Two commenters opposed the reissuance of NWP 3, stating that it allows for piecemealing of maintenance activities and does not require evaluation of practicable alternatives. A few commenters said that maintenance activities should require individual permits.
This NWP only authorizes maintenance activities, a general category of activities that is similar in nature. General condition 15 requires each NWP activity to be a single and complete project, and states that the same NWP cannot be used more than once for the same single and complete project. Other than on-site avoidance and minimization measures, NWPs do not require the evaluation of practicable alternatives (see paragraph (a) of general condition 23, mitigation, and 40 CFR 230.7(b)(1)). Maintenance activities involving discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States usually have no more than minimal adverse environmental effects, individually and cumulatively, so authorization by NWP is appropriate. District engineers have the authority to exercise discretionary authority and require individual permits for any maintenance activities they determine will result in more than minimal adverse environmental effects.
Two commenters requested clarification regarding the use of the phrase “previously authorized” under paragraph (a), and whether it is necessary to supply the district engineer with documentation of the previous authorization. One commenter questioned whether a grandfathering provision is required for any currently serviceable structure or fill authorized by 33 CFR 330.3. Several commenters objected to the proposal to modify paragraph (a) of this NWP to authorize the removal of previously authorized structures or fills, and several commenters expressed their support for that proposed modification. Several commenters requested further clarification of the meaning of “minimum necessary” in paragraph (a), while one commenter said that there is no need to clarify this term. Two commenters asked for an explanation of the circumstances under which an activity would be considered a maintenance activity authorized by this NWP.
The term “previously authorized” means the structure or fill was authorized by an individual permit or a general permit, or the structure or fill was authorized under the provisions of 33 CFR 330.3. To qualify for NWP 3 authorization, it is not necessary for the project proponent to produce a copy of the prior authorization. In many cases it might not be possible to produce a copy of a written authorization because the discharge, structure, or work may have been authorized by a general permit that does not require reporting, or it was authorized by regulation without a reporting requirement. Once a structure or fill is authorized, it remains authorized unless the district engineer suspends or revokes the authorization (see 33 CFR 325.6). The district engineer has the discretion to determine what constitutes the minimum necessary for the purposes of this NWP. In general terms, in the context of this NWP maintenance consists of repairing, rehabilitating, or replacing previously authorized structures or fills.
One commenter suggested adding a 200-foot limit to paragraph (a) of this NWP. Three commenters suggested adding “stabilization” after the phrase “repair, rehabilitation, or replacement” to clarify that stabilization activities are authorized by paragraph (a) of this NWP. One commenter recommended authorizing wetland dike maintenance under paragraph (a). One commenter said that there should be a limit on the size of structures or fills that can be removed under paragraph (a). Two commenters requested clarification regarding whether NWP 3 requires the removal of structures. Two commenters stated that in site-specific cases it may be environmentally preferable to
Since this NWP authorizes maintenance activities and only allows minor deviations, we do not believe it would be appropriate to impose a quantitative limit on this NWP other than the 200-foot limit in paragraph (b). Stabilization activities can be authorized by NWP 13 or other NWPs. Wetland dikes that were previously authorized and are currently serviceable can be maintained under the authorization provided by this NWP. The intent of the proposed modification of this NWP with respect to authorizing the removal of structures or fills is to provide Department of the Army authorization when the landowner or other appropriate entity wants to remove a structure or fill from jurisdictional waters and wetlands, in case the prior authorization does not cover the removal of the structure or fill. This NWP does not require the removal of structures or fills. If it would be environmentally preferable to keep the structure or fill in place, then the structure or fill can remain in place unless the district engineer takes action under his or her authority to require the responsible party to remove the structure or fill. For example, under paragraph (c) of general condition 1, navigation, the district engineer can require a permittee to remove structures or works from navigable waters of the United States. If a district engineer determines that an activity, including an activity conducted to respond to an emergency, did not comply with the terms and conditions of NWP 3, and an excessive amount of work was done, he or she can take action to address the alleged non-compliance. One potential approach might be to require an individual permit for that activity.
For paragraph (b) of NWP 3, one commenter recommended removing the 200-foot limit. Two commenters suggested increasing that limit to 300 feet. One commenter said that any new riprap should be limited to being placed in the original project footprint. One commenter asked whether new or additional riprap to protect a structure or fill could be authorized by this NWP. Two commenters said the use of riprap should be discouraged, and other means of controlling erosion should be used. A number of commenters said that the use of riprap in paragraph (b) should not require a PCN. One commenter said that in some cases, it is not possible to restore the waterway in the vicinity of the existing structure to the approximate dimensions that existed when the structure was built, because of changes to the stream channel that naturally occurred over time since the structure was originally constructed. One commenter stated support for the language requiring restoration of the waterway to those approximate dimensions.
We are retaining the 200-foot limit in paragraph (b) because we believe it is an appropriate limit, along with the PCN requirement, for ensuring that authorized activities result in no more than minimal adverse environmental effects. We have removed the last two sentences of this paragraph. The use of riprap or other erosion control measures such as bioengineering to protect the structure or fill from erosion may be authorized by other NWPs, such as NWP 13. The use of the word “approximate” in that sentence in paragraph (b) allows for the restoration of the waterway even though changes to the watershed and other alterations may have caused stream dimensions to change over time. Because all activities authorized by paragraph (b) require PCNs, district engineers will have the opportunity to consider the changes that have occurred to the stream over time, and determine whether the proposed activity is authorized by NWP 3 despite those changes.
Several commenters supported the addition of timber mats to the temporary activities authorized by this NWP. One commenter said that the use of timber mats in waters of the United States always requires Department of the Army authorization. One commenter requested clarification of the circumstances under which the use of timber mats in waters of the United States is a regulated activity. One commenter questioned whether the use of wetland mats requires a PCN. One commenter recommended limiting the use of temporary mats so that impacts do not exceed 300 linear feet of stream bed and/or 1/2-acre of waters of the United States. One commenter recommended adding the word “promptly” prior to “removed” so that the fourth sentence of paragraph (c) would read: “After conducting the maintenance activity, temporary fills must be promptly removed in their entirety and the affected areas returned to preconstruction elevations.”
We have retained the use of timber mats in paragraph (c) of this NWP. District engineers will determine on a case-by-case basis whether using timber mats to conduct NWP activities requires Department of the Army authorization. For this NWP, only activities authorized by paragraph (b) require PCNs, unless an NWP general condition triggers a PCN requirement (
A few commenters said that PCNs should be required for all activities authorized by this NWP. One commenter said that proposed removals of previously authorized structures or fills should require PCNs. Some commenters said that tribes should be notified of proposed NWP 3 activities because of potential impacts to tribal trust resources. Two commenters stated that PCNs should be required for any proposed activity under paragraph (a) that would result in more than a minor deviation from the structure's configuration or the filled area.
Because this NWP only authorizes maintenance activities, we do not believe that PCNs should be required for all activities. Division engineers have discretion to impose regional conditions on this NWP to require PCNs for some or all activities, including removal activities, if they believe additional PCNs are necessary to ensure that activities authorized in a region result in no more than minimal adverse environmental effects. For the 2017 NWPs, Corps districts have been consulting with tribes to identify regional conditions that protect tribal trust resources. Corps districts may also establish coordination procedures with tribes to ensure that NWP 3 activities do not cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands. Maintenance activities that result in more than minor deviations in the structure's configuration or filled area are not authorized under paragraph (a), unless it is a structure or fill that was destroyed or damaged by a storm, flood, fire, or other discrete event, and the structure or fill needs to be reconstructed. For repair, rehabilitation, or replacement activities conducted after storms or
One commenter said that a PCN should be required for any placement of new or additional riprap under paragraph (b). One commenter stated that the placement of riprap to protect an existing structure should not require a PCN. Several commenters recommended removing the PCN requirement for activities authorized by paragraph (b), because they believe that the removal of accumulated sediment results in only minimal adverse environmental effects. Three commenters suggested not requiring PCNs for removal of accumulated sediments within an existing structure, such as a culvert. One commenter asked whether the PCN requirement for activities authorized by paragraph (b) only applies to activities in section 10 waters.
All activities authorized by paragraph (b) of this NWP require PCNs. As discussed above, we have removed the last two sentences of this paragraph. The project proponent has the option of using NWP 13 or another NWP to authorize the placement of riprap to protect the existing structure, which in some circumstances does not require a PCN. The removal of accumulated sediment within an area extending 200 feet from a structure or fill has the potential to result in more than minimal adverse environmental effects, so we believe requiring a PCN for those sediment removal activities is appropriate. We have modified paragraph (a) to clarify that it authorizes the removal of accumulated sediment and debris within, and in the immediate vicinity of, the structure or fill. Therefore, the removal of accumulated sediment and debris in those areas does not require a PCN unless a general condition or regional condition triggers a PCN requirement for those activities. The removal of accumulated sediment and debris outside of the immediate vicinity of the structure or fill, and up to 200 feet from that structure or fill, could be authorized by paragraph (b) and would therefore require a PCN. The PCN requirement for activities authorized under paragraph (b) of this NWP applies to activities that require section 10 and/or section 404 authorization.
One commenter expressed concern regarding impacts to endangered or threatened species caused by activities authorized by this NWP. One commenter recommended a cumulative impact analysis for NWP 3. One commenter said that compensatory mitigation should be required for all NWP 3 activities. Several commenters stated that this NWP should require use of best management practices to avoid sediment inputs to downstream waters. One commenter said that NWP 3 activities must comply with state or local floodplain management requirements.
Any proposed NWP 3 activity conducted by a non-federal permittee that might affect an ESA-listed species or designated critical habitat requires a PCN because of the requirements of general condition 18. Cumulative effects analyses under the National Environmental Policy Act and Clean Water Act section 404(b)(1) guidelines have been conducted for the 2017 NWP 3. Those cumulative effects analyses are presented in the national decision document for this NWP. We do not agree that compensatory mitigation should be required for all activities authorized by this NWP, because maintenance activities generally cause no more than minimal adverse environmental effects. For those NWP 3 activities that require PCNs, district engineers will determine whether compensatory mitigation or another form of mitigation is necessary to ensure the proposed activities will result in no more than minimal adverse environmental effects, in accordance with 33 CFR 330.1(e)(3). General condition 12, soil erosion and sediment controls, requires the use of appropriate soil erosion and sediment controls for NWP activities. General condition 10, fills in 100-year floodplains, requires fills in those floodplains to comply with applicable Federal Emergency Management Agency (FEMA)-approved state or local floodplain management requirements.
One commenter stated that maintenance of any structure should not create or maintain a fish passage barrier. Another commenter recommended adding terms to this NWP requiring authorized activities to improve aquatic life movements. One commenter recommended that this NWP authorize stream channelization to improve aquatic life movements. One commenter stated that maintenance of any structure should not create or maintain a channel restriction. One commenter stated that treated wood should not be used for maintenance activities to protect water quality.
General condition 2, aquatic life movements, requires NWP activities to be constructed so that they do not substantially disrupt the life cycle movements of indigenous aquatic species, unless the activity's primary purpose is to impound water. We can only condition the NWP to minimize adverse effects on aquatic life movements so that those adverse effects are no more than minimal, but actions the permittee takes to improve aquatic life movements in a waterbody may be considered as mitigation that would be considered in the district engineer's verification decision. While stream channelization may benefit some species, other species are likely to be adverse affected by those activities because they alter their habitat. General condition 9, management of water flows, requires that NWP activities maintain water flows to the maximum extent practicable, and that the capacity of open waters should be maintained. Treated wood may be considered a suitable material for maintenance activities, as long as the district engineer determines that its use complies with general condition 6, suitable material.
One commenter recommended adding terms to this NWP to provide specific requirements regarding slope stability. One commenter asked whether it is more appropriate to conduct pipeline maintenance under NWP 3 or NWP 12. One commenter said that NWP 3 should authorize up to 200 linear feet of stream realignment.
The appropriate slope for maintenance activities should be determined on a case-by-case basis, after considering site- and activity-specific factors. Either NWP 3 or NWP 12 may be used to authorize pipeline maintenance activities that require DA authorization because they involve discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States. Stream realignment is not a maintenance activity and may be authorized by another NWP, a regional general permit, or an individual permit.
This NWP is reissued with the modifications discussed above.
NWP 4.
NWP 5.
NWP 6.
The activities authorized by this NWP generally result in no more than minimal adverse environmental effects so authorization by general permit is appropriate. In regions where there are concerns that the activities authorized by this NWP might result in more than minimal individual and cumulative adverse environmental effects, division engineers have the authority to modify, suspend, or revoke this NWP. We do not think it is necessary to define the term “temporary pad.” Timber mats may be used for temporary access to survey sites to minimize adverse environmental effects. District engineers will determine on a case-by-case basis whether the use of timber mats requires DA authorization as a discharge of fill material into waters of the United States. Temporary access activities requiring DA authorization may be authorized by NWP 33. For the 2017 NWPs, Corps districts have been consulting with tribes to identify regional conditions that protect tribal trust resources. Corps districts may also establish coordination procedures with tribes to ensure that NWP 6 activities do not cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands. Paragraph (a) of general condition 23, mitigation, requires adverse effects to jurisdictional wetlands and other waters of the United States to be minimized to the maximum extent practicable on the project site.
One commenter requested that limits be placed on exploratory trenching. Another commenter recommended limiting discharges of fill material to 25 cubic yards. This commenter also suggested that project proponents wanting to construct numerous small pads with a total fill volume exceeding 25 cubic yards should be required to obtain individual permits.
The requirements in NWP 6 for exploratory trenching ensure that impacts from those activities are temporary and therefore a limit is unnecessary. Likewise, because of the nature of the activities authorized by this NWP and the small volumes of dredged or fill material involved in those activities, it is not necessary to add a 25 cubic yard limit. If there are regional concerns about the volumes of dredged or fill material being discharged under this NWP, the division engineer can modify this NWP and impose a volume limit on regulated discharges. Each temporary pad that is a single and complete project is subject to the 1/10-acre limit.
This NWP is reissued without change.
NWP 7.
The stabilization of banks next to outfall structures may be authorized by NWP 13, and such activities would be subject to the terms and conditions of that NWP. A requirement to install velocity dissipation devices is more appropriately identified on a case-by-case basis by district engineers when they evaluate PCNs for activities authorized by this NWP. General condition 5, shellfish beds, protects areas of concentrated shellfish populations. Important fish spawning areas are protected through the requirements of general condition 3, spawning areas. Division and district engineers may modify, suspend, or revoke this NWP if there are regional or site-specific concerns about the effects of outfall structures on shellfish, spawning areas, or marine vegetation. For the 2017 NWPs, Corps districts have been consulting with tribes to identify regional conditions that protect tribal trust resources. Corps districts may also establish coordination procedures with tribes to ensure that NWP 7 activities do not cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands.
This NWP is reissued without change.
NWP 8.
For oil and gas structures on the outer continental shelf, and for the purposes of this NWP, the Corps' authority is limited to evaluating effects on navigation and national security. Because of their location on the outer continental shelf, these activities are unlikely to have more than minimal adverse effects on navigation and national security, but the PCN review process will ensure compliance with general permit requirements. A proposed oil and gas structure on the outer continental shelf that may result in “take” of marine mammals requires separate authorization under the Marine Mammal Protection Act. Requests for Marine Mammal Protection Act incidental harassment or take authorizations are obtained through a separate process administered by the National Oceans and Atmospheric Administration.
This NWP is reissued without change.
NWP 9.
We have modified this NWP by removing the phrase “the U.S. Coast Guard has established” and adding the phrase “have been established” after the word “areas.” This modification will provide authorization under section 10 of the Rivers and Harbors Act of 1899 for barge fleeting activities that have not been covered because of the wording of NWP 9 that has been in place since 1982.
This NWP is reissued with the modification discussed above.
NWP 10.
Activities authorized by this NWP do not result in losses of aquatic resources and, as a general rule, do not require compensatory mitigation. Mooring buoys are located in open waters and float on those waters. The anchor used to secure the mooring buoy occupies little of the bottom of the waterbody. In addition, mooring buoys can help reduce the adverse effects the use of vessels can have on bottom habitat of navigable waters, by reducing the use of anchors that disturbs that bottom habitat each time an anchor is used. For example, mooring buoys can be a mitigation measure to reduce adverse effects to corals.
For the 2017 NWPs, Corps districts have been consulting with tribes to identify regional conditions that protect tribal trust resources. Corps districts may also establish coordination procedures with tribes to ensure that NWP 10 activities do not cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands. Regional concerns about the mooring buoys authorized by this NWP are more appropriately addressed by division and district engineers, who have the authority to modify, suspend, or revoke NWP authorizations on a regional or activity-specific basis. The Corps does not regulate the discharge of pollutants from boats, discharges of stormwater, or non-point source pollutants that cause restrictions or closures of shellfish beds.
We do not agree that there should be a national limit of one mooring buoy per acre. Mooring buoys are small structures that cause no more than minimal individual and cumulative environmental effects, but in areas where there is potential for these activities to result in more than minimal adverse environmental effects, division and district engineers will use their authorities to modify, suspend, or revoke NWP 10 authorizations as appropriate. Division engineers can modify this NWP to require PCNs in certain waterbodies.
This NWP is reissued without change.
NWP 11.
NWP 12.
Several commenters expressed their support for the proposed modifications to NWP 12. Some of these commenters agreed with the clarification that, for utility lines authorized by NWP 12, the Corps is only authorizing regulated activities to cross waters of the United States, including navigable waters. Several commenters said that utility lines crossing multiple waterbodies should require individual permits, instead of authorizing each separate and distant crossing by NWP. In contrast, several commenters said they support the use of NWP 12 to authorize separate and distant crossings of waters of the United States. One commenter suggested clarifying that “crossing” only refers to regulated activities, and not to activities such as horizontal directional drilling and aerial crossing of jurisdictional waters. Several commenters said this NWP does not authorize activities that are similar in nature. A couple of these commenters asserted that this NWP does not authorize activities that are similar in nature because pipelines can carry a variety of types of fluids, some of which are harmful and some of which are benign. Other commenters made the “not similar in nature” objection, stating that pipelines that carry fluids such as oil are different than pipelines that carry water or sewage, which are different than utility lines that carry electricity.
We are retaining the long-standing practice articulated in the NWP regulations at 33 CFR 330.2(i), in which each separate and distant crossing of waters of the United States is authorized by NWP. The utility line activities authorized by NWP 12 are similar in nature because they involve linear pipes, cables, or wires to transport physical substances or electromagnetic energy from a point of origin to a terminal point. For the purposes of this NWP, the term “crossing” refers to regulated activities. However, it should be noted that installing utility lines under a navigable water of the United States subject to section 10 of the Rivers and Harbors Act of 1899 via horizontal directional drilling, as well as aerial crossings of those navigable waters, require authorization under section 10 of the Rivers and Harbors Act of 1899. The substations, tower foundations, roads, and temporary fills that are also authorized by NWP 12 (when those activities require Department of the Army (DA) authorization) are integral to the fulfilling the purpose of utility lines, and thus fall within the “categories of activities that are similar in nature” requirement for general permits stated in section 404(e) of the Clean Water Act.
Many commenters objected to the reissuance of NWP 12, stating that it authorizes oil and gas pipelines that should be subject to the individual permit process instead. Many commenters said that these activities should be subject to a public review process. Many of these commenters cited the risk of oil spills as a reason why oil pipelines should be evaluated under the Corps' individual permit process. Many commenters based their concerns on their views that the Corps is the only federal agency that regulates oil pipelines.
The Corps does not regulate oil and gas pipelines, or other types of pipelines, per se. For utility lines, including oil and gas pipelines, our legal authority is limited to regulating discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States, under section 404
There are other federal laws that address the operation of pipelines and spills and leaks of substances from pipelines. Those laws are administered by other federal agencies. Under the Natural Gas Pipeline Safety Act of 1968, the Department of Transportation (DOT) regulates pipeline transportation of natural gas and other gases. The DOT also regulates the transportation and storage of liquefied natural gas. Under the Hazardous Liquid Pipeline Safety Act, the DOT regulates pipeline transportation of hazardous liquids including crude oil, petroleum products, anhydrous ammonia, and carbon dioxide. The DOT administers its pipeline regulations through the Office of Pipeline Safety (OPS), which is in its Pipelines and Hazardous Materials Safety Administration (PHMSA). Specific to oil pipelines, the PHMSA is responsible for reviewing oil spill response plans for onshore oil pipelines.
Oil spills are also addressed through the Oil Pollution Act of 1990, which is administered by the U.S. Environmental Protection Agency and the U.S. Coast Guard. Under the Oil Pollution Act of 1990, EPA is responsible for addressing oil spills occurring in inland waters and the U.S. Coast Guard is responsible for addressing oil spills in coastal waters and deepwater ports. The U.S. EPA has issued regulations governing its oil spill prevention program, and requires oil spill prevention, control, and countermeasures, and facility response plans (see 40 CFR part 300 and 40 CFR part 112). Oil spill prevention, control, and countermeasures are intended to ensure that oil facilities prevent discharges of oil into navigable waters or adjoining shorelines. Their facility response plan regulations require certain facilities to submit response plans to address worst case oil discharges or threats of a discharge. The U.S. Coast Guard has the authority to ensure the effective cleanup of oil spills in coastal waters and require actions that prevent further discharges of oil from the source of the oil spill. Activities regulated under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act that are determined by the U.S. EPA or U.S. Coast Guard to be necessary to respond to discharges or releases of oil or hazardous substances may be authorized by NWP 20.
Many commenters based their objections to the reissuance of NWP 12 on the inability for public involvement to occur during the Corps' NWP verification process for specific pipelines. Many commenters said the Corps' authorization process should be modified to prevent the segmentation of pipelines and that the Corps should fully evaluate the environmental impacts of individual fossil fuel pipelines, including the burning of those fossil fuels. Many commenters cited climate change as a reason why oil and gas pipelines should be evaluated under the individual permit process instead of the Corps using NWP to authorize crossings of waters of the United States.
The purpose of the NWPs, as well as regional general permits, is to provide a streamlined authorization process for activities that result in no more than minimal individual and cumulative adverse environmental effects. When section 404(e) of the Clean Water Act became law in 1977, lawmakers endorsed the general permit concept that was developed by the Corps in its 1975 and 1977 regulations (see 40 FR 31335 and 42 FR 37140, 37145 respectively). For the issuance or reissuance of NWPs and other general permits, the public involvement process occurs during the development of the general permit. If public notices were required to authorize specific activities after the NWP or other general permit was issued, it would not provide the streamlined process intended by Congress. Individual pipelines may be able to operate independently to transport substances from a point of origin to a terminal point, even though they may be part of a larger network of pipelines. The Corps may authorize these independent pipelines, if all crossings of waters of the United States involving regulated activities qualify for NWP authorization.
The Corps does not have the legal authority to regulate the burning of fossil fuels that are transported by pipelines where the Corps authorized crossings of waters of the United States by NWP 12, other general permits, or individual permits. Therefore, in its environmental documentation the Corps is not required to fully evaluate the burning of fossil fuels, except to respond to specific comments submitted in response to a proposed rule (in the case of these NWPs) or comments submitted in response to a public notice for an individual permit application.
Activities authorized by NWP 12 are currently playing, and will continue to play, and important role in helping the nation achieve goals regarding the increased reliance on clean energy projects to meet the energy needs of its populace, to help reduce emissions of greenhouse gases that contribute to climate change. Clean energy projects include the construction, operation, and maintenance of more efficient and cleaner fossil-fuel energy generation facilities, nuclear power plants, and renewable energy generation projects that use solar and wind energy. Natural gas and electricity transmission and distribution systems will also need to be constructed or upgraded to bring clean energy to consumers.
The utility line activities authorized by NWP 12 will continue to be needed by society, including the goods and services transported by those utility lines. In areas of increasing temperatures, there will be increased demand for air conditioning and the energy needed to run air conditioners. Some areas of the country will receive less precipitation, and their water needs may need to be fulfilled through the construction and operation of utility lines that carry water to those areas that need additional water.
One commenter said that for any oil pipeline that affects aboriginal, historic treaty or reservation lands of an Indian tribe, the terms of NWP 12 should require consultation with all affected tribes and that any permit decision protect the full range of tribal rights
Activities authorized by NWP 12 must comply with general condition 17, tribal rights, and general condition 20, historic properties. We have modified general condition 17 to more effectively address the Corps' responsibilities regarding tribal rights (including treaty rights), protected tribal resources, and tribal lands. For the 2017 NWPs, district engineers have been consulting with tribes to identify regional conditions that will facilitate compliance with general conditions 17 and 20. As a result of this consultation, district engineers can establish coordination procedures to identify utility line activities that require government-to-government consultation to protect tribal trust resources and tribal treaty rights. These consultations will be done in accordance with the Corps' tribal policy principles. Further information on the Corps' tribal policy principles is available at:
The consultation between Corps districts and tribes that has been conducted for these NWPs can result in additional procedures or regional conditions to protect tribal trust resources. District engineers will work to establish procedures with interested tribes to coordinate on specific NWP 12 activities to assist the Corps in executing its tribal trust responsibilities, or add mitigation requirements that the district engineer determines are necessary to ensure that the verified NWP activity results in no more than minimal individual and cumulative adverse environmental effects. Division engineers will, as necessary, impose regional conditions on this NWP, including requiring more activities to require pre-construction notification, to ensure that these activities do not cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands. When a Corps district receives a pre-construction notification that triggers a need to consult with one or more tribes, that consultation will be completed before the district engineer makes his or her decision on whether to issue the NWP verification. Regional conditions and coordination procedures can help ensure compliance with general condition 17. The Corps does not, and cannot, delegate its tribal trust responsibilities to permit applicants.
One commenter said that NWP 12 should prohibit construction in waters of the United States until all other federal and state permits are issued for pipelines. One commenter suggested adding language that allows temporary impacts for repair of a utility line parallel a bank, which is not a “crossing.” Several commenters stated that this NWP should not authorize activities in regions in Appalachia because it is not possible to mitigate impacts in those mountainous areas. Two commenters said this NWP should require the use of best management practices to control release of sediments during construction.
Paragraph 2 of Section E, “Further Information,” states that the NWPs do not remove the need to obtain other required federal, state, or local authorizations as required by law. The NWPs have a 45-day review period (with some exceptions), so district engineers cannot wait for all other federal, state, or local authorizations to be issued. Otherwise, the proposed NWP activity would be authorized after the 45-day period passed with no response from the Corps. The default NWP authorization would not have any activity-specific conditions, such as mitigation requirements, to ensure that the adverse environmental effects are no more than minimal. This NWP authorizes temporary fills to construct a utility line. Concerns about the use of this NWP in Appalachia are more appropriately addressed by the appropriate division engineer, who has the authority to modify, suspend, or revoke the NWP in a specific region. General condition 12 requires the use of soil and erosion controls to ensure that sediments associated with an NWP activity are not released downstream.
Several commenters suggested changing the acreage limit from
We are retaining the
The
Several commenters said this NWP does not authorize oil pipelines. One commenter said that the requirement that utility lines result in “no change in pre-construction contours” will not prevent changes in habitats or physical features in some streams, and utility lines may become exposed over time. One commenter objected to the requirement that there must be no change in pre-construction contours, because it is a new requirement and would require the permittee to complete a pre- and post- construction survey. One commenter said this NWP should not authorize mechanized landclearing in forested wetlands or scrub-shrub wetlands. Two commenters supported the addition of “internet” to the list of examples of utility lines. One commenter recommended removal of the reference to “telegraph lines” from the list of types of utility lines covered by this NWP.
This NWP authorizes crossings of waters of the United States that are part of utility lines used to transport any “gaseous, liquid, liquescent, or slurry substance” which includes oil. We acknowledge that the construction and maintenance of utility lines in jurisdictional waters and wetlands will result in some changes to the structure of waters and wetlands and to the ecological functions and services provided by those waters and wetlands. There is often conversion of wetland types within utility line rights-of-way and those conversions often need to be permanently maintained while the utility line is operational. Periodic maintenance may be necessary to respond to erosion exposing utility lines that were buried when they were constructed. The requirement to ensure that there are no changes in pre-construction contours of waters of the United States does not mandate pre- and post-construction surveys. Compliance with this requirement can usually be accomplished by examining the nearby landscape to determine if there has been a change in pre-construction contours. The NWP requires PCNs for mechanized landclearing in the utility line right-of-way so that district engineers can evaluate those proposed activities and determine whether they qualify for NWP authorization and whether compensatory mitigation is necessary to ensure no more than minimal adverse environmental effects in accordance with general condition 23, mitigation. We have retained the internet as a form of communication that may be transmitted by utility lines. We do not see the need to remove “telegraph messages” from the type of communications that may be conveyed by utility lines because there may be some use of telegraph messages by historic societies or other entities. Some of the existing utility lines that previously conveyed telegraph messages may now carry other forms of communication.
One commenter recommended modifying NWP 12 to authorize activities associated with wireless communication facilities, because these facilities could be considered substations. Two commenters said that NWP 12 should not authorize the construction or expansion of utility line substations because these facilities should not be located in waters of the United States. Several commenters said that utility line substations and access roads should not be limited to non-tidal waters of the United States to allow them to be constructed in all waters of the United States.
The substations authorized by this NWP must be associated with utility lines. With wireless telecommunication facilities, there are no utility lines connecting the various facilities because they transmit their information via electromagnetic waves traveling through the atmosphere. The construction of wireless communication facilities that involves discharges of dredged or fill material into waters of the United States may be authorized by NWP 39 or other NWPs. For some utility lines, it may not be practicable or feasible to locate a substation outside of waters of the United States. As long as the construction or expansion of the proposed utility line substation results in no more than minimal adverse environmental effects, it can be authorized by this NWP. We believe that it is necessary to limit the construction of utility line substations and access roads to non-tidal wetlands (except for non-tidal wetlands adjacent to tidal waters) to ensure that NWP 12 only authorizes activities that result in no more than minimal adverse environmental effects. Conducting those activities in tidal waters and wetlands, and in non-tidal wetlands adjacent to tidal waters is more likely to result in more than minimal adverse environmental effects.
One commenter expressed opposition to moving the provisions authorizing access roads to NWPs 14 and 33. One commenter said that this NWP should not authorize access roads, because those roads can cause fragmentation of the landscape.
We did not propose to move the provisions authorizing the construction of utility line access roads to NWPs 14 and 33. We have retained the access road provision in this NWP. The Corps only regulates those portions of access roads that require DA authorization because they involve regulated activities in jurisdictional waters and wetlands. The Corps does not regulate access roads constructed in upland areas that, in many areas of the country, are more likely to result in substantial habitat fragmentation. In those areas of the country where much of the landscape is comprised of wetlands, utility line access roads are more likely to exceed the
In the June 1, 2016, proposed rule, we proposed to add a paragraph to NWP 12 to authorize, to the extent that DA authorization is required, discharges of dredged or fill material into waters of the United States, and structures and work in navigable waters, necessary to remediate inadvertent returns of drilling fluids that can occur during horizontal directional drilling operations to install utility lines below jurisdictional waters and wetlands. An inadvertent return occurs when drilling fluids are released through fractures in the bedrock and flow to the surface, and possibly into a river, stream, wetland, or other type of waterbody. For NWP 12 activities where there is the possibility of such inadvertent returns, district engineers may add conditions to the NWP 12 verification requiring activity-specific remediation plans to address these situations, should they occur during the installation or maintenance of the utility line.
The fluids used for directional drilling operations consist of a water-bentonite slurry and is not a material that can be considered “fill material” under 33 CFR 323.2(e). This water-bentonite mixture is not a toxic or hazardous substance, but it can adversely affect aquatic organisms if released into bodies of water. Because these drilling fluids are not fill material, inadvertent returns of these drilling fluids are not regulated under section 404 of the Clean Water Act. However, activities necessary to contain and clean up these drilling fluids may require DA authorization (
Several commenters expressed support for adding the paragraph on remediation of inadvertent returns of drilling fluids from directional drilling
Horizontal directional drilling for utility line installation and replacement is an important technique for avoiding and minimizing adverse effects to jurisdictional waters and wetlands during the construction of utility lines. We believe that modifying NWP 12 to authorize remediation activities that involve discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States and are necessary to address these inadvertent returns to protect the aquatic environment is a prudent course of action. We have removed the term “frac-out” from the text of this NWP, and replaced the term “mud” with “fluid.” We have also replaced the term “sub-soil” with “subsurface” because horizontal directional drilling activities usually occur well below the soil. District engineers may add conditions to NWP verifications to require activity-specific remediation plans to address potential inadvertent returns that might occur during the construction of the utility line.
If the horizontal directional drilling activities require DA authorization, the district engineer may add conditions to the NWP authorization to specify entry and exit points for the drilling equipment. If the drilling fluids return to the surface and are not considered to be discharges of dredged or fill material regulated under section 404 of the Clean Water Act, then the Corps cannot require those drilling fluids to be contained in an upland area. The text of this paragraph of NWP 12 specifically refers to horizontal directional drilling for utility line installation or replacement, but we have revised the text of this paragraph to specify that these activities are being “conducted for the purpose of installing or replacing utility lines.”
Several commenters said that for utility lines involving horizontal directional drilling, the PCN should require drilling plans and site-specific spill detection and remediation measures. One commenter stated that mitigation should be required for the remediation of inadvertent returns of drilling fluids. Two commenters recommended adding a requirement that remediation of inadvertent returns of drilling fluids must be based on contingency plans submitted in advance of conducting horizontal directional drilling. One commenter said that PCNs should be required for these remediation activities and agency coordination should be conducted. Another commenter said that water quality certification agencies should be involved in the review and approval of these remediation plans.
If the horizontal directional drilling involves activities that require authorization under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act, the PCN should describe those activities and their environmental effects. The PCN should also describe mitigation measures that will be used to ensure compliance with the terms and conditions of the NWP. We believe that remediating the inadvertent returns of drilling fluids and restoring, to the maximum extent practicable, the affected jurisdictional waters and wetlands is sufficient mitigation. District engineers can add conditions to the NWP authorization to require contingency plans for utility line activities that require DA authorization. We do not agree that it is necessary to require PCNs for inadvertent returns of drilling fluids or to conduct agency coordination. Through this provision of NWP 12, we are trying to encourage timely remediation of these inadvertent returns of drilling fluids to protect the aquatic environment. States can determine whether water quality certification is required for activities conducted to remediate inadvertent returns of drilling fluids. States can require water quality certification for any discharge into jurisdictional waters and wetlands, not just discharges of dredged or fill material.
Several commenters said they support the addition of temporary mats to minimize impacts of utility line activities. Two commenters requested clarification that not all uses of temporary mats in jurisdictional waters and wetlands results in a regulated activity. One commenter recommended adding language to this paragraph to include other measures that distribute the weight of construction equipment to minimize soil disturbance. Another commenter stated that this paragraph should require best management practices, such as low pressure equipment, wide tires, and varying travel paths, to minimize the adverse environmental effects of NWP 12 activities. One commenter suggested inserting the word “promptly” between the words “be removed” to require the prompt removal of all temporary fills.
District engineers will determine on a case-by-case basis whether the use of timber mats in jurisdictional waters and wetlands requires DA authorization. We believe that the proposed language in this paragraph allows for a variety of temporary structures, fills, and work necessary to construct, maintain, or repair a utility line, substation, foundation for overhead utility lines, or access road. We do not believe it is necessary to provide, for NWP 12 activities, a comprehensive list of techniques to minimize soil disturbance and minimize the impacts of construction equipment. We also do not agree with the proposed addition of “promptly” because it may be more protective of the environment to keep temporary fills in place until post-construction restoration activities or permanent fills have had time to stabilize.
One commenter stated that the PCN thresholds for NWP 12 should not be changed. One commenter said that PCNs should be required for all NWP 12 activities. Several commenters suggested increasing the
We have not made any changes to the PCN thresholds for this NWP. We do not agree that PCNs should be required for all activities authorized by this NWP because the current PCN thresholds have been effective in identifying proposed NWP 12 activities that should be reviewed by district engineers on a case-by-case basis to ensure that they result in only minimal individual and cumulative adverse environmental effects. In addition, paragraph (b)(4) of general condition 32 requires that NWP 12 PCNs (and PCNs for other NWPs) also include information on other crossings of waters of the United States for the linear project that will use NWP 12 authorizations but do not require PCNs. This requirement is also explained in Note 8 of NWP 12.
All NWP 12 activities that require authorization under section 10 of the Rivers and Harbors Act of 1899 require PCNs to ensure that these utility lines will have no more than minimal adverse effects on navigation. This includes the maintenance of aerial crossings of navigable waters. We agree that the current PCN thresholds should be maintained instead of simplifying the PCN thresholds to a single PCN threshold for the loss of greater than
Several commenters expressed agreement with adding the proposed Note 2, and some of those commenters requested clarification of the use of the term “independent utility” in the proposed note. Several commenters objected to the proposed Note 2, stating that only the crossings of waters of the United States that do not qualify for NWP authorization should be evaluated through the individual permit process, allowing the remaining crossings to be authorized by NWP 12. Several commenters said that the second sentence of Note 2 should be removed. Several commenters requested clarification that the phrase “independent utility” in 33 CFR 330.6(d) does not affect the current practice for linear projects found in 33 CFR 330.2(i) and in the NWP definition of “single and complete linear project” in which separate and distant crossings of waters of the United States can qualify for separate NWP authorization. Several commenters asked for thresholds for determining when utility line crossings are “separate and distant.”
Note 2 is based on the NWP regulations that were published in the
If one or more crossings of waters of the United States for a proposed utility line do not qualify for authorization by NWP, then the utility line would require an individual permit because of 33 CFR 330.6(d). An exception would be if a regional general permit is available to authorize the crossing or crossings that do not qualify for NWP authorization. In these circumstances, the project proponent also has the option of relocating or redesigning the crossings of waters of the United States that does not qualify for NWP authorization so that all of the utility line crossings could qualify for NWP authorization.
There is no conflict between 33 CFR 330.6(d) and 33 CFR 330.2(i). In addition, these regulations do not conflict with the NWP definition of “single and complete linear project” in Section F of these NWPs. It should be noted that both 33 CFR 330.2(i) and the NWP definition of “single and complete linear project” do not discuss the concept of “independent utility.” We cannot establish national thresholds for determining when crossings of waters of the United States are “separate and distant” because a variety of factors should be considered by district engineers when making those decisions, such as topography, geology, hydrology, soils, and the characteristics of wetlands, streams, and other aquatic resources. Corps districts may establish local guidelines for identifying “separate and distant” crossings.
One commenter said that Note 2 uses the phrase “utility lines with independent utility” and observes that the definition of “independent utility” in the “Definitions” section of the NWPs states that independent utility is a test for “a single and complete non-linear project.” This commenter said that this inconsistent wording causes confusion. One commenter stated that the difference between “stand-alone” activities and “segments” is unclear. One commenter recommended removing the second sentence of Note 2. One commenter requested a definition of “stand-alone linear project.”
As stated above, we have removed the phrase “with independent utility” from the second sentence of Note 2. District engineers will apply the concept of independent utility in 33 CFR 330.6(d) to determine when NWP authorizations can be combined with individual permit authorizations, or whether an individual permit is required for the regulated activities. Therefore, there is no need to further explain the concept of “stand-alone” activities or “stand-alone linear project.” Note 2 covers linear projects, not single and complete non-linear projects, so Note 2 should not be applied to non-linear projects. There are separate definitions of “single and complete linear project” and “single and complete non-linear project” in the Definitions section of these NWPs because these are different concepts for the NWP program.
Several commenters opposed Note 2, stating that it would allow utility line proponents to break up large utility lines into separate projects and prevent them from being evaluated under the individual permit process. One commenter requested clarification whether the permittee can identify to the district engineer the origin and terminal point for each utility line that has independent utility (
The purpose of Note 2 is to prevent the situations the commenters opposing the proposed note are concerned about, to ensure that utility lines with one or more crossings that do not qualify for NWP authorization are evaluated under the individual permit process. To assist district engineers in applying 33 CFR 330.6(d), in an individual permit application or a PCN, the project proponent can identify the point of origin and terminal point of the utility line that could function independently of a larger overall utility line project.
The objective of Note 2 is to improve consistency in implementation of the NWP program, especially the application of 33 CFR 330.6(d). Project proponents usually design their utility lines to reduce their impacts to waters of the United States to qualify for NWP authorization. That avoidance and minimization is a benefit of the NWP program. In addition, most of the crossings of waters of the United States for utility lines result in temporary impacts to those jurisdictional waters and wetlands. The use of the term “separate and distant” in Note 2 is the same as its use in 33 CFR 330.2(i) and the definition of “single and complete linear project” in the “Definitions” section of the NWPs (Section F).
A few commenters asserted that proposed Note 2 does not comply with NEPA or the National Historic Preservation Act (NHPA) because the Corps should view an entire oil pipeline as a single and complete project. These commenters objected to the Corps' practice of authorizing each separate and distant crossing by NWP.
The Advisory Council on Historic Preservation's regulations for implementing NHPA section 106 define the term “undertaking” as: “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.” (See 36 CFR 800.16(y).) It should be noted that the Advisory Council's definition of “undertaking” refers not only to projects, but also to activities. Their definition of “undertaking” recognizes that federal agencies may not regulate or permit entire projects, and that a federal agency might only have the authority to authorize an activity or a number of activities that is a component or are components of a larger overall project.
For oil pipelines and other utility lines, the activities that are subject to the Corps' regulatory authorities and require DA authorization are crossings of jurisdictional waters and wetlands, as well as utility line substations, foundations for overhead utility lines, and access roads, that involve discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States. Segments of an oil pipeline or other utility line in upland areas outside of the Corps' jurisdiction, or attendant features constructed in upland areas, do not require DA authorization and therefore are not, for the purposes of the Corps' compliance with section 106 of the NHPA, “undertakings.” The Corps does not have direct or indirect jurisdiction over pipeline segments in upland areas. The Corps does not regulate oil pipelines, or other utility lines per se; we only regulate those components of oil pipelines or other utility lines, that involve activities regulated under our authorities (
The activities regulated by the Corps, as well as the Corps' analysis of direct and indirect effects caused by those regulated activities, are the same regardless of whether the Corps processes an individual permit application or uses NWPs or other general permits to authorize the regulated activities. Likewise, for the consideration of cumulative effects, the incremental contribution of regulated activities to cumulative effects is the same regardless of the type of DA authorization. That incremental contribution consists of the direct and indirect effects of the activities that require DA authorization.
One commenter supported the addition of Note 3. One commenter requested that this Note clarify that the term “navigable waters of the United States” refers to the waters defined at 33 CFR part 329. We have added a reference to 33 CFR part 329 to Note 3.
One commenter agreed with the proposed addition of Note 6. Several commenters said the word “that” should be added before the phrase “do not qualify.” One commenter stated that the phrase “or another applicable 404(f) exemption” should be added to Note 6 because a project proponent may use other Clean Water Act section 404(f) exemptions, such as the exemptions for ditch maintenance and the construction of temporary sedimentation basins. One commenter requested confirmation that the Clean Water Act section 404(f) exemptions that are applicable to currently serviceable structures used for transportation have not been changed. Another commenter requested examples of activities that do not qualify for the Clean Water Act section 404(f) exemptions, such as mechanized landclearing outside previously authorized right-of-ways.
We have added the word “that” after “activities” to correct the error in the proposed Note 6. Note 6 does not preclude project proponents from utilizing other Clean Water Act section 404(f) exemptions that are applicable to activities that may be related to utility lines. Note 6 refers to the maintenance exemption because NWP 12 explicitly refers to maintenance activities, which may require Clean Water Act section 404 authorization if the maintenance activity does not qualify for the section 404(f) maintenance exemption. Note 6 does not affect the application of the maintenance exemption to fill structures used for transportation. It is beyond the scope of Note 6 to discuss activities related to utility lines that do not qualify for any of the Clean Water Act section 404(f) exemptions.
One commenter pointed out that Note 8 was not discussed in the preamble of the June 1, 2016, proposed rule. One commenter asked the Corps to explain why it proposed to add Note 8. Another commenter requested clarification of whether Note 8 would affect utility lines that have stormwater outfalls.
The lack of discussion of Note 8 in the preamble to the proposed rule was an error. As stated on page 35197 of the proposed rule, we solicited comments on all of the NWPs, general conditions, definitions, and all NWP application procedures presented in the proposed rule. The purpose of Note 8 is to remind users of the NWPs that if a utility line includes crossings of waters of the United States that are authorized by NWP but do not require PCNs, and one or more crossings of waters of the United States requires pre-construction notification, then the PCN must include those non-PCN crossings, in accordance with the requirements of paragraph (b)(4) of general condition 32 . The requirements in Note 8 may apply to outfalls for utility lines and outfalls for stormwater management facilities, depending on the case-specific characteristics of the utility line, outfall, and stormwater management facility.
Several commenters said that Corps districts should be prohibited from suspending or revoking NWP 12 and using RGPs for utility lines that cross state or district boundaries. One commenter recommended that NWP 12 include prescriptive national standard best management practices (BMPs) and provide notifications to stakeholders when pipelines, cables, and utility lines are proposed to be constructed in marine transportation routes. These notifications would also be provided to the U.S. Coast Guard and the National Marine Fisheries Service. A few commenters said that the mitigation process for NWP 12 is not in compliance with the National Environmental Policy Act (NEPA) because the public is not provided with an opportunity to comment on requests for NWP verifications. A few commenters also stated that reliance on a district engineer's compensatory mitigation requirement for an NWP 12 verification is inadequate to support a
For utility lines that cross Corps district boundaries, each Corps district may process the NWP 12 PCNs for crossings located in its district, or the Corps districts may designate a lead district to provide a single response to the NWP 12 PCNs. If a Corps district has had NWP 12 suspended or revoked by the division engineer to use a regional general permit or state programmatic general permit instead of NWP 12, it can use that regional or programmatic general permit to authorize utility line activities. We believe that it would be more appropriate to have district engineers determine which BMPs should be applied to the construction, maintenance, or repair of utility lines in their geographic areas of responsibility, as those BMPs may vary by region and utility sector. If the U.S. Coast Guard has a role in regulating utility lines in marine transportation routes, the U.S. Coast Guard can take its own actions under its authorities to ensure compliance with its requirements. We will continue to provide NWP verifications to the National Ocean Service for the charting of utility lines in navigable waters of the United States.
The decision document for this NWP includes an environmental assessment with a mitigated finding of no significant impact. Mitigation measures are discussed throughout the combined decision document, which includes the environmental assessment, public interest review, and 404(b)(1) Guidelines analysis. Other mitigation measures may be required by district engineers through conditions added to activity-specific NWP verifications. The mitigation measures discussed in the national decision documents include the NWP general conditions, which help ensure that NWP activities result in no more than minimal adverse environmental effects.
The draft decision document for NWP 12 was made available for public review and comment concurrent with the proposed rule that was published in the
One commenter said that utility lines constructed parallel to the stream gradient should have the minimum number of crossings, and those crossings should intersect the stream as close to 90 degrees to the stream centerline as possible. That commenter also stated that trench plugs should be no more than 200 feet apart, and plugs must be used on either side of the stream crossing. One commenter recommended adding a permit condition to prevent utility lines from creating new drainage paths away from a waterbody.
Paragraph (a) of general condition 23, mitigation, requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable on the project site. For the purposes of NWP 12, this means that the project proponent should design the utility line to minimize the number of crossings of waters of the United States. The use of trench plugs will be determined on a case-by-case basis by district engineers when processing NWP 12 PCNs or voluntary requests for NWP verification. District engineers may also impose activity-specific conditions on NWP 12 authorizations to minimize draining of waters of the United States.
One commenter said that compensatory mitigation should be required for the permanent conversion of forested wetlands to scrub-shrub wetlands for utility line rights-of-way. Two commenters stated that this NWP should not authorize sidecasting of excavated material into waters of the United States because the sidecast material will be dispersed by currents or rainfall. One commenter requested clarification of a statement made in the preamble to the proposed rule that some excavation activities do not require Clean Water Act section 404 authorization. Two commenters said that if Corps districts consider separate and distant crossings of waters of the United States to qualify for separate NWP authorization, how are cumulative impacts considered in accordance with Section D, District Engineer's Decision?
District engineers have the discretion to require compensatory mitigation for the permanent conversion of forested wetlands to scrub-shrub wetlands, if that permanent conversion is conducted as a result of activities that require DA authorization (see paragraph (i) of general condition 23, mitigation). General condition 12, soil erosion and sediment controls, requires permittees to stabilize exposed soils and fills at the earliest practicable date, to minimize dispersion by currents, rainfall, or other erosive forces. Excavation activities require Clean Water Act section 404 authorization if they result in regulated discharges of dredged or fill material into waters of the United States (see the definitions at 33 CFR 323.2).
Paragraph 1 of Section D, District Engineer's Decision, requires district engineers to consider the cumulative effects of all crossings of waters of the United States for a single and complete linear project that is authorized by NWP, including those crossings that require DA authorization but do not otherwise require pre-construction notification. A complete PCN requires the project proponent to identify, in addition to the NWP 12 activities that require PCNs, the NWP 12 activities that do not require PCNs (see paragraph (b)(4) of general condition 32 and Note 8). The information regarding the cumulative effects of all of the utility line activities authorized by NWP 12 will be considered by the district engineer in his or her decision-making process for an NWP 12 verification.
A number of commenters asserted that the issuance of NWP 12 requires an environmental impact statement. A few commenters stated that the cumulative effects analysis for NWP 12 in the draft decision document was insufficient. A few commenters said that the cumulative effects analysis for NWP 12 in the draft decision document was properly done. One commenter indicated that the Corps improperly deferred the requirement to do a NEPA cumulative effects analysis to the district engineer's NWP verification decision. One commenter opined that the Corps defers its NEPA review for later stages in the permitting process and that NWP 12 provides no guarantee that the Corps district will conduct a NEPA analysis for the NWP verification. One commenter said that Corps districts should prepare supplemental environmental impact statements for NWP 12 verifications. One commenter stated that the decision document should discuss NWP 12 activities and their effects on climate change. Many commenters remarked that the Corps should not issue permits for pipelines
For the issuance or reissuance of an NWP, including NWP 12, the Corps complies with NEPA when Corps Headquarters issues or reissues the NWP with its decision document. The decision document issued by Corps Headquarters includes an environmental assessment and a finding of no significant impact, which concludes the NEPA process. The finding of no significant impact is reached because of the terms and conditions of the NWP and the mitigation measures (
To issue an NWP verification the district engineer does not need to prepare a NEPA document because the requirements for NEPA were fulfilled when Corps Headquarters issued the national decision document for the NWP. Since NEPA compliance is achieved by Corps Headquarters through the preparation of a combined decision document that includes an environmental assessment and finding of no significant impact, Corps districts do not need to prepare supplemental environmental impact statements for NWP verifications. If a proposed NWP activity will result in more than minimal individual and cumulative adverse environmental effects after considering the mitigation proposal submitted by the prospective permittee, the district engineer will assert discretionary authority and require an individual permit if the adverse environmental effects will be more than minimal. During the individual permit process, the district engineer will prepare the appropriate NEPA documentation.
The NEPA cumulative effects analysis in the NWP 12 decision document was prepared in accordance with the Council of Environmental Quality's definition of “cumulative impact” at 40 CFR 1508.7, and utilizes concepts presented in CEQ's 1997 and 2005 guidance on conducting cumulative impact analyses. The NEPA cumulative effects analysis examines cumulative effects on various resources of concern, including wetlands, rivers and streams, coastal areas, and endangered and threatened species. Our NEPA cumulative effects analysis examines past, present, and reasonably foreseeable future actions that affect those resources of concern, including federal, non-federal, and private actions. Because the decision document is national in scope it is a general cumulative effects analysis.
We also conducted a cumulative effects analysis in accordance with the 404(b)(1) Guidelines because this NWP authorizes discharges of dredged or fill material into waters of the United States. The Corps does not defer the NEPA cumulative effects analysis to the NWP verification stage of the authorization process. Corps Headquarters conducts the required NEPA analyses when it issues or reissues the NWP. The final national decision document includes a discussion of NWP 12 activities and climate change. Activities authorized by NWP will result in small incremental contributions to greenhouse gas emissions during construction periods, if the equipment used to construct the crossings of waters of the United States, utility line substations, footings for overhead utility lines, or access roads in waters of the United States consumes fossil fuels. The Corps does not have the authority to regulate the burning of fossil fuels that may be transported by utility lines. The Corps does not have the legal authority to regulate emissions of greenhouse gases during the operation and maintenance of the utility line activities, if those operations and maintenance activities do not involve activities that require DA authorization.
A number of commenters said the draft decision document for NWP 12 is inadequate, especially in its evaluation of the risks and impacts of oil spills, gas pipeline leaks, and inadvertent returns of drilling fluids from horizontal directional drilling activities. One commenter stated that with respect to the discussion of Subpart G (Evaluation and Testing) in the draft decision document, that voluntary compliance is rarely as effective as monitored compliance. Another commenter objected to the statement that “this NWP will encourage applicants to design their projects within the scope of the NWP” because the commenter believes that the NWP encourages massive cross-country pipeline projects. One commenter said the decision document must address impacts to forested wetlands caused by NWP 12 activities.
The decision document for NWP 12 treats oil spills and gas pipeline leaks as reasonably foreseeable future actions in the NEPA cumulative impact analysis section. The decision document also discusses the potential for inadvertent returns of drilling fluids to occur during horizontal directional drilling activities used to install or replace utility lines. As discussed above, the Corps does not regulate the operation of oil or gas pipelines, or leaks that might occur. In addition, the Corps does not regulate inadvertent returns of drilling fluids that might occur as a result of subsurface fractures during horizontal directional drilling activities. Oil spills and gas leaks are addressed by other federal agencies under other federal laws.
As discussed in the proposed rule, it is our position that inadvertent returns of drilling fluids from horizontal directional drilling are not discharges regulated under section 404 of the Clean Water Act, under the current definitions of “discharge of dredged material” and “discharge of fill material” at 33 CFR 323.2. We have added provisions to NWP 12 to authorize discharges of dredged or fill material into waters of the United States and/or structure or work in navigable waters of the United States to remediate inadvertent returns of drilling fluids if they occur, to minimize the adverse environmental effects of those inadvertent returns of drilling fluids.
For those NWP 12 activities that do not require PCNs, voluntary compliance is an appropriate means of compliance. District engineers will take appropriate action if they discover cases of non-compliance with the terms and conditions of NWP 12. For utility lines, this NWP only authorizes crossings of waters of the United States that involve activities regulated under the Corps' authorities. It does not authorize segments of utility lines constructed in uplands because those segments do not require DA authorization. It does not authorize the entire utility line unless the entire utility line is constructed in jurisdictional waters and wetlands and involves activities that require DA authorization. For the crossings of waters of the United States authorized by NWP 12, the terms and conditions of this NWP encourage the project proponent to minimize adverse effects to jurisdictional waters and wetlands to qualify for NWP authorization, instead
For utility lines that cross state and/or Corps district boundaries, district engineers will consider the cumulative impacts of those NWP 12 activities when determining whether to issue NWP 12 verifications. The national decision document for NWP 12 discusses, in general terms, the impacts that NWP 12 activities have on wetlands of all types, including forested wetlands. For some utility lines, forested wetlands may be permanently converted to scrub-shrub or emergent wetlands to construct a right-of-way.
A few commenters said this NWP should not authorize utility lines in drinking water source areas. One commenter stated that this NWP should not authorize pipelines under rivers or near the ocean because those pipelines could leak and threaten water supplies. Many commenters said that the Corps should consider the environmental effects of the entire pipeline, including potential impacts to water supplies, to not just the specific activities authorized by NWP 12 or other DA permits.
General condition 7, water supply intakes, prohibits NWP activities in proximity of public water supply intakes except under specific circumstances. General condition 14, proper maintenance, requires NWP activities to be maintained to ensure public safety. For NWP 12 activities, this includes maintaining the utility line so that it does not leak. The Corps does not regulate the operation and maintenance of pipelines, if those activities do not include activities that require DA authorization. As discussed above, there are other federal agencies that have legal responsibility for addressing the operation of pipelines and responding to leaks or spills that may occur. Concerns regarding pipeline leaks or spills should be brought to the attention of those federal agencies.
One commenter expressed concern regarding the effects of dispersants on public health and the environment. One commenter said that in the draft decision document the projected amount of compensatory mitigation required for NWP 12 activities is far less than the projected authorized impacts, and that difference results in inadequate mitigation. One commenter said that the draft NWP 12 decision document fails to acknowledge that water quality standards will be violated in some cases.
The Corps does not have the legal authority to regulate the use of dispersants. Other federal or state agencies may have that responsibility. Many of the activities authorized by NWP 12 result in temporary impacts to jurisdictional waters and wetlands, and often district engineers do not require compensatory mitigation to offset those temporary impacts because those waters and wetlands continue to provide ecological functions and services. The estimated impacts in the draft decision document include both permanent and temporary impacts to jurisdictional waters and wetlands. For discharges into waters of the United States, general condition 25 requires certification that an NWP activity complies with applicable water quality standards unless a waiver of the Clean Water Act section 401 water quality certification requirement occurs. The district engineer has discretion to take action to ensure compliance with the water quality certification issued by the state, tribe, or U.S. EPA. The section 401 certifying authority also has the authority to enforce the terms and conditions of its water quality certification.
This NWP is reissued with the modifications discussed above.
NWP 13.
Many commenters supported the reissuance of this NWP, including many of the proposed changes. Many commenters objected to the reissuance of this NWP. Several commenters said that all bank stabilization activities should require individual permits. One commenter asserted that this NWP should not authorize new bank stabilization activities. One commenter stated that NWP 13 should not be used to create more land. One commenter opined that the use of NWP 13 is contrary to the public interest because the only positive value of a bulkhead is limited to the landowner, and bulkheads have adverse impacts that affect society as a whole. One commenter said that this NWP should not be reissued because it does not comply with the requirements of section 404 of the Clean Water Act.
We are reissuing this NWP, with some changes made in response to comments that are discussed below. Many bank stabilization activities have no more than minimal individual and cumulative adverse environmental effects and are appropriate for NWP authorization. The Corps' regulations recognize that landowners have the general right to protect their property from erosion (33 CFR 320.4(g)(2)). The terms and conditions of this NWP provide a means of implementing this provision of the Corps' regulations by authorizing bank stabilization activities that can be conducted with minimal amounts of dredged or fill material being discharged into waters of the United States.
We acknowledge that bank stabilization will have indirect adverse effects on streams, rivers, lakes, estuaries, and oceans. In coastal waters, bank stabilization structures change natural shoreline processes and alter habitats (Nordstrom 2014). Bank stabilization structures in coastal waters create barriers to animal movements between habitats, cause the loss of some habitat, reduce or eliminate intertidal habitats, and alter species richness and abundance (Nordstrom 2014). Gittman et al. (2016) concluded after conducting a meta-analysis of coastal shore protection measures that a 23 percent decline in biodiversity and a 45 percent decline in organism abundance occurred near bulkheads and seawalls. Stone revetments, sills, and breakwaters exhibited little or no difference in biodiversity and organism abundance compared to natural shorelines (Gittman et al. 2016). In rivers and streams, bank stabilization measures such as riprap affect riverine processes including sediment transport, hydrodynamics, water levels, sediment input, sediment characteristics of the river or stream bed, and wood input (Reid and Church 2015). Riprap to stabilize river and stream banks also alters habitat quality and vertebrate and invertebrate populations (Reid and Church 2015).
We believe that in most cases, the indirect adverse environmental effects caused by bank stabilization authorized by NWP 13 are no more than minimal. While bank stabilization may result in some losses of waters of the United States along the stream or river bank or along the shore, the waterbody itself is not lost and that waterbody continues to provide ecological functions and services. For those activities that require PCNs, district engineers will review those activities and their direct and indirect adverse environmental effects. If a proposed bank stabilization activity will result in more than minimal individual and cumulative adverse environmental effects after the district engineer considers the applicant's mitigation proposal, he or she will exercise discretionary authority and require an individual permit. This NWP authorizes new bank stabilization
Paragraph (a) of this NWP requires that the amount of material placed in jurisdictional waters and wetlands for the bank stabilization activity must be the minimum necessary for erosion protection. Therefore, this NWP does not authorize activities that create more land for property owner or the reclamation of previously lost lands. Bank stabilization activities authorized by this NWP, including bulkheads, revetments, and other erosion control approaches, are conducted not only for private property, but for public property as well. Therefore, it cannot be stated that NWP 13 activities only benefit private landowners; the NWP can also benefit larger communities especially at waterfront parks and other public spaces along shorelines that are eroding. In the national decision document, we have completed a 404(b)(1) Guidelines analysis and determined that the reissuance of this NWP complies with the Guidelines.
Many commenters stated that the construction of bulkheads, seawalls, revetments, and other shoreline hardening structures should not be authorized by this NWP, and they should require individual permits. One commenter said that gabion baskets, sills, and stream barbs should not be authorized by NWP 13. Two commenters suggested replacing the words “such as” with “including, but not limited to” to the list of examples of activities authorized by this NWP to clarify that the list is not an all-inclusive list. Several commenters expressed their support of including hybrid bank stabilization activities that combine vegetated slope protection and riprap protection.
In the June 1, 2016, proposed rule, we proposed to modify the text of this NWP to make it clear that NWP 13 authorizes a variety of bank stabilization activities, not just the construction and maintenance of bulkheads, seawalls, revetments, gabion baskets, and other shoreline hardening structures. The construction and maintenance of bulkheads, seawalls, revetments, gabion baskets, etc. has, especially in waterbodies in urban areas, no more than minimal adverse environmental effects. This NWP can be used to authorize vegetative stabilization and bioengineering to reduce erosion, as well as other bank stabilization techniques. Stream barbs can be effective at reducing bank erosion and can have fewer adverse effects to streams and their banks than armoring the stream bank. Sills have been authorized by NWP 13 in the past and help protect existing fringe marshes from erosion. The use of the phrase “such as” in the first paragraph of NWP 13 makes it clear that the list of bank stabilization activities is not an exhaustive list. Other types of bank stabilization activities can be authorized by NWP 13 as long as those activities comply with the terms and conditions of this NWP.
One commenter stated that NWP 13 should be modified to prohibit hard bank stabilization structures landward of, or directly adjacent to, tidal marshes, mangroves, or submerged aquatic vegetation. One commenter stated that this NWP should not authorize bank stabilization activities in coastal estuaries. One commenter suggested adding a provision to NWP 13 to encourage the use of living shorelines as bank stabilization and erosion prevention methods. Several commenters voiced their support that NWP 13 not specify a preference for one bank stabilization approach over another approach.
This NWP requires PCNs for any proposed activities that involve discharges of dredged or fill material into special aquatic sites, including wetlands and vegetated shallows. Constructing bank stabilization activities, including bulkheads and revetments, landward of tidal marshes, mangroves, or submerged aquatic vegetation is a means of complying with paragraph (a) of general condition 23, mitigation, by minimizing adverse effects to those special aquatic sites. If the bank stabilization activity is constructed landward of the high tide line and there are no jurisdictional wetlands or waters at the proposed site for the bank stabilization activity, then DA authorization is not required. Many areas of coastal estuaries are subject to strong wave energies and other erosive forces (
We are issuing a separate NWP to authorize discharges of dredged or fill material into waters of the United States and structure or work in navigable waters of the United States for the construction and maintenance of living shorelines. That new NWP gives coastal landowners another option to protect their property from erosion. We agree that the NWPs should not establish a preference for one approach to bank stabilization over other approaches. The science surrounding living shorelines is relatively new and their long-term effectiveness compared to other bank stabilization methods has not been well studied (Saleh and Weinstein 2016). Therefore, at this time it would be premature to establish a regulatory preference for living shorelines.
Landowners can seek advice from consultants regarding which bank stabilization approach will be suitable and sustainable under the conditions at a particular site. District engineers will evaluate NWP PCNs and voluntary requests for NWP verification to determine whether the proposed bank stabilization activity qualifies for NWP authorization. Corps district staff cannot design bank stabilization activities for landowners because it would create liability for the federal government. Some general advice can be offered to landowners, but it is up to the landowner to decide how he or she wants to protect his or her property from erosion. Corps district staff can only evaluate the applicant's proposal and determine whether it qualifies for NWP or regional general permit authorization or requires an individual permit.
Several commenters stated that NWP 13 should not be reissued because too much shoreline has been armored by bank stabilization activities. These commenters cited a study that determined that 14 percent of the coastal shorelines along the Atlantic and Pacific Oceans and the Gulf of Mexico have been altered by the construction of bulkheads, seawalls, jetties, and groins (Gittman et al. 2015). One commenter said stated that NWP 13 should not authorize hard bank stabilization structures on public beaches. Another commenter expressed the opinion that hardened bank stabilization projects should only be authorized in cases where public safety is at risk. One commenter said bank stabilization fills or structures that prevent the establishment of rooted vegetation should only be authorized in limited circumstances, specifically in areas with excessive and active shoreline erosion, areas with highly erodible soils, and shorelines exposed to frequent flux and wave action. This commenter also stated that hard bank stabilization structures should be limited to areas with critical public infrastructure where other bank stabilization approaches could not be done.
According to the National Oceanic and Atmospheric Administration's report entitled: “National Coastal Population Report: Population Trends from 1970 to 2020,” 39 percent of the population of the United States (123.3 million people) lives in coastal
Although according to the study mentioned above (Gittman et al. 2015), an estimated 14 percent of coastal shoreline in the United States estimated has been altered by hard bank stabilization such as bulkheads, seawalls, jetties, and groins, it is important to consider how much of that hardened shoreline is located in coastal environments subject to higher energy erosive forces where bulkheads, seawalls, jetties, breakwaters, or revetments are necessary to control erosion and protect existing buildings and infrastructure. The percentage of shore estimated to be hardened by bank stabilization structures should also be considered in the overall context of the large number of people that live in coastal areas of the United States and the extensive proportion of land area in coastal zones that people have altered for their use. The 52 percent of the nation's population that lives in coastal watersheds has a large impact on the ecological condition of coastal waters because of the cumulative effects of human activities in those coastal zones. Those cumulative impacts to coastal ecosystems are caused by: Pollution from land, rivers, and oceans; overharvesting fishery resources; habitat loss; species introductions; nutrient inputs; activities that reduce sediment inputs necessary to maintain coastal ecosystems; land use changes that convert coastal habitats such as forests, wetlands to urban, industrial, and recreational developments; the construction and operation of ports and other facilities; transportation projects; dredging; aquaculture activities; and shore protection structures (MEA 2005a). In summary, there are many other categories of activities in coastal areas besides bank stabilization activities that adversely affect coastal waters and their associated ecosystems and eliminate or diminish the ecological functions and services those waters and ecosystems provide.
Humans have long had substantial impacts on ecosystems and the ecological functions and services they provide (Ellis et al. 2010). Over 75 percent of the ice-free land on Earth has been altered by human occupation and use (Ellis and Ramankutty 2008). Approximately 33 percent of the Earth's ice-free land consists of lands heavily used by people: Urban areas, villages, lands used to produce crops, and occupied rangelands (Ellis and Ramankutty 2008). Human population density is a good indicator of the relative effect that people have had on local ecosystems, with lower population densities causing smaller impacts to ecosystems and higher population densities having larger impacts on ecosystems (Ellis and Ramankutty 2008). According to NOAA and the U.S. Census Bureau (2013), in 2010 U.S. coastal shoreline counties had an average density of 446 people per square mile and U.S. coastal watershed counties had an average density of 319 people per square mile. Both of these densities are considered high population densities under the classification system used by Ellis and Ramankutty 2008). Human activities such as urbanization, agriculture, and forestry alter ecosystem structure and function by changing their interactions with other ecosystems, their biogeochemical cycles, and their species composition (Vitousek et al. 1997).
Given the relatively high percentage of the United States population that lives in coastal shoreline counties, and the fact that many coastal shoreline counties have been long been significantly altered by human activities, the estimated percentage of hardened shoreline should be considered in the context of the cumulative impacts that have occurred in coastal shoreline counties or coastal watersheds. As explained above, there is a wide variety of activities that contribute to cumulative effects to coastal waters (also see MEA 2005b). Bank stabilization activities are a small subset of human activities that adversely affect coastal waters and wetlands.
It is also important to consider that a large number of waterfront property owners will want to protect their property with bank stabilization structures, such as bulkheads, seawalls, and revetments. Some waterfront property owners have taken different approaches (
The entity responsible for managing a public beach is responsible for proposing an appropriate bank stabilization activity and the Corps will evaluate the proposal if it requires DA authorization. Bank stabilization measures are being used by people that want to protect their property, and by federal, tribal, state, and local governments as well as private entities that want to protect their infrastructure and other facilities. Vegetative stabilization is only effective in certain coastal areas where erosive forces (
We recognize that in coastal waters bulkheads, seawalls, and revetments have adverse effects on the structure, function, and dynamics of coastal ecosystems (
Three commenters said this NWP should be modified to increase its limits to encourage vegetative stabilization or bioengineering. Two commenters stated that they support the Corps' encouragement of bioengineering, but that there should be a limitation as to how much fill is authorized within a floodplain for bioengineered projects. Two commenters requested that NWP 13 clearly state that vegetative bank stabilization will not be required by the Corps at any particular site.
The NWP currently provides sufficient flexibility to landowners, public works agencies, and other entities to use a wide range of options to stabilize banks. The Corps does not regulate fills in floodplains unless there are discharges of dredged or fill material into waters of the United States. The Corps regulatory program does not regulate activities in floodplains per se; we only regulate activities in floodplains that require authorization under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899. Corps districts cannot mandate the use of a particular bank stabilization approach, such as vegetative stabilization, because district engineers can only provide advice on a landowner's proposed bank stabilization activity (see 33 CFR 320.4(g)(2)). The district engineer will evaluate the proposed activity, and if he or she determines the proposed activity will result in more than minimal adverse environmental effects, he or she will exercise discretionary authority and require an individual permit.
One commenter said that proposed paragraph (a) allows cumulative impacts to fish. Cumulative impacts to fish are caused not only by the placement of material into jurisdictional waters and wetlands to stabilize banks, but also by a wide variety of other activities that the Corps does not have the legal authority to regulate. Examples of other contributors to cumulative impacts to fish include: Point source discharges of pollutants authorized by Clean Water Act section 402 permits, non-point sources of pollution, habitat loss and alterations that do not involve activities regulated by the Corps under its authorities, overharvesting of fish, climate change, land use/land cover changes in the watershed draining to the waterbodies inhabited by those fish, and resource extraction activities, such as water withdrawals.
Two commenters stated that the 500 linear foot limit is too high, and two commenters said the 500 linear foot limit should be removed because it is arbitrary. Another commenter said that the 500 linear foot limit encourages bank armoring. One commenter stated that the linear foot limit for bank stabilization by hard armoring should be 300 linear feet. Three commenters expressed concern that there is no linear foot limit for non-bioengineered bank stabilization projects and they recommend a limit of 500 linear feet for those projects. Two commenters recommended increasing the linear foot limit to 1,000 feet. One commenter stated that 500 linear foot bank stabilization activities should only be authorized by NWP on large rivers. One commenter said that a 500-foot bulkhead cannot have more than minimal adverse environmental effects. Another commenter remarked that NWP 13 activities should be limited to 300 linear feet in non-tidal waters inhabited by state or federally listed threatened or endangered freshwater mussel species. One commenter suggested changing the linear foot limits for stream bank stabilization authorized by NWP 13 to 500 linear feet for hard armoring and 200 linear feet for scour protection.
The 500 linear foot limit was established to help ensure that NWP 13 activities result in no more than minimal individual and cumulative adverse environmental effects. Division engineers can modify this NWP through regional conditions to reduce the 500 linear foot limit if there are regional concerns regarding the potential for more than minimal adverse environmental effects to occur. The district engineer can waive the 500 linear foot limit on a case-by-case basis if he or she makes a written determination, after conducting agency coordination that the proposed activity will result in only minimal individual and cumulative adverse environmental effects. However, to address concerns about the adverse effects of bulkheads on coastal ecosystems, we have imposed a 1,000 linear foot limit on waivers for bulkheads. For proposed bulkheads that are 501 to 1,000 feet in length, district engineers can waive the 500 linear foot limit if they make written determinations after agency coordination that the proposed bulkheads will result in no more than minimal adverse environmental effects.
We are only applying the 1,000 linear foot cap to bulkheads because bulkheads have the potential, in some circumstances, to cause more severe adverse environmental effects than other bank stabilization techniques, such as bioengineering, vegetative stabilization, sills, rip rap, revetment, and stream barbs. Bulkheads constructed in estuaries cause losses of intertidal habitat through erosion caused by reflection of wave energy, changes in sediment transport, and inhibiting migration of the shoreline in response to sea level change (Dugan et al. 2011; Bilkovic and Mitchell 2013). In a recent meta-analysis, Gittman et al. (2016) found that species diversity and abundance near bulkheads are substantially lower compared to natural shorelines, and in general species diversity and abundance near shorelines protected by riprap or revetments do not differ from natural shorelines. Our decision to cap bulkheads at 1,000 linear feet is based on our experience and judgment to provide additional assurance that NWP 13 only authorizes those bank stabilization activities that have no more than minimal individual and cumulative adverse environmental effects. Project proponents that want to construct bulkheads longer than 1,000 linear feet along the shore can seek Department of the Army authorization by applying for an individual permit. Other bank stabilization techniques (
The flexibility provided in the waiver process precludes the need to consider higher linear foot limits for this NWP. The 500 linear foot limit does not drive the decision whether the proposed bank stabilization activity should be a bulkhead or other hard structure; that is the decision of the landowner, public works department, or other responsible entity. The selected bank stabilization approach is mostly dependent on site conditions, and the likely effectiveness of that approach in controlling erosion. Any NWP 13 activity proposed by a non-federal permittee that might affect
Two commenters supported the proposed modification of paragraph (c) of this NWP, and recommended adding “or as needed for a stable maintainable side slope.” Two commenters stated that NWP 13 should not authorize stabilization or fill placement below the ordinary high water mark or mean high water line. One commenter said that the one cubic yard per running foot limit is arbitrary and should be removed. Another commenter remarked that allowing discharges of one cubic yard per running foot for bulkheads below the ordinary high water mark or mean high water line frequently leads to scouring of the shore in front of the bulkhead. One commenter stated that this NWP should clarify that buried bank stabilization measures are not included in the quantity or length limits. One commenter suggested replacing the terms “high tide line” and “ordinary high water mark” in paragraph (c) with “high astronomical tide,” except for the Great Lakes where “ordinary high water mark” would continue to be used.
We believe that the proposed text of paragraph (c) is sufficient to ensure that these activities result in no more than minimal adverse environmental effects. We do not believe it is necessary to add a requirement to establish a “stable maintainable side slope.” If more than one cubic yard per running foot in waters of the United States is needed to make a suitable side slope, then the project proponent can request a waiver from the district engineer. Prohibiting discharges of dredged or fill material into waters of the United States below the ordinary high water mark or mean high water line would result in most bank stabilization activities requiring individual permits, even though they would have no more than minimal adverse environmental effects. If the bank stabilization activity is not properly integrated into the bottom of the waterbody, the bank stabilization activity is likely to collapse as erosion undercuts the bank stabilization measure.
The one cubic yard per running foot limit is intended to limit fills to ensure that NWP 13 activities result in only minimal adverse environmental effects. District engineers can issue written waivers of this one cubic yard per running foot limit, if they determine after conducting agency coordination that the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects. In some situations, the placement of riprap at the bottom of the bulkhead is necessary to prevent scouring and undercutting of the bulkhead. Any discharges of dredged or fill material below the plane of the ordinary high water mark or high tide line are counted towards the one cubic yard per running foot limit, even if those fills are keyed into the bottom of the waterbody to reduce the potential for undercutting of the bank stabilization activity. The term “high tide line” is provided in the “Definitions” section of these NWPs (Section F), and is to be used for these NWPs, is identical to the definition at 33 CFR 328.3(d) that was published in the Corps' final rule issued on November 13, 1986 (51 FR 41251).
Two commenters said the placement of fill within special aquatic sites for bank stabilization should be prohibited. The placement of fill in special aquatic sites for the purposes of bank stabilization can have no more than minimal adverse environmental effects. A proposed discharge of dredged or fill material into a special aquatic site requires the submission of a PCN to the district engineer and a request for a waiver of that prohibition. The district engineer will coordinate the PCN with the other agencies, in accordance with paragraph (d) of general condition 32. To waive that prohibition, the district engineer must issue a written waiver with a finding of no more than minimal adverse environmental effects. A waiver might require mitigation to ensure that the authorized activity results in no more than minimal adverse environmental effects.
One commenter supported the proposed modification stating that NWP 13 authorizes the maintenance and repair of existing bank stabilization features. A few commenters said this paragraph should be changed to limit maintenance and repair activities to previously authorized bank stabilization activities. One commenter objected to proposed paragraph (h), stating that it requires maintenance of a bank stabilization project in perpetuity. This commenter said the NWP should specify a period of time for the bank stabilization activity to become established.
We have concluded that it is not necessary to limit this provision to the maintenance and repair of previously authorized bank stabilization activities. Such a requirement would discourage the maintenance and repair of bank stabilization activities that have deteriorated over time and may be allowing sediments and other materials to enter the waterbody, adversely affecting water quality. In addition, there may be older bank stabilization activities that did not require DA authorization at the time they were constructed but changing environmental conditions makes their maintenance and repair subject to DA permit requirements. Paragraph (h) does not require a landowner or other entity to maintain a bank stabilization activity in perpetuity. The landowner or other entity also has the option of removing that bank stabilization activity and restoring the affected area to the extent practical. We do not believe it would be appropriate or practical to establish a period of time for a bank stabilization activity to become established because bioengineering or vegetative stabilization activities generally require more time than bulkheads or revetments. There are also a variety of other factors that affect the functional lifespan of a bank stabilization activity.
One commenter suggested adding timber mats to the paragraph authorizing temporary structures and fills, to minimize construction impacts. One commenter suggested that the word “promptly” be inserted before “removed” in the fourth sentence of this paragraph so that the temporary structures or fills are quickly removed after the work is completed.
We have added temporary mats, including timber mats, to this paragraph, consistent with the corresponding paragraphs proposed in NWPs 3 and 12. We do not agree that the word “promptly” should be added to that sentence because it may be necessary and environmentally beneficial to allow temporary fills to remain in place while the permanent fills settle and stabilize.
One commenter suggested allowing the use of non-native plants for bioengineering or vegetative bank stabilization in situations when native species are not as well-suited for a given project. Another commenter recommended adding “where practicable” to this provision to allow for flexibility.
To make the requirement to use native plants more visible in the text of this NWP, we have moved it to a new paragraph (g). If native plants cannot be used for a bioengineering or vegetative bank stabilization activity, perhaps bioengineering or vegetative stabilization is not an appropriate option. There should be native plant species available for those activities. Contractors that rely on non-native plant species for their bioengineering or vegetative stabilization projects should seek sources of native plants that can serve those purposes.
Many commenters said that all NWP 13 activities should require PCNs. One commenter asserted that no NWP 13 activities should require PCNs. Some commenters stated that PCNs should be required for all NWP 13 activities involving bank or shoreline hardening. One commenter asserted that the terms and conditions of this NWP could not be enforced if PCNs are not required for all activities. Several commenters stated that the Corps could not track cumulative impacts unless PCNs are required for all activities. Some commenters remarked that the Corps could not ensure compliance with the Endangered Species Act or National Historic Preservation Act if PCNs are not required for all activities. Many commenters stated that if all proposed NWP B activities require PCNs, then all NWP 13 activities should require PCNs to provide more equivalency to those NWPs. Some of these commenters said that if not all NWP 13 activities require PCNs, then the NWP program would continue to have a bias towards bank stabilization activities that harden shorelines.
We do not believe that all NWP 13 activities, including all hard structures such as seawalls, bulkheads, revetments, and riprap, should require PCNs because they can often be constructed with only relatively small amounts of fill in jurisdictional waters. In shorelines or banks where there are strong erosive forces, hard bank stabilization structures are likely to be the only feasible options to protect property and infrastructure, and they will result in only minimal adverse environmental effects. The current PCN thresholds and the PCN requirements of certain general conditions (
General condition 18, endangered species, requires non-federal permittees to submit PCNs for any proposed NWP activity that might affect ESA-listed species or designated critical habitat, is in the vicinity of listed species or designated critical habitat, or is in designated critical habitat. A similar requirement applies to general condition 20, historic properties. General condition 20 requires non-federal permittees to submit PCNs for any proposed NWP activity that may have the potential to cause effects to historic properties. If a non-federal project proponent does not comply with general conditions 18 and 20 and does not submit the required PCNs under the circumstances identified in paragraph (c) of those general conditions, the activity is not authorized by NWP and is an unauthorized activity.
The PCN thresholds for NWPs 13 and the new NWP 54 (proposed NWP B) differ because the living shorelines authorized by NWP 54 typically involve greater amounts of fill into jurisdictional waters and wetlands, as well as fills and structures that typically extend a distance into subtidal or shallow waters. In other words, NWP 13 activities and NWP 54 activities, as a general rule, are not equivalent in terms of the amounts of fill that are typically discharged into jurisdictional waters and wetlands to conduct those activities, and the amount of encroachment into the waterbody. Nationwide permit 54 does not have a cubic yard limit on the amount of fill that can be discharged below the plane of the high tide line or ordinary high water mark. Bank stabilization activities authorized by NWP 13 often have small footprints in jurisdictional waters and wetlands and small encroachments into waterbodies because of the characteristics of the authorized activities. For example, seawalls and bulkheads that may be authorized by NWP 13 consist of vertical walls, perhaps with some backfilling behind the wall structure. Riprap, stone revetments, and gabions can be constructed close to the existing bank, with minor amounts of encroachment into the waterbody. Vegetative stabilization and bioengineering can also be constructed close to the existing bank with minimal encroachment into the waterbody. General condition 23, mitigation, requires the adverse effects of NWP activities to be avoided and minimized to the maximum extent practicable on the project site.
This NWP requires a PCN for any proposed activity that involves a discharge of dredged or fill material that exceeds an average of one cubic yard per running foot as measured along the length of the treated bank. The district engineer can waive this one cubic yard per running foot limit after conducting agency coordination under paragraph (d) of general condition 32 and making a written determination that the proposed activity will result in no more than minimal adverse environmental effects.
As discussed above, the activities authorized by new NWP 54 usually involve larger fills distributed over broader areas of waters to achieve the necessary marsh establishment area and/or molluscan reef structures to control erosion. If, instead of issuing a new NWP to authorize the construction and maintenance of living shorelines, we proposed to modify NWP 13 to authorize these activities, the vast majority of living shorelines would require PCNs and waivers of the one cubic yard per running foot limit. In addition, activities authorized by NWP 54 are more likely to encroach into state-owned lands in navigable waters that are held in trust for the benefit of the public. Because of those likely encroachments into navigable waters, NWP 54 construction activities will be reviewed on a case-by-case basis to ensure that those activities have no more than minimal adverse effects on navigation. Therefore, the activities typically authorized by NWPs 13 and 54 have some fundamental differences in fill quantities and encroachment into waters, and potential impacts to navigation and trust resources that warrant different PCN thresholds.
Many commenters said the 500 linear foot PCN threshold is too high, and the linear foot threshold should be reduced so that the Corps would be required to review more NWP 13 activities to make sure they result in no more than minimal adverse environmental effects. One commenter recommended requiring PCNs for any bank stabilization activity that requires mechanical equipment to be used in aquatic resources to construct that bank stabilization activity.
We believe the 500 linear foot PCN threshold, as well as the other PCN thresholds, is sufficient to require PCNs for any proposed NWP 13 activity that
In many circumstances, mechanical equipment used to construct or maintain bank stabilization activities authorized by NWP 13 can be operated from uplands or from barges or types of other work vessels to minimize their impacts on the aquatic environment. Division engineers can regionally condition this NWP to require PCNs for the use of mechanical equipment, if they have identified specific regional concerns regarding their use and its effect on aquatic resources. The current PCN thresholds, along with the additional PCNs required through regional conditions, are sufficient to ensure that NWP 13 activities result in no more than minimal individual and cumulative adverse environmental effects.
Several comments regarding the proposed PCN form were received, some of which addressed the proposed questions described in the June 1, 2016, proposed rule. One commenter suggested that questions relating to bank stabilization for the proposed PCN form should be addressed instead through general condition 32, pre-construction notification. Two commenters said that asking if there are qualified professionals in the area that construct living shorelines would discourage the use of living shorelines. One of these commenters suggested changing the question to directly ask whether a living shoreline can be used instead of a hardened bank stabilization activity. These two commenters also said that the term “qualified” needs to be defined and suggested that the question distinguish between the concepts of design and construction because one person might be qualified to construct a living shoreline but not to design it. One commenter said that it should not be necessary that the qualified consultant or engineer be a local person. One commenter stated that the Corps should provide information on methods for protecting and conserving shorelines, instead of asking the applicants through the PCN form.
The purpose of the information requirements in general condition 32 is to provide the district engineer with information on a specific proposed NWP activity, to help the district engineer determine whether the proposed activity qualifies for NWP authorization. The intent of the questions on the proposed PCN form is to gather information to inform future rulemaking efforts, not to evaluate specific NWP activities or potential alternatives. Comments on the proposed questions on the PCN form will be responded to in the documentation for the PCN form, if the form is approved. Alternatives analyses are not required for NWP PCNs. The suite of appropriate options for bank stabilization approach is highly site-specific. In addition, there are different approaches for living shorelines, so asking whether a living shoreline “could” be used will not provide much useful information. District engineers can only provide general information to landowners regarding bank stabilization options. District engineers cannot design a landowner's bank stabilization activity. They can only evaluate the landowner's proposal to determine whether it qualifies for general permit authorization or whether an individual permit is required.
Two commenters stated that PCNs for NWP 13 should discuss whether the project site is in an area designated as suitable for living shoreline approaches based on a regional or state-level living shoreline analysis. They said that the Corps should consider the state's determination and apply it to the NWP verification decision. Another commenter said that NWP 13 PCNs should include a statement whether the proposed activity is consistent with regional policy and standards. Several commenters said that NWP 13 PCNs should include a statement explaining why a living shoreline is not appropriate for the project site, if a living shoreline is not being proposed.
If regional or state living shoreline analyses have been done, and those analyses are available to the public, then landowners can use those analyses to help evaluate bank stabilization options to protect their property. Because we are not establishing a preference for a particular approach to bank stabilization or erosion control, we do not believe that PCNs should require information on regional or state living shoreline analyses. If the state regulates shore erosion control activities, the state's regulations or permit decisions will influence or dictate the shore erosion approach proposed by the landowner. If that shore erosion activity requires DA authorization, then the state's regulations or permit decision will influence the landowner's permit application or PCN (if a PCN is required for an NWP activity). Living shorelines are feasible and effective in limited circumstances in coastal waters, so we do not agree that a statement regarding the appropriateness of living shorelines should be required as a standard statement in NWP 13 PCNs.
One commenter stated that, for proposed maintenance activities, the NWP 13 PCN should include evidence that the bank stabilization structure had been previously authorized. Several commenters said that project proponents submitting NWP 13 PCNs should clearly demonstrate that there are erosion risks, to justify the proposed bank stabilization activities. One commenter requested that NWP 13 PCNs include detailed information on the shoreline type and the status of adjacent properties, the water quality status of adjacent waters, a description of site conditions that demonstrate that it is necessary to do a bank stabilization activity rather than taking no action or constructing a living shoreline, and a written justification for proposing a hardened bank stabilization activity. Two commenters recommended using a public database for the collection of NWP 13 PCN information.
We do not believe it is necessary to demonstrate that the bank stabilization activity was previously authorized. It may have been authorized by a non-reporting NWP or other general permit and there might not be a written verification that shows what was previously authorized. It is also possible it did not require DA authorization at the time it was constructed. Erosion is a natural process. Therefore, wherever land and flowing water interact with each other, there will be erosion. Requiring permit applicants to demonstrate that erosion is occurring would not add value to the PCN process. In general, a landowner is not going to expend the time and expense to submit a PCN or hire a consultant or contractor to prepare a PCN and construct the bank stabilization activity if there is not an erosion problem at his or her property. Most landowners will only incur the expenses to construct bank stabilization activities if they believe that there is an erosion problem that needs to be addressed.
Landowners or their consultants, when preparing PCNs for NWP 13 activities, may include information beyond the requirements of paragraph (b) of general condition 32, to assist the district engineer in his or her decision-making process. Such information can include the shoreline type and the types of bank stabilization (if any) already
Several commenters stated that no waivers should be granted for NWP 13 activities. A number of commenters supported the waiver provisions for NWP 13. One commenter said that the use of waivers violates the Clean Water Act, and another commenter asserted that waivers allow more than minimal impacts to occur. One commenter stated that waivers should not be issued for bulkheads, revetments, and other bank hardening projects. A few commenters said there should be no caps on waivers.
We are retaining the proposed waiver provisions for NWP 13. Waivers are an important tool for providing flexibility in the NWP program, and for authorizing activities that have only minimal adverse environmental effects. Waivers also allow the Corps to focus its limited resources on proposed activities that require DA authorization and have substantial impacts on the aquatic environment. The use of waivers in the NWP program is not contrary to the Clean Water Act because all waivers require a written determination by the district engineer that the authorized NWP activity will have no more than minimal individual and cumulative adverse environmental effects, consistent with the requirements of section 404(e) of the Clean Water Act. No waiver of an NWP limit can occur without a written determination by the district engineer, and the issuance of an NWP verification letter by that district engineer. Waivers can be issued for bulkheads, revetments, and other hard bank stabilization activities that the district engineer determines will result in only minimal adverse environmental effects. All requests for waivers under NWP 13 will be coordinated with the appropriate resource agencies, in accordance with paragraph (d) of general condition 32, to assist with the district engineer's evaluation. We agree that there does not need to be caps on waivers because all waivers must be granted in writing by district engineers, after making a finding of “no more than minimal adverse environmental effects.”
One commenter stated that no waivers should be granted to exceed the 500-foot limit. Another commenter said that waivers should not be granted for discharges of dredged or fill material into special aquatic sites. One commenter stated that there should be no limit to waivers because most bank stabilization projects are beneficial to streams. One commenter recommended allowing waivers for fills in perennial streams. One commenter said that if an NWP 13 activity exceeds a limit, the applicant should be required to develop a restoration plan to address the causes of the erosion problem. A commenter stated that mitigation should be required for all waivers of the linear foot limit.
All requests for waivers of the 500 linear foot limit or the prohibition against discharges of dredged or fill material into special aquatic sites require site-specific evaluations by district engineers as well as agency coordination. The district engineer will evaluate the information in the PCN and comments received from the resource agencies before making his or her decision whether to grant the waiver. The waiver requires a written determination that the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects. We agree that waivers may be appropriate to manage erosion in streams where streams may be impaired by excessive erosion, and the bank stabilization activity will result in no more than minimal adverse environmental effects. For NWP 13, waivers can be issued for bank stabilization activities in perennial streams. We do not agree that restoration (or any other form of compensatory mitigation) should be required for all NWP 13 activities requiring waivers. The district engineer will determine when compensatory mitigation should be required for a specific NWP activity, in accordance with 33 CFR 330.1(e)(3), to ensure that the authorized impacts are no more than minimal.
Several commenters suggested adding a provision to NWP 13 that requires a determination that the proposed bank stabilization activity is the least environmentally damaging practicable alternative because a living shoreline is not practicable because of site conditions such as excessive erosion, high energy conditions, excessive water depths, or navigation concerns. Many commenters expressed their position that NWP 13 must not be reissued because it violates the Clean Water Act. They said that proposed NWP B should be used in place of NWP 13. They assert that activities authorized by NWP 13 result in more than minimal individual and cumulative adverse environmental effects because hardened shorelines provide less habitat than natural shorelines. Two commenters stated that applicants requesting NWP 13 authorization for bulkheads need to demonstrate that a living shoreline is not feasible. One commenter suggested modifying NWP 13 to authorize living shorelines instead of proposed NWP B.
Activities authorized by NWP do not require a 404(b)(1) Guidelines alternatives analysis, including the identification of the least environmentally damaging practicable alternative (see 40 CFR 230.7(b)(1)). As discussed in its decision document, especially the 404(b)(1) Guidelines analysis, the reissuance of NWP 13 fully complies with the Clean Water Act. A decrease in the amount or quality of habitat along a shoreline does not necessarily mean that the adverse environmental effects are more than minimal, individual or cumulatively. Discharges of dredged or fill material into waters of the United States, and structures or work in navigable waters of the United States, for activities authorized by NWP 13 and NWP 54 will have no more than minimal adverse environmental effects as long as the project proponent complies with all applicable terms and conditions of these NWPs, including the PCN requirements. All forms of bank stabilization, including living shorelines, have some adverse environmental effects because they directly and indirectly alter nearshore aquatic habitats, including animal and plant communities. As long as those adverse environmental effects are no more than minimal, they can be authorized by NWP. We do not agree that NWP 13 should include a requirement for the permittee to demonstrate that living shorelines are not feasible. Living shorelines are limited to coastal waters, including the Great Lakes, while NWP 13 activities can be conducted in a wide range of
One commenter stated that living shorelines are a practicable alternative to shoreline armoring because they are less expensive to construct and maintain. A number of commenters expressed the view that NWP 13 should establish a hierarchy for evaluating erosion control options to authorize the alternative that would result in the least environmentally damaging practicable alternative. Many commenters said that landowners should be allowed to select the bank stabilization technique used to protect their property from erosion, and that the final NWPs should not establish a preference for living shorelines over the bank stabilization techniques authorized by NWP 13. These commenters emphasized that landowners should be allowed to propose their preferred bank stabilization technique from a suite of available techniques.
We agree that, in certain circumstances, living shorelines are a feasible alternative to bulkheads, seawalls, and revetments. We also agree that landowners should be able to propose their preferred approach to bank stabilization, which may be based on guidance provided by any contractors or consultants they hire. Corps districts will evaluate the PCNs for proposed bank stabilization activities and determine whether they qualify for NWP authorization. We believe that it is not appropriate to establish a preference hierarchy for bank stabilization techniques because the appropriate bank stabilization approach for a particular site is highly dependent on site characteristics and the types of aquatic resources (
One commenter said that the requirements of general condition 3, spawning areas, when applied to NWP 13 activities would place an increased burden on road stabilization activities near tidal waters and may make those activities economically infeasible. Two commenters stated that bank armoring activities should require mitigation. One commenter said that undeveloped ocean shorelines should not be altered except when bank stabilization is justified to prevent or reduce threats to adjacent developed areas.
General condition 3 requires that NWP activities in spawning areas during spawning seasons must be avoided to the maximum extent practicable. The qualifier “to the maximum extent practicable” gives some flexibility to NWP 13 activities for roads near tidal waters that may need to be stabilized quickly to prevent them from eroding away. While there may be circumstances in which bank armoring activities warrant mitigation to ensure that the adverse environmental effects are no more than minimal, such decisions are made by the district engineer after evaluating a PCN. We do not agree that mitigation should be required for all bank armoring activities authorized by NWP 13. If a parcel of land with an ocean shoreline is undeveloped, but one or both adjacent properties are developed (and may be protected by bank stabilization structures), the owner of the undeveloped parcel should be allowed to protect that bank if the bank will erode and the erosion is likely to encroach into the adjacent properties.
One commenter objected to the statement in the preamble to the proposed rule that said there are different PCN thresholds for NWPs 13 and 54 because living shorelines require substantial amounts of fill material. This commenter's objection was based on the assertion that living shorelines control erosion by planting vegetation or using a combination of vegetation and technical structures, not by the introduction of fill material.
For most living shorelines, it is necessary to discharge fill along the shoreline to achieve the proper grade for dissipating wave energy and protecting the bank from erosion and undercutting. These fills are planted with vegetation to hold the fill in place, and the plant stems also help dissipate wave energy. Sills, breakwaters, and other structures may also be necessary to reduce the energy of water reaching the shore to reduce erosion and protect fringe wetlands. If we had proposed to modify NWP 13 to authorize the construction and maintenance of living shorelines instead of proposing a new NWP, a large majority of proposed living shorelines would require PCNs. This is because they would exceed the cubic yard limit in paragraph (c) and require a written waiver from the district engineer because of the amount of fill required to provide the proper grade for wave energy dissipation and vegetation plantings, and stone sills or breakwaters or other fill structures. Under NWP 54, waivers are not required unless the proposed living shoreline impacts exceed the waivable limits in that NWP. One of the waivable limits in NWP 54 is for structures and fills encroaching into waters up to 30 feet from the mean low water line is not included in NWP 13 because of the differences between living shorelines and the forms of bank stabilization authorized by NWP 13.
The construction of living shorelines does have some adverse effects on the waters and special aquatic sites affected by these projects, including the organisms that inhabit those areas. Living shorelines do not produce the same degree of ecological functions and services as natural shorelines (Pilkey et al. 2012). With living shorelines, there are trade-offs in ecological functions and services as fills convert subtidal waters to intertidal waters. Under the 404(b)(1) Guidelines, discharges of dredged or fill material into waters of the United States are to be avoided and minimized to the maximum extent practicable (see also paragraph (a) of general condition 23, mitigation).
One commenter stated that this NWP should have conditions requiring final bank elevations to be no higher than the bank that existed prior to the bank stabilization activity. This commenter said that a floodway analysis should be conducted to demonstrate that there would be no increase in flood elevation as a result of the bank stabilization activity. Two commenters recommended adding provisions to this NWP that require the use of best management practices to minimize downstream impacts, such as instream sediment booms and oil booms. One commenter stated that there should be restrictions imposed on bank stabilization activities to protect forage fish spawning areas and critical habitat, channel migration zones, and habitat for ESA-listed species.
District engineers, when evaluating PCNs, can impose activity-specific conditions regarding final bank elevations to be established at the site after the NWP 13 activity is completed. The requirement to conduct a floodway analysis is more appropriately addressed through state and local floodplain management authorities. Activities authorized by NWP 13 and other NWPs must comply with general condition 10, fills within 100-year floodplains. The use of best management practices to minimize downstream impacts is more appropriately addressed by district engineers through activity-specific
Several commenters objected to the following sentence, which appeared in the preamble to the proposed rule (81 FR 35200): “Many landowners prefer bulkheads and revetments because well-constructed bulkheads last approximately 20 years and revetments can last up to 50 years (NRC 2007).” These commenters said this statement was not a conclusion of the committee that wrote the 2007 NRC report entitled “Mitigating Shore Erosion along Sheltered Coasts.” These commenters asserted that the 2007 NRC report concluded that prior regulatory practices and local marine contractors are the main reason why landowners choose bulkheads and revetments. They said that in many cases landowners are not informed that there are other alternatives to erosion control. These commenters also expressed the opinion that the decisions of landowners are not driven by the lifespans of bulkheads and revetments. They said that it is a lack of understanding of alternative approaches to shore protection and institutional bias that causes the continued use of seawalls, bulkheads, and revetments.
The sentence on page 35,200 of the proposed rule should have been written as follows, to avoid misrepresenting the 2007 NRC report: “Well-constructed bulkheads last approximately 20 years and revetments can last up to 50 years (NRC 2007). Many landowners may prefer bulkheads and revetments because of the longevity of those structural measures to control erosion and protect their properties.”
The section of the 2007 NRC report (pages 73–76) that discusses landowner options for addressing bank erosion presents a number of hypothetical scenarios to illustrate those options. If the life expectancies of bulkheads or stone revetments are irrelevant to the landowner's decision-making process, why were those life expectancies discussed in the bulkhead or stone revetment options? That section of the 2007 NRC report provides no information on how long marsh plantings or marsh plantings combined with stone sills will effectively control erosion, other than to say that a planted marsh fringe will require on-going maintenance and some maintenance will likely be required for the stone sill and marsh plantings after they are exposed to storm events. The landowner is a critical part of the decision-making process, because his or her property is at risk. Some landowners prefer bulkheads and revetments because they make them feel more secure (Popkin 2015). It should be noted that in response to the proposal to issue a new NWP to authorize the construction and maintenance of living shorelines, we received many comments opposing the issuance of the new NWP 54. Many of those commenters expressed concern that they would be required to use living shorelines, instead of being able to use other approaches to erosion control.
In many coastal areas, hard bank stabilization measures are the only effective option in coastal environments where high energy erosive forces are present. A landowner may prefer a bank stabilization approach that he or she views as being more durable and requires less maintenance. Current regulatory frameworks and contractor preferences are only part of the decision-making process. The landowner makes the final decision unless the regulatory agency (federal, state, or local) decides to deny the landowner's permit application. Since the options (#2a and #2b) in that section of the 2007 NRC report include two living shoreline options, the report's discussion of the various options could be interpreted as including consideration of the expected longevities of those shore erosion control options, as well as their maintenance requirements. Living shorelines are relatively new, and there is much to be learned about their effectiveness over the long term, and in different areas of the country. As discussed above, many commenters stated that landowners and other entities should be allowed to choose how they protect their waterfront properties and their infrastructure. Those comments indicate that landowners are informed about various erosion control approaches and are not passively deferring to the contractors and consultants they hire to provide advice, design, and planning services, and to construct the authorized activities.
One commenter said that due to the increasing risks and costs of protecting ocean shorelines, applicants should be required to share substantially in the costs and responsibilities of implementing shoreline stabilization projects authorized by NWP 13. One commenter stated that the Corps needs to provide advance and meaningful notice to tribes to avoid unresolved impacts to tribal treaty natural resources and cultural resources. A couple of commenters asked how the Corps will enforce the terms and conditions of NWP 13 for bank stabilization activities. One commenter stated that the proposed changes to NWP 13 will cause an unfair burden to local agencies when they try to determine whether bank stabilization projects are authorized and whether pre-construction notification is required.
Landowners pay for the bank stabilization activities authorized by NWP 13 that they construct to protect their property. For the 2017 NWPs, the Corps districts consulted with interested tribes to identify regional conditions to protect tribal resources, including natural and cultural resources retained by, or reserved by or for, tribes through treaties. District engineers can also establish coordination procedures with interested tribes to coordinate proposed NWP 13 activities to help ensure that these activities do not cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. Corps districts will enforce NWP 13 activities in the same manner as they enforce all individual permits and general permit authorizations, which is through the procedures described in the Corps' regulations at 33 CFR part 326 and relevant guidance and policy documents. Local agencies that are unsure whether their proposed bank stabilization activities qualify for NWP 13 authorization are encouraged to contact the appropriate Corps district to seek their advice on whether the proposed activity might qualify for NWP 13 or a different general permit or whether an individual permit would be needed.
One commenter requested that the Corps evaluate regional impacts to local governments caused by division engineers adding regional conditions to this NWP and lengthening the time it takes to receive NWP verifications. Two commenters stated that NWP 13 activities should require a professional engineer's certification that the proposed bank stabilization activity will not exacerbate any upstream or downstream flooding problems.
Division engineers impose regional conditions on the NWPs to ensure that those NWPs comply with section 404(e) of the Clean Water Act and that authorized activities result in no more than minimal individual and
Two commenters said that an environmental impact statement must be prepared for the reissuance of NWP 13. One commenter said that the reissuance of NWP 13 requires an environmental impact statement because of impacts to ESA-listed species. One commenter stated that the draft decision document failed to take into account the direct, indirect, and cumulative effects of NWP 13 activities. A few commenters asserted that the reissuance of NWP 13 requires ESA section 7 consultation.
For the reissuance of this NWP, Corps Headquarters complied with the requirements of the National Environmental Policy Act (NEPA) by preparing an environmental assessment with a finding of no significant impact. The environmental assessment describes, in general terms, the mitigation measures (including the requirements of NWP general conditions) that ensure that activities authorized by NWP result in no more than minimal individual and cumulative adverse environmental effects. Certain NWP 13 activities require pre-construction notification, another mechanism that helps ensure that NWP activities cause no more than minimal adverse environmental effects. The national decision document also generally describes compensatory mitigation practices that may be required by district engineers for specific NWP activities to ensure that those activities have no more than minimal adverse environmental effects. Compliance with the requirements in 33 CFR part 332, and activity-specific compensatory mitigation requirements, will help ensure that compensatory mitigation required by district engineers will offset the authorized impacts to jurisdictional waters and wetlands.
The decision document prepared for this NWP describes, in general, the direct, indirect, and cumulative impacts of these activities. The direct and indirect effects caused by NWP 13 activities are described throughout the decision document. These direct and indirect effects are described in general terms because the decision to reissue this NWP is made prior to the NWP going into effect and authorizing specific activities at specific project sites. We prepared a NEPA cumulative effects analysis based on the Council on Environmental Quality's definition of “cumulative impact” at 40 CFR 1508.7, as well as a 404(b)(1) Guidelines cumulative effects analysis based on the requirements of 40 CFR 230.7(b)(3).
The decision document issued by Corps Headquarters discusses compliance with section 7 of the ESA, including the “no effect” determination Corps Headquarters made for the reissuance of this NWP. Our “no effect” determination is also presented in this final rule. The decision document discusses the processes and tools that the Corps uses to comply with ESA section 7, to ensure that this NWP is not likely to jeopardize the continued existence of listed species, or adversely modify or destroy critical habitat that has been designated for those listed species. The reissuance of NWP 13 has “no effect” on listed species or critical habitat because of the requirements of general condition 18, endangered species, and 33 CFR 330.4(f). For any proposed NWP activity that might affect listed species or designated critical habitat, is in the vicinity of listed species or designated critical habitat, or is located in designated critical habitat, the project proponent must submit a PCN, and the district engineer will evaluate that PCN to determine whether ESA section 7 consultation is required. If the district engineer makes a “may affect” determination for a proposed NWP activity, that activity is not authorized by NWP until after ESA section 7 consultation is completed.
The Corps has determined that the reissuance of this NWP does not result in a significant impact on the human environment that warrants the preparation of an environmental impact statement. This is because of the various protections in the NWP program that are applied to ESA-listed species and designated critical habitat and the fact that an NWP can only authorize activities that have no more than minimal adverse environmental effects.
A few commenters said that the proposed reissuance of NWP 13 is contrary to Executive Order 13653, Preparing the United States for the Impacts of Climate Change, which requires federal agencies to consider the challenges that climate change add to their programs, policies, rules, and operations, to ensure that those items continue to be effective as the climate changes. These commenters also stated that the Corps failed to consider the October 7, 2015, Presidential Memorandum entitled “Incorporating Natural Infrastructure and Ecosystem Services in Federal Decision-Making.” These commenters indicated that the proposed rule also did not consider current Corps policies concerning climate change and sea level rise.
The activities authorized by NWP 13 are an important tool for landowners and communities to adapt to the effects caused by climate change, especially sea level rise and increases in the frequency of severe storm events. As sea level changes at a particular site, the landowner may need to conduct new or modified bank stabilization activities to protect his or her property. Nature-based infrastructure approaches such as living shorelines may not be feasible or effective in higher energy coastlines subject to sea level rise. Existing buildings and other infrastructure may prevent inland migration of wetlands (Enwright et al. 2016). Public works agencies and utility companies may need to use NWP 13 activities to protect roads and utility lines from damage caused by erosion. In sum, NWP 13 activities will help landowners, public agencies, and other respond to sea level rise and other effects of climate change. This NWP authorizes bank stabilization activities undertaken by private landowners, who are not subject to the policies the Corps developed for the federal water resource projects it designs and implements.
Several commenters said that the Corps, in its draft decision document, did not demonstrate that NWP 13 will result in no more than minimal impacts, because that draft decision document only provides an estimate of impacts that will be authorized over a 5-year period. They also stated that the draft decision document ignores cumulative impacts, fails to account for climate change, and fails to assess impacts on ESA-listed species. One commenter said that the cumulative impact analysis
Because the NWPs are issued before they go into effect and will be used over the next five years (unless they are modified, suspended, or revoked before the expiration date) to authorize specific activities being conducted by project proponents, the estimate of permitted impacts is a forward-looking estimate. In addition, the approach used in the decision document is fully consistent with the requirements of the 404(b)(1) Guidelines at 40 CFR 230.7(b)(3). The decision document includes two cumulative effects analyses: One to satisfy the requirements of NEPA, using the definition of “cumulative impact” at 40 CFR 1508.7. The other cumulative effects analysis satisfies the requirements of the 404(b)(1) Guidelines at 40 CFR 230.7(b)(3). The final decision document has been revised to discuss climate change. The decision document also discusses compliance with the Endangered Species Act, as well as cumulative effects to ESA-listed species (see the NEPA cumulative effects analysis, which includes ESA-listed species as a one of the “resources of concern” discussed in that analysis).
The cumulative effects analyses in the decision document prepared by Corps Headquarters satisfies the requirements of NEPA and the 404(b)(1) Guidelines and does not defer the cumulative impact analyses to district engineers who evaluate PCNs for specific activities. When evaluating an NWP PCN or a voluntary request for NWP verification, the district engineer will consider cumulative impacts when determining whether the proposed NWP activity will result in no more than minimal individual and cumulative adverse environmental effects. The district engineer's consideration of cumulative impacts does not need to be an extensive analysis because he or she is simply verifying whether NWP authorization is appropriate. The district engineer is not considering whether the issuance of the NWP is appropriate, that is the decision that is being made by Corps Headquarters when it issues this rule, along with the more extensive cumulative effects analysis.
The draft decision document, as well as the final decision document, discusses in general terms the direct and indirect effects of NWP 13 activities on the environment. Secondary effects are analogous to indirect effects, and therefore do not warrant separate consideration in the decision document. The final decision document also concluded that the reissuance of this NWP complies with the 404(b)(1) Guidelines. Section 7.1.3 of the decision document discusses our determination that the reissuance of this NWP will not cause significant degradation of waters of the United States.
Three commenters expressed concern with the apparent overlap of authorization of bank stabilization projects using NWPs 13 and 27, and the proposed NWP B. These commenters pointed out that there are different limits for these NWPs and believe those differences encourage applicants to request authorization under the NWP that has the least restrictions or requirements. These commenters recommended clarifying the purposes of each of these NWPs so that project proponents apply for authorization under the most appropriate NWP. One commenter recommended that the NWPs provide incentives for landowners to retrofit existing seawalls with bioengineered methods. This commenter said that a streamlined process for retrofitting bank stabilization projects will encourage property owners to do these types of projects, instead of replacing an old seawall with a new seawall.
We have made changes to NWP 27 to limit it to aquatic habitat restoration, enhancement, and establishment activities so that it should no longer be used to authorize bank stabilization activities. We have also modified the definition of “living shoreline” in new NWP 54 to clarify that living shorelines are limited to coastal waters. We have also added a Note to NWP 54 to point prospective permittees to NWP 13 if they want to use an NWP to authorize vegetative stabilization activities or bioengineering activities in inland waters, such lakes other than the Great Lakes, and inland rivers and streams.
We cannot require landowners to retrofit existing seawalls with bioengineering, but landowners may propose to do those types of retrofits. Since we have clarified that NWP 13 authorizes bioengineering approaches to bank stabilization, in addition to seawalls, bulkheads, and revetments, project proponents may seek authorization for such retrofits through this NWP, if those retrofits require DA authorization.
Several commenters objected to the proposal to reissue NWP 13, stating that armoring shorelines with bulkheads and revetment prevent wetlands from migrating inland in response to sea level rise or land subsidence.
There are a number of reasons why coastal wetlands might not be able to migrate inland as sea level rises. Wetland migration may be impeded by natural and man-made impediments. Natural impediments include topography, such as steep coastal bluffs (Enwright et al. 2016). Man-made impediments include coastal urbanization and levees constructed to protect developed and agricultural areas (Enwright et al. 2016). Inland migration of wetlands is usually limited to undeveloped coasts and protected areas (
This NWP is reissued with the modifications discussed above.
NWP 14.
Several commenters objected to the proposed reissuance of this NWP and several commenters supported reissuing this NWP. One commenter said that this NWP does not authorize activities that are similar in nature. Another commenter stated that individual permits should be required for these linear transportation projects. One commenter said that this NWP should authorize parking lots.
The category of activities authorized by this NWP, that is activities necessary for the construction, expansion, modification, or improvement of linear transportation projects, is a category of activities that are similar in nature because they are limited for use in transportation. The activities in jurisdictional waters and wetlands authorized by this NWP typically result
The paragraph preceding the “Notification” paragraph states that NWP 14 does not authorize parking lots. In the preamble to the final 2012 NWPs, which was published in the February 21, 2012, issue of the
Several commenters stated that the acreage limits for this NWP should not be changed. Several commenters suggested increasing the acreage limits of this NWP, and a few of these commenters recommended a one-acre limit for individual crossings of waters of the United States. One commenter said the acreage limit for losses of non-tidal waters should be increased to 3 acres. One commenter stated that the acreage limit should be decreased to
In this NWP, we are retaining the
One commenter stated that use of this NWP for the expansion, modification, or improvement of previously authorized projects could result in cumulative impacts that exceed these acreage limits and that the impacts of previously authorized projects should count towards the acreage limit.
Division and district engineers will monitor the use of this NWP and if they determine that the activities authorized by this NWP may be resulting in more than minimal cumulative adverse environmental effects, they will modify, suspend, or revoke this NWP. In cases where the expansion, modification, or improvement of an existing NWP 14 activity will result in additional losses of waters of the United States, the district engineers will determine whether the expansion, modification, or improvement is part of the original single and complete project. If it is, then the district engineer will combine the original loss with the proposed loss to determine if the acreage limit has been exceeded.
A number of commenters stated that this NWP should not authorize discharges into wetlands or other special aquatic sites. Two commenters suggested adding a linear foot limit to this NWP to ensure that it only authorizes activities with minimal adverse effects on the aquatic environment. One commenter recommended adding a 200 linear foot limit either for individual or cumulative impacts. Three commenters recommended a stream impact limit of 300 linear feet.
This NWP requires PCNs for all discharges into wetlands and other special aquatic sites. The PCN review process is an important tool for ensuring that NWP 14 only authorize activities with no more than minimal adverse environmental effects to special aquatic sites. We do not agree that a 200 or 300 linear foot limit is necessary for this NWP, because most linear transportation projects cross jurisdictional streams either perpendicular, or nearly perpendicular to the centerline of the stream. The
One commenter objected to allowing the district engineer to waive any of the limits of this NWP. One commenter recommended modifying this NWP to allow district engineers to waive certain limits. One commenter said that district engineers should be able to waive the limits of this NWP if the proposed activity would take place in low quality waters or wetlands.
This NWP does not include any provisions that allow district engineers to waive the acreage limits of this NWP. None of the NWPs allow waivers of acreage limits. This NWP does not have a 300 linear foot limit for losses of stream bed that is similar to the waivable 300 linear foot limit in NWPs 29 and 39 and a number of other NWPs.
Two commenters recommended that the paragraph authorizing temporary structures and fills include the language regarding the use of temporary mats similar to the proposed changes for NWPs 3 and 12. We have added temporary mats to this paragraph of NWP 14 to be consistent with NWPs 3, 12, and 13.
Several commenters said that PCNs should be required for all activities authorized by this NWP. A number of commenters stated that the PCN thresholds should not be changed for this NWP. A few commenters suggested increasing the PCN threshold to
We are retaining the current PCN thresholds for this NWP. We believe these PCN thresholds are necessary for providing opportunities for district engineers to review proposed NWP 14 activities that have potential for resulting in more than minimal adverse environmental effects. In response to a PCN, the district engineer can issue an
Several commenters supported the addition of Note 1 to explain that separate and distant crossings of waters of the United States for linear projects may qualify for separate authorization under NWP 14. Two commenters said that linear transportation projects should be reviewed in their entirety and not just at individual crossings. One commenter recommended deleting Note 1. One commenter objected to the addition of Note 1 because it could require more individual permits for railways. One commenter stated that the text of Note 1 does not clearly define when it is appropriate to combine this NWP with an individual permit. One commenter stated that an individual permit for the entire project is appropriate when the entire linear transportation project impacts more than
Consistent with Note 2 of NWP 12 and for the same reasons, we have modified Note 1 for NWP 14 by deleting the phrase “with independent utility” from the second sentence. The objective of the second sentence of this note is to serve as a reminder of 33 CFR 330.6(d), which addresses the combining of NWP authorizations with individual permit authorizations. Section 330.6(d) has been in effect since 1991, so the adoption of Note 1 should not result more individual permits for railways. District engineers will determine on a case-by-case basis when it is appropriate to combine for linear transportation projects NWP authorizations with individual permits, or whether all of the proposed activities require individual permit authorization.
Two commenters requested clarification regarding the difference between “stand-alone” projects and “segments” as described in the preamble to the June 1, 2016, proposed rule. Two commenters asked for a definition of independent utility and noted that the definition of “single and complete linear project” does not explicitly include the term “independent utility.”
When evaluating individual permit applications and NWP PCNs, district engineers will use their judgment in applying 33 CFR 330.6(d) to determine when linear transportation projects can be authorized by combinations of NWPs and individual permits, or whether individual permits is required for all regulated activities for linear transportation projects that require DA authorization. The term “independent utility” is defined in the Definitions section of these NWPs (Section F). The definition of “single and complete linear project” does not include the term “independent utility” because each crossing of waters of the United States is needed for the single and complete linear project to fulfill its purpose of transporting people, goods, and services from the point of origin to the terminal point.
One commenter remarked that Note 3 is not a substantive change. Two commenters expressed concern that the requirements in Note 3 would result in district engineers requiring compensatory mitigation for cumulative impacts. One commenter supported the addition of Note 3 to explain that the district engineer may require mitigation to ensure the authorized activity causes no more than minimal individual and cumulative adverse environmental effects. One commenter stated that mitigation always should be required because the district engineer has too much discretion. One commenter asked if Note 3 is for multiple crossings that do not have independent utility. Two commenters said that the impacts of separate and distant crossings of waterbodies should be considered separately when determining mitigation requirements, instead of combining the impacts of separate and distant crossings.
Note 3 is not a substantive change from prior NWPs, but it is a clarification. The addition of Note 3 does not impose any new compensatory mitigation requirements on this NWP. The purpose of Note 3 is to remind users of the NWPs that if a linear transportation project includes crossings of waters of the United States that are authorized by NWP but do not require PCNs, and one or more crossings of waters of the United States requires pre-construction notification, then the PCN must include those non-PCN crossings, in accordance with the requirements of paragraph (b)(4) of general condition 32. The district engineer requires information on those non-PCN NWP 14 activities to make his or her determination whether the proposed activity will result in no more than minimal cumulative adverse environmental effects. Under 33 CFR 330.1(e)(3), which was promulgated in 1991, the district engineer has had the authority to require compensatory mitigation to ensure that the cumulative adverse environmental effects caused by NWP activities are no more than minimal.
When it is feasible, project proponents usually design their NWP activities so that they do not trigger compensatory mitigation requirements. According to the Corps' NWP regulations at 33 CFR 330.1(e)(3), compensatory mitigation is only required if district engineer first determines that the proposed NWP activity would result in more than minimal individual and cumulative adverse environmental effects, and then offers the applicant the opportunity to propose mitigation, including compensatory mitigation, to reduce the adverse environmental effects so that they are no more than minimal. If the adverse environmental effects cannot be reduced so that they are no more than minimal, the district engineer will exercise discretionary authority and require an individual permit for the proposed activity.
Note 3 does not address whether individual crossings of waters of the United States authorized by NWP have independent utility. That question is more appropriately addressed through implementation of 33 CFR 330.6(d), and case-by-case decisions made by district engineers. When determining compensatory mitigation requirements for linear projects authorized by NWPs, district engineers have the discretion to require compensatory mitigation at a single site (
One commenter recommended adding a condition to NWP 14 that prohibits its use when linear transportation projects are likely to result in land use changes that will negatively impact the environment. Two commenters requested clarification of the phrase “minimum necessary” which is used in the last sentence of the first paragraph of this NWP, for stream channel modifications. One commenter stated that the “minimum necessary” phrase is ambiguous and should be quantified. Another commenter expressed support for the use of that phrase in the NWP.
Land use decisions are made primarily by state, tribal, and local governments, through their zoning programs and their other land use authorities (see 33 CFR 320.4(j)(2)). The
One commenter asked for clarification regarding whether a linear transportation project with multiple separate and distant crossings of waters of the United States that require pre-construction notification can be provided to the Corps district in one PCN, or if individual PCNs are required for each crossing that requires notification. Several commenters requested that the Corps define what a separate and distant location is. A couple of these commenters asked whether there is a minimum distance for two crossings of waterbodies to be considered separate and distant. One commenter said that the text of NWP 14 uses the terms “separate and distinct” and “separate and distant.”
A permit application or PCN for a linear transportation projects should include all crossings of waters of the United States that require DA authorization. Whether proposed crossings of waters of the United States are to be considered together or as separate and distant is to be determined by district engineers on a case-by-case basis, after evaluating site and regional characteristics (
Three commenters recommended that the use of best management practices should be a specific requirement to minimize sediment loading and wetland disturbance. One commenter said that this NWP should require that riprap placed in the stream should be installed at grade with the existing stream substrate and mimic the existing contours of the stream channel. One commenter said that this NWP should prohibit the use of grout. One commenter stated that culvert bottoms should be installed in a manner to allow natural substrate to become reestablished. One commenter said that culvert installation should not result in over-widening of the stream channel.
Several NWP general conditions require practices to minimize adverse effects to jurisdictional waters and wetlands. For example, general condition 12, soil erosion and sediment controls, requires appropriate measures to minimize sediment inputs to waters and wetlands. General condition 13, removal of temporary fills, requires the permittee to remove temporary fills and restore affected areas, which may include wetlands. We do not agree that riprap should be required in all cases to be placed at grade of a stream. The use of grout is more appropriately determined on a case-by-case basis, if the use of grout is a component of a regulated activity. The appropriate approach for culvert installation is also a case-by-case determination and highly dependent on the characteristics of the stream, including its geomorphology. The effects of culvert installation on stream widening are also most appropriately evaluated on a case-by-case basis by district engineers.
One commenter stated that NWP 14 should authorize the removal of road crossings and require the affected areas to be restored using natural channel design principles. One commenter said that this NWP should require the evaluation of practicable alternatives. One commenter expressed concern that NWP 14 activities could result in indirect adverse environmental effects in areas distant from linear transportation projects. One commenter stated that this NWP should not authorize energy projects.
We do not believe it is necessary to modify NWP 14 to authorize the removal of road crossings. If the road crossing is temporary, the NWP 14 authorization should include conditions that apply to the removal of the temporary road crossing after it has fulfilled its intended purpose. If the road crossing is permanent, the removal of the road may be authorized by NWP 3 if the removal activity requires DA authorization. We do not think it is appropriate to prescribe, at a national level, a particular approach to restoring streams that were adversely affected by NWP activities. There are a number of different techniques that can be used to restore streams, and the appropriate approach is dependent on the objectives of the restoration activity, the site characteristics, and numerous other factors. Activities authorized by NWP 14 can have indirect adverse environmental effects, and when PCNs are required for those activities, district engineers will evaluate both the direct and indirect adverse environmental effects when determining if NWP authorization is appropriate. This NWP does not authorize energy projects per se, but it may authorize road crossings and other linear transportation projects associated with an energy facility, including renewable energy generation facilities.
One commenter stated that federal and state natural resource agency coordination should be required for any stream losses that exceed 300 linear feet or
This NWP does not have a 300 linear foot limit for losses of stream beds. The
One commenter said that NWP 14 activities have the potential to cause significant direct and cumulative adverse environmental effects and that the reissuance of this NWP requires an environmental impact statement. Two commenters asked how the cumulative effect analysis for this NWP accounts for activities that do not require pre-construction notification.
The Corps complied with the requirements of NEPA by preparing an environmental assessment with a finding of no significant impact. The environmental assessment and finding of no significant impact are in the national decision document prepared for this NWP. Since NEPA compliance was accomplished through the preparation of an environmental assessment with a finding of no significant impact, an environmental impact statement is not required.
The decision document for this NWP that was prepared by Corps Headquarters analyzes, at a national level, the direct, indirect, and cumulative impacts caused by activities authorized by this NWP. The decision document includes a cumulative impact analysis prepared in accordance with the Council on Environmental Quality's NEPA definition of “cumulative impact” at 40 CFR 1508.7. We also prepared a cumulative effects assessment for the 404(b)(1) Guidelines compliance determination, as required by 40 CFR 230.7(b)(3). The cumulative effects analysis conducted for the 404(b)(1) Guidelines includes estimates of the number of non-PCN activities likely to occur during the five year period this NWP is in effect, as well as the estimated impacts of these non-PCN activities to jurisdictional waters and wetlands. Those estimated impacts include both temporary and permanent impacts.
This NWP is reissued, with the changes discussed above.
NWP 15.
NWP 16.
This NWP authorizes activities that will occur during the five year period the NWP is in effect. The issuance of this NWP is not associated with any specific dredging project or disposal site. States can choose to issue water quality certification for the NWP, or require individual water quality certifications for case-specific NWP 16 authorizations. For those states that choose to require individual water quality certifications for activities authorized by this NWP, they can require additional information from the project proponent to determine whether a proposed discharge from an upland contained dredged material disposal area complies with state water quality standards. This NWP is reissued without change.
NWP 17.
The hydropower projects authorized by this NWP are subject to either licensing requirements or licensing exemptions from the Federal Energy Regulatory Commission (FERC), and the FERC's oversight of those projects warrants use of this NWP to avoid duplicative federal review that would occur during the Corps' evaluation of a standard individual permit application. We believe that the current generating capacity limit of 5,000 kilowatts is appropriate to ensure that associated discharges of dredged or fill material into waters of the United States authorized by this NWP are relatively small and result in no more than minimal adverse environmental effects.
This NWP is reissued without change.
NWP 18.
The activities authorized by this NWP involve only small discharges of dredged or fill material into jurisdictional waters and wetlands, and the PCN thresholds provide district engineers with opportunities to review proposed activities that have the potential to result in more than minimal adverse environmental effects. In response to a PCN, a district engineer may require mitigation to ensure the no more than minimal adverse environmental effects requirement for NWPs is satisfied. If mitigation cannot be used to ensure the adverse environmental effects are only minimal, the district engineer will exercise discretionary authority and require an individual permit (see 33 CFR 330.1(e)(3)). For those activities that require PCNs, the project proponent may describe minimization measures in the PCN (see paragraph (b)(4) of general condition 32) to assist the district engineer in his or her decision-making process. Paragraph (b) of the NWP applies to excavation activities in open waters and paragraph (c) applies to discharges of dredged or fill material in wetlands or waters that results in a loss of those wetlands or waters. Not all wetland excavation activities result in regulated discharges of dredged material (see 33 CFR 323.2(d)).
Several commenters said this NWP should limit its use to once per verification, instead of authorizing recurring maintenance activities. One commenter recommended increasing the 25 cubic yard limit for discharges that only take place in wetlands. Another commenter suggested increasing the cubic yard limit to 50 cubic yards. One commenter asked the Corps to increase the first PCN threshold to 25 cubic yards in ephemeral streams because these streams do not have flowing water on a regular basis, and they have no permanent fish populations.
If a district engineer determines that this NWP is being used too frequently for maintenance activities in the same location, he or she may talk with the project proponent to determine if measures can be taken to address the cause for the recurring maintenance. The
This NWP is reissued without change.
NWP 19.
Several commenters expressed their support for the proposed change to this NWP. Several commenters recommended modifying this NWP to authorize the placement of the dredged material into coastal waters below the mean high tide line to nourish the beach. One commenter said that requiring a separate authorization for placing the dredged material into jurisdictional waters and wetlands is redundant and counter to the purpose of a streamlined NWP program. Another commenter noted that NWP 18, another NWP, or a regional general permit could be used to authorize the placement of the dredged material into jurisdictional waters and wetlands. One commenter objected to the proposed reissuance of this NWP, and said these activities should require individual permits. One commenter said that clamshell bucket dredging does not result in only minimal adverse environmental effects.
If the project proponent wants to use the dredged material for beach nourishment, and the dredged material is to be placed in navigable waters of the United States (
Several commenters stated there should be designation of strategic areas for the placement of dredged material to ensure that it is available for natural geomorphic processes to move that material to eroding shorelines or to ensure that it is available for other beneficial uses. One commenter suggested adding a requirement for agency coordination when the proposed dredging activity would occur in non-tidal waters where special status species are known to occur. Another commenter stated that this NWP should not be used in non-tidal waters inhabited by special status species. One commenter said that tribes should be provided with advance notice of these activities. Another commenter expressed concern that the dredged material may have sediments that are contaminated and harmful to aquatic organisms.
The designation of strategic areas of the placement of dredged material is beyond the scope of the NWP program. Those designations are more appropriately made by district engineers or addressed through other federal, tribal, state, and local programs. The requirements of general condition 18, endangered species, apply to this NWP and will address special status species that are listed as endangered or threatened under the federal Endangered Species Act, or proposed for listing under the ESA. Division engineers can impose regional conditions on this NWP to require coordination for proposed NWP 19 activities that may affect other types of special status species, or to prohibit its use in certain waters. For the 2017 NWPs, Corps districts have been consulting with tribes to identify regional conditions that protect tribal trust resources. Corps districts may also establish coordination procedures with tribes to ensure that NWP 19 activities do not cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands.
This NWP is reissued as proposed.
NWP 20.
NWP 21.
We removed paragraph (a) of the 2012 NWP 21 from this NWP. Surface coal mining activities that were authorized under paragraph (a) of the 2012 NWP 21, where the regulated activities in waters of the United States have not yet been completed will require individual permits if operators need more time to complete those regulated activities. Activities that were authorized under paragraph (a) of the 2012 NWP 21 may qualify for the one-year grandfather provision at 33 CFR 330.6(b) if the operator has commenced the authorized work or is under contract to do the authorized work before the 2012 NWP 21 expires on March 18, 2017.
All activities authorized by this NWP are subject to the
Corps districts can review NWP 21 PCNs concurrent with the Office of Surface Mining's or the state's SMCRA review process. Since the Office of Surface Mining or the state has authority over the entire coal mining activity, and the Corps has jurisdiction only over activities that involve discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters, the project proponent cannot proceed with the surface coal mining activity until he or she has secured his or her SMCRA authorization. Therefore, the Corps' completion of its review of the NWP 21 PCN prior to the SMCRA
One commenter said that the 1/2-acre limit should be used for all NWP 21 activities. One commenter stated that district engineers should not be able to waive the
For this NWP rulemaking effort, we believe that both the
One commenter suggested requiring agency coordination for all NWP 21 PCNs for proposed activities that would impact pitcher plant bog wetlands or bald cypress/tupelo swamps. One commenter recommended increasing the limits for NWP 21 and creating a self-verification process to streamline the verification process.
Division engineers can modify this NWP to add regional conditions to protect specific types of wetlands, such as pitcher plant bogs or bald cypress/tupelo wetlands. They can restrict or prohibit the use of this NWP in certain types of wetlands. A regional condition may also require agency coordination for certain NWP 21 activities. The project proponent can provide additional information in the PCN to assist the district engineer in his or her decision-making process. A self-verification process will not make the district engineer's verification process more streamlined. The PCN process is necessary for all activities authorized by this NWP because of the potential for more than minimal adverse environmental effects to occur. The PCN process requires the district engineer to make an independent determination on whether the proposed activity will result in no more than minimal adverse environmental effects and whether NWP 21 authorization is appropriate.
This NWP is reissued as proposed.
NWP 22.
NWP 23.
This NWP authorizes categories of activities that are similar nature, in that those categories relate to the types of activities identified in the approved categorical exclusions. The authorized activities that have the potential to result in more than minimal individual and cumulative adverse environmental effects require PCNs. District engineers will review those PCNs and issue NWP verifications only for those activities they determine will cause no more than minimal adverse environmental effects.
The revision of RGL 05–07 to address the Federal Highway Administration's current categorical exclusions will be a separate future effort. We will publish a notice in the
This NWP is reissued without change.
NWP 24.
NWP 25.
NWP 27.
One of the basic requirements of this NWP is that the aquatic habitat restoration, enhancement, or establishment activity must result in a net gain in aquatic resource functions and services. It will take time for these increases in aquatic resource functions and services to occur, as the treated area undergoes ecosystem development processes after the restoration, enhancement, or establishment activity takes place.
A number of commenters said that there have been activities, such as bank stabilization activities and wetland or stream conversion activities that are not aquatic habitat restoration, enhancement, or establishment activities but that have been verified as being authorized by NWP 27. These commenters suggested modifying this NWP to make it clear that project proponents should seek DA authorization for those activities
To address those concerns, we have added a paragraph to NWP 27 to state that aquatic habitat restoration, enhancement, and establishment activities authorized by this NWP must be based on ecological references. This change makes it clear that NWP 27 does not authorize bank stabilization activities (including living shorelines to control erosion), stormwater management activities, and pollutant-reduction best management practice facilities constructed to meet TMDLs established under section 303(d) of the Clean Water Act. In coastal waters, living shorelines can be authorized by the new NWP 54. Living shorelines that use stone sills, breakwaters, or other types of structures do not resemble natural shorelines (Pilkey et al. 2012). In inland waters, vegetative or bioengineering bank stabilization activities may be authorized by NWP 13. We are modifying NWP 43 to authorize discharges of dredged or fill material into waters of the United States to construct and/or maintain pollutant reduction best management practice facilities that reduce inputs of pollutants to waterbodies to meet the TMDLs established for those waterbodies.
Ecological references are often used for aquatic habitat and riparian area restoration, enhancement, or establishment activities because they can provide templates for planning and designing those activities to resemble natural aquatic habitats or riparian areas (Smith et al. 2013, Society for Ecological Restoration (SER) 2004). Ecological references can help assess the naturalness of aquatic habitats and riparian areas and can take into account the direct and indirect effects of human disturbances and other activities on ecosystem structure, dynamics, and functions (Stoddard et al. 2006). There are a variety of approaches for using ecological references for planning, designing, and implementing ecological restoration activities (Clewell and Aronson 2013, chapter 7), including aquatic habitat restoration, enhancement, and establishment activities, as well as riparian area restoration and enhancement activities. Ecological references should take into account the range of variation exhibited by the target ecosystem type in the region (SER 2004).
For the purposes of this particular modification of NWP 27, we suggest a couple of approaches for using ecological references. Project proponents can use either of the suggested approaches or other ecological reference approaches. One suggested approach is to identify and use ecological references based on the structure, functions, and dynamics of aquatic habitats and riparian areas that currently exist in the region where the NWP 27 activity is proposed. The appropriate region can be determined through discussions with the district engineer. The ecological reference should be the same type (
Another suggested approach is to construct an ecological reference based on a conceptual model for the aquatic habitat type or riparian area type to be restored, enhanced, or established as a result of the NWP 27 activity. The conceptual model can be simple, and consist of a mental picture of the structure, functions, and dynamics of the desired type of aquatic habitat or riparian area (Clewell and Aronson 2013). That mental picture can be based on various information sources (Clewell and Aronson 2013) and take into account the historic range of variation for the target habitat type (SER 2004). In other words, the conceptual model used as an ecological reference would be based on knowledge of the natural aquatic habitats or riparian areas of the same type that are, or were, found in the region.
One commenter requested that we modify NWP 27 to authorize certain activities identified in watershed implementation plans to meet TMDL requirements, such as activities to reduce sediment and nutrient inputs to waters. This commenter said that modifying NWP 27 to authorize these activities without an acreage limit would provide a streamlined authorization process for these TMDL-related restoration activities. This commenter asked that the Corps modify NWP 27 to allow conversions of one aquatic habitat type to another (
Aquatic habitat restoration, enhancement, and establishment activities can help reduce inputs of sediment, nutrients, and other pollutants to waterbodies, but they are only authorized by NWP 27 if they will result in net increases in aquatic resource functions and services, do not involve prohibited conversions, and resemble ecological references. For example, the re-establishment of upland or wetland riparian areas next to a stream can reduce inputs of sediment and nutrients to the stream by physical and biogeochemical processes, and can be authorized by NWP 27 if those activities involve discharges of dredged or fill material into jurisdictional waters and wetlands. In contrast, the constructing a dam or other structure across a headwater stream to establish a wetland that will trap sediments and transform nutrients is conversion of aquatic habitat type that is not authorized by NWP 27. The latter activity might be authorized by the reissuance and modified NWP 43.
There is likely to be differences in opinion in whether conversions of forested wetlands to emergent wetlands, other types of aquatic habitat conversions, or aquatic habitat enhancement activities will result in net increases in aquatic resource functions and services. The full suite of aquatic habitat functions and services must be considered when determining whether the net gains in aquatic resource functions and services required by this NWP will occur. When conducting these evaluations to determine NWP 27 eligibility, there should not be a focus on a specific aquatic resource function, or the ecological service(s) produced from that aquatic resource function. To assist district engineers in making these determinations, prospective permittees considering such activities should provide supporting information in their NWP 27 PCNs or reports to demonstrate net increases in aquatic resource functions and services.
The provision in the fourth paragraph of this NWP that states that changes in plant communities resulting from restoring wetland hydrology are
Activities intended to address TMDLs for nutrients, sediment, and other pollutants that are not aquatic habitat or riparian restoration, enhancement, or establishment activities based on ecological references may be authorized by NWP 43, which has a
One commenter asked for more specific examples of the types of projects that can be authorized by NWP 27. One commenter stated that this NWP should authorize the conversion of one wetland type to another type to support enhancement of a specific function. One commenter said that this NWP should be modified to allow sidecasting of material removed from a wetland into adjacent wetlands, if the affected area would still be a wetland. One commenter suggested adding low head dam removal to the types of activities authorized by this NWP. One commenter said this NWP should authorize the installation of riprap or other energy dissipation measures immediately adjacent to dikes, berms, and water control structures. One commenter requested that the Corps add “the removal of stream barriers, such as undersized culverts, fords, and grade control structures” to the list of examples of activities authorized by NWP 27.
This NWP already has a comprehensive list of examples of aquatic habitat restoration, enhancement, and establishment activities that can be authorized by this NWP. This NWP only authorizes the relocation of non-tidal waters, including non-tidal wetlands, on the project site. The enhancement of a specific wetland function may cause the loss of, or reduce, other wetland functions; to be authorized by this NWP an aquatic habitat enhancement activity must result in a net gain in aquatic resource functions and services. If the restoration of wetland hydrology results in a change in wetland plant community that resembles reference wetlands in the region that have that hydrologic regime, we do not consider that activity to be a conversion of wetland type. The sidecasting of excavated material into jurisdictional waters and wetlands as part of the wetland restoration, enhancement, or establishment activity is authorized by this NWP as long as the activity will result in a net increase in wetland functions and services.
The removal of low-head dams is authorized by NWP 53 (see below). The removal of small water control structures, dikes, and berms is still authorized by NWP 27, and these small structures will typically be found in headwater streams. The removal of low-head dams authorized by NWP 53 is not limited to headwater streams. This NWP can be used to authorize the placement of riprap in jurisdictional waters and wetlands as long as it is part of an aquatic habitat restoration, enhancement, or establishment activity that will result in net increases in aquatic resource functions and services. We have added “the removal of stream barriers, such as undersized culverts, fords, and grade control structures” to the list of examples of activities authorized by this NWP.
One commenter said this NWP should limit the linear feet of riprap placed for bank stabilization projects that also have a restoration purpose. If bank stabilization is the primary purpose of the proposed activity, then that activity should be considered for authorization by NWPs 13 or 54. Aquatic habitat restoration, enhancement, or establishment activities may require the placement of some riprap as part of the overall activity to increase aquatic resource functions and services. For NWP 27 activities, we do not believe that it is necessary to place a limit on the length of riprap placed in jurisdictional waters and wetlands. The appropriate amount will depend on the specific activity authorized by NWP 27.
One commenter said that all NWP 27 activities convert one wetland to another, and suggested revising this NWP by removing the language regarding aquatic habitat conversions and simply require a net increase in aquatic resource function and services, regardless of the impacts. Several commenters stated that this NWP should authorize conversions of streams to wetlands that diversify wetland habitats, with an acreage limit on those conversions. One commenter said this NWP should be modified to allow the conversion of forested wetlands to emergent wetlands. One commenter requested examples of when is it appropriate to use NWP 27 to authorizes the relocation of non-tidal waters.
Wetland restoration activities can involve conversions in wetland type, and those conversions are authorized by this NWP if they result from removing one or more impairments that are preventing the former wetland or degraded or disturbed wetland from returning to its pre-impairment structure, functions, and dynamics. Ecological restoration activities should result in a damaged or degraded wetland, stream, or riparian area resuming its historic ecological development trajectory under contemporary environmental conditions (SER 2004). The prohibition against conversions in the fourth paragraph of this NWP focuses on conversions of wetlands to streams or the conversions of natural wetlands to other aquatic habitat types. The prohibition against conversions of natural wetlands, and the general requirement that NWP 27 activities result in net increase in aquatic resource functions and services are intended to prohibit wetland enhancement activities that would improve one or two wetland functions but cause substantial declines in other wetland functions.
Streams perform a number of important ecological functions and services (
One commenter said that NWP 27 should not allow the reversion of enhanced wetlands if the wetland enhancement was done to fulfill compensatory mitigation requirements. This commenter also said that activities completed under this NWP should not be allowed to be filled at a later date. One commenter expressed concern about the that he reversion provision,
The reversion provision in this NWP only applies to the specific categories of agreements or activities listed in that paragraph. Those agreements or activities do not include compensatory mitigation projects required as conditions of DA permits. If there are jurisdictional waters and wetlands on the site after the authorized reversion is completed, then a separate DA authorization would be required if the project proponent wants to do activities that require authorization under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899. The reversion provision is not a loophole because it is intended to allow the affected land to revert to its prior condition when appropriate. Aquatic habitat restoration, enhancement, and establishment activities that are intended to be implemented only for a limited period of time still provide important ecosystem functions and services while they are in place.
Many commenters said there should be no changes to the PCN thresholds for this NWP. One commenter stated that the activities that require reporting should require PCNs instead. Two commenters recommended eliminating the PCN requirement for activities conducted on non-federal public and private lands in accordance with the terms and conditions of a binding restoration agreement between the U.S. Fish and Wildlife Service, Natural Resources Conservation Service, Farm Service Agency, National Marine Fisheries Service, National Ocean Service, U.S. Forest Service, or state agencies. One commenter said that if the PCN does not clearly state the purpose of the restoration project, the Corps should require a detailed explanation of the increases in aquatic resource functions and services that will be provided, and seek input from the public and interest groups.
We are not making any changes to the PCN thresholds or reporting requirements for this NWP. We believe the current PCN thresholds and reporting requirements are sufficient to provide assurance that proposed activities will comply with the terms and conditions of this NWP. The PCN and reporting requirements provide an important mechanism for ensuring that NWP 27 activities are aquatic habitat restoration, establishment, and enhancement activities that result in net increases in aquatic resource functions and services. As stated above, we received a number of comments expressing concern about the use of NWP 27 for activities that are not aquatic resource restoration, enhancement, or establishment activities but serve other intended purposes. Those concerns validate the need to continue the current PCN and reporting requirements. When a Corps district reviews a PCN or a report for a proposed NWP 27 activity, if the information in the PCN or report does not clearly show that the proposed activity will result in net increases in aquatic resource functions and services, the district can request additional information from the project proponent. For specific activities authorized by NWP 27 or any other NWP, the Corps does not issue public notices to solicit public comment. Public comment is sought during the rulemaking process to issue, reissue, or modify NWPs.
One commenter said that this NWP should require best management practices to avoid sediment loading and introduction of excess sediment into jurisdictional waters and wetlands. One commenter stated that this NWP should require an analysis of impacts to downstream communities, especially communities inhabited by threatened and endangered species. One commenter recommended adding a provision prohibiting activities that impact federally listed plant species.
Activities authorized by this NWP must comply with general condition 12, soil erosion and sediment controls, to ensure that there are not excessive amounts of sediment being released to jurisdictional waters and wetlands as a result of these activities. Any non-federal permittee proposing an NWP 27 activity that might affect ESA-listed species or designated critical habitat, is in the vicinity of listed species or designated critical habitat, or is in designated critical habitat must submit a PCN instead of a report. The “might affect” threshold in paragraph (c) of general condition 18, endangered species, includes direct and indirect effects anticipated to be caused by the NWP activity, including downstream indirect effects caused by the NWP activity. The requirements of general condition 18 apply to federally listed plant species under the ESA.
One asked why the Corps oversees NWP 27 activities because many other state agencies have stream restoration programs. One commenter asserted that NWP 27 should not be used to authorize mitigation banks. One commenter stated that requiring monitoring plans for NWP 27 activities places an undue burden on the applicant, especially if the intent was to restore a wetland. One commenter recommended adding to the text of this NWP an explanation of which aquatic habitat restoration, enhancement, or establishment activities may be eligible for Clean Water Act section 404(f) exemptions. One commenter asked if this NWP authorizes the removal of bulkheads, derelict structures, and piles.
We require PCNs or reporting for all NWP 27 activities to ensure the proposed activities comply with the terms and conditions of this permit, especially the requirement that authorized activities result in net increases in aquatic resource functions and services. While there are a number of states that implement stream restoration programs, there is still much debate over the most appropriate methods to use to restore streams. Therefore, the Corps' review is necessary to ensure that proposed stream restoration activities in jurisdictional waters and wetlands are authorized by this NWP. We will continue to use of NWP 27 to authorize regulated activities associated with the construction and management of approved mitigation banks. Nationwide permit 27 may also be used to authorize aquatic habitat restoration, enhancement, and establishment activities for in-lieu fee projects. Under the requirements of 33 CFR 332.8(d), all proposed mitigation banks and in-lieu fee programs must go through a public notice and comment process, as well as interagency review.
If NWP 27 is used to authorize discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States to conduct a compensatory mitigation project required as conditions of a DA permit, monitoring will be required (see 33 CFR 332.6). If an NWP 27 activity is not being conducted as compensatory mitigation to fulfill the requirements for a DA permit, then monitoring may or may not be required, depending on the activity-specific circumstances. Monitoring of NWP 27 activities can provide information useful to other practitioners of aquatic habitat restoration, enhancement, or establishment activities, but it is optional unless the district engineer imposes conditions in the NWP verification to require monitoring.
In general, the Clean Water Act section 404(f) exemptions do not have much applicability to NWP 27 activities, with the possible exception of maintenance activities. Therefore, we do not believe that there needs to be text added to this NWP to explain when the Clean Water Act section 404(f) exemptions might apply to aquatic
This NWP is reissued with the modifications discussed above.
NWP 28.
This NWP authorizes modifications of existing marinas, including changes to the arrangement of structures within the previously authorized marina boundaries. This NWP does not authorize structures in navigable waters outside of the boundaries of the authorized marina. The area occupied by the authorized marina cannot change but within that occupied area the permittee can increase slip size or decrease slip size. If slip size is increased to accommodate larger vessels, there will be fewer slips within the marina. If slip size is decreased to provide slips for smaller vessels, there will be more slips in the marina for those smaller vessels to use. This NWP is reissued without change.
NWP 29.
Several commenters objected to the proposed reissuance of this NWP, and some said that the activities authorized by this NWP result in more than minimal adverse environmental effects. One commenter said this NWP should not authorize residential developments in channel migration zones and floodplains where direct and indirect impacts to special status species could occur. Several commenters stated that NWP 29 should be limited to residential developments that use low-impact development construction practices, demonstrate avoidance and minimization of impacts, and do not involve channelization or relocation of perennial and intermittent streams. One commenter recommended limiting this NWP to single family homes.
The
It is not necessary to limit NWP 29 to low-impact development activities because other types of residential development activities may also result in no more than minimal adverse environmental effects and thus qualify for NWP authorization. Paragraph (a) of general condition 23, mitigation, requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable on the project site. If the project proponent is proposing to channelize or relocate perennial or intermittent streams, the district engineer will evaluate the PCN and determine whether the proposed activity will result in only minimal adverse environmental effects. The district engineer may add conditions to the NWP authorization to require mitigation to reduce the adverse environmental effects so that they are no more than minimal. This NWP does not need to be limited to single family residences because the terms and conditions of the NWP, including the “subdivisions” paragraph, will ensure that multiple unit residential developments will result in no more than minimal individual and cumulative adverse environmental effects.
One commenter said the
The subdivision provision of this NWP, the requirements of general condition 15 (single and complete project), and the application of the definition of “single and complete non-linear project” will limit the environmental impacts of the phases of multi-unit residential developments so that they are no more than minimal. The
Compensatory mitigation requirements for activities authorized by this NWP are determined on a case-by-case basis by district engineers when they review PCNs, in accordance with 33 CFR 330.1(e)(3) and general condition 23. Compensatory mitigation is only required when the district engineer determines the proposed impacts are more than minimal and the project proponent submits a compensatory mitigation plan that the district engineer determines will ensure that the authorized activity will result in no more than minimal adverse environmental effects. When district engineers evaluate PCNs, they will evaluate any proposed impacts to perennial and intermittent streams, so we do not think it is necessary to limit this NWP to ephemeral streams. Division engineers can modify this NWP by adding regional conditions to restrict or prohibit its use in certain types of waters, such as perennial and intermittent streams.
Several commenters said that district engineers should not be allowed to waive the 300 linear foot limit for losses of stream bed. One commenter stated that resource agencies should review requests for waivers of the 300 linear foot limit.
All requests for waivers of the 300 linear foot require PCNs and those PCNs will be coordinated with the resource agencies in accordance with paragraph (d) of general condition 32. The district engineer will fully consider agency comments when making his or her decision whether to provide a written waiver of the 300 linear foot limit and issue the NWP verification. The district engineer's review process, including the agency coordination for waiver requests, will ensure that losses of stream bed authorized by this NWP will result in no more than minimal adverse environmental effects, individually and cumulatively.
This NWP is reissued as proposed.
NWP 30.
This NWP authorizes discharges of dredged or fill material into non-tidal waters of the United States to manipulate wetland soils so that habitat and feeding areas can continue to support target wildlife populations. This NWP does not authorize the construction of new features on these wildlife management areas, and it does not authorize the conversion of wetlands to uplands or open waters. Because this NWP only authorizes on-going soil management activities and does not authorize any losses of jurisdictional wetlands, we do not think an acreage limit or a PCN requirement is necessary. Moist soil management activities conducted by non-federal permittees that might affect species listed under the Endangered Species Act, are in the vicinity of listed species or designated critical habitat, or are in designated critical habitat, require PCNs under general condition 18, endangered species.
This NWP is reissued without change.
NWP 31.
We have added a sentence to the end of the second paragraph of this NWP to state that the Corps will not consider the flood control facility to be abandoned if the applicant is trying to obtain other authorizations or approvals that are required by other agencies to conduct the maintenance activities. We understand that there may be delays in obtaining authorizations or approvals from other government agencies. There may also be delays caused by the time it takes to complete Endangered Species Act section 7 consultations for the activities authorized by this NWP. Such delays should not cause these facilities to be considered “abandoned” as long as the entity responsible for these flood control facilities is making a good faith effort to obtain all required approvals and authorizations. We believe the abandonment provision should be retained because this NWP only authorizes maintenance activities, not the reconstruction of flood control facilities that have been abandoned long enough to require rebuilding those facilities. All activities authorized by this NWP already require PCNs, and the PCN may cover maintenance activities anticipated to take place during the 5 year period this NWP is in effect.
One commenter recommended modifying the last sentence of the first paragraph of this NWP to state that all dredged material must be placed outside of waters of the United States and the 100-year floodplain, and require the use of proper siltation controls. Several commenters suggested adding requirements for establishing the maintenance baseline, such as specifically identifying the responsible party, the completion deadline, and the approval authority. These commenters also said that the maintenance baseline should be reviewed and updated at prescribed intervals.
We have modified the last sentence of the first paragraph of this NWP to make it consistent with similar provisions in NWPs 19 and 35, and to make a separate sentence to address the need for sediment controls. In the final NWP, the second to the last sentence of the first paragraph reads as follows: “All dredged and excavated material must be deposited and retained in an area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization.” We have added “and excavated” after “dredged” to make it clear that the requirement in this sentence includes material removed by excavation activities that require Clean Water Act section 404 authorization. We have changed the word “siltation” to “sediment” so that the new last sentence of this paragraph is consistent with the terminology used in general condition 12, soil erosion and sediment controls, and to acknowledge that sediment is not limited to silt, but ranges in size from clay particles to boulders.
The Corps does not regulate activities in 100-year floodplains, unless they consist of discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States. Therefore, we cannot require that materials dredged or excavated for flood control facility maintenance be placed outside of 100-year floodplains because in many areas of the country 100-year floodplains consist of large areas of uplands. We do not believe that the identification of the maintenance baseline requires identification of the responsible party, the completion deadline, or the approval authority. As already stated in the NWP, revocation or modification of the final determination of the maintenance baseline can only be done by following the procedures in 33 CFR 330.5. Since this NWP only authorizes maintenance activities relative to a prior constructed or approved capacity, maintenance baselines should not require periodic reviews or updates.
One commenter requested removal of the requirement for mitigation. A commenter said that recurring maintenance activities should not require mitigation, and that facilities constructed before the enactment of the Clean Water Act should not require mitigation. Several commenters recommended requiring mitigation for recurring maintenance activities. Another commenter stated that this NWP should require mitigation for habitat losses, impacts to anadromous fish, and impacts to special status species.
We are retaining the provisions that allow district engineers to impose one-time compensatory mitigation requirements after the maintenance baseline is established. We are providing additional guidance on applying the term “one-time.” We have added a Note to this NWP to clarify that the one-time compensatory mitigation requirement applies only once since NWP 31 was first issued in 1996 (61 FR 65873). Each subsequent reissuance of NWP 31 did not create an opportunity for district engineers to impose a new one-time compensatory mitigation requirement on activities authorized by previous versions of NWP 31, because
We do not believe that compensatory mitigation under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899 should be required for recurring maintenance activities. For example, if the maintenance activities authorized by NWP 31 are determined by the district engineer to “may affect” listed species or critical habitat, ESA section 7 consultation is required (see general condition 18). There may be flood control maintenance activities where ESA section 7 compliance is accomplished through informal consultation and written concurrence from the U.S. Fish and Wildlife Service and/or National Marine Fisheries Services, with mitigation in the form of avoidance and minimization so that the flood control maintenance activity will have no adverse effects on listed species or critical habitat and will not result in incidental take of listed species. If formal ESA section 7 consultation is required for the NWP 31 activity, the biological opinion may include terms and conditions, including mitigation measures in the form of minimization, to minimize incidental take of listed species. Mitigation measures conducted for the purposes of ESA section 7 are not counted toward the one-time mitigation provision in the “mitigation” paragraph of this NWP.
This NWP is reissued with the modifications discussed above.
NWP 32.
We have adopted the proposed modification of this NWP. The acreage limits in paragraph (a)(i) of this NWP, as well as the requirement for net environmental benefits, are necessary to ensure that authorized activities result in no more than minimal individual and cumulative adverse environmental effects.
One commenter said that NWP 32 should be limited to formal enforcement actions for intentional and willing violations that warrant penalties, instead of after-the-fact authorizations. This commenter also stated that use of NWP 32 should not preclude a state's ability to pursue enforcement actions under applicable state laws and regulations. One commenter suggested deleting the second to last sentence of this NWP, which states that the NWP “does not apply to any activities occurring after the date of the decision, decree, or agreement that are not for the purpose of mitigation, restoration, or environmental benefit.” One commenter stated that the Corps should consult with affected tribes before administering any enforcement action. Another commenter said that NWP 32 should be modified to allow additional enforcement actions, such as assessment of civil penalties, if the permittee does not comply with the NWP 32 authorization.
We believe that this NWP should be available to authorize activities regulated by the Corps to complete the types of enforcement actions listed in the text of the NWP. The use of NWP 32 to complete enforcement actions only provides DA authorization for applicable activities. It does not affect a state's authority to conduct its own enforcement actions under applicable state laws and regulations. The second to last sentence of this NWP is an important limitation and we will not delete it. For the 2017 NWPs, Corps districts are consulting with tribes to identify regional conditions to protect tribal trust resources. Additionally, Corps districts can develop procedures to consult with tribes prior to conducting enforcement actions. We have modified the first sentence of the last paragraph of this NWP to state that non-compliance with the terms and conditions of an NWP 32 authorization may result in an additional enforcement action, such as a Class I civil administrative penalty under 33 CFR 326.6.
This NWP is reissued as proposed.
NWP 33.
One commenter stated that this NWP should clarify that impact thresholds only apply to permanent, not temporary, losses of waters of the United States. One commenter recommended defining “temporary.” One commenter expressed support for reissuing this NWP, as long as it does not authorize permanent impacts. One commenter said that temporary fills should be authorized for a period of up to two years because temporary causeways and work pads are occasionally needed for projects that take multiple years to construct. One commenter recommended adding a
This NWP only authorizes temporary impacts to jurisdictional waters and wetlands. Permanent impacts to jurisdictional waters and wetlands are not authorized by this NWP, and this NWP requires restoration of affected areas after completion of construction. Permanent impacts to jurisdictional waters and wetlands can be authorized by another NWP, a regional general permit, or an individual permit. Determining when activities regulated under the Corps' authorities result in temporary impacts to jurisdictional waters and wetlands versus permanent impacts to those waters and wetlands is at the discretion of the district engineer. Because this NWP only authorizes temporary impacts to jurisdictional waters and wetlands that must be restored upon completion of the work, we believe that it is not necessary to impose acreage or linear foot limits. For the NWPs, the acreage limits only apply to permanent adverse effects to waters of the United States (see the definition of “loss of waters of the United States” in Section F. The linear foot limits apply to losses of stream bed caused by filling or excavation.
One commenter said that NWP 33 should be revised to avoid conflicts with excavation activities that do not require Clean Water Act section 404 authorization, such as removal of accumulated sediment from a dry stream channel. In addition, this commenter stated that this NWP should not require the removed material be returned to its original location or that the excavated area be returned to pre-construction elevations. One commenter
This NWP only authorizes temporary construction, access, and dewatering activities that require DA authorization. If an excavation activity does not involve regulated discharges of dredged or fill material into waters of the United States, then there is no conflict with the activities that require DA authorization and are covered by this NWP. This NWP requires waters of the United States that are temporarily filled as a result of regulated activities to be restored to pre-construction elevations. If a proposed activity might affect ESA-listed endangered or threatened species or designated critical habitat, such species are in the vicinity of the proposed activity, or if the proposed activity is in designated critical habitat, general condition 18 requires non-federal permittees to submit PCNs. The district engineer will review those PCNs and determine if ESA section 7 consultation is required because the proposed activity may affect listed species or designated critical habitat. If ESA section 7 consultation it is required, the district engineer will conduct formal or informal consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service, as appropriate. Effects to state-listed endangered or threatened species are more appropriately addressed through state regulatory and non-regulatory programs.
Several commenters said that this NWP should require PCNs for all activities involving discharges of dredged or fill material into special aquatic sites. Two commenters stated that not requiring PCNs for all activities authorized by this NWP provides no assurance that the adverse environmental effects will be no more than minimal. One commenter asserted that PCNs are necessary to ensure that pre-construction contours and hydrology are restored and that affected areas are revegetated without invasive species. One commenter said that PCNs should be required for activities in non-tidal waters that are important tribal resources, so that tribes will have the opportunity to review and comment on those activities. One commenter stated that the proposed change to require PCNs only for activities in section 10 waters would result in degradation of the affected waterbodies, and dewatering activities are problematic in areas with methane.
We are retaining the proposed change to this NWP, which is to only require PCNs for activities in navigable waters subject to section 10 of the Rivers and Harbors Act of 1899. In waters subject only to section 404 of the Clean Water Act, PCNs will be required for any NWP 33 activity that triggers a PCN requirement under general condition 18, endangered species, and/or general condition 20, historic properties. For activities in designated critical resource waters and their adjacent wetlands, PCNs are required by general condition 22, designated critical resource waters. Division engineers can modify this NWP by adding regional conditions to require PCNs in waters subject only to Clean Water Act jurisdiction. The terms and conditions of this NWP, including regional conditions imposed by division engineers, will ensure that NWP 33 activities that do not require PCNs will result in no more than minimal adverse environmental effects, and that pre-construction contours and hydrology are restored after the temporary fills are removed. The terms of the NWP also require that affected areas are revegetated as appropriate. For the 2017 NWPs, Corps districts are consulting with tribes to identify regional conditions to protect tribal trust resources. Those regional conditions can require PCNs for those NWP 33 activities that have the potential to affect tribal trust resources, and district engineers can coordinate those PCNs with interested tribes. The terms and conditions of this NWP, plus the requirements of water quality certifications issued by states, tribes, or the U.S. EPA, will ensure that NWP 33 activities will have only minimal adverse effects on water quality. Concerns regarding methane emissions are more appropriately addressed by agencies that have regulatory authority over such emissions.
This NWP is reissued as proposed.
NWP 34.
This NWP requires pre-construction notification for all activities, so that the district engineer can determine whether a specific cranberry production activity will result in no more than minimal adverse environmental effects. The district engineer will exercise discretionary authority and require an individual permit for a cranberry production activity that requires authorization under section 404 of the Clean Water Act and is determined, after considering the applicant's mitigation proposal, to result in more than minimal adverse environmental effects. Corps districts, through their division commanders, may also revoke this NWP and develop regional general permits with different terms and conditions to authorize these activities. This NWP is reissued as proposed.
NWP 35.
One commenter expressed support for the proposed modification. Another commenter objected to the proposed modification, stating that the NWP should authorize the placement of dredged material into jurisdictional waters. Another commenter objected to the reissuance of this NWP, saying that clamshell bucket dredging causes more than minimal adverse environmental effects.
The placement of the dredged material into jurisdictional waters and wetlands can be authorized by other NWPs, regional general permits, or individual permits. We have revised that sentence so that it is consistent with the text of NWP 19. Clamshell bucket dredging within existing basins will not cause more than minimal adverse environmental effects. Those existing basins are currently being used by vessels and the additional adverse effects resulting from dredging these disturbed basins will be no more than minimal. Also, the incidental soil movement that occurs during clamshell dredging for normal navigational dredging activities is not a regulated discharge under section 404 of the Clean Water Act (see 33 CFR 323.2(d)(3)(ii)).
One commenter remarked that beneficial use of dredged material may be a better alternative that disposal in upland areas, because beneficial use can improve aquatic habitat. One commenter suggested authorizing beneficial uses of dredged material after conducting coordination with federal and state natural resource agencies. One commenter said that this NWP should have a limit to the volume of material excavated from existing basins. Another commenter stated that this NWP should not authorize activities in waters with known or suspected sediment contamination at levels that would be harmful to aquatic organisms.
If the project proponent or other entity identifies beneficial uses for the material dredged from the basin, then he or she can seek DA authorization
This NWP is reissued with the modifications discussed above.
NWP 36.
Most boat ramps are constructed within the limits of this NWP and result in no more than minimal individual and cumulative adverse environmental effects. For those activities that have the potential to result in more than minimal adverse environmental effects, this NWP requires PCNs so that district engineers can evaluate those proposed activities to ensure that they result in no more than minimal adverse environmental effects. If the proposed boat ramp will result in more than minimal adverse environmental effects, the district engineer will ask the prospective permittee to submit a mitigation proposal. If the mitigation proposal will ensure the proposed boat ramp will result in no more than minimal adverse environmental effects, the district engineer will issue the NWP verification with conditions requiring the implementation of the mitigation. If the mitigation proposal is not sufficient to ensure no more than minimal adverse environmental effects, the district engineer will exercise discretionary authority and require an individual permit. These procedures also apply to PCNs requesting waivers of the 50 cubic yard limit and/or the 20-foot width limit.
We are retaining the 50 cubic yard limit and the width limit of 20 feet, as well as the waiver provisions for these limits. This is to provide flexibility so that district engineers can use NWP 36 to authorize those activities that they determine, after reviewing the PCNs, to result in no more than minimal individual and cumulative adverse environmental effects.
This NWP is reissued without change.
NWP 37.
NWP 38.
NWP 39.
Several commenters objected to the proposed reissuance of this NWP, stating that commercial and institutional developments should be authorized by individual permits instead of NWPs because they result in more than minimal adverse environmental effects. Several commenters supported the proposed addition of wastewater treatment facilities to the list of examples of attendant features that may be authorized by this NWP. One commenter said that this NWP should not authorize oil and gas wells and their attendant infrastructure. This commenter also stated that NWP 39 should not authorize commercial and institutional developments in channel migration zones or floodplains critical to salmon populations.
The terms and conditions of this NWP, including the acreage and linear foot limits and the reviews of PCNs by district engineers, will ensure that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse environmental effects. All activities authorized by this NWP require PCNs. The district engineer will exercise discretionary authority and require an individual permit for any proposed NWP 39 activity that he or she determines will result in more than minimal adverse environmental effects, after considering the mitigation proposal provided by the applicant. We have added wastewater treatment facilities as an example of attendant features authorized by this NWP. The construction of oils and gas wells that involves discharges of dredged or fill material into waters of the United States can be authorized by this NWP as long as the proposed activity complies with the terms and conditions of this NWP and the district engineer determines the proposed activity will result in only minimal adverse environmental effects.
The construction of commercial and institutional developments in jurisdictional waters and wetlands within floodplains must comply with general condition 10, fills in 100-year floodplains. All activities authorized by this NWP require PCNs and the district engineer will review the PCN to determine if the proposed activity may affect any ESA-listed endangered or threatened species, or their designated critical habitat. If the district engineer determines the proposed activity may affect listed species or designated critical habitat and the prospective permittee is a non-federal permittee, the district engineer will conduct formal or informal ESA section 7 consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service. If the project proponent is a non-federal permittee, the activity is not authorized by NWP until section 7 consultation is completed and the district engineer issues the NWP verification. Division engineers can add regional conditions to this NWP to restrict or prohibit its use in waters of the United States in channel migration zones. District engineers can add activity-specific conditions to NWP verifications to restrict its use in waters of the United States in channel migration zones.
One commenter recommended increasing the acreage limit to 1 acre, and the linear foot limit for losses of stream bed to 1,000 feet. Another commenter said that this NWP should have flexibility in authorizing losses of stream bed, and stated that there should not be a hard limit for losses of stream bed. One commenter said that there should only be limits for losses of ephemeral streams. One commenter suggested decreasing the acreage limit to
We are retaining the
One commenter suggested changing the PCN threshold to losses of
We believe that it is necessary to require PCNs for all NWP 39 activities to ensure they will cause only minimal individual and cumulative adverse environmental effects. The acreage limit applies to each single and complete project. See the definition of “single and complete non-linear project” which applies to most NWP 39 activities. There could be NWP 39 activities that are linear projects, but they are likely to be rare. If the expansion of a commercial or institutional development requires DA authorization and the expansion does not have independent utility from the existing commercial or institutional development, then the acreage limit applies to the original, existing commercial or institutional development (if it was originally authorized by NWP 39) and the proposed expansion.
We have modified the second sentence of the second paragraph of this NWP by replacing the word “only” with the phrase “no more than” to make this sentence consistent with the corresponding sentences in NWPs 29 and 43.
This NWP is reissued with the modification discussed above.
NWP 40.
Many commenters expressed their support for the proposed reissuance of this NWP. A few commenters objected to the proposed reissuance of this NWP and said that individual permits should be required for these activities. One commenter asserted that NWP 40 should not be reissued because it authorizes a broad range of activities that are difficult to distinguish from commercial or residential developments. One commenter requested clarification of which activities are authorized by this NWP. Another commenter said that the Corps should consider the cumulative effects of all activities that were ever authorized by this NWP.
The terms and conditions of this NWP, including the
One commenter stated that the acreage limit for this NWP is too high, and that waivers of the 300 linear foot limit for losses of stream bed should not be authorized for impacts to streams inhabited by anadromous salmon. Another commenter opposed allowing district engineers to waive the 300 linear foot limit for losses of intermittent or ephemeral stream bed, while another commenter voiced support for that provision. One commenter said that district engineers should be allowed to waive the
The
We are retaining the ability for district engineers to waive the 300 linear foot limit for losses of intermittent and ephemeral stream bed. To be authorized by NWP 40, the district engineer must issue a written waiver after conducting agency coordination with a finding that the proposed activity will result in no more than minimal adverse environmental effects. We are retaining the
This NWP is reissued as proposed.
NWP 41.
One commenter expressed support for the reissuance of NWP 41. One commenter asked if this NWP applies to agricultural ditches. Several commenters suggested adding a list of ditch modifications that are authorized by NWP 41. Several commenters recommended removal of the prohibition against increasing the amount of land area drained by the ditch. One commenter said this NWP should authorize discharges for small berms or grade breaks to manage flows. Another commenter stated that this NWP should authorize minor ditch relocation and stabilization activities.
This NWP authorizes the reshaping of existing, currently serviceable drainage ditches constructed in waters of the United States that are used for any purpose, including agricultural ditches. We do not believe it is necessary to provide a list of ditch modifications authorized by this NWP because this NWP only authorizes modifications of the cross-sectional configuration of the ditch to improve water quality. Other types of ditch modifications require separate DA authorization if those activities involve discharges of dredged or fill material into waters of the United States. This NWP does not authorize ditch relocation activities; those activities may be authorized by NWPs 29, 39, or 40, or other NWPs, or may be authorized by regional general permits or individual permits. Bank stabilization activities may be authorized by NWP 13.
Several commenters said that NWP 41 should authorize standard ditch reshaping activities that have 1:6 front slopes and 1:4 back slopes, or require ditch reshaping activities to match adjoining ditch segments. Another commenter asserted that slope stability should be addressed by requiring, at a minimum, 2:1 ditch side slopes, prohibiting vertical side slopes, and conducting the ditch reshaping activity in a manner that prevents the release of excavated material into the water.
For this NWP, it would not be appropriate for us to prescribe specific side slopes for the reshaped ditches. The appropriate side slopes should be determined on a case-by-case basis by the project proponent, and that project proponent may want to consult with people that have expertise in modifying ditch configurations to improve water quality without changing the area drained by the ditch. Sediment erosion controls should be used when appropriate to minimize releases of excavated material into jurisdictional waters. See general condition 12, soil erosion and sediment controls, for additional information.
Many commenters supported removing the PCN requirement, and many commenters objected to removing the PCN requirement. One commenter stated that it is unclear how removing PCN requirements for NWP 41 would facilitate reshaping of drainage ditches. One commenter recommended requiring PCNs for all NWP 41 activities. One commenter stated that the Corps should accept electronic PCNs.
We have removed the PCN requirement for this NWP, but it should be noted that proposed NWP 41 activities must comply with general condition 18, endangered species, and general condition 20, historic properties. Those general conditions require non-federal permittees to submit PCNs when any proposed activity might affect ESA-listed species or designated critical habitat and/or may have has potential to cause effects to historic properties. See the text of those general conditions for more information. If PCNs are not required for the activities authorized by this NWP, potential project proponents may be less reluctant to pursue these activities. Paragraph (c) of general condition 32, pre-construction notification, allows district engineers to accept electronic copies of PCNs when district engineers have established mechanisms for accepting electronic documents.
Several commenters said that this NWP should require best management practices for NWP 41 activities. A few commenters suggested adding a requirement for excavated material to be placed in upland areas. One commenter asked for an explanation of how to determine whether a ditch is subject to Clean Water Act jurisdiction.
Division engineers can add regional conditions to this NWP to require regional best management practices associated with the reshaping of existing drainage ditches to improve water quality. Regional conditions are a more appropriate mechanism for ensuring that NWP 41 activities are consistent with regional water quality management approaches. Requiring excavated material to be placed in upland areas would prohibit using the excavated material to reshape the ditch, and be contrary to the objective of this NWP of providing a means of improving water quality by changing ditch configurations. The district engineer will apply the regulations and guidance that are in effect at the time he or she is processing a request for a jurisdictional determination for a ditch or ditches.
This NWP is reissued as proposed.
NWP 42.
Activities authorized by this NWP must comply with general condition 18, endangered species. All activities
Division engineers can impose regional conditions on this NWP to restrict or prohibit its use to protect other regionally important species. Activities authorized by NWP 42 that may adversely affect essential fish habitat require consultation with the appropriate office of the National Marine Fisheries Service. We believe that the
This NWP is reissued without changes.
NWP 43.
We have removed the reference to 33 CFR 328.3(b)(6) from the last sentence of the second paragraph of this NWP, because the 2015 final rule defining “waters of the United States” is currently under a stay issued by the U.S. Court of Appeals for the Sixth Circuit. We have revised this sentence so that it simply states that the maintenance of stormwater management facilities that are not waters of the United States does not require a section 404 permit. We have retained the
Several commenters said that the maintenance and expansion of existing stormwater management facilities in upland areas should be authorized without requiring PCNs. One commenter stated that stormwater management facilities should only be constructed in upland areas. One commenter said that only constructed wetlands should be used for stormwater detention or treatment. One commenter stated that NWP 43 should not be issued for developments that are proposed in channel migration zones and floodplains where direct and indirect impacts to special status species could occur.
If a stormwater management facility is expanded into an upland area, and that expansion does not involve discharges of dredged or fill material into waters of the United States, then that expansion does not require Clean Water Act section 404 authorization. It is not always possible or desirable to site stormwater management facilities in upland areas, and locating them in jurisdictional wetlands or other waters of the United States may be the only practicable option for effectively managing stormwater. This NWP authorizes the construction of these facilities in non-tidal jurisdictional wetlands and waters, as long as those activities result in no more than minimal individual and cumulative adverse environmental effects. Division engineers may add regional conditions to this NWP to protect other special status species. Activities authorized by this NWP must comply with general condition 10, fills in 100-year floodplains.
We have retained the provision that prohibits discharges of dredged or fill material into waters of the United States for the construction of new stormwater management facilities in perennial streams. Stormwater management facilities may or may not include constructed wetlands, depending on the design decisions made by the project proponent. Activities authorized by this NWP must comply with general condition 18, endangered species. For the construction of new stormwater management facilities, or the expansion of existing stormwater management facilities, all activities require PCNs. District engineers will review those PCNs and will conduct ESA section 7 consultation for any proposed activity that may affect listed species or designated critical habitat. For the maintenance of stormwater management facilities, if proposed activities that require DA authorization might affect listed species or designated critical habitat, are in the vicinity of listed species or designated habitat, or are in designated critical habitat, non-federal permittees are required to submit PCNs. District engineers will review those PCNs and conduct ESA section 7 consultation for any proposed maintenance activity that may affect listed species or designated critical habitat.
One commenter recommended removing any references to waste treatment systems from the text of this NWP. Several commenters stated their support for clarifying language regarding application of the waste treatment system exclusion to the facilities covered by this NWP. These commenters recommended that the final NWP clarify that both the 1986 final rule (51 FR 41250–41251) and the 2015 final rule defining “waters of the United States” state that waste treatment systems designed to meet the requirements of the Clean Water Act are not subject to Clean Water Act section 404 jurisdiction. A few commenters requested clarification that, under NWP 43, PCNs are not required for stormwater management facilities constructed in upland areas and areas that are not waters of the United States.
As discussed above, we have removed the reference to 33 CFR 328.3(b)(6) from this NWP. The district engineer will determine whether a particular stormwater management facility is, or is not, a water of the United States by using the regulations and guidance for identifying waters of the United States that are in effect at the time the PCN is being evaluated. We do not believe it is necessary to cite specific regulations in the text of this NWP. Pre-construction notification is only required for the construction or expansion of new stormwater management facilities and pollutant load reduction best management practice facilities that involve discharges of dredged or fill material into waters of the United States. We have modified the first sentence of the “Notification” paragraph of this NWP to make it clear that PCNs are only required for certain regulated activities authorized by this NWP.
One commenter asserted that the
The
This NWP does not authorize discharges of dredged or fill material into waters of the United States for the construction of new stormwater management facilities in perennial streams. Maintenance activities in perennial steams are authorized, if such activities require authorization under section 404 of the Clean Water Act. This NWP also authorizes losses of stream bed for the construction and maintenance of pollutant reduction best management practice facilities and those losses are subject to the
In response to comments received on the proposal to reissue NWP 27, we are modifying NWP 43 to authorize the construction and maintenance of pollutant reduction green infrastructure features. Some commenters expressed concern about NWP 27 being used to authorize nutrient and sediment reduction features that are not aquatic habitat restoration or enhancement activities. Green infrastructure uses a combination of the natural environment and engineered features to help improve water quality and conserve ecosystem functions and services, to benefit people and wildlife.
This NWP is reissued with the modifications discussed above.
NWP 44.
Several commenters said that mining activities result in more than minimal individual and cumulative adverse environmental effects, and should require individual permits. One commenter recommended that the Corps issue a separate NWP for aggregate mining activities with a higher acreage limit. A couple of commenters said that the limits for NWP 44 should be based on impacts instead of losses of waters of the United States. One commenter suggested reducing the acreage limit to
The terms and conditions of this NWP, including the
Because of the types of waterbodies in which these activities are conducted (
We have modified the fourth paragraph as follows, to be consistent with the other NWPs that have similar terms: “The discharge must not cause the loss of more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds the district engineer waives the 300 linear foot limit by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects.”
This NWP is reissued with the modification discussed above.
NWP 45.
One commenter said this NWP should not authorize restoration or repair activities involving structures waterward of the ordinary high water mark unless there is an immediate threat to the primary structure or associated infrastructure. One commenter recommended requiring the use of upland material to restore upland areas. One commenter asserted that the repair of upland areas damaged as a result of natural disasters should require individual permits. Another commenter stated that living shorelines should be encouraged as an alternative to restoring the affected upland areas and protecting them with hard bank stabilization techniques. One commenter said these activities should require advance notice to tribes. A commenter said that this NWP should state it does not authorize rerouting a stream to a historic course or alignment.
Any structures placed in navigable waters of the United States (
As an alternative to using this NWP, the property owner can approach mitigating the damage done by the discrete event in a different way. He or she can propose to construct a living shoreline and submit a PCN for NWP 54 authorization. Alternatively, he or she can propose another method of bank stabilization that might be authorized by NWP 13. Corps districts have consulted with tribes on the 2017 NWPs. These consultations may result in regional conditions on this NWP or other NWPs that ensure that the NWPs do not cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. These consultations may also result in coordination procedures to seek a tribe's views on a PCN for a proposed NWP 45 activity. This NWP only authorizes repair of upland areas damaged by storms, floods, or other discrete events. It does not authorize the relocation or rerouting of streams.
One commenter said that minor dredging should be limited to 25 cubic yards. Several commenters expressed support for the proposed modification that would allow district engineers to waive the 12-month deadline for submitting PCNs.
The NWP limits dredging to the minimum necessary to restore the damaged uplands and does not allow significant changes to the pre-event bottom contours of the waterbody. Limiting the dredging to 25 cubic yards could prevent removal of eroded material that would be used to restore the upland areas and restore the dimensions of the waterbody, if more than 25 cubic yards of material eroded ended up in the waterbody. We have adopted the proposed modification that allows the district engineer to waive the 12-month deadline.
This NWP is reissued as proposed.
NWP 46.
We have had a 1-acre limit for this NWP since it was first issued in 2007. This acreage limit differs from the 1/2-acre limit in a number of other NWPs because NWP 46 is limited to authorizing discharges of dredged or fill material into upland ditches that are determined to be waters of the United States. Pre-construction notification is required for all activities authorized by this NWP, to allow district engineers to evaluate the ecological functions and services being provided by specific ditches constructed in uplands and determine whether the adverse environmental effects caused by filling those ditches will be no more than minimal. When reviewing the PCN, the district engineer may also determine whether mitigation (
This NWP is reissued without change.
NWP 47. [Reserved].
NWP 48.
Several commenters expressed their support for the proposed reissuance of this NWP, including the proposed changes. Many commenters objected to the reissuance of this NWP, stating that it authorizes activities with substantial adverse environmental impacts. Several of these commenters said that commercial shellfish aquaculture activities should require individual permits. One commenter remarked that these activities should be authorized by regional general permits instead of an NWP, to take into account regional differences in aquaculture activities and the ecosystems in which they occur. Several commenters stated that NWP 48 does not authorize a category of activities that is similar in nature. Several commenters said that this NWP does not comply with section 404(e) of the Clean Water Act because it has no limits.
The terms and conditions of this NWP, including its PCN requirements, will ensure that commercial shellfish aquaculture activities authorized by this NWP will result in no more than minimal individual and cumulative adverse environmental effects. Any commercial shellfish aquaculture activity to be conducted by a non-federal permittee that might affect Endangered Species Act (ESA) listed species or designated critical habitat, or is located in designated critical habitat, requires a PCN under general condition 18, endangered species. The district engineer will evaluate the PCN, and if he or she determines the proposed activity may affect listed species or designated critical habitat, the district engineer will conduct ESA section 7 consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service. Division engineers may impose regional conditions to require PCNs for proposed NWP 48 activities that might affect treaty rights, tribal trust resources, submerged aquatic vegetation, or other concerns.
When reviewing a PCN, if the district engineer determines that the proposed activity, after considering mitigation proposed by the prospective permittee, will result in more than minimal individual and cumulative adverse environmental effects, he or she will exercise discretionary authority and require an individual permit for that activity. Commercial shellfish aquaculture activities occur in various regions of the country, and NWP 48 has been used in Washington State, Alabama, California, Florida, New Jersey, New York, Oregon, and South Carolina. The availability of this NWP reduces the need for the Corps districts in those states to develop regional general permits, and an NWP can promote national consistency in the authorization of these activities.
This NWP only authorizes discharges of dredged or fill material into waters of the United States and structures and work in navigable waters of the United States associated with commercial shellfish aquaculture activities. That is a specific category of activities that is similar in nature. Section 404(e) of the Clean Water Act does not require that general permits, including NWPs, have acreage or other numeric limits. Section 404(e) only requires that general permits authorize categories of activities that are similar in nature that have no more than minimal individual and cumulative adverse environmental effects.
One commenter said that the Corps should clarify the scope of its authority under section 404 of the Clean Water Act as it applies to commercial shellfish aquaculture activities. This commenter expressed the position that these activities are not regulated under section 404. One commenter requested that the Corps add a new Note to NWP 48 that would state that commercial shellfish aquaculture activities are not regulated under section 404 of the Clean Water Act. This commenter said that the Clean Water Act exempts normal farming activities from the requirement to obtain section 404 permits, and that on-going commercial shellfish aquaculture operations are normal farming operations eligible for the Clean Water Act section 404(f)(1)(A) exemption. This commenter remarked that NWP 48 should clearly state that the farming exemption applies to any commercial shellfish aquaculture operation in a project area where those activities have occurred during the past 100 years. This commenter also stated that bottom culture and off-bottom culture shellfish farming activities do not involve regulated discharges of dredged or fill material. This commenter said that sediment movement during shellfish harvesting activities are
Typical commercial shellfish aquaculture activities, including those described in the provisions of NWP 48, may involve discharges of dredged or fill material into waters of the United States. For example, mechanized harvesting activities typically involve a discharge of dredged or fill material, but the culture of oysters in bags suspended on long-lines, where there is no discharge of shell or gravel for bed preparation, typically does not result in a discharge of dredged or fill material and therefore does not require authorization under section 404 of the Clean Water Act. The term “discharge of dredged material” is defined at 33 CFR 323.2(d). The term “discharge of fill material” is defined at 33 CFR 323.3(f). The U.S. EPA has the authority to make the final determination as to which activities qualify for the exemptions in section 404(f) of the Clean Water Act. That authority is described in the 1989 “Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of the Geographic Jurisdiction of the Section 404 Program and the Application of the Exemptions Under Section 404(f) of the Clean Water Act.”
Several commenters said that commercial shellfish aquaculture activities cause minimal adverse environmental effects and that they can have beneficial effects on aquatic habitat and water quality. Many commenters stated that commercial shellfish aquaculture activities cause adverse impacts to intertidal zones, submerged aquatic vegetation (especially eelgrass), community structure and function of intertidal and subtidal habitats, species composition, sediment and water chemistry, soil integrity, impediments to migration, exclusion or displacement of native species, endangered species, competition for food and space, fish spawning and migration areas, and aesthetics.
The effects of commercial shellfish aquaculture activities on the structure, dynamics, and functions of marine and estuarine waters are complicated, and there has been much discussion in the scientific literature on whether those effects are beneficial or adverse (
While commercial shellfish aquaculture activities have some adverse effects on the biotic and abiotic components of coastal waters, including intertidal and subtidal areas, those adverse effects should to be considered in a cumulative effects context. Commercial shellfish aquaculture activities also provide some ecosystem functions and services, such as water filtration that removes plankton and particulates from the water column, secondary production that results in food, and habitat for other organisms in the waterbody including fish and invertebrates (Ruesink et al. 2005). Under the Council on Environmental Quality's definition of “cumulative impact” at 40 CFR 1508.7, cumulative impacts are due to the effects of past, present, and reasonably foreseeable future actions taken by federal, non-federal, and private entities. In 2010, over 123,000,000 people (39 percent of the population of the United States) were living in coastal counties (NOAA and U.S. Census Bureau 2013). Categories of activities that directly and indirectly affect coastal intertidal and subtidal habitats include land use/land cover changes in the watershed (
Terrestrial areas, which include coastal lands, have been substantially altered by people for millennia (Perring and Ellis 2013). The high proportion of people living along the coasts have directly and indirectly altered coastal waters and their productivity (Vitousek et al. 1997). All marine ecosystems have also been altered to varying degrees by people (Halpern et al. 2008). Nearly all landscapes have been influenced or altered to some extent by past and present use by human communities, resulting in cultural, semi-cultural, and natural landscapes (Clewell and Aronson 2013). The bays and other waterbodies in which commercial shellfish aquaculture activities take place can be considered semi-cultural ecosystems because of their use by people over long periods of time for various activities. While shellfish aquaculture activities have local and temporary effects on the structure, function, and dynamics of estuaries, they do not cause losses of intertidal and subtidal areas or degrade water quality, in contrast to the habitat losses and water quality degradation caused by other types of human activities in or near coastal waters, such as coastal development, pollution, wetland losses, and freshwater diversions (Dumbauld et al. 2009). According to Dumbauld et al. (2009), the disturbances caused by commercial shellfish aquaculture activities are similar in scope and intensity to natural disturbances such as storm events and disturbances caused by other ecosystem engineers such as eelgrass and burrowing shrimp.
Several commenters said that the Corps has not fully documented that commercial shellfish aquaculture activities provide water quality benefits similar to wild bivalves. Many commenters expressed concern about conversions of natural shorelines to commercial shellfish production and impacts to native shellfish, forage fish, salmon, eelgrass, and birds. One commenter stated that a certain amount of natural shoreline should be required between aquaculture sites. One commenter stated that NWP 48 should restrict the use of mechanical harvesting.
Both commercially-grown bivalves and wild bivalves are filter feeding molluscs with the same basic anatomy and physiology. Different oyster species have different filtration rates, with larger oyster species filtering more water (Ruesink et al. 2005). Bivalves influence water quality by filtering out particles from the water column and removing nutrients, which increases the clarity of the water in the waterbody and can help reduce anthropogenic causes of eutrophication (Dumbauld et al. 2009). While commercial shellfish aquaculture activities have some impacts on intertidal and subtidal habitats, fish, eelgrass, and birds, coastal development and other human activities in these waterbodies and the watersheds that drain to these waterbodies have substantial impacts on those resources as well (
Glascoe and Christy (2004) examined the effects of coastal urbanization on water quality, especially microbial contamination of shellfish production areas. The quality of coastal waters and their habitats are strongly influenced by coastal development, and the pollution generated by the people that live in coastal areas (Glascoe and Christy 2004). They found that non-point source pollution, including pollution from stormwater runoff, wastes generated by livestock on land-based farms, and failing on-site septic systems, is the leading cause of declines in water quality in shellfish growing areas. Point source discharges from industrial and municipal wastewater systems also contribute to declining water quality in estuaries where shellfish production occurs (Glascoe and Christy 2004). While commercial shellfish aquaculture activities do have some adverse effects on eelgrass and other species that inhabit coastal waters, especially competition for space (Tallis et al. 2009), there are also substantial adverse effects caused by coastal land use and land cover changes, other uses of coastal lands and waters by people, and the activities of people who live in these coastal watersheds, especially the pollution they generate through those activities.
Division engineers can also add regional conditions to ensure that mechanical harvesting activities that require Department of the Army authorization result in no more than minimal individual and cumulative adverse environmental effects.
Several commenters asserted that the use of canopy nets has caused extensive modification of shorelines. They said these nets also make it difficult for birds to feed and may trap birds. One commenter stated that commercial shellfish aquaculture operators should not be allowed to harass birds and use large canopy net to keep birds from feeding on planted shellfish. One commenter remarked that the Corps
The use of canopy nets and their effects on birds are more appropriately addressed by district engineers on a case-by-case basis if the use of canopy nets is directly linked to commercial shellfish aquaculture activities that require DA authorization. General condition 19 addresses the requirements of the Migratory Bird Treaty Act. The Corps does not have the authority to regulate discharges of pesticides. Discharges of pesticides may require authorization by states or the U.S. EPA under section 402 of the Clean Water Act. Division engineers can impose regional conditions to address the use of plastics, if plastic materials are used for the activities regulated under the Corps' authorities.
Invasions of species from one area to another is a natural biological phenomenon, while human activities have greatly sped up the rates of those invasions (Vitousek et al. 1997). Introductions of non-native species occur through a variety of mechanisms, such as land use/land cover changes, commerce (
Many commenters also said that there has not be a sufficient cumulative impact analysis conducted for NWP 48. One commenter said that the Corps needs to track cumulative impacts of these activities.
The cumulative effects analyses prepared by Corps Headquarters for the reissuance of this NWP were done in accordance with the definitions of “cumulative impact” provided in the applicable federal regulations. For the environmental assessment in the national decision document, we used the definition of “cumulative impact” in the Council on Environmental Quality's NEPA regulations at 40 CFR 1508.7. For the 404(b)(1) Guidelines analysis in the national decision document, we predicted cumulative effects using the approach specified at 40 CFR 230.7(b)(3), which states that the permitting authority is to predict the number of activities expected to occur until the general permit expires. Corps districts track the use of NWP 48 and other NWPs in our automated information system, ORM2. In ORM2, we track NWP activities that require PCNs as well as NWP activities that do not require PCNs but are voluntarily reported to Corps districts in cases where the project proponents want written verifications from the Corps.
Many commenters objected to the proposed definition of “new commercial shellfish aquaculture operation” which stated that it is “an operation in an area where commercial shellfish aquaculture activities have not been conducted during the past 100 years.” Many commenters objected to using 100 years as a threshold for identifying new commercial shellfish aquaculture activities. These commenters stated that the proposed definition would greatly expand fallow shellfish aquaculture areas, which they assert have recovered to their former natural state. Several of these commenters said that the proposed definition “grandfathers” commercial shellfish aquaculture operations, in contrast to the five year limits of other NWPs. One commenter recommended changing the threshold from 100 years to 5 years and another commenter suggested changing it to 4 years. Several commenters objected to paragraph (d) of the proposed NWP, which prohibits commercial shellfish aquaculture activities that directly affect more than
Paragraph (d) of the proposed NWP 48 is linked to the proposed definition of “new commercial shellfish aquaculture operation” in the first paragraph of the proposed NWP as well as the definition of “project area.” Our intent with the definition of “new commercial shellfish aquaculture operation” and the 100-year period is to recognize that many of these activities have taken place over long periods of time, even though some sections of project areas may have been fallow for a number of years. The long time frame provided by the 100-year period is also in recognition that commercial shellfish aquaculture activities do not cause losses of intertidal and subtidal habitats and that components of those intertidal and subtidal ecosystems (
In addition, commercial shellfish aquaculture activities and submerged aquatic vegetation have been shown to co-exist with each other. The combination of shellfish and submerged aquatic vegetation provides a number of ecosystem functions and services (Dumbauld and McCoy 2015). Submerged aquatic vegetation is resilient to disturbances caused by oyster aquaculture activities, and the disturbances caused by oyster aquaculture activities are comparable to natural disturbances caused by winter storms (Dumbauld and McCoy 2015). Intertidal and subtidal marine and estuarine ecosystems, as well as other ecosystems, are dynamic, not static. As long as ecosystems are not too degraded by human activities and other environmental factors, they have resilience to recover after disturbances. Compared to the disturbances and degradation caused by coastal development, pollution, and other human activities in coastal areas, commercial shellfish aquaculture activities present relatively mild disturbances to estuarine and marine ecosystems. Dumbauld et al. (2009) presents a review of empirical evidence of the resilience of estuarine ecosystems and their recovery (including the
One commenter expressed concern that the proposed definition of “new commercial shellfish aquaculture operation” would adversely affect treaty rights. One commenter said that the Corps has no legal basis to apply the 100-year threshold to tribal uses or treaty rights. Several commenters recommended reverting back to the requirements in the 2007 NWP 48, which limited commercial shellfish aquaculture operations to the “the area of waters of the United States occupied by the existing operation.” These commenters also suggested an alternative of limiting new commercial shellfish aquaculture activities to areas where the operator can document that those areas have been part of a regular rotation of cultivation. One commenter stated that
The definition of “project area” is focused on the geographic area in which the operator is authorized to conduct commercial shellfish aquaculture activities through a variety of instruments, including treaties. All NWP activities, including NWP 48 activities, must comply with general condition 17, tribal rights. General condition 17 has been modified to state that no NWP activity may cause more than minimal adverse effects to tribal rights (including treaty rights), protected tribal resources, or tribal lands. Division engineers can add regional conditions to this NWP to ensure that commercial shellfish aquaculture activities do not result in more than minimal adverse effects on tribal rights. These regional conditions may require PCNs for activities that might have the potential to affect tribal rights (including treaty rights), protected tribal resources, or tribal lands, to provide district engineers the opportunity to consult with the appropriate tribe(s) to ensure that the NWP activity complies with general condition 17. If the district engineer is uncertain whether a proposed NWP 48 activity might cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands, he or she should consult with the appropriate tribe or tribes, as well as his or her Office of Counsel staff, to understand the relevant treaty or treaties and applicable case law when determining the applicability of NWP 48.
We do not agree that NWP 48 should revert to the 2007 terms and conditions of that NWP, which limited the project area to the area for an existing commercial shellfish aquaculture activity. After the experience of implementing the 2007 and 2012 versions of NWP 48, as well as our understanding of the no more than minimal adverse environmental effects caused by these activities, we believe the definition of project area in this NWP, as well as the 100-year threshold, is appropriate to allow long established commercial shellfish aquaculture operations to be authorized by this NWP. This approach takes into account the dynamic nature of these operations over space and time, and does not discourage shellfish growers from letting portions of their project areas go fallow for periods of time.
Nationwide permits, as well as other DA permits, do not grant any property rights or exclusive privileges (see 33 CFR 330.4(b)(3) and 33 CFR 325, Appendix A). If the operator has an enforceable property interest established through a lease or permit issued by an appropriate state or local government agency, a treaty, or any easement, lease, deed, contract, or other legally binding agreement, then the activity can be authorized by NWP 48 as long as the operator complies with all applicable terms and conditions of the NWP, including regional conditions imposed by the division engineer and activity-specific conditions imposed by the district engineer. As discussed above, we believe that commercial shellfish aquaculture activities that comply with the terms and conditions of NWP 48 will have no more than minimal individual and cumulative adverse environmental effects because the disturbances caused by these activities on intertidal and subtidal ecosystems are temporary and those ecosystems have demonstrated their ability to recover from those temporary disturbances. These activities will cause little change to the environmental baseline of these intertidal and subtidal areas. They cause far less change to the environmental baseline than the adverse effects caused by development activities, pollution, and changing hydrology that results from the people living and working in the watersheds that drain to coastal waters where commercial shellfish aquaculture activities occur. To comply with the requirements for general permits issued under its authorities (
The 100-year threshold is used only to identify new commercial shellfish aquaculture activities for the purposes of applying the
A couple of commenters supported the proposed 100-year threshold for identifying new commercial shellfish aquaculture operations because portions of shellfish farms lie fallow for extended periods of time. One commenter suggested modifying the definition to refer to a “project area” instead of an “area” because the term “project area” is used throughout the NWP. This commenter said that the general term “area” could be interpreted as applying to a smaller portion of the “project area.” This commenter also recommended using the term “project area” in paragraph (d) of this NWP.
We have changed “an area” to “a project area” to consistently refer to
One commenter referenced NWPs 19 and 27 and their restrictions or prohibitions of impacts to submerged aquatic vegetation and said that similar limitations should be placed on NWP 48. One commenter stated that commercial shellfish aquaculture activities should be separated by submerged aquatic vegetation beds by buffers that are a minimum of 25 feet wide. One commenter said that the Corps has ignored the recommendations of other federal agencies relating to the protection of eelgrass. One commenter stated that this NWP should impose strict limits on these activities.
Nationwide permit 19 prohibits dredging in submerged aquatic vegetation because the dredging may result in water depths in which the submerged aquatic vegetation might take a long time to recover. Nationwide permit 27 authorizes aquatic habitat restoration, enhancement, and establishment activities, as long as those activities result in net increases in aquatic resource functions and services. Nationwide permit 27 prohibits the conversion of tidal wetlands to other uses, including the explicit prohibition against the construction of oyster habitat in vegetated tidal waters, to help ensure that there are not trade-offs that will result in net decreases in aquatic resource functions and services. The terms and conditions of NWP 48 serve a different purpose: to authorize commercial shellfish aquaculture activities that require DA authorization and result in no more than minimal individual and cumulative adverse environmental effects. In areas where there are concerns about cumulative effects to eelgrass or other species inhabiting areas where commercial shellfish aquaculture activities occur, division engineers can impose regional conditions to restrict or prohibit the use of this NWP.
One commenter stated that commercial shellfish aquaculture activities should be at least 100 feet from spawning areas to protect the species that spawn in those areas. In addition, this commenter said that this NWP should impose time-of-year restrictions to minimize impacts during spawning seasons. One commenter said that NWP 48 should not authorize activities that involve the cultivation of non-native species.
General condition 3, spawning areas, requires NWP activities to avoid, to the maximum extent practicable, being conducted in spawning areas during spawning seasons. We do not believe it is necessary, at a national level, to impose a buffer from spawning areas. Division engineers may impose regional conditions to restrict or prohibit NWP activities during certain periods during a year, such as spawning seasons. District engineers can impose similar conditions on specific NWP activities by adding conditions to the NWP authorization on a case-by-case basis. We do not agree that NWP 48 should be limited to the cultivation of native shellfish species. Five of the nine species of shellfish commonly cultivated on the west coast for commercial production are native species, and the other four species are from Europe or Asia. On the west coast, introduced shellfish species have been cultivated for decades (Ruesink et al. 2006), and are an important commercial commodity that provides more food for people than native oyster species.
One commenter said that the definition of “project area” could be interpreted in two different ways. One interpretation could be that the project area is the area in which an agreement specifically authorizes the operator to conduct aquaculture activities. Another interpretation could be that the project area is the area where a legally binding agreement establishes an enforceable property interest for the operator. This commenter stated that the proposed definition could mean that anyone who has a property interest in tidelands is also authorized to conduct commercial shellfish aquaculture activities. This commenter suggested modifying the definition of project area as: “the area in which the operator conducts commercial shellfish aquaculture activities, as authorized by a lease or permit or other legally binding agreement.”
The definition of “project area” can be applied under either approach, depending on other laws and regulations that apply to areas that could be used for commercial shellfish aquaculture activities. An operator might not have an enforceable property interest because the state might own the subtidal lands that are needed for commercial shellfish aquaculture activities, but the state might issue a permit that allows that operator to conduct those activities on state submerged lands. In other states, the operator might be granted an enforceable property interest through an easement, lease, deed, contract, or other legally binding agreement to do commercial shellfish aquaculture. For example, in Washington State in 1895, the Bush and Callow Acts allowed nearly 19,000 acres of tidelands to be deeded for private ownership for the specific purpose of commercial shellfish aquaculture (Dumbauld et al. 2009). We believe the proposed definition is needed to provide clarity on the various types of instruments that could be used to establish an enforceable property interest for the grower, and provide flexibility to authorize these activities.
One commenter expressed support for the proposed definition of “project area” by including a lease or permit issued by an appropriate state or local government agency because such a lease or permit establishes a clear use or a clear intention of use of an area. A couple of commenters said that the definition of “project area” should not refer to deeds. One commenter said that in the State of Washington, large areas of tidelands were sold by the state that were made unsuitable for cultivation, but since those sales were made aquaculture practices have changed and those areas can now be used for cultivation.
A deed might be an appropriate instrument for conveying an enforceable property interest, depending on state law. If the tidelands can now be used for commercial shellfish aquaculture, even if they were unsuitable at the time the land was sold, then those activities can be authorized by NWP 48 if they require DA authorization.
One commenter requested that the NWP define “commercial shellfish aquaculture operations” and that the definition must not conflict with a tribe's treaty-secured rights to take shellfish. Another commenter suggested adding a definition of “existing activity,” and define that term as the
We do not think it is necessary to define the term “commercial shellfish aquaculture activity” in the text of the NWP. It is simply the commercial production of shellfish. General condition 17 states that NWP activities cannot cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. If there are disputes between operators with valid commercial shellfish aquaculture permits or leases or other enforceable property interests, and a tribe's rights under one or more treaties to take shellfish, those disputes need to be resolved by the appropriate authorities. It is not necessary to define “existing activity” in NWP 48 because the NWP is because NWP 48 authorizes existing commercial shellfish aquaculture activities as long as they have been conducted in the project area at some time during the past 100 years.
Two commenters voiced their support for the proposed changes to the PCN requirements for this NWP. Several commenters objected to the proposed removal of the PCN threshold for dredge harvesting, tilling, or harrowing in areas inhabited by submerged aquatic vegetation because they said submerged aquatic vegetation is important habitat. One commenter said the proposed removal of this PCN threshold is contrary to the Corps' and the Department of Defense's tribal consultation policies. One commenter said that a PCN should be required for an NWP 48 activity if the proposed activity will include a species that has never been cultivated in the waterbody, or the proposed activity occurs in a project area that has not been used for commercial shellfish aquaculture activities during the past 100 years.
We have determined it is no longer is necessary to require PCNs for dredge harvesting, tilling, or harrowing activities in areas inhabited by submerged aquatic vegetation because the submerged aquatic vegetation recovers after those disturbances occur. In a geographic area where dredge harvesting, tilling, or harrowing activities might result in more than minimal adverse effects to submerged aquatic vegetation, the division engineer can add regional conditions to this NWP to require PCNs for those activities. The removal of this PCN requirement is not contrary to Corps tribal consultation policies and the Department of Defense American Indian and Alaska Native Policy, because those policies do not directly address commercial shellfish aquaculture activities in areas inhabited by submerged aquatic vegetation. In addition, for the 2017 NWPs, Corps districts are consulting with tribes, and those consultations may result in regional conditions that address tribal concerns about impacts to submerged aquatic vegetation. Those consultations may also result in the development of procedures for coordinating NWP 48 PCNs with tribes before making decisions on whether to issue NWP 48 verifications to ensure that NWP 48 activities do not cause more that minimal adverse effects to treaty fishing rights or other tribal rights. A division engineer can impose a regional condition to require PCNs for dredge harvesting, tilling, or harrowing activities in areas inhabited by submerged aquatic vegetation, if he or she determines such a regional condition is necessary to ensure that NWP 48 activities cause no more than minimal individual and cumulative adverse environmental effects, which includes adverse effects to tribal rights (including treaty rights), protected tribal resources, and tribal lands. We have retained the proposed PCN thresholds in the final NWP.
Several commenters objected to the proposed removal of the PCN threshold for activities that involve a change from bottom culture to floating or suspended culture. One commenter stated that floating aquaculture facilities should be required to complete benthic surveys to adequately evaluate impacts to the benthos. Several commenters said that notification to tribes is important to avoid tribal treaty fishing access issues, especially in situations where the operator is proposing to change from bottom culture to suspended culture. These commenters stated that suspended culture can impact tribal net fisheries. One commenter stated that floating aquaculture disrupts the ability of the tribe to exercise their treaty rights as overwater structures interfere with net fisheries and takes away surface water areas of usual and accustomed fishing areas.
Because of the terms and conditions of this NWP, the activities it authorizes will result in no more than minimal individual and cumulative adverse environmental effects. The intertidal and subtidal habitats in which these activities occur are dynamic systems that recover after the short-term disturbances caused by commercial shellfish aquaculture activities and other short-term activities or natural events. The short-term disturbances caused by bottom culture versus floating culture are not substantive enough to warrant requiring PCNs for those changes in culture methods. Given the dynamic nature of these intertidal and subtidal ecosystems, the ecological benefits of commercial shellfish aquaculture activities, and the minimal disturbances those activities cause, we do not believe it is necessary to require benthic surveys. For the 2017 NWPs, Corps districts have been consulting with tribes to identify regional conditions to protect tribal rights (including treaty rights), protected tribal resources, or tribal lands and ensure compliance with revised general condition 17, tribal rights. District engineers can also develop coordination procedures with interested tribes to ensure that proposed NWP 48 activities do not cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands. If an operator is authorized to conduct a commercial shellfish aquaculture activity because he or she was granted a permit, lease, or other enforceable property interest, and there is a dispute regarding the effects of that activity on net fisheries conducted by tribes, then that dispute needs to be resolved by the appropriate authorities.
Two commenters objected to the proposed change in the PCN threshold from “new project area” to an “area that has not been used for commercial shellfish aquaculture activities during the past 100 years.” One commenter said tribes require notification and opportunity to comment on shellfish aquaculture projects as they may have impacts to treaty rights. One commenter said by defining new commercial shellfish aquaculture operations as operations occurring within the footprint of a previously authorized lease site within the past 100 years, almost all leases in North Carolina would be considered “new operations” and potentially require PCNs.
The proposed change in that PCN threshold is consistent with the proposed definition of “new commercial shellfish aquaculture operation.” For this NWP, Corps districts can develop coordination procedures with interested tribes to help district engineers determine whether proposed NWP 48 activities comply with general condition 17, tribal rights. Division engineers can add regional conditions to this NWP to require PCNs for NWP 48 activities that have the potential to affect treaty rights, so that districts can review those activities and consult with the tribes that might be affected. The definition of “new commercial shellfish aquaculture activities” and the associated PCN
Two commenters suggested adding text to paragraph describing the information to be included in an NWP 48 PCN. Their suggested text is: “No more than one pre-construction notification must be submitted for a commercial shellfish operation during the effective term of this permit. The PCN may include all species and culture activities that may occur on the project area during the effective term of the permit. If an operator intends to undertake unanticipated changes to the commercial shellfish operation during this period, and those changes involve activities regulated by the Corps, the operator may contact the Corps district to request a modification of the NWP verification, instead of submitting another PCN. If the Corps does not deny such a modification request within 14 days, it shall be deemed approved.” As an alternative to including this text in the terms of NWP 48, these commenters said that there could be a form signed by the operator in which he or she attests that there will be no changes in operation during the five year period this NWP is in effect.
We have added the suggested text to that paragraph, with some modifications. If the operator requests a modification of the NWP verification, he or she must wait for the verification letter from the district engineer. We cannot include a 14-day default approval of a proposed modification. For example, the proposed modification may trigger a need to re-initiate ESA section 7 consultation if the prior NWP verification was for an activity that required an activity-specific ESA section 7 consultation. The added text to the paragraph discussing the information to be included in a PCN is a more appropriate means of reducing the number of PCNs that need to be submitted during the five year period this NWP is in effect. The development of a new form would likely require review and approval under the Paperwork Reduction Act. The added text to the “Notification” paragraph is a more efficient alternative to developing a new form.
One commenter said that NWP 48 PCNs should include information demonstrating compliance with the limits on impacts to submerged aquatic vegetation, providing mitigation for impacts to submerged aquatic vegetation and other special aquatic sites. One commenter stated that PCNs should include recent surveys identifying eelgrass, macroalgae, and forage fish. Several commenters said that PCNs should be required for each commercial shellfish aquaculture operation (
As discussed above, we believe that the activities authorized by NWP 48 will have no more than minimal individual and cumulative adverse environmental effects on submerged aquatic vegetation and other special aquatic sites. The only limit to impacts to submerged aquatic vegetation is the
Many commenters said that mitigation should be required for all impacts to submerged aquatic vegetation and other special aquatic sites. Several commenters asserted that compensatory mitigation should be required for conversions of intertidal and subtidal areas. Several commenters stated that if the NWP 48 activity does not require a PCN, then compensatory mitigation cannot be required. One commenter said that compensatory mitigation should be required for the following activities: Removal of embedded natural rocks, shells, et cetera; removal or relocation of aquatic life; clearing native aquatic vegetation; grading, filling or excavation of tidelands; adding gravel or shell to make tidelands suitable for aquaculture; operations near intertidal forage fish spawning sites; unnaturally high densities of filtering bivalves; plastic and canopy pollution from aquaculture gear; and the effects of periodic substrate harvest. Many commenters indicated that commercial shellfish aquaculture activities have adverse effects on aquatic ecosystems because they use large amounts of plastic. These plastics include PVC tubes, poly lines, and synthetic canopy nets. One commenter said that plastics pose threats to human and aquatic life. One commenter stated that the Corps failed to adequately describe the possible direct, indirect, and cumulative effects caused by commercial shellfish aquaculture activities or how Corps district might require mitigation measures to ensure that the adverse environmental effects of these activities are no more than minimal.
Commercial shellfish aquaculture activities are compatible with
Many commenters said that the terms and conditions of NWP 48 are not sufficient to protect species listed under the Endangered Species Act. Two commenters said that for NWP 48 the Corps must conduct ESA section 7 consultation and essential fish habitat consultation. One commenter stated that the Corps does not have enough staff to monitor compliance with those terms and conditions.
All activities authorized by this NWP must comply with general condition 18, endangered species. Paragraph (c) of general condition 18 requires that a non-federal permittee submit a PCN if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat. Corps districts will conduct ESA section 7 consultation for any activity proposed by a non-federal applicant that may affect listed species or designated critical habitat. The Corps district may conduct either formal or informal section 7 consultations, depending on whether there will be adverse effects to listed species or designated critical habitat. Corps districts may also conduct regional programmatic ESA section 7 consultations, if appropriate. For proposed NWP 48 activities that may adversely affect essential fish habitat, district engineers will conduct essential fish habitat consultation with the appropriate office of the National Marine Fisheries Service. District engineers may also conduct regional programmatic essential fish habitat consultations. Corps districts have sufficient staff and other resources to monitor compliance with the terms and conditions of NWP 48 and the other NWPs.
Several commenters stated that commercial shellfish aquaculture activities pose navigation hazards because netting can become caught on boat props and wind surfers, limiting the use of waters of safe recreation and navigation. Two commenters said that the Corps should coordinate with Puget Sound recovery goals and should use the Puget Sound model to identify where impacts from NWP 48 activities are likely to occur and may result in more than minimal individual and cumulative adverse environmental effects.
All NWP 48 activities must comply with general condition 1, navigation. The U.S. Coast Guard may require the operator to install aids to navigation to ensure that boaters and recreational users of the waterbody do not accidentally encroach on the structures in navigable used for the commercial shellfish aquaculture activities. Note 1 recommends that the permittee contact the U.S. Coast Guard. The locations for NWP 48 activities will be identified through permits or leases or other instruments or documents that establish enforceable property interests for the operators. Corps participation in Puget Sound recovery goals is more appropriately conducted at the Corps district level, in coordination with the Corps division office, rather than a rulemaking effort by Corps Headquarters (
Several commenters said that the draft decision document does not comply with the requirements of the National Environmental Policy Act (NEPA). Several commenters asserted that the reissuance of NWP 48 requires an environmental impact statement. Several commenters said that the draft decision document for NWP 48 did not provide sufficient information on cumulative impacts and the potential effects of NWP 48 activities, and insufficient analysis of information to support a no more than minimal adverse environmental effects determination. Commenters also stated that the decision document did not include monitoring requirements. One commenter noted that the draft decision document stated that NWP 48 would result in impacts to approximately 56,250 acres of waters of the United States, including wetlands, and no compensatory mitigation would be required to offset those impacts. Several commenters said that the Corps did not present any peer reviewed scientific studies that have examined the effects of commercial shellfish aquaculture on natural shorelines, aquatic species, and birds. One commenter said that the Corps made no effort to provide information to the public on impacts of past NWP 48 activities, and there is no system in place to monitor and evaluate these impacts.
We believe that the final decision document fully addresses the requirements of NEPA, the 404(b)(1) Guidelines, and the Corps' public interest review. We prepared an environmental assessment with a finding of no significant impact to fulfill NEPA requirements. Therefore, an environmental impact statement is not required for the reissuance of this NWP. In addition, we determined that the reissuance of this NWP complies with the 404(b)(1) Guidelines. We also determined that the reissuance of this NWP, with the modifications discussed above, is not contrary to the public interest.
The NWP does not include explicit monitoring requirements. District engineers can conduct compliance inspections on NWP 48 activities, to ensure that the operator is complying with all applicable terms and conditions of this NWP, including any regional conditions imposed by the division engineer and activity-specific conditions imposed by the district engineer. If the district engineer determines that the permittee is not complying with those terms and conditions, he or she will take appropriate action. While the decision document states that we estimate that NWP 48 activities will impact approximately 56,250 acres of jurisdictional waters and wetlands during the 5-year period this NWP is in effect, it is important to remember that the vast majority of activities authorized by this NWP are on-going recurring activities in designated project areas. Many of these activities have been conducted in these project areas for decades. It is also important to understand that these activities do not
In this final rule, as well as the decision document, we discuss the effects of commercial shellfish aquaculture on natural shorelines, aquatic species, and birds. The Corps is not required to provide the public with information on the past use of NWP 48. The NEPA cumulative effects analysis in the decision document for this NWP includes past commercial shellfish aquaculture activities as the present effects of past actions.
Several tribes requested the development of regional conditions to address tribal concerns about NWP 48 activities. One commenter said that regional conditions must be consistent with treaty-reserved rights and support protection of nearshore habitat. One commenter said that NWP 48 is used a lot in some areas of the country, and that commenter believes that high usage results in more than minimal cumulative adverse environmental effects. One commenter recommended transferring the responsibility for processing NWP 48 PCNs for commercial shellfish aquaculture activities in Washington State to either North Pacific Division or Corps Headquarters.
The development of regional conditions is achieved through efforts conducted by the division engineer and the Corps district, and the approval of the regional conditions is made under the division engineer's authority. For the 2017 NWPs, Corps districts conducted consultation with tribes to develop regional conditions for this NWP and other NWPs. Those regional conditions can help ensure compliance with general condition 17, tribal rights, so that no NWP 48 activity will cause more than minimal adverse effects on reserved tribal rights (including treaty rights), protected tribal resources, or tribal lands. Division engineers can also modify, suspend, or revoke this NWP in geographic areas where there may be more than minimal individual and cumulative adverse environmental effects. Examples of such geographic areas include specific waterbodies, watersheds, ecoregions, or counties. Review of NWP 48 PCNs is the responsibility of Corps districts, and Corps divisions have oversight over their districts.
This NWP is reissued with the modifications discussed above.
NWP 49.
The purpose of this NWP is to provide general permit authorization for the remining of an unreclaimed coal mining site. Requiring that these activities result in net increases in aquatic resource functions will help restore unreclaimed areas that might otherwise not be restored. The restoration of unreclaimed coal mining areas is one of the most effective ways to reverse degraded water quality in a watershed. District engineers will determine on a case-by-case basis using applicable regulations and guidance whether aquatic resources on previously mined areas are waters of the United States and therefore subject to the Clean Water Act. A former coal mining site might be a suitable mitigation bank or in-lieu fee project if the sponsor obtains the required approvals from the Corps in accordance with the procedures in 33 CFR 332.8. Rapid ecological assessment tools, or other tools, can be used to determine whether a proposed NWP 49 activity will result in net increases in aquatic resource functions. Such tools may include watershed considerations in determining increases in specific ecological functions or overall ecological condition.
One commenter asked if the net increase in aquatic resource functions applies to the new mining activities or collectively to the new mining and the remining activities. Several commenters requested clarification of the requirement that the total area disturbed by new mining must not exceed 40 percent of the total acreage covered by both the remined area and the area needed to do the reclamation of the previously mined area. One commenter said that the 40 percent requirement should be removed from this NWP.
The overall coal remining activity, which consists of the remining and reclamation activities, plus the new mining activities, must result in the required net increases in aquatic resource functions. The text of the NWP states that the “total area disturbed by new mining must not exceed 40 percent of the total acreage covered by both the remined area and the additional area necessary to carry out the reclamation of the previously mined area.” For examples illustrating the application of the 40 percent requirement, please see the preamble discussion for NWP 49 in the 2012 final NWPs, which were published in the February 21, 2012, issue of the
This NWP is reissued without change.
NWP 50.
The
This NWP is reissued as proposed.
NWP 51.
One commenter said that these activities should require individual permits, instead of being authorized by an NWP. One commenter recommended adding terms to this NWP to authorize temporary structures, fills, and work that are necessary to construct, expand, or modify land-based renewable energy generation facilities. One commenter stated that this NWP should not authorize facilities in channel migration zones and floodplains where there will be direct and indirect impacts to special status species. Several commenters said that Note 1 should be modified to include linear transportation projects
The
Activities authorized by this NWP must comply with general condition 10, fills in 100-year floodplains. Proposed activities that might affect ESA-listed species or designated critical habitat or are in the vicinity of such species or critical habitat, or are located in designated critical habitat, require PCNs if the project proponent is a non-federal permittee (see paragraph (c) of general condition 18). Division engineers may impose regional conditions that require PCNs for impacts to other types of special status species. We do not believe it is appropriate to add NWP 14 activities to Note 1. The purpose of Note 1 is to address utility lines that transmit the energy generated by these land-based renewable energy generation facilities to other areas. There is no need to split Note 1 into separate notes because those two sentences cover the general concept of utility lines that transmit the energy to other places.
Several commenters stated that the acreage limit should be increased to one acre. One commenter asked why NWP 51 has a
We are retaining the
The category of activities authorized by this NWP, and the adverse environmental effects of those activities, more closely resemble the categories of activities authorized by the NWPs that have the
Several commenters said the PCN threshold should be increased to
We are changing the PCN threshold to require PCNs for losses of greater than
This NWP is reissued with the modifications discussed above.
NWP 52.
One commenter said that these activities should require individual permits instead of being authorized by NWP. Several commenters opposed removing the limitation in NWP 52 to pilot projects. Several commenters supported removing the limitation to pilot projects. Several commenters asked whether wave-generated energy pilot projects are authorized by this NWP. Several commenters expressed support for adding pilot floating solar energy generation facilities. One commenter stated that activities that interfere with treaty fishing rights should be required to obtain individual permits.
We are retaining the limitation to pilot projects, to allow project proponents to collect data and determine whether they want to apply for individual permit authorization for permanent water-based renewable energy generation facilities. We have added wave energy devices to the list of types of water-based renewable energy generation pilot projects that can be authorized by this NWP. Activities authorized by this NWP must comply with general condition 17, tribal rights,
One commenter stated that the NWP should require the collection of robust data to inform future decisions. Another commenter said that the NWP should make a clear distinction between navigable waters of the United States subject to the Rivers and Harbors Act of 1899 and jurisdictional waters that are only subject to the Clean Water Act. Several commenters objected to Note 4, which states that hydrokinetic renewable energy generation projects that require authorization by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920 do not require separate DA authorization under section 10 of the Rivers and Harbors Act of 1899.
The Corps' review is limited to evaluating the adverse environmental effects caused by the permitted activities, and that review does not require extensive amounts of data collection. The collection of data to assess the renewable energy generation capabilities of these pilot projects is for the benefit of the project proponent, to help him or her decide whether to apply for individual permits for more permanent facilities. Navigable waters of the United States are defined at 33 CFR part 329, and under section 10 of the Rivers and Harbors Act of 1899, DA permits are required for structures and work in those waters. The term “structure” is defined at 33 CFR 322.2(b) and includes any obstacle or obstruction, as well as power transmission lines. Renewable energy generation facilities placed in navigable waters are structures under that definition. Under section 404 of the Clean Water Act, the Corps regulates discharges of dredged or fill material into waters of the United States. If the water-based renewable energy generation facility does not involve discharges of dredged or fill material into waters of the United States, then it does not require section 404 authorization. If it is in navigable waters, then it requires section 10 authorization which may be provided by this NWP. Note 4 is based on current law, and it needs to remain in the NWP. In the paragraph preceding the “Notification” paragraph we have changed the last word of that paragraph from “issued” to “required” because NWP applicability only occurs if FERC authorization is not required for the activity.
Several commenters voiced their support for the
We are retaining the
The renewable energy generation units authorized by this NWP require deeper waters and most fish will be able to avoid these units. Therefore, these units will have no more than minimal adverse effects on fish inhabiting those deep rivers. Since ephemeral streams only have flowing water during, and a short time after, precipitation events, they are not suitable for water-based renewable energy generation facilities. All activities authorized by this NWP require PCNs, which gives district engineers the opportunity to evaluate the effects these activities have on special aquatic sites. The loss of stream bed will be limited to losses caused by the construction of attendant features. While district engineers can waive the 300 linear foot limit for losses of stream bed if the affected streams are intermittent or ephemeral, they cannot waive the
Several commenters recommended requiring agency coordination for all NWP 52 PCNs. One commenter said the PCN threshold should be increased to
Agency coordination is only required for proposed NWP 52 activities that involve losses of greater than 300 linear feet of intermittent and ephemeral stream bed in cases where project proponents request waivers from district engineers. Because of the potential for more than minimal adverse effects on navigation to occur we believe that all activities authorized by this NWP should require PCNs.
We have also made some additional changes to this NWP. Some of these other changes are intended to be consistent with other NWPs. We have modified the third paragraph of this NWP by adding a sentence to explain that the loss of stream bed plus any other losses of jurisdictional waters and wetlands caused by the NWP activity cannot exceed
This NWP is reissued with the modifications discussed above.
NWP 53.
Several commenters said they support the issuance of this new NWP. A few commenters expressed their support because the proposed NWP would authorize the removal of dams larger than the small water control structures that can be removed under the authorization provided by NWP 27. Several commenters stated that the activities authorized by this new NWP would restore small streams, restore floodplain connectivity, improve recreational access, improve public safety, and improve fish passage. Some commenters stated that NWP 27 could be modified to authorize these activities instead of issuing a new NWP. Other commenters said that low-head dams could be removed using NWP 3. One commenter objected to the proposed NWP. One commenter said that due to the wide variety of dam shapes and sizes, individual permits should be required for the removal of low-head dams.
We believe that there should be a separate NWP to authorize the removal of low-head dams instead of modifying NWP 27 to authorize these activities. Nationwide permit 27 authorizes a broad range of aquatic habitat restoration and enhancement activities, including wetland and stream restoration and enhancement. By issuing a separate NWP, we can keep this NWP focused on low-head dam removal activities and allow division engineers to add regional conditions to address regional concerns specific to low-head dam removal activities. While we have modified NWP 3 to authorize the removal of previously authorized structures or fills, there is and would be limited use of NWP 3 to authorize low-head dam removal activities. Many low-head dams were constructed long before DA permits were required for those activities. Many of these dams were built in the 19th century or earlier, to provide water and power for towns and cities, as well as power for industry (Tschantz and Wright 2011). Since many low-head dams were not authorized by the Corps because they did not require such authorization at the time they were constructed, NWP 3 cannot be used to remove those dam structures. This NWP only authorizes the removal of low-head dams that meet the definition provided in the text of the NWP. The removal of small water control structures is still authorized by NWP 27. Other dam removal activities, including dams that are not low-head dams, will require individual permits unless the Corps district has issued a regional general permit to authorize the removal of those other types of dams.
One commenter expressed support for the proposed definition of “low-head dam” and stated that the removal of dams that do not meet this definition should require an individual permit. Many commenters requested clarification of the definition of “low-head dam.” Several commenters suggested adding a definition of the term “dam crest” to clarify that this refers to the top of the dam from left abutment to right abutment, including if present, an uncontrolled spillway.
To respond to comments received on the proposed definition of “low-head dam” we have expanded the definition to provide additional criteria to identify low-head dams that can be removed under the authorization provided by this NWP. The revised definition is as follows:
For the purposes of this NWP, the term “low-head dam” is defined as a dam built across a stream to pass flows from upstream over all, or nearly all, of the width of the dam crest on a continual and uncontrolled basis. (During a drought, there might not be water flowing over the dam crest.) In general, a low-head dam does not have a separate spillway or spillway gates but it may have an uncontrolled spillway. The dam crest is the top of the dam from left abutment to right abutment, and if present, an uncontrolled spillway. A low-head dam provides little storage function.
The revised definition is a functional definition to limit this NWP to the removal of low-head dams that will result in no more than minimal individual and cumulative adverse environmental effects. Under this definition a low-head dam does not function as a storage dam. While a low-head dam imposes a barrier to the movement of fish and other aquatic organisms, especially those species that travel upstream, it still allows continuous water flow and does not substantially disrupt sediment transport (Csiki and Rhoads 2014). Downstream sediment transport continues despite the presence of the low-head dam, especially during higher flow events (Fencl et al. 2015). Another important feature of this definition is that it explicitly states that the low-head dam has little storage function. Since these low-head dams do not provide much storage, the amount of sediment that might be stored in the impoundment will be small and therefore relatively small amounts of sediment will be transported downstream after the low-head dam structure is removed. An example of a low-head dam with small storage function is a 2-meter high low head dam in Pennsylvania, which had a 2-hour hydraulic residence time in the impoundment before the low-head dam was removed (Bushaw-Newton 2002).
We have also added a parenthetical to address situations where a drought may result in no water flowing over the dam crest. We did not want to preclude the use of this NWP in situations where an applicant or a district engineer did not observe water flowing over the dam crest during a prolonged drought. The abutment is the valley side or valley wall against which the dam structure is constructed. To respond to commenters, we also defined the term “dam crest.” There are some low-head dams that have uncontrolled spillways. For an uncontrolled spillway, the crest of the spillway is what controls which specific water flows are discharged from the dam. A controlled spillway has gates that are manipulated to control water flows from the dam. There may be some low-head dams that have small navigational locks or millrace diversions, but these will be relatively rare. However, if these features are present, the removal of those low-head dams may be authorized by this NWP. These features do not occur frequently enough to include them in the definition in the text of the NWP. The district engineer will use his or her discretion to determine whether a dam proposed for removal is a low-head dam as defined by this NWP.
One commenter recommended defining “low-head dam” by using standards for “small” dams established by the Federal Energy Regulatory Commission (FERC) and Federal Emergency Management Agency (FEMA). One commenter suggested defining “low-head dam” as a dam less than five meters in height. Another commenter recommended defining “low-head dam” as “a dam built across a stream designed to pass flows from upstream to downstream over the entire width of the dam crest on an uncontrolled basis, or any dam up to 25 feet in height.” This commenter said that the definition needs to be clear that a low head dam is designed and constructed to pass flows from upstream to downstream. One commenter said that the proposed rule appeared to treat low-head dams as run-of-the-river dams, which includes large hydroelectric dams that operate in a run-of-the-river mode. One commenter stated that the
As discussed above, we are using a functional definition to identify low-head dams for this NWP in order to limit the use of this NWP to dams that have the key features presented in the definition. There may be low-head dams slated for removal that district engineers, local agency staff, and others might not consider to be “small” but could still be removed under the authorization provided by this NWP because they satisfy the components of the definition provided in the NWP text. The term “small dam” and how it has been used in various contexts makes that term too ambiguous to use in this NWP. For example, as stated in the proposed rule, some people consider small dams to be dams that are not included in the National Inventory of Dams (see 81 FR 35204). There is a substantial amount of variability in those small dams because different states use different criteria to determine whether to include specific dams in the inventory. Definitions used by FERC and FEMA serve purposes other than river and stream restoration. As stated in the June 1, 2016, proposed rule, we proposed this NWP to provide a general permit to authorize a category of activities that restores rivers and streams and improves safety for users of small craft such as canoes and kayaks.
We believe that the functional definition provided in the NWP text is more effective than establishing a threshold height for identifying low-head dams. Dams that are five meters (16.4 feet) or 25 feet in height may have a substantial storage function. The definition in the final NWP does recognize that the low-head dam passes flows from upstream to downstream on a continual and uncontrolled basis, unless there is a drought. In the final NWP, we are providing more detail in the definition of “low-head dam” and are not using the term “run-of-the-river dam.” The preamble discussion of the proposed new NWP in the June 1, 2016, proposed rule was a general discussion of different dam classification approaches, and included a discussion of differences between run-of-the-river dams and storage dams. The preamble also included a general discussion of the scientific literature on dam removal. Some of the dam removal studies cited in the proposed rule examined the outcomes of removal of run-of-the-river dams or other types of dams, not just low-head dams. The removal of large hydropower run-of-the-river dams may be authorized by individual permits. The removal of small dam structures in headwater streams that do not meet the definition of low-head dam in this NWP might be authorized by NWP 27. If the proposed dam removal activity does not qualify for authorization under this NWP or NWP 27, then an individual permit will be required unless the Corps district has issued a regional general permit that could be used to authorize the proposed activity. District engineers can also issue regional general permits to authorize the removal of other types of dams, such as run-of-the-river dams, or fords or grade-control structures. The removal of fords or in-stream grade-control structures might also be authorized by NWP 27 as a stream restoration activity.
One commenter asked for more details on the scale of low-head dam removal that is authorized by this NWP. One commenter said that after the low-head dam is removed, it might be necessary to conduct a hydraulic analysis to update FEMA's Flood Insurance Rate Map for the affected area. One commenter stated that low-head dam removal projects will have both positive and negative impacts well beyond the dam footprint as a result of dewatering the former impoundment, releasing stored sediment, depositing surplus sediment on downstream benthic habitats, and changing the sediment dynamics. This commenter also said that low-head dam removal activities could affect state water rights, state owned stream channels, and other local jurisdictions. This commenter also said that lowering of water levels could impact state listed species. This commenter recommended coordinating PCNs for these activities with state resource agencies.
This NWP authorizes the removal of the low-head dam structure. It does not authorize discharges of dredged or fill material into waters of the United States or structures or work in navigable waters to restore the river or stream channel or its riparian areas after the low-head dam is removed. The restoration of the river or stream channel and associated riparian areas may be authorized by NWP 27, if the project proponent wants to do restoration work beyond removing the low-head dam. The project proponent may also choose to allow the river or stream and its riparian areas to recover through natural processes. Updating Flood Insurance Rate Maps after a low-head dam is removed is the responsibility of either the project proponent or the appropriate federal, state, or local floodplain management authority in that jurisdiction.
We recognize that the removal of low-head dams will have both positive and negative adverse impacts, generally with short-term adverse environmental effects and long-term beneficial environmental effects. Ecological restoration activities are intentional interventions intended to bring back ecological processes that were impaired, usually by human actions, to restore the historic continuity or ecological trajectory of the impaired ecosystem (Clewell and Aronson 2013). For this NWP, the intentional intervention is the removal of the low-head dam that has been impairing river and stream structure, functions, and dynamics. The removal of the low-head dam allows the structure, functions, and dynamics of the river or stream to recover in its contemporary watershed condition. The construction of the low-head dam resulted in long-term impairment of the river or stream by altering its hydrology and hydrodynamics, sediment transport processes, the movement of aquatic organisms through the stream network, and other ecological processes. The changes to river and stream structure, functions, and dynamics caused by the low-head dam resulted in losses or reductions of riverine functions and services. The adverse effects caused by the removal of low-head dams will be temporary, and the river or stream where the low-head dam was located will recover from those temporary adverse effects. Over time, as ecosystem development processes take place in the absence of the removed low-head dam, the structure, functions, and dynamics of the river or stream will recover. That recovery may not be full recovery if there were substantial changes to the watershed since the low-head dam was constructed (Doyle et al. 2005).
Low-head dam removal activities may require other authorizations from state governments. The authorization provided by this NWP does not obviate the need for the project proponent to obtain other federal, state, or local permits, approvals, or authorizations required by law (see item 2 of Section E, Further Information). Impacts to state listed species are more appropriately addressed by state agencies that are responsible for ensuring compliance with state laws and regulations. We do not believe it is necessary to require agency coordination for the PCNs for these activities. District engineers have the expertise to evaluate these activities,
One commenter said that this NWP should not authorize low-head dam removals if there are undesirable non-native species downstream of the low-head dam, because removal of dam structure would open a corridor to allow them to move upstream and colonize upstream reaches. This commenter also recommended that the NWP require staged dewatering of the impoundment if the low-head dam is located in a low-gradient stream. Another commenter suggested limiting removal activities to periods of low flow to prevent downstream adverse effects. This commenter recognized that many of the potential adverse effects are mitigated through the requirements of various NWP general conditions.
If the low-head dam is preventing harmful non-native species from reaching upstream reaches, the district engineer can exercise discretionary authority if he or she determines that the adverse environmental effects resulting from the removal of a barrier that prevents the migration of a harmful non-native species would be more than minimal. In such cases, an individual permit would be required and the district engineer could determine whether the proposed activity is not contrary to the public interest. Under the individual permit process, the district engineer could deny the authorization. In response to a PCN, a district engineer may add conditions to the NWP authorization to require staged dewatering of the impoundment to ensure that the individual and cumulative adverse environmental effects caused by the removal of the low-head dam are no more than minimal. Division engineers can add regional conditions to this NWP to limit low-head dam removal activities to certain times of the year in order to protect species during important life cycle events such as spawning seasons. The district engineer may also impose time-of-year restrictions on a case-by-case basis by adding conditions to a specific NWP authorization. We agree that a number of environmental concerns about these activities are already addressed by the NWP general conditions.
Several commenters stated that they agreed that district engineers should have discretion to determine whether sediment testing is necessary. One of these commenters said that the decision document for this NWP should make clear that questions related to sediment management should be addressed through the Clean Water Act section 401 water quality certification process. This commenter expressed concern that having district engineers require sediment testing would create a process that duplicates the state's water quality certification process.
The risk for contaminant-laden sediments is dependent on past and present uses of the watershed, the location of the impoundment, the history of excavating material from the impoundment, and sediment composition (Bushaw-Newton 2002). Prior to making such a determination, the district engineer should apply the guidance provided in Regulatory Guidance Letter 05–04, entitled: “Guidance on the Discharge of Sediments From or Through a Dam and the Breaching of Dams, for Purposes of Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.” That guidance will inform the district engineer whether the release of sediment from the low-head dam removal activity will result in a regulated discharge of dredged or fill material under section 404 of the Clean Water Act. If that sediment release will not result in a regulated discharge under section 404 of the Clean Water Act, the district engineer should defer to the state water quality agency regarding whether sediment testing is necessary to ensure compliance with applicable water quality standards. If release of sediments will result in a regulated discharge of dredged or fill material, the district engineer has the discretion to determine that there is a need to test sediment that might be stored in the impoundment for contaminants, based on a “reason to believe” approach similar to the EPA's inland testing manual for dredged material.
We agree with the commenters that said that decisions to require testing of sediments stored by low-head dams are more appropriately made by the agencies responsible for making water quality certification decisions under section 401 of the Clean Water Act. Under section 401, those agencies have broader authority over those concerns than the Corps because they can require water quality certification for any discharge into waters of the United States, not just discharges of dredged or fill material into those jurisdictional waters and wetlands. We have made the appropriate changes to the decision document for this NWP to recognize the water quality certification agencies' authorities to ensure that any discharges from low-head dam removal activities comply with applicable water quality standards. For example, one study of a low-head dam removal (Bushaw-Newton et al. 2002) found that the removal of the low-head dam did not cause a substantial change in water quality.
Several commenters stated that the phrase “under separate authorization” should be removed from second paragraph of the proposed NWP. These commenters said that this NWP should authorized beneficial uses of natural material that was removed during low-head dam removal. One of these commenters remarked that the phrase “in an area that has no waters of the United States” is unclear and recommended replacing it with “not in waters of the United States” for clarity.
We are retaining this provision of the NWP because the NWP is intended to only authorize the removal of these low-head dams. After the low-head dam is removed, rivers and streams can re-establish themselves through natural ecosystem development processes. If the project proponent wants to conduct activities to accelerate the re-establishment of the river or stream channel and its riparian area and use material from the removal of the low-head dam structure he or she can seek authorization under NWP 27 or another form of DA authorization. Under NWP 27 or other forms of DA authorization, the material removed from the dam structure may be used for the restoration activity. We are using the phrase “an area that has no waters of the United States” because it is consistent with other NWPs that have similar terms. An area in which material removed from the low-head dam is deposited might have no jurisdictional waters or wetlands, it might have some jurisdictional waters or wetlands, or it might consist entirely of jurisdictional waters and wetlands. If it is the last two situations, then another form of DA authorization would be needed to authorize the placement of that material into those jurisdictional waters and wetlands. That authorization may be another NWP, a regional general permit, or an individual permit.
One commenter suggested that the PCN should require a description of how the low-head dam will be removed, the timing of the removal activity, and how the removed materials will be disposed. One commenter said that timing of the low-head dam removal is important to protect aquatic organisms from sediment plumes generated by low-head dam removal. One commenter observed that the proposed NWP does not include a requirement to sample pre- and post-removal sediment loads. Several commenters said that PCNs for these activities should include site assessments of legacy sediments, which
The method, timing, and disposal practices for low-head dam removal should be determined on a case-by-case basis, and prospective permittees should describe these aspects of the proposed low-head dam removal in their PCNs. Paragraph (b)(4) of general condition 32 states that the prospective permittee may describe in the PCN proposed mitigation measures intended to reduce the adverse environmental effects caused by the NWP activity. For activities authorized by this NWP, this may include a description of how the low-head dam will be removed to avoid or minimize adverse environmental effects. For example, the project proponent may propose to conduct the low-head dam removal during a specific time of the year to protect aquatic species. He or she may also propose to remove the low-head dam in phases, to control releases of water and sediment from upstream of the dam. The PCN should also identify where the removed materials will be deposited, to ensure that they will not be deposited in waters of the United States unless the district engineer authorizes, under separate authorization, that disposal those jurisdictional waters and wetlands.
This NWP does not include a requirement to sample pre- and post-sediment loads because it is limited to low-head dams that have little storage capacity. Therefore, there will be little sediment stored in the low-head dam impoundments. Removal of the low-head dam structure will restore sediment transport functions to the river or stream, and any adverse effects caused by the small amount of sediment released from the removal of the low-head dam will be temporary as water flows transport and distribute that sediment downstream.
As discussed above, we agree with commenters that stated that agencies with responsibility for implementing section 401 of the Clean Water Act are the appropriate authorities for deciding whether sediment releases comply with applicable water quality standards. When evaluating water quality concerns during the PCN review process, the district engineer should also consider water quality in a watershed context, specifically adverse effects to water quality caused by non-point sources of pollution and stormwater discharges in that watershed. Under the Clean Water Act, the states have the authority to address non-point sources of pollution. Section 402(p) of the Clean Water Act addresses stormwater discharges. When considered in the context of non-point source pollution and stormwater pollution throughout the watershed that reaches the river or stream, the incremental contribution of pollutants associated with sediments that might be released as a result of low-head dam removal activities may be small.
One commenter said that these activities may result in a need to re-establish stream banks, and recommended that the PCN require information on how the applicant will re-establish a stable stream bank. Another commenter said that the PCN should describe how stream bank erosion will be prevented after the low-head dam is removed. One commenter requested that the PCN explain how the permittee will prevent streambank erosion once the water is drawn down.
After the low-head dam is removed, the river or stream channel upstream of the low-head dam will adjust to the change in hydrology and sediment transport. Downstream of the removed low-head dam, the river or stream channel will also adjust. For low-head dams with little storage function, there will likely be minor changes to river or stream channel bed morphology as the stream adjusts itself to a more natural water flow and sediment transport regime. The adjustment of a river or stream channel to low-head dam removal involves bed aggradation, bed degradation, bar development, and floodplain formation, to eventually resemble reference stream reaches (Bushaw-Newton et al. 2002). The low-head dam impaired those stream functions, and the removal of the low-head dam allows those functions to recover to the degree they can recover in a watershed that has changed during the period the low-head dam was in place (Doyle et al. 2005). After a dam is removed, vegetation rapidly colonizes the sediments exposed in the former impoundment (Orr and Stanley 2006). If the project proponent wants to conduct discharges of dredged or fill material into jurisdictional waters and wetlands or other regulated activities to repair the river or stream channel and riparian areas, then he or she can request authorization under NWP 27 or other form of DA authorization. We have added a Note to this NWP to make it clear that NWP 27 or another form of DA authorization is required for those other river or stream restoration activities, because this NWP only authorizes regulated activities conducted to remove the low-head dam.
The PCN does not need to describe how the permittee will re-establish stable stream banks. Rivers and streams are dynamic systems and erosion and deposition are natural processes. If the project proponent or riparian landowners want to conduct bank stabilization activities, they may seek authorization under NWP 13, other NWPs, or other forms of DA authorization. In the Note we added to this NWP, we also added a sentence to inform permittees that bank stabilization activities may be authorized by NWP 13. In the PCN, the prospective permittee may describe mitigation measures to minimize the adverse effects of the low-head dam removal activity. Such mitigation measures could include phased removal of the dam structure, sediment management activities, or conducting the low-head dam removal activity to a time of year when aquatic organisms are not spawning.
One commenter stated that compensatory mitigation should be required for wetland losses resulting from changes in hydrology caused by the removal of a low-head dam. One commenter stated that the PCN for these activities should describe how the project proponent will offset any losses of riparian wetlands that were established by the presence of the low-head dam. One commenter suggested that upstream wetlands should be monitored after the low-head dam is removed, to determine if there are adverse impacts to those wetlands. One commenter recommended adding a provision to this NWP similar to a provision of NWP 27 that states that compensatory mitigation is not required for those activities because they must result in net increases in aquatic resource functions and services. This commenter said such a provision is appropriate because any wetlands that were established as a result of the construction and operation of a low-head dam became established through losses of river and stream functions.
We have added a sentence to this NWP to state that, as a general rule, wetland compensatory mitigation is not required for low-head dam removal activities authorized by this NWP because these activities are restoration activities. Because the activities authorized by this NWP are intended to restore river and stream structure, functions, and dynamics, we do not believe that for most cases wetland compensatory mitigation should be required for losses of wetlands that were established as a result of the water
One commenter asked for clarification on how the Corps would determine whether a low-head dam is actually being used for its intended purpose. Many commenters said that the Corps should issue public notices for proposed low-head dam removals to solicit the views of upstream riparian landowners and to notify downstream landowners that additional water will be released in an effort to avoid property damage or hazards to people who use the river or stream for recreation.
This NWP only authorizes the removal of low-head dams. It does not authorize the construction or maintenance of low-head dams. Therefore, the current use of the low-head dam is not relevant to PCN review process because the district engineer is evaluating the reasonably foreseeable direct and indirect adverse environmental effects of the removal of the low-head dam. The NWP authorization would apply to the entity that has the authority to remove the low-head dam. That entity may be the dam owner or a federal, state, or local government agency if there is no private owner of the low-head dam. Riparian landowners upstream of the low-head dam should address their concerns to the owner of the low-head dam, or other party responsible for deciding whether to remove the low-head dam or conduct the repairs necessary to bring the low-head dam in compliance with current dam safety requirements.
We are limiting this NWP to the removal of low-head dams, which have little storage volume. There will be little additional water released downstream as the dam structure is removed. For low-head dams, storm flows pass over the dam crest (Tschantz and Wright 2011), and any damage to downstream properties is likely to be due to the higher stream discharges that occur during, and for a period of time after, those storm events. The removal of low-head dams will improve public safety, because these dams present a safety hazard to users of small craft such as canoes and kayaks (Tschantz and Wright 2011). We believe that limiting this NWP to low-head dams helps ensure that adverse effects on downstream landowners will be no more minimal. The removal of other types of dams (
Several commenters stated their support for requiring PCNs for all activities authorized by this NWP. One of these commenters said that the PCNs should be coordinated with the resource agencies.
We are requiring PCNs for all activities authorized by this NWP. There are a number of variables that need to be considered when evaluating dam removal activities, such as the physical characteristics of the dam, sediment loads, geomorphology of the stream system, hydrodynamics, and potential contaminants attached to fine sediments (Bushaw-Newton 2002). We believe that limiting this NWP to the removal of low-head dams reduces narrows the potential activity-specific expression of those variables so that these low-head dam removal activities will result in no more than minimal individual and cumulative adverse environmental effects. If the district engineer evaluates the activity-specific characteristics and determines the proposed activity will result in more than minimal adverse environmental effects, after considering mitigation proposed by the applicant, he or she will exercise discretionary authority and require an individual permit. We are not requiring agency coordination for these PCNs, but district engineers have the discretion to conduct agency coordination on a case-by-case basis if they need assistance from other agencies in making their decisions on whether to issue NWP verifications.
Proposed NWP A is issued as NWP 53, with the modifications discussed above.
NWP 54.
We received many comments supporting the issuance of this NWP and many comments opposing the issuance of this NWP. Many commenters stated that they should have the right to protect their waterfront property from erosion using whatever techniques authorized by NWP that they choose as long as those activities will have no more than minimal adverse environmental impacts. Many commenters voiced their concerns that this new NWP would mandate the use of living shorelines over other approaches to bank stabilization. These commenters said that landowners should continue to be allowed to use bulkheads or revetments for shore erosion control if they want to protect their land in that way. Several commenters stated that this NWP should be withdrawn and that all bank stabilization and shore erosion control activities should require individual permits. One commenter opposed this NWP stating that it has the potential to result in impacts to tribal treaty fishing rights.
We are issuing this NWP to provide general permit authorization for the construction of maintenance of living shorelines in order to offer landowners an alternative general permit authorization to the various types of bank stabilization activities authorized by NWP 13. Built infrastructure (
The strengths of living shorelines and other hybrid infrastructure shore protection approaches include the ability to use the best features of built and natural infrastructure, the provision of some ecological services other than erosion protection, the ability to design and implement innovative shore protection systems, and their ability to be used in coastal areas where there is not sufficient space for natural infrastructure (Sutton-Grier et al. 2015). Living shorelines may be an approach to adapting to sea level rise in coastal areas where there is space available for landward migration of fringe wetlands (Bilkovic et al. 2016). The weaknesses of living shorelines and other hybrid infrastructure approaches include: The present lack of empirical data demonstrating their performance, the need for more studies on the most effective designs for these hybrid approaches, their inability to provide all the ecological services that natural infrastructure supplies, the limited expertise of coastal planners and developers with these approaches, their negative impacts on species diversity, and the lack of cost-benefit data for these approaches (Sutton-Grier et al. 2015).
In these NWPs, we are not establishing a preference over one approach to shore erosion control over other approaches because there are numerous factors that must be considered when choosing an appropriate shore erosion control technique. The appropriate approach for shore erosion control is dependent on a variety of factors, such as substrate characteristics, site topography, water depths near the shore, fetch, and the extent of coastal development in the area (Saleh and Weinstein 2016). The type of waterbody is also important.
We are limiting this NWP to coastal waters, which consists of estuarine and marine waters and the Great Lakes. Another consideration in determining the appropriate shore erosion technique is the lack of space on urban coasts where there is not enough area to implement hybrid or natural approaches to shore erosion control (Sutton-Grier et al. 2015). We have revised the definition of “living shoreline” in this NWP using information in the Systems Approach to Geomorphic Engineering (SAGE) publication entitled: “Natural and structural measures for shoreline stabilization”
There are other factors to consider when evaluating appropriateness and feasibility of living shorelines (Bilkovic et al. 2016). The construction of a living shoreline may require grading the riparian area and removing riparian vegetation (Bilkovic et al. 2016), which provides a number of ecological functions and services (NRC 2002). The removal of that riparian vegetation may not be consistent with local water quality or habitat protection requirements (Bilkovic et al. 2016). As an alternative to grading the riparian area and removing the vegetation, the living shoreline components may be constructed further into the waterbody, which may require variances from state or local tidewater regulations and impair navigation (Bilkovic et a. 2016). Finally, the construction of living shorelines in subtidal waters can infringe on state subaqueous lands (Bilkovic et al. 2016) and affect the finfish, shellfish, and other resources that use those tidewaters and submerged lands.
We have added a Note to this NWP to inform prospective permittees that bank stabilization activities outside of coastal waters, such as bioengineering and vegetative stabilization in inland rivers and streams, may be authorized by NWP 13. This NWP authorizes the construction and maintenance of living shorelines, as long as those activities result in no more than minimal individual and cumulative adverse environmental effects. Paragraphs (e) and (f) of this NWP require structures and fills in jurisdictional waters and wetlands, including navigable waters, to be minimized to the maximum extent practicable on the project site (see also paragraph (a) of general condition 23, mitigation). The district engineer will review the PCN and if the proposed activity will result in more than minimal individual and cumulative adverse environmental effects after considering mitigation proposed by the applicant, the district engineer will exercise discretionary authority and require an individual permit. Activities authorized by this NWP must comply with general condition 17, tribal rights. Under that general condition, NWP activities cannot cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.
Several commenters said that this NWP should be withdrawn and that these activities should be authorized by modifying NWP 13. Many commenters expressed support for this proposed NWP because they are concerned that it is easier to obtain NWP 13 authorization than authorization to construct a living shoreline. These commenters said that under the current NWPs, living shorelines usually require individual permits, which discourage use of living shorelines as an alternative to hardened bank stabilization measures such as bulkheads, seawalls, and revetments. Several commenters said they support a new NWP that reduces the amount of time to obtain DA authorization for these activities. These commenters acknowledged the shorter timeframes in which an NWP authorization can be provided. One commenter noted that the issuance of this NWP would relieve regulatory burdens and support landowner preferences for the aesthetics and ecosystem services of living shorelines.
We have determined that it would be more appropriate to issue a separate NWP to authorize the construction and maintenance of living shorelines. Living shorelines are effective in specific areas of coastal waters, while NWP 13 authorizes a variety of bank stabilization approaches in a range of different categories of waters, from headwater streams to small lakes, larger rivers, high energy coastlines, and open ocean waters. The PCN thresholds differ between NWPs 13 and this new NWP because bank stabilization activities authorized by NWP 13 can often be constructed with small amounts of fill. On the other hand, living shorelines require larger amounts of fill to achieve desired grades for wave dissipation and vegetation establishment to reduce erosion, as well as fill structures such as sills to protect the sand fills and vegetation. If we had modified NWP 13 to authorize living shorelines, most proposed living shorelines would require written waivers from district engineers because they would exceed the limit of one cubic yard of fill material per running foot. Under this new NWP, written waivers from district engineers are only required if the structures or fills extend more than 30
Several commenters stated that living shorelines are not appropriate in the Great Lakes or other inland waters, especially inland lakes because long-term fluctuations of lake levels and major impacts of ice on the shorelines of these lakes.
We have modified the definition of “living shoreline” in the NWP to state that it can be used to authorize living shorelines in the Great Lakes. Living shorelines are not appropriate for streams, rivers, small lakes, and other inland waters. Vegetative stabilization and bioengineering may be used in inland waters to control erosion, and we have added a Note to this NWP to inform potential users of this NWP of the availability of NWP 13 to authorize those activities. If ice is likely to periodically damage or destroy the living shoreline and cause frequent maintenance and repair activities to be conducted after ice seasons, then other approaches to shore erosion control might be more appropriate for those sites.
Several commenters said that the NWP should use NOAA's definition of living shoreline. One commenter stated that under the certain conditions living shorelines can be used in higher energy shorelines. Another commenter said that properly engineered living shorelines can be used in any environment. One commenter recommending deleting the terms “low-energy” and “mid-energy” from the definition.
As discussed above, we have modified the definition of “living shoreline” to incorporate the site characteristics amenable to living shorelines that are identified in the 2015 NOAA–USACE SAGE publication that describes nature-based measures for shoreline protection. For the definition used for this NWP, we have used some concepts from NOAA's 2015 guidance on considerations for the use of living shorelines. We have utilized NOAA's definition with respect to a living shoreline being comprised mostly of native material, and incorporating living materials such as marsh plants with or without hard structures such as oyster reefs or stone sills.
We have deleted the following sentence from the first paragraph of the proposed NWP B: “ `Living shoreline' is a broad term that encompasses a range of shoreline stabilization techniques along estuarine coasts, bays, sheltered coastlines, and tributaries.” This sentence conveys an expansive view of living shorelines and where they are appropriate for use, and could lead to landowners and other entities considering the use of living shorelines on sites where they will not be appropriate or effective and where other approaches to erosion control should be used instead. We do not agree that living shorelines can be used in high energy coastlines. For those sites, substantial amounts of hard structures would be needed to protect the shoreline, and it is doubtful that there would be much of a sustainable living component in that higher energy erosive forces (Pilkey et al. 2012). We are not deleting the term “low- to mid-energy” from the definition because it is a critical component of the definition and it helps prospective permittees better understand where living shorelines are appropriate and feasible.
One commenter asked whether an oyster reef, by itself, could serve as the biological element of a living shoreline. This commenter said the text of this NWP should clarify that “reef structures” refers to oyster reefs. One commenter stated that this NWP should authorize restoration of sandy beaches in front of existing bulkheads.
An oyster reef can provide the biological element of a living shoreline. We have modified the first paragraph of this NWP to state that the reef structures may be inhabited by oysters or mussels. We have also modified paragraph (e) to refer to oyster or mussel reef structures. Sandy beaches restored in front of existing bulkheads may not be sustainable because the wave energy reflected from the bulkhead may erode the sand.
Many commenters said that living shorelines are not appropriate for man-made hydropower reservoirs where water levels are determined by the operator of the reservoir. Many commenters stated that living shorelines are not appropriate for shores subject to waves from boats, wind, and storms and that bulkheads and riprap are the appropriate erosion control measures for these types of sites. Several commenters opined that living shorelines are impractical for any waterbody that does not have a “no wake” restriction. Several commenters requested clarification on which other lakes and inland waters this NWP could be used. One commenter said this NWP should not authorize activities in inland freshwater lakes or rivers other than the Great Lakes and that NWPs 13 and 27 should be modified to allow for natural shoreline stabilization in inland waters.
We have modified the definition of “living shoreline” to make it clear that living shorelines are limited to coastal waters, including the Great Lakes. This NWP cannot be used to authorize erosion control activities in other lakes or inland waters, including hydropower reservoirs. In coastal waters, living shorelines may be successfully used for shorelines exposed to short fetches and subject to low- to mid-energy waves, including waves generated by moving vessels, wind, and storms. Landowners may seek advice from contractors and consultants to determine which shore erosion control approaches would be most appropriate and effective for their waterfront properties. Living shorelines can be effective for coastal shorelines subject to low to moderate boat wakes. We do not believe further clarification is necessary regarding which types of lakes living shorelines can be used because we are limiting this NWP to the Great Lakes and other coastal waters. We have added a Note to this NWP to notify prospective permittees of the availability of NWP 13 to authorize bank stabilization activities, including vegetative stabilization and bioengineering, in waters that are not coastal waters. Nationwide permit 27 only authorizes aquatic habitat restoration, enhancement, and establishment activities and does not authorize bank stabilization activities per se. Please see the preamble discussion of the modifications we made to NWP 27 to help ensure that it only authorizes aquatic habitat restoration, enhancement, and establishment activities.
One commenter requested justification of the following sentence, which appeared in the preamble of the proposed rule (81 FR 35206): “Living shorelines maintain the continuity of natural land-water interface and provide ecological benefits which hard bank stabilization structures do not, such as improved water quality, resilience to storms, and habitat for fish and wildlife.” This commenter stated that the statement should be removed or modified to improve its accuracy.
There is a growing number of studies and other documents that explain the features of living shorelines and the ecological services or benefits they can provide. Living shorelines, such as marsh-sill features, are nature-based measures to control shore erosion that
One commenter recommended changing the 30-foot limit in paragraph (a) to 70 feet. Another commenter said the 30-foot limit should be increased to 35 feet, or use a
We have changed paragraph (a) to measure the 30-foot encroachment from the mean low water line instead of the mean high water line in tidal waters. Since tidal range is not an issue in the Great Lakes, we are retaining the ordinary high water mark as the shoreline from which the 30-foot limit would be applied. This change should reduce the number of waivers needed by project proponents to construct oyster or mussel reef structures in subtidal waters. Using the highest astronomical tide to measure the 30-foot limit would result in nearly every living shoreline requiring a written waiver of that limit from the district engineer. We believe that using a linear foot limit for encroachments into the waterbody will be more effective at ensuring that these activities result in no more than minimal adverse environmental effects. For a narrow waterfront property an acreage limit could allow substantial encroachment into the waterbody. Using tidal ranges or water depths to limit encroachments of structures and fills into a waterbody would not be an effective approach for ensuring no more than minimal adverse environmental effects because substantial areas of the waterbody could be filled if it has shallow water depths that extend over a substantial distance.
One commenter said the 30-foot limit for this NWP should be changed to require fills to extend no more than 5 feet waterward from the edge of natural wetlands or to the mid-tide depth contour, whichever is deeper. This commenter also recommended that along shores where no wetlands exist, the landward edge of the sill should not extend greater than 30 feet waterward of the mean high water mark of tidal waterbodies or the ordinary high water mark of n non-tidal waterbodies. One commenter stated that grading steeper banks up to 30 feet into the water in an attempt to establish vegetation is likely to have the effect of altering the natural shoreline and extending the uplands. One commenter asked whether this NWP authorizes fills, especially sand fills, landward of sills, breakwaters, or other fill structures.
Changing the 30-foot limit to a 5-foot limit measured from the edge of existing wetlands would not be practical because there might not be vegetated wetlands along the existing shore, or the wetland vegetation might be sparse and the shore would need to be filled with sand and graded to construct a marsh fringe. The 30-foot limit, as measured from mean low water in tidal waters or the ordinary high water mark in non-tidal waters, is a simpler approach than trying to establish different limits based on the presence or absence of an existing marsh. As stated in the definition of “living shoreline” provided in the final NWP, living shorelines are constructed along shores with gentle slopes. Living shorelines may be less desirable to landowners with waterfront property that has steep slopes or bluffs if substantial grading of nearshore lands is necessary to install a living shoreline. We have modified paragraph (a) to include sand fills along with sills, breakwaters, or reefs, to make it clear that this NWP authorizes sand fills landward of sills, breakwaters, or reefs. Such fills may be necessary to achieve the proper shore elevations for the establishment of a wetland fringe, either through plantings or natural recruitment.
One commenter said that the 30 foot and 500 linear foot limits are too prescriptive, given the variability of shorelines across the United States. This commenter said that these limits should be determined through the regional conditioning process.
We are allowing the 30-foot and 500 linear foot limits to be waived by the district engineer on a case-by-case basis, after reviewing the PCN and coordinating that PCN with the resource agencies. For a waiver to occur, the district engineer has to issue a written determination with a finding that the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects. Division engineers can reduce these 30-foot and 500 linear foot limits through the regional conditioning process. If these limits and the ability to waive these limits make the use and administration of this NWP challenging in a particular geographic region, the district engineer can issue a regional general permit with different limits and procedures than this NWP and its general conditions.
One commenter recommended removing the 500 linear foot limit to encourage landowners and community groups to collectively implement living shorelines in a more cost effective manner. One commenter stated that activities in the Great Lakes that are over 500 feet long should require individual permits. One commenter stated that there should be no length limit on shoreline projects as long as those activities comply with state Coastal Zone Management Act (CZMA) policies.
The 500 linear foot limit does not preclude groups of adjoining landowners from working together to construct living shorelines at the same time, and working out arrangements with contractors to lower costs. For a proposed living shoreline in the Great Lakes that exceeds 500 feet in length, the district engineer will review the PCN and coordinate that PCN with the resource agencies. If the district engineer makes a written determination that the proposed living shoreline will result in no more than minimal
One commenter stated that the length limit should be defined as the total shoreline length of an activity minus any breaks in the treated shoreline. In other words, if the total length, minus the length of breaks, is greater than 500 feet, then a waiver would be required. One commenter said there should be no linear foot limits for this NWP. Several commenters asked how the length of a proposed activity would be calculated. One commenter suggested that as technology improves with the use of living shorelines, the 500 linear foot limit should be increased.
The 500 linear foot limit applies to the entire length of the treated shoreline. The treated shoreline is the footprint of the structures and fills for the living shoreline. If there are segments of the shore where no living shoreline will be constructed and those shore segments will be left in their current condition, then those segments are not counted towards the 500 linear foot limit. The 500 linear foot limit is necessary to ensure that these activities result in no more than minimal individual and cumulative adverse environmental effects. The waiver provision for this limit adds flexibility to the NWP, to allow district engineers to authorize activities that exceed the 500 linear foot limit without going through the individual permit process. To determine whether the 500 linear foot limit is exceeded, the length of treated shoreline for a single and complete project would be added. The 500 linear foot limit will be reevaluated during future rulemakings to reissue this NWP.
Several commenters recommended adding terms to this NWP to limit the use of oysters, mussels, and vegetation in living shoreline projects to native species. One commenter said that the NWP should allow natural processes to vegetate the living shoreline, instead of requiring vegetation to be planted. One commenter said that this NWP should authorize the use of mud for substrate to establish vegetation. Many commenters stated that this NWP should specify a minimum amount of living material to be required to meet the definition of living shoreline. One commenter asked for a definition of “native material.”
We have revised paragraph (d) of this NWP to state that native plants appropriate for site conditions, including salinity, must be used for living shorelines that have tidal or lacustrine fringe wetlands, if the site is planted by the permittee. Natural revegetation is an effective approach to establishing or re-establishing coastal fringe wetlands, as long as the appropriate sediment elevations are provided for the development of the fringe wetland (Mitsch and Gosselink 2015, Chapter 18). In different areas of the country, various oyster and mussel species have been introduced into waterbodies and provide important ecosystem functions and services. If those non-native molluscan species are already the waterbody, there is not likely to be a substantive benefit to prohibiting their use in reefs for living shorelines. Mud is not an appropriate substrate for living shorelines, because it will be rapidly transported by tides, waves, and currents. For constructed marshes in estuaries, coarse grain sands are often used to reduce the likelihood of erosion of the substrate used for marsh plantings. The term “native material” generally applies to the plant materials that may be used for living shorelines. It may also refer to other organic materials such as oyster shell, coir logs, or wood that may be used for the construction and maintenance of living shorelines (Bilkovic et al. 2016).
One commenter said that the NWP should allow the use of beneficial, non-native structural material as long as that material does not pose a risk to wildlife. One commenter stated that if fill material is used the fill material must meet water quality standards and support the target vegetation. One commenter stated that sills can be constructed of native material found in a particular part of the country or use other local native materials that may have higher biological value than traditional slab concrete. This commenter also said that placement of clean, soft, dredged sediment can be beneficially reused for living shorelines and placed in coastal areas that have subsided.
The use of non-native structural materials may be necessary for some living shorelines. General condition 6 requires that suitable materials be used for NWP activities. Sills are usually constructed with stone, rather than concrete, slabs. If dredged material is suitable for the construction or maintenance of living shorelines then that material may be used.
One commenter stated that this NWP should require planting plans that show that no invasive species will be planted. One commenter said that this NWP should allow natural recruitment to establish the wetland fringe, instead of requiring the permittee to install plants for the wetland fringe. One commenter suggested adding a condition to require that all habitats altered or created by a living shoreline be free from non-native invasive plants for a minimum of 5 years. One commenter said this NWP should have a condition prohibiting the introduction of non-native species.
Paragraph (d) requires the use of native plants appropriate for current site conditions, including salinity, to be used for living shorelines that will have a wetland fringe, if the permittee wants to install plants to facilitate the development of the wetland fringe. As discussed above, the permittee may also allow natural recruitment to vegetate the wetland fringe for the living shoreline. A condition requiring permittees, over a five-year period, to remove any non-native plants that colonize a living shoreline is not reasonably enforceable, so adding such a condition would be contrary to the Corps' policy for permit conditions at 33 CFR 325.4(a). There have been a number of non-native species introduced to coastal waters over time. Those non-native plants and animals have naturalized and are as likely to occupy living shorelines as they have established themselves in a variety of coastal habitats.
Several commenters stated that breakwaters and groins should not be authorized by this NWP. One commenter requested clarification of what constitutes an artificial reef. One commenter said that this NWP should include a design standard for sills. This commenter expressed concern that not having a design standard would result in hardening of the shoreline in a manner inconsistent with the intent of the proposed NWP.
Breakwaters and groins may be a necessary component of living shorelines in coastal environments subject to higher energy waves, boat wakes, and currents. For the purposes of this NWP, a reef structure may consist of oyster or mussel bags, or other fill structures occupied by oysters or mussels. We do not use the term artificial reef, to avoid confusion with artificial reefs constructed for other purposes under 33 CFR 322.5(b). There are a variety of approaches for constructing living shorelines, so it
One commenter said that many living shorelines are armored shorelines given a different name. This commenter stated that living shorelines have substantial adverse effects on estuarine beaches by altering their habitat characteristics and decreasing their ability to support estuarine communities. This commenter recommended requiring minimal use of larger hard, engineered structures, to prevent unneeded and damaging hard stabilization of these shorelines.
We have added a new paragraph (f) to this NWP to require sills, breakwaters, and other structures that are needed to protect the living shoreline's fringe wetlands to be the minimum size necessary to protect those wetlands. New paragraph (f) follows the recommendation in Bilkovic et al. (2016) which states that engineered structures should only be used when they are needed to support the wetland fringe and beach habitat of the living shoreline. Engineered structures such as sills and breakwaters should not be oversized relative to the living components (Bilkovic et al. 2016, Pilkey et al. 2012). Paragraph (a) of general condition 23, mitigation, also requires NWP activities, including the activities authorized by this NWP, to be designed and constructed to avoid and minimize permanent and temporary adverse effects to the maximum extent practicable on the project site.
One commenter remarked that if the proposed activity would compromise the flow of water, it should require an individual permit. One commenter stated that proposed paragraph (f) should require that any temporary impacts to living shorelines resulting from seawall repair or replacement should be exempt from mitigation requirements, as long as the area is restored after that seawall is repaired or replaced.
Living shorelines, especially living shorelines with sills or breakwaters, will have some effects on water flows because they are constructed to decrease the energy of incoming waves and other erosive water flows. Paragraph (f) of the proposed NWP has been redesignated as paragraph (g). This NWP requires that living shorelines be designed, constructed, and maintained so that they only have minimal adverse effects on water flows between the waterbody and the shore. Repair activities do not generally require compensatory mitigation. If a bulkhead or seawall is located landward of a living shoreline, and repair activities will have temporary impacts on the living shoreline, then the living shoreline should be repaired as well.
Several commenters said that paragraph (g) of the proposed NWP should be removed. One commenter stated that living shorelines should not be authorized in special aquatic sites.
We have removed the requirement to obtain a waiver for discharges of dredged or fill material into special aquatic sites. All activities authorized by this NWP require PCNs. Pre-construction notifications for this NWP require delineations of special aquatic sites (see the “Notification” paragraph of this NWP), as well as a delineation of other waters and wetlands on the project site (see paragraph (b)(4) of general condition 32). The construction and maintenance of living shorelines in special aquatic sites can be authorized by this NWP, as long as the permanent and temporary impacts to those special aquatic sites are minimized to the maximum extent practicable, and the district engineer determines that the adverse environmental effects are no more than minimal.
One commenter suggested adding language to the NWP to clarify that the maintenance of structures cannot increase the size of those structures beyond what was originally authorized. One commenter asked for clarification of the duration of this NWP and how that duration applies to long-term maintenance and repair activities. One commenter said paragraph (h) in the proposed NWP should be eliminated.
General condition 14 requires activities authorized by NWP to be properly maintained. The requirement for proper maintenance is emphasized by paragraph (h) of this NWP, because living shorelines require periodic maintenance to continue to serve as living shorelines. After storm events, it may be necessary to repair stone sills, breakwaters, reef structures, sand fills for fringe wetlands, and other components of the living shoreline. We have included maintenance activities in this NWP so that any required maintenance can be conducted under the authorization provided by this NWP. The NWP authorization applies for the length of time the authorized structures and fills are in place. If the landowner or other responsible party no longer wants to maintain the living shoreline, the structures and fills should be removed and the affected area restored.
Several commenters stated that beach nourishment to control erosion should be authorized by this NWP. We have not included beach nourishment in this NWP because they do not have a living component such as fringe wetland vegetation or oysters or mussels and are not considered living shorelines. When using the term “beach nourishment,” we are referring to larger scale beach fill projects, which usually occur on open coasts. This NWP does not authorize those beach restoration or replenishment activities because those types of shore protection approaches do not include a living component as required by the definition of “living shoreline.” For a living shoreline, there may be a portion of the living shoreline that consists of unvegetated sandy substrate (
Many commenters said that the PCN requirements should be changed to provide a more streamlined authorization process. Many commenters supported the proposed PCN thresholds. Several commenter stated that PCNs should not be required for activities authorized by this NWP. Several commenters said that the PCN thresholds should be changed to make them equivalent to the PCN thresholds for NWP 13. Several commenters stated that all activities authorized by this NWP should require PCNs because living shorelines result in adverse environmental effects that need to be evaluated on a case-by-case basis to ensure that they are no more than minimal, individually and cumulatively. One commenter supported the proposal to not require PCNs for maintenance activities, but stated that if native corals or other organisms settle on the structure to be repaired, then a PCN should be required and the relocation of corals should be required.
We are requiring PCNs for all activities authorized by this NWP because living shorelines usually require substantial amounts of fill material, and the structures and work may extend 30 feet into the waterbody, with potential impacts to navigation and public resources in submerged lands. Living shorelines often convert subtidal habitats to intertidal habitats, so there are ecological tradeoffs (
Several commenters suggested that the PCN require information on the types of materials to be used for the proposed activity and to specify the height and slope of the proposed activity. One commenter said that the PCN should include information on how the methods and timing of construction may affect threatened or endangered species. One commenter said that the PCN should include a detailed biological assessment of the habitat that is proposed to be altered by the proposed living shoreline. One commenter stated that the PCN should include an alternatives analysis and explain why installation of a living shoreline is needed to control erosion.
The PCN must include the information required in paragraph (b)(4) of general condition 32. The PCN must include a description of the proposed living shoreline. We also recommend that the PCN include sketches or plans of the proposed NWP activity. If, during the review of the PCN, the district engineer determines that the proposed activity may affect ESA-listed species or designated critical habitat, then he or she will conduct ESA section 7 consultation. The formal or informal ESA section 7 consultation may result in permit conditions that impose time-of-year restrictions and other conditions to protect listed species and critical habitat. Those consultations may also result in conditions that affect the construction methods to avoid or minimize impacts to listed species or critical habitat. We do not believe a detailed biological assessment of the potentially impacted coastal habitat is required. If ESA section 7 consultation is required for the proposed activity, then a biological assessment or biological evaluation will be prepared for that formal section 7 consultation. If informal section 7 consultation is conducted and a written concurrence is issued by the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service, the district engineer will add applicable conditions to the NWP authorization that were necessary to get the written concurrence for the informal consultation request. Activities authorized by NWPs do not require an alternatives analysis (see 40 CFR 230.7(b)(1)). However, paragraph (a) of general condition 23, mitigation, requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable on the project site.
Many commenters expressed support for the proposed waiver provisions and many other commenters stated their opposition to the proposed waiver provisions. One commenter said that waivers not be issued for any of these activities. This commenter stated that if waivers are included, they should be capped at 50 feet for structures or fills extending into the water from the mean high tide line or ordinary high water mark. This commenter also recommended capping the length along the shore to no more than 750 linear feet. Proposed activities exceeding these thresholds would require individual permits. This commenter also said there should be no waivers for discharges in special aquatic sites. One commenter stated that waiver requests should be coordinated with other natural resource agencies prior to issuing those waivers.
We have retained the waiver provisions for the 30-foot limit for structures and fills extending into the waterbody, and for the 500-foot limit. The waivers provide the district engineer with the flexibility to authorize a living shoreline activity by NWP if he or she determines in writing, after coordinating the PCN with the resource agencies, that the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects. We do not believe that caps on waivers are necessary for the numeric limits in paragraphs (a) and (b) because of the requirement for the district engineer to issue a written waiver determination. A proposed activity that requires a waiver of one or both of these limits is not authorized unless the district engineer issues that written determination and an NWP verification is issued to the permittee. If the district engineer does not issue that written waiver determination, then the waiver is not granted and an individual permit is required. As discussed above, we have removed the provision requiring waivers for discharges in special aquatic sites. Paragraph (d)(2)(iv) of general condition 32 states that requests for waivers for this NWP require agency coordination.
One commenter asked how it would be determined if a living shoreline is appropriate for a particular location. Several commenters suggested rewording the text of this NWP to include shoreline restoration, shoreline softening, and shoreline enhancement projects. One of these commenters said the Corps should collect data on all shoreline stabilization projects to share with applicants examples of successful projects. Two commenters stated that there should be an evaluation period for new living shorelines to determine their effectiveness. One commenter suggested requiring multi-landowner projects that would result in large-scale living shorelines.
The project proponent determines whether to propose a living shoreline to control erosion at the coastal shoreline. The project proponent may hire a consultant or contractor to evaluate options for controlling erosion and determine which approach would satisfy the project proponent's needs. A coastal waterfront property owner may feel safer with a bulkhead, seawall, or revetment (Popkin 2015). The district engineer may offer advice to the project proponent on potential alternatives for controlling erosion at the site (see 33 CFR 320.4(g)(2)). Shoreline restoration, shoreline softening, and shoreline enhancement projects likely mean different things to different people, so we have not changed the text of this NWP to incorporate those terms. For example, shoreline restoration may be an ecological restoration activity authorized by NWP 27 because it returns structure, functions, and dynamics to a shoreline that has been damaged or degraded by human activities. Shoreline softening may mean the removal of a bulkhead, seawall, or revetment and replacing those hard structures with a tidal fringe wetland protected by stone sills. Shoreline enhancement projects may be actions taken to improve ecological functions performed by the shore at a particular site. These activities are likely to serve different purposes and authorization by other NWPs may be appropriate, or those activities may require other forms of DA authorization.
It would be more appropriate for consultants and contractors to share information on successful living shoreline activities with landowners and other entities that are considering using living shorelines to protect their property or infrastructure. As this NWP is used over the next five years, we
One commenter stated that this NWP should require the use of qualified consultants and contractors. Another commenter suggested that this NWP require that the work to design the proposed living shoreline be done under the supervision of a certified ecological designer. Several commenters stated that Corps districts should work with local designers and agencies to determine the availability of living shoreline contractors in their geographic areas of responsibility. Several commenters said that this NWP should require consultation with local watershed planning entities, water supply entities, or other local government agencies to ensure that proposed NWP activities do not interfere with a local level project or issue. One commenter said that living shorelines should not be built on undeveloped shorelines. One commenter stated that this NWP should require the installation of reflectors or other types of markers at intervals along the living shoreline. One commenter said that the PCN should require a monitoring plan for these activities.
An NWP cannot specify qualifications for consultants and contractors. Project proponents need to do their due diligence in selecting a consultant or contractor. We cannot add terms to this NWP to require the living shoreline to be designed and constructed under the supervision of a certified ecological designer. General condition 7, water supply intakes, states that no NWP activity may occur in the proximity of a public water supply intake, unless it is needed to repair or improve that intake or for adjacent bank stabilization. Authorization of the construction and maintenance of living shorelines by this NWP does not eliminate the need for the permittee to obtain other required federal, state, or local permits, approvals, or authorizations that are required by law. If the shoreline is undeveloped, then there might not be a need for a living shoreline to control erosion. However, if the parcel in question is zoned for development, it may be developed in the near future and the developer or landowner might request NWP authorization for a living shoreline in advance of constructing a house or other structure on that parcel. Paragraph (b) of general condition 1, navigation, requires for authorized activities the installation of any safety lights or signals prescribed by the U.S. Coast Guard. District engineers can add conditions to this NWP to require monitoring of the living shoreline to ensure that it is developing the intended features. However, we do not believe a monitoring plan should be required for all PCNs for these activities.
One commenter suggested adding a provision to this NWP that requires living shorelines to be designed, constructed, and maintained for the specific lifetime of the project. This commenter stated that this NWP should authorize temporary fills for the construction of these activities, similar to the language in NWP 13. One commenter stated that working at low tide should not be a requirement of this NWP. One commenter requested a definition of the term “shoreline.” One commenter stated that this NWP should require the permittee to provide assurances that the structures are sound and that they will not pose hazards to navigation.
Paragraph (h) of this NWP requires the authorized activity to be properly maintained. We have modified this paragraph as follows: “The living shoreline must be properly maintained, which may require periodic repair of sills, breakwaters, and reefs, or replacing sand fills and replanting vegetation after severe storms or erosion events. This NWP authorizes those maintenance and repair activities, including any minor deviations necessary to address changing environmental conditions.” These changes are intended to authorize repair activities, plus minor deviations needed to response to changing environmental conditions such as an increase in sea level at the site, so that the living shoreline can continue to function as a living shoreline. We have removed the phrase “to the original permitted conditions” that was in the proposed paragraph (h) to recognize the dynamic nature of coastal shorelines and the likely need to adjust living shoreline projects over time as environmental conditions change.
All activities authorized by this NWP require PCNs, so using NWP 33 to authorize temporary structures or fills that are not covered by this NWP would not place any additional burdens on prospective permittees. Their PCNs would specify this NWP and NWP 33 as the NWPs for which they are seeking verification from the district engineer. We have not added any terms and conditions that require regulated activities to be conducted at low tide. A shoreline is where a land mass intersects with a waterbody. That intersection may be identified in a number of ways, such as a high tide line, mean high tide line, mean low tide line, or other criteria. Activities authorized by this NWP must comply with general condition 1, navigation. Under that general condition, the Corps may require the permittee to remove the authorized structures or work (see paragraph (c) of that general condition).
One commenter stated that if the proposed living shoreline will impact one resource type and replace it with another resource type, the proposed activity should only qualify for this NWP if the district engineer determines the resource type substitution represents a desirable ecological outcome for the affected system. One commenter said that this NWP should not authorize activities in areas with Endangered Species Act listed species or designated critical habitat. One commenter asked for clarification whether mitigation is required for activities authorized by this NWP. One commenter stated that mitigation should not be required for living shorelines even if those activities result in impacts greater than
All activities authorized by this NWP require PCNs, to provide district engineers the opportunity to review proposed activities to ensure that they result in no more than minimal individual and cumulative adverse environmental effects. We recognize that these activities will require ecological tradeoffs, as shallow water habitats are filled to construct features that reduce erosion, even though those features will have some living component such as fringe wetlands or oyster or mussel reefs and provide some ecological functions and services. Activities authorized by this NWP must comply with general condition 18, endangered species. District engineers will review PCNs and determine whether the proposed activities may affect ESA-listed species or designated critical habitat. For those activities that district engineers determine may affect listed species or designated critical habitat, they will conduct formal or informal ESA section 7 consultations.
District engineers may require mitigation for activities authorized by this NWP. If the district engineer
The construction and maintenance of a living shoreline could be considered by a district engineer to be a mitigation measure, especially if the project proponent proposes to replace a bulkhead, seawall, or revetment with a living shoreline to provide some additional ecological functions and services at a coastal site. But a living shoreline would not be considered compensatory mitigation because its primary purpose is shore erosion control, not aquatic resource restoration, enhancement, or preservation to offset unavoidable losses of jurisdictional waters or wetlands.
One commenter stated that the text of this NWP should make it clear that it authorizes the construction and maintenance of living shorelines on the west coast. More specifically, this commenter said that this NWP should authorize activities in bodies of water, such as the San Francisco Bay. One commenter remarked that the final NWP rule should recognize that coastal areas have other types of habitats, such as tidal marshes, mudflats, shellfish beds, submerged aquatic vegetation, microalgal and other vegetative beds. Many commenters expressed their support for the use of regional conditions to tailor this NWP to different geographic areas of the country.
This NWP authorizes the construction and maintenance of living shorelines in all coastal waters, not just the east and Gulf coasts. Approaches to designing and constructing living shorelines may vary by geographic region. Division engineers can impose regional conditions on this NWP to account for regional differences in aquatic resource functions and services, and potential regional impacts and benefits of living shorelines. San Francisco Bay is a coastal waterbody, so this NWP can be used to authorize living shorelines in that waterbody. There are many different types of habitats in coastal waters, and evaluation of impacts to the habitat types present at a specific site will be conducted during the PCN review process.
Proposed NWP B is issued as NWP 54, with the changes discussed above.
We received a number of comments recommending new general conditions for the NWPs. A few commenters suggested adding a new general condition that would require the permittee to clearly mark the limits of disturbance on the project site, or areas where the use of equipment would be excluded. A few commenters said that a new general condition should be added to require the permittee to provide post-construction reports that would include as-built plans, a description of the types of material discharged, the actual impacts, photo documentation of the completed activity, and a description of the compliance measures that were implemented to address the NWP general conditions.
District engineers can add conditions to NWP authorizations to require permittees to mark authorized limits of disturbance to avoid and minimize direct and indirect impacts to jurisdictional waters and wetlands. Because the NWPs authorize a wide variety of activities, many of which do not involve land disturbance activities, we do not think an NWP general condition is warranted. In general, compliance with the terms and conditions of the NWP verification are already addressed through the requirements of general condition 30, compliance certification. For an NWP authorization where permittee-responsible mitigation is required by the district engineer, permit conditions may be added to the NWP authorization or through the approved mitigation plan to require submission of as-built plans, photo documentation of the compensatory mitigation project, and other compensatory mitigation requirements (see 33 CFR 332.3(k) and 33 CFR 332.6(a)). It is not necessary for a permittee to address compliance with each NWP general condition through a post-construction report submitted to the district engineer.
One commenter recommended adding a general condition that would require reporting of any activity that involves water withdrawals, water withdrawal structures, or related appurtenances that do not require state wetland or stream permits. One commenter requested a new general condition that prohibits the use of treated wood except for framing structures above waters inhabited by salmonids. One commenter suggested adding a general condition that would require best management practices, such as horizontal directional drilling, the use of double silt fences, and doubling soil stabilization measures, in riparian areas to minimize impacts to mussels and fish during construction activities. Another commenter said that there should be a general condition that requires project areas to be assessed for the presence or absence of rare mussel habitat, pre-construction mussel surveys, and avoidance of direct disturbance of habitat and degradation of water quality when ESA-listed mussels and their habitat are found.
The Corps does regulate the withdrawal of water from waterbodies. Department of the Army authorization is required for structures in navigable waters subject to section 10 of the Rivers and Harbors Act of 1899, including structures that withdraw water from those waterbodies. If the waterbody is only subject to section 404 of the Clean Water Act, DA authorization is not required for a water intake structure unless there is an associated discharge of dredged or fill material into jurisdictional waters and wetlands that requires Clean Water Act section 404 authorization. Water intake structures that require DA authorization under section 10 of the Rivers and Harbors Act of 1899 and/or section 404 of the Clean Water Act may be authorized by NWP 7, which requires PCNs to Corps districts. The use of treated wood for activities authorized by NWP is more appropriately addressed by Corps districts on a case-by-case basis, after considering the specific NWP activity and its potential direct and indirect adverse environmental effects. Nationwide permit activities that might affect ESA-listed mussels or their designated critical habitat are addressed though compliance with general condition 18, endangered species. District engineers will conduct ESA section 7 consultation for any proposed NWP activity that they determine may affect listed mussel species or their designated critical habitat.
GC 1.
District engineers will determine on a case-by-case basis whether proposed impacts of NWP activities on navigation will be no more than minimal after considering site-specific circumstances. District engineers will also use their discretion to determine whether temporary obstructions to navigation that would block the transport of interstate of foreign commerce will have more than minimal adverse effects on navigation and would thus require individual permits. During the evaluation of the individual permit application, the district engineer could determine whether portage is an appropriate mitigation measure while the temporary obstruction is in place.
The general condition is adopted as proposed.
GC 2.
One commenter said that the general condition be revised to require avoidance and minimization of interference to all necessary life cycle movements of aquatic species indigenous to the waterbody. One commenter stated that this general condition should include additional requirements for proper culvert sizing to ensure unhindered fish passage and to reduce blow-outs that cause major impacts to river and stream channels. One commenter said that the stream bed should be returned to pre-construction contours unless the purpose of the NWP activity is to eliminate a fish barrier and restore the natural substrate of the stream and its contours. One commenter expressed concern that the minimal adverse environmental impacts required by this general condition are not being tracked or enforced, stating that NWP activities often disrupt necessary life cycle movements of aquatic life indigenous to the waterbody, including their migration.
Requiring avoidance and minimization of interference to all necessary life cycle movements of indigenous aquatic species in a waterbody is usually not practical or feasible. Road crossings and other fills in jurisdictional waters are likely to cause some interference to the necessary life cycle movements of indigenous aquatic species. At best, disruptions of movement should be reduced as much as is practicable. The purpose of this general condition is to ensure that the disruptions to the necessary life cycle movements of indigenous aquatic species are no more than minimal, unless the NWP activity's primary purpose is to impound water. Proper culvert sizing is more appropriately determined on a case-by-case basis, after considering site and watershed characteristics and climate, and the life cycle characteristics of the species indigenous to the waterbody. Large storm events will occasionally cause some authorized culverts to fail and become damaged or washed out, with adverse effects to downstream segments of the river or stream caused by those large flows.
The general condition requires the permittee to design the NWP activity so that it does not substantially disrupt the necessary life cycle movements of indigenous aquatic species, except under certain circumstances. It may not be practicable to return the stream bed to pre-construction contours because of site and engineering constraints, as well as costs. Those factors influence the practicability of road crossing options. The NWP activity should be constructed to allow expected high flows to continue unless its primary purpose is impound water or manage high flows (also see general condition 9). For some types of culverts, sediment transport should continue to maintain the natural stream substrate and general channel morphology. Activities authorized by NWP can have no more than minimal adverse effects on necessary aquatic life movements, and if a district engineer determines that a permittee is not complying, with the requirements of this general condition, he or she will take appropriate action. One action may be to require requiring remediation to ensure that the activity complies with general condition 2 and other applicable NWP general conditions or suspending. Another action could be to revoke the NWP authorization and require an individual permit for the activity if it substantially disrupts the necessary life cycle movements of indigenous aquatic species or otherwise cannot be conducted so that it has no more than minimal adverse environmental effects.
One commenter said this general condition should be more specific in terms of protocols to be used to ensure that NWP activities have no more than minimal adverse environmental effects. One commenter stated that there is a growing body of scientific literature that shows that a large percentage of culverted stream crossings across the country are not properly designed to allow for the safe passage of fish and other aquatic organisms. This commenter said there should be changes to this general condition to encourage the use of best management practices in the design, construction, modification, and replacement of bridges or culverts that cross waterbodies. This commenter recommended changing this general condition to require the use of stream-simulation principles to maintain or restore the waterbody's natural course, condition, capacity, and flows necessary to sustain the movement of those aquatic species. This commenter also said that this general condition should also require the use of open-bottom bridges and culverts whenever possible, or if the waterbody cannot be spanned with an open-bottom bridge or culvert the bottom of the bridge or culvert should be covered with natural substrate. This commenter also stated that the minimum crossing width must be 1.2 times the width of the waterbody from ordinary high water mark to ordinary high water mark. This commenter also said that the general condition should require the gradient or slope of the crossing structure to match the stream profile, so that the velocity and depth of water in the structure matches that of the stream. One commenter stated that this general condition should require maintenance of the natural bank full capacity or cross-sectional area of the stream channel.
Given the wide variation in river and stream structure, functions, and dynamics across the country, as well as the various geomorphic and hydrologic settings in which NWP activities are conducted, it is not possible to add more specific requirements to this general condition. Compliance with this general condition is more appropriately determined by district engineers on a case-by-case basis after considering the specific regional and site characteristics (
Given the wide variation in river and stream crossings across the country, the variability in the valleys in which those rivers and streams are located, and the need to consider hydrology and climate, it would not be appropriate to specify in this general condition a numeric minimum crossing width. It may also not be practicable to require, in all cases, that the gradient in the slope within the crossing structure to match the gradient or slope of the river or stream in the vicinity of the crossing. The purpose of this general condition is to ensure that adverse effects to aquatic life movements are no more than minimal. There may be methods to achieving that objective other than maintaining natural bank full capacity or the cross-sectional area of the stream channel. When reviewing PCNs, district engineers will evaluate proposed NWP activities to ensure that they comply with the requirements of this general condition.
The general condition is adopted as proposed.
GC 3.
It is not practical to completely avoid impacts to spawning areas. The purpose of this general condition is to require permittees to avoid, to the maximum extent practicable, conducting NWP activities in spawning areas during spawning seasons. This requirement helps minimize adverse effects to spawning activities of aquatic organisms. General condition 2, aquatic life movements, addresses the movement of aquatic organisms in the waterbody. This includes access of migratory species to spawning areas, such as upstream spawning areas used by anadromous salmon. The general condition already recognizes that activities distant from spawning areas can physically destroy important spawning areas because of sediment transport to downstream areas and deposition of sediment in those spawning areas. Those indirect adverse effects are prohibited by this general condition.
This general condition is adopted as proposed.
GC 4.
GC 5.
The term “concentrated shellfish bed” refers to shellfish beds inhabited by shellfish species, such as oysters, clams, and mussels. This general condition is not limited to marine or estuarine waters, but could also apply to fresh waters that support concentrated beds of native shellfish. This interpretation is supported by the history of this general condition. Prior to the 2000 NWPs, this general condition was focused on shellfish production beds. In 2000, we modified this general condition by changing the title from “Shellfish Production” to “Shellfish Beds” so that it would cover more than areas actively managed for shellfish production (see 65 FR 12868). It should also be noted that the general condition applies to NWP 27 which authorizes habitat restoration activities to benefit shellfish in both tidal and non-tidal waters including freshwater streams. There are regional variations in what constitutes a shellfish concentration depending on the species and habitat types present. The identification of concentrated shellfish populations, for the purposes of determining compliance with this general condition, is more appropriately conducted by district engineers using local criteria and methods.
Areas that have concentrated shellfish populations are not suitable for the construction of living shorelines, because this general condition prohibits NWP activities in those areas, except for activities authorized by NWPs 4 or 48. District engineers will review PCNs for NWP 54 activities to determine if the proposed activity is precluded from NWP authorization by general condition 5 because it occurs in an area of concentrated shellfish populations. If it is precluded, the district engineer will inform the project proponent that an individual permit will be required for the construction of the proposed living shoreline. This general condition applies to areas within a waterbody that have concentrated shellfish populations. It does not apply to other areas of the waterbody that do not have concentrated shellfish populations. If there is an extant shellfish reef, this general condition prohibits NWP activities, except for activities authorized by NWPs 4 and 48.
This general condition is adopted as proposed.
CG 6.
Whether tires or encapsulated flotation are unsuitable materials is at the district engineer's discretion. In addition, division engineers can add regional conditions to this NWP to provide regional examples of unsuitable materials that are prohibited by this general condition. This general condition is adopted as proposed.
GC 7.
The term “proximity” is to be applied using the commonly understood definition of that term (“very near, close” according to Merriam-Webster's Collegiate Dictionary, 10th edition). Therefore, the proposed NWP activity would have to be very near, or close to, the public water supply intake for
We do not agree that all NWP activities should be prohibited in water source protection areas for public water systems. NWP activities can be conducted in those areas with little or no minimal adverse effects to water quality. In addition, all NWPs that authorize discharges into waters of the United States require Clean Water Act section 401 water quality certification. States can deny water quality certification for any NWP activity that might result in a discharge that is not in compliance with applicable water quality standards. General conditions 18 and 20 are based on federal laws impose specific requirements (
One commenter stated that PCNs should be required for all NWP 12 activities within a certain distance of public water supply intakes. This commenter also said that if PCNs are not required for those NWP 12 activities, then that NWP should be prohibited in the watershed of the public water supply intake. A commenter said that this general condition does not provide sufficient safeguards against pollution of drinking water supplies.
For those NWP 12 activities that require PCNs or are voluntarily reported to the Corps, district engineers will review those proposed activities to ensure that they comply with this general condition. Division engineers can restrict or prohibit the use of NWP 12 in water source protection areas for public water systems. District engineers can also take action if they determine that a specific activity does not comply with this general condition and therefore does not qualify for NWP authorization.
This general condition is adopted as proposed.
GC 8.
District engineers will use their discretion in determining whether specific impoundments authorized by NWP have minimized, to the maximum extent practicable, adverse effects to the aquatic system as a result of accelerated water flows or restricted water flows. The application of that term is dependent on case-specific circumstances and site conditions. This general condition is adopted as proposed.
GC 9.
The proposed general condition provides an exception to the prohibition against restricting or impeding the passage of normal or high flows, in cases where the primary purpose of the NWP activity is to impound water or manage high flows. It is the permittee's responsibility to ensure that such impoundments do not cause flood damage or other types of property damage. Paragraph 4 of Section E, Further Information, states that the NWPs “do not authorize any injury to the property or rights of others.”
One commenter stated that this general condition should be modified to ensure that the pre-construction course and condition of a waterbody is maintained during the construction of permanent and temporary crossings of the waterbody. This commenter said that this is especially important because road crossings of streams that do not account for various flow conditions may fail during severe storms and flooding events. This commenter recommended adding “and the construction, replacement, or rehabilitation of temporary and permanent crossings (
We have modified the first sentence of this general condition by removing the word “and” before “stormwater” and adding the phrase “and temporary and permanent road crossings” after “stormwater management activities” to add road crossings to the examples of activities where the pre-construction course, condition, capacity, and location of open waters must be maintained to the maximum extent practicable.
This general condition is adopted with the modification discussed above.
GC 10.
The only fills in 100-year floodplains that are regulated by the Corps are discharges of dredged or fill material into jurisdictional waters and wetlands. The NWP program supports the objectives of E.O. 11988 by encouraging minimization of losses of waters of the United States to qualify for NWP authorization, including losses of waters of the United States in 100-year floodplains. The NWPs also require avoidance and minimization of temporary and permanent impacts to waters of the United States to the maximum extent practicable on the project site (see paragraph (a) of general condition 23, mitigation). We do not have the authority to regulate the filling of uplands within 100-year floodplains, including upland floodways. The primary responsibility for determining land use and zoning lies with state, local, and tribal governments (see 33 CFR 320.4(j)(2)), which includes land use within 100-year floodplains.
Development activities in jurisdictional waters and wetlands within 100-year floodplains can be authorized by NWPs 29, 39, and other NWPs as long as they have no more than minimal individual and cumulative adverse environmental effects. We acknowledge that FEMA-approved floodplain management requirements can also protect other important resources, such as essential fish habitat.
This general condition is adopted as proposed.
GC 11.
Actions taken to minimize the impacts of equipment on streams are more appropriately identified on a case-by-case basis, after considering the type of work to be done in the stream, the flow regime, the geomorphology of the stream, and other factors. Ensuring that activities authorized by NWPs meet applicable water quality standards is achieved through the water quality certification process. If an individual water quality certification is required for an NWP activity, the certification may include activity-specific conditions that require actions, such as water quality sampling, to ensure the NWP activity complies with applicable water quality standards. We recognize that there is a potential for mechanical equipment to leak or spill petroleum products. Such discharges may also be addressed through the water quality certification process. Leaks and spills of fuel, hydraulic fluids, transmission fluids, and other fluids from equipment used to conduct NWP activities are not discharges of dredged or fill material that are regulated under section 404 of the Clean Water Act. Such spills or leaks may also require action under other federal, state, or local laws and regulations. The purpose of this general condition is to minimize adverse effects to jurisdictional waters and wetlands that are caused by equipment that disturbs soil. We do not have the authority to regulate the maintenance of equipment, or to mandate the use of spill kits for on-site emergency cleanups. Project proponents should comply with all other applicable federal, state, and local laws and regulations, which may address the operation and maintenance of construction equipment and responding to spills and leaks from that equipment during construction activities.
This general condition is adopted as proposed.
GC 12.
Three commenters stated their support for the proposed modification of this general condition. One commenter objected to the proposed change, stating that it would be interpreted and applied by Corps districts as a requirement. One commenter said that this general condition should prohibit activities during low tides when migratory birds are using tidal flats. Two commenters stated that this general condition should be modified to require maintenance of downstream water quality, and to require NWP activities to be conducted during periods of low flow. Two commenters asked that the general condition define the term “stabilized” and include stabilization guidelines and a requirement for post-construction monitoring of stabilization activities.
The last sentence of this general condition clearly states that permittees are encouraged to conduct NWP activities in waters of the United States during periods of no-flow or low-flow or during low tides. The general condition does not mandate that NWP activities be done during those no- or low-flow stages or during low tides. Nationwide permit activities can be conducted at other flow stages or tides and result in no more than minimal adverse environmental effects, so it is not necessary to require NWP activities to be conducted during no- or low-flow stages or during low tides.
General condition 4 requires that NWP activities avoid breeding areas for migratory birds to the maximum extent practicable. General condition 19 also addresses the applicability of the Migratory Bird Treaty Act to the NWP program, and states that the permittee is responsible for contacting the local office of the U.S. Fish and Wildlife Service to determine if an “incidental take” permit is necessary and available under the Migratory Bird Treaty Act.
The maintenance of downstream water quality will be addressed through the water quality certification issued by the state, tribe, or U.S. EPA. The appropriate stabilization measures will be determined on a case-by-case basis and are dependent on site conditions. The appropriate stabilization measures may also be dictated by state or local sediment and erosion control regulations. These state or local sediment and erosion control regulations may also require post-construction monitoring.
This general condition is adopted as proposed.
GC 13.
What constitutes a temporary fill is at the discretion of the district engineer. Defining a temporary fill as a fill that is in place for no more than 180 days may discourage the removal of temporary fills within a shorter period of time. For some NWP activities, temporary fills should be removed immediately after construction to minimize temporary losses of aquatic resource functions and services. For some other NWP activities, temporary fills may need to be in place for longer periods of time to allow the impacted area to recover and stabilize so that it can withstand normal flows after the temporary fills are removed.
Whether timber mats and other temporary mats constitute a discharge of dredged or fill material that requires Clean Water Act section 404 authorization is at the district engineer's discretion after applying the definitions at 33 CFR 323.2. Waters of the United States that are temporarily filled and then restored to pre-construction contours and elevations are not included in the measurement of “loss of waters of the United States” (see the definition of “loss of waters of the United States” in Section F, Definitions). Activities authorized by NWPs 3 and 12 often use temporary mats to minimize adverse effects to waters of the United States. The text of those NWPs explicitly state that use of temporary mats is authorized for those activities.
The sidecasting of excavated material during ditch maintenance may be exempt from Clean Water Act section 404 permit requirements (see 33 CFR 323.4(a)(3)). If the ditch maintenance activity does not qualify for the Clean Water Act section 404(f)(1)(C) exemption, the deposition of excavated material into jurisdictional waters and wetlands may be considered a discharge of dredged material (see 33 CFR 323.2(d)). District engineers will determine on a case-by-case basis whether excavation activities require DA authorization under section 404 of the Clean Water Act by applying the current regulations, including the current definition of “discharge of dredged material.”
This general condition is adopted as proposed.
GC 14.
Maintenance activities conducted under the NWP authorization are required to comply with all applicable general and regional conditions, which will minimize adverse effects to jurisdictional waters and wetlands and protect water quality. Proper maintenance requires promptly repairing damaged or deteriorating structures and fills so that they do not cause additional adverse effects to jurisdictional waters and wetlands.
This general condition is adopted as proposed.
GC 15.
If, for a single and complete non-linear project, the proposed expansion or modification of a previously authorized NWP activity does not have independent utility from the previously authorized NWP activity, and the loss of waters of the United States that would result from proposed expansion or modification plus the previously authorized loss of waters of United States falls under the limit(s) of applicable NWP(s), that expansion or modification can still be authorized by NWP. If the loss of waters of the United States that would result from proposed expansion or modification plus the previously authorized loss of waters of United States exceeds the limit(s) of applicable NWP(s), that expansion or modification would require an individual permit unless there is a regional general permit that can authorize the expansion or modification. If the proposed expansion or modification has independent utility from the previously authorized NWP activity, then the limit(s) would apply to the proposed expansion or modification. Consistent with the Council on Environmental Quality's NEPA regulations at 40 CFR 1508.8, we consider “impacts” and “effects” to be synonymous. Therefore, we also consider the terms “cumulative impact analysis” and “cumulative effects analysis” to be synonymous.
One commenter said that this general condition should define “single and complete project” in the same manner as the definition of “single and complete non-linear project” in Section F of the NWPs. One commenter stated that the same definition of “independent utility” should be applied to both linear and non-linear projects, to avoid piecemealing. This commenter said that linear roadway crossings generally do not have independent utility, so the definition of linear transportation projects should conform with the definition of single and complete non-linear project. This commenter stated that this recommended change would result in a more accurate cumulative impact analysis. Another commenter said that linear and non-linear projects should not be treated differently for the purposes of applying the limits of the NWPs.
The definitions of “single and complete linear project” and “single and complete non-linear project” are addressed in the “Definitions” section of this preamble and the NWPs. This general condition addresses the general concept of “single and complete project” regardless of whether the proposed NWP activity is a single and complete linear project or single and complete non-linear project. The concept of independent utility does not apply to individual crossings of waters of the United States for linear projects because each separate and distant crossing of waters of the United States is necessary to transport people, goods, or services from the point of origin to the terminal point. For both linear projects and non-linear projects, the cumulative impact analysis considers the use of the applicable NWP or NWPs within a geographic region, such as a watershed, ecoregion, state, or Corps district. The acreage limit for an NWP applies to the single and complete project; for linear projects each separate and distant crossing of waters of the United States is considered a single and complete project (see the definition of “single and complete linear project” and 33 CFR 330.2(i)).
Two commenters suggested changing this general condition to prohibit the use of the same NWP more than once for the same utility line project, rather than allowing the use of NWP 12 for each separate and distance crossing of waters of the United States along a linear project. One commenter stated that for activities that may be authorized using multiple NWPs because the activity components are single and complete, that only one PCN is required to apply for all applicable NWPs.
As stated above, for linear projects such as utility lines authorized by NWP 12, each separate and distant crossing of waters of the United States is considered a single and complete project. For activities that have components that can be authorized by different NWPs, only one PCN needs to be submitted. The PCN should identify which NWP the project proponent wants to use to authorize a particular component, and the PCN should identify which components of the larger overall project have independent utility.
This general condition is adopted as proposed.
GC 16.
A few commenters expressed support for the proposed PCN requirement and a few commenters opposed the PCN requirement. One commenter said that NWPs should not be used to authorize activities within Wild and Scenic Rivers. One commenter recommended basing the PCN requirement on the potential to adversely affect the river and not only on the location of the proposed NWP activity. This commenter also suggested that NWP activities conducted by federal agencies do their own compliance with the Wild and Scenic Rivers Act, similar to the proposed changes to paragraph (b) in general condition 18, endangered species, and general condition 20, historic properties.
The Wild and Scenic Rivers Act does not prohibit activities in a Wild and Scenic River or a study river; it requires coordination with the federal agency with direct management responsibility for that river to ensure that the activity will not adversely affect the river's designation as a Wild and Scenic River or a study river. Therefore, NWPs are an appropriate mechanism for providing DA authorization for some activities in these rivers. The proposed modifications to this general condition were based on federal agency regulations and guidance for implementing the Wild and Scenic Rivers Act, and the text of section 7(a) of the Wild and Scenic Rivers Act. For the purposes of DA authorizations issued by the Corps section 7(a) of the Wild and Scenic Rivers Act limits the Corps' responsibilities to activities that might have a “direct and adverse effect on the values” for which the river was established. Therefore, the location of the proposed NWP activity is relevant to determining whether coordinating an NWP PCN with the federal agency with direct management responsibility for that river is required. Section 7(a) of the Wild and Scenic Rivers Act requires the federal agency authorizing the water resources project to do the coordination with the federal agency with direct management responsibility for that river.
One commenter stated that the term “component” is too broad and said that specific river segments should be identified. One commenter requested a list of current “study rivers” for purpose of submitting PCNs. One commenter said that PCNs should not be required for NWP 3 activities within Wild and Scenic Rivers or study rivers. This commenter also stated that PCNs should not be required for agencies that have direct management responsibilities for Wild and Scenic Rivers or study rivers. One commenter requested clarification of the review process for these PCNs and suggested that the NWP activity should not be prohibited if the federal agency with direct management responsibility for that river does not issue a written determination that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status.
The text of the general condition includes the internet address for obtaining information on Wild and Scenic Rivers and study rivers, to assist prospective permittees in complying with this general condition. A study river list is available at
This general condition is adopted with the modifications discussed above.
GC 17.
As discussed below, we have modified this general condition to better fulfill the Corps' fiduciary responsibilities towards tribes. The revised general condition requires that NWP activities cannot cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. Proposed activities that require DA authorization that cannot comply with the revised general condition require individual permits, if there are no regional general permits available to authorize those activities. Division engineers can add regional conditions to one or more NWPs to require PCNs to provide district engineers the opportunity to review proposed activities to ensure that they do not cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. District engineers can also develop coordination procedures with tribes to review PCNs to get the tribes' input on whether the proposed activities will cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.
Several commenters stated that the NWPs do not examine cumulative or indirect impacts on treaty rights. They said that NWP activities in the aggregate can have serious consequences to treaty-reserved resources. One commenter mentioned that resolution #SPO–16–002 was adopted in June 2016 by the National Congress of American Indians. That resolution urged the Department of Defense to reaffirm its commitment to consult with Tribal Nations when its activities impact tribal interests. That resolution represents 562 individually recognized Indian Tribes across the United States, and expresses their concern that the Department of Defense's tribal consultation principles and policies are not being followed and therefore the Department of Defense is not fulfilling its federal trust obligations and not protecting tribal interests.
District engineers monitor the use of the NWPs in specific geographic regions, to ensure that the use of the NWPs does not result in more than minimal cumulative adverse environmental effects, which includes adverse effects to tribal rights (including treaty rights), protected tribal resources, and tribal lands. If a district engineer determines that more than minimal cumulative adverse effects are occurring, he or she should recommend
One commenter said that this general condition should be invoked for NWPs 3, 13, and 48 because the activities authorized by these NWPs affect salmon or shellfish and the natural resources upon which they depend. One commenter requested establishment of a dispute resolution procedures for tribal consultation and clarification on how the NWP PCN will be handled when a tribe objects to the proposed activity.
This general condition applies to NWPs 3, 13, and 48, as well as all of the other NWPs. If a tribe has concerns with how a Corps district is implementing these NWPs, the tribe should raise those concerns to the district. Disagreements concerning interpretation of treaties may need to be resolved by other parties.
One commenter said that Corps divisions and districts should be provided support to promote tribal involvement and collaborative decision-making. One commenter stated that the proposed general condition is limited because it refers only to “reserved treaty rights.” This commenter remarked that the general condition should also include other treaty rights that are explicit retained. This commenter said that “reserved treaty rights” are those rights that the tribe did not specifically relinquish in the treaty, in other words, the treaty is silent on them. This commenter also said that, according to the Department of Defense American Indian and Alaska Native Policy, the Corps' fiduciary duties to tribes also apply to tribal lands and protected tribal resources. This commenter recommended revising this general condition to be consistent with the Department of Defense policy cited above and to require PCNs for proposed activities that might affect protected tribal resources, tribal rights (including treaty rights), and tribal lands.
During the past three rulemakings for the NWPs (2007 and 2012 and this rulemaking for 2017), Corps Headquarters issued memoranda to its division and district offices that requested that Corps districts consult with tribes on the NWPs to develop regional conditions, coordination procedures, and other measures to ensure that the NWPs have no more than minimal adverse effects on tribal trust resources and tribal rights. For the 2017 NWPs, the memorandum was issued on March 10, 2016. We have revised general condition 17 to read as follows: “No activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.” We have removed the phrase “or its operation” because the Corps may not have the legal authority to regulate the operation of the facility or structure after the authorized activity is completed.
The principles in the Department of Defense American Indian and Alaska Native Policy apply to Department of Defense actions, which includes actions undertaken by the Corps such as the issuance of NWPs and other types of DA permits to authorize activities it regulates. The Corps' responsibilities for protecting tribal rights (including treaty rights), protected tribal resources, and tribal lands applies only to the activities it has the authority to regulate. For the NWPs, those activities are discharges of dredged or fill material into waters of the United States that the Corps has the authority to regulate under section 404 of the Clean Water Act and structures and work in navigable waters of the United States that the Corps has the authority to regulate under section 10 of the Rivers and Harbors Act of 1899. The Corps does not have the legal authority to regulate or impose conditions on actions or activities outside of its jurisdiction, such as activities in upland areas or operation and maintenance activities that do not require DA authorization.
The terms “tribal rights,” “protected tribal resources,” and “tribal lands” are defined in the Department of Defense American Indian and Alaska Native Policy. Tribal rights are defined as: “Those rights legally accruing to a tribe or tribes by virtue of inherent sovereign authority, unextinguished aboriginal title, treaty, statute, judicial decisions, executive order or agreement, and that give rise to legally enforceable remedies.” Protected tribal resources are defined as: “Those natural resources and properties of traditional or customary religious or cultural importance, either on or off Indian lands, retained by, or reserved by or for, Indian tribes through treaties, statutes, judicial decisions, or executive orders, including tribal trust resources.” Tribal lands are defined as: “Any lands title to which is either: (1) held in trust by the United States for the benefit of any Indian tribe or individual; or (2) held by any Indian tribe or individual subject to restrictions by the United States against alienation.” To make these definitions readily accessible to users of the NWPs, we have added these definitions to the “Definitions” section of the NWPs (Section F).
There are presently 567 federally-recognized tribes, including Alaska Native tribes, and 370 ratified treaties.
Prior to the publication of the June 1, 2016, proposed rule in the
This general condition is adopted with the modifications discussed above.
GC 18.
Many commenters stated their support for adding the definitions of direct effects and indirect effects to paragraph (a) of this general condition. One commenter asked how “direct effects” and “indirect effects” will be considered in this general condition. One commenter said that this general condition should be revised to eliminate the open-ended review process for the ESA. One commenter said that the Corps should only be required to address aquatic species under this general condition.
The definitions of “direct effects” and “indirect effects” were added to paragraph (a) of this general condition to ensure that both direct and indirect effects to listed species and designated critical habitat are considered when making “might affect” and “may affect” determinations. Endangered Species Act section 7 consultations are not open-ended processes, although they take time to complete. Formal ESA section 7 consultations end with the issuance of biological opinions. Informal ESA section 7 consultations end when the U.S. FWS and/or NMFS issue their written concurrences, or when they state that they do not concur with the district engineer's “may affect, not likely to adversely affect” determination for a proposed NWP activity. If the U.S. FWS and/or NMFS do not provide written concurrence with the district engineer's “may affect, not likely to adversely affect” determination, then formal ESA section 7 consultation is required unless the applicant modifies the proposed activity to allow the district engineer to make a “no effect” determination. If the district engineer makes a “no effect” determination for a proposed NWP activity, then ESA section 7 consultation is not required. Activities authorized by NWPs and other forms of DA authorization can affect terrestrial endangered and threatened species, and district engineers are required to conduct ESA section 7 consultations for NWP activities that may affect those terrestrial listed species.
Several commenters stated their support for the proposed changes to paragraph (b) regarding federal permittee requirements. One commenter objected to the proposed modification, stating that the Corps has an independent duty to ensure that NWP activities are in compliance with ESA section 7 for activities conducted by federal permittees. A few commenters requested clarification of the provision in paragraph (b) that states that the district engineer will verify that the appropriate documentation has been submitted, in terms of another federal agency's compliance with section 7 of the ESA. These commenters asked which actions will be verified, and what the appropriate documentation should be. Several commenters asked when state transportation agencies can be considered as federal permittees under 23 U.S.C. 139(c)(3). One commenter said that state departments of transportation with NEPA authority should be allowed to be treated as federal agencies with respect to NWP requirements, such as ESA compliance. One commenter asked whether the term “non-federal permittee” applies to state mining regulatory authorities acting under SMCRA.
We have retained the proposed changes in paragraph (b) of this general condition. The appropriate documentation to provide to district engineers to demonstrate a federal permittee's compliance with ESA section 7 can be a biological opinion issued by the U.S. FWS and/or NMFS, a written concurrence from the U.S. FWS and/or NMFS for an informal ESA section 7 consultation, or a written “no effect” determination made by the federal permittee. Unless a state agency is a department of transportation which the Federal Highway Administration has assigned its responsibilities pursuant to 23 U.S.C. 327, it remains the Corps' responsibility to make ESA section 7 effect determinations for activities authorized by the NWPs that will be conducted by non-federal permittees. The delegation of responsibilities to state departments of transportation through 23 U.S.C. 139(c)(3) only applies to NEPA responsibilities, not to ESA responsibilities. Responsible entities under the Department of Housing and Urban Development's Community Development Block Grant program can take responsibility for ESA section 7 compliance under the provisions of 24 CFR part 58. The project proponent that needs to obtain SMCRA authorization from the state mining regulatory authority is a non-federal permittee that must comply with paragraph (c) of this general condition.
A few commenters expressed support for the requirement for non-federal applicants to submit PCNs when listed species or their designated critical habitat “might be affected or is in the vicinity of the project.” A couple of commenters said that the Corps cannot rely solely on information provided by non-federal applicants regarding potential effects to listed species, stating that it is insufficient for meeting the requirements of the ESA. Several commenters asked for clarification of the difference between “might affect” and “may affect.” Several commenters said that the term “in the vicinity” should be clarified. One commenter requested definitions for “vicinity” and “affected.” One commenter stated that by not defining “in the vicinity” there is potential for non-compliance with section 7 of the ESA. One commenter said that PCNs should only be required for proposed activities that could affect designated critical habitat. One commenting agency said that the proposed changes to this general condition will result in a requirement for that agency to submit a few hundred more PCNs each year. A few commenters stated that submittal of PCNs by non-federal applicants only when any listed species or designated critical habitat “might be affected” fails to include candidate species and is not in compliance with conferencing regulations under Section 7 of the ESA.
The purpose of the PCN requirements in paragraph (c) of general condition 18 is to establish a low reporting threshold to ensure that PCNs are submitted for any proposed NWP that has the potential to affect listed species or designated critical habitat. When the district engineer receives the PCN, he or she will evaluate the information in the PCN, plus other available information, to determine whether the proposed activity may affect listed species or designated critical habitat and thus require ESA section 7 consultation. This paragraph of the general condition is written so that prospective permittees do not decide whether ESA section 7 consultation is required. If the project proponent conducts an activity that affects listed species or designated critical habitat, but did not submit the PCN required by paragraph (c), the activity is not authorized by NWP. That activity is an unauthorized activity and the Corps will take appropriate action to respond to the unauthorized activity.
As explained in the preamble to the June 1, 2016, proposed rule, we established the “might affect” threshold in 33 CFR part 330.4(f)(2) and paragraph (c) of general condition 18 because it is more stringent than the “may affect” threshold for section 7 consultation in the U.S. FWS's and NMFS's ESA section 7 regulations at 50 CFR part 402. The word “might” is defined as having “less probability or possibility” than the word “may” (Merriam-Webster's Collegiate Dictionary, 10th edition). As we also discussed in the June 1, 2016, proposed rule, we cannot explicitly define the term “in the vicinity” for the purposes of general condition 18 because the “vicinity” is dependent on a variety of factors, such as species distribution, ecology, life history, mobility, and, if applicable, migratory patterns, as well as habitat characteristics and species sensitivity to various environmental components and potential stressors. The vicinity is also dependent on the NWP activity and the types of direct and indirect effects that might be caused by that NWP activity. If a non-federal project proponent conducts an activity and does not comply with general condition 18 or any other applicable general condition, then the activity is not authorized by NWP. The district engineer will take appropriate action for the unauthorized activity.
Because of the requirements of ESA section 7 and the U.S. FWS's and NMFS's implementing regulations at 50 CFR part 402, we cannot limit PCNs to NWP activities that might affect designated critical habitat. We acknowledge that as more species are listed as endangered or threatened, and more critical habitat is designated, there will be increases in the number of PCNs submitted to Corps districts each year. For species proposed to be listed as endangered or threatened, or for proposed critical habitat, ESA section 7 conferences are not required except for proposed actions that are likely to jeopardize the continued existence of any proposed species or adversely modify or destroy proposed critical habitat. The district engineer has the discretion to confer with the U.S. FWS and/or NMFS if he or she determines that a proposed NWP activity is likely to jeopardize the continued existence of the proposed species or destroy or adversely modify the proposed critical habitat. Because the NWPs only authorize activities that result in no more than minimal adverse environmental effects, and the threshold for ESA section 7 conferences is high (
One commenter said that a PCN should only be required if there are potential impacts to listed species and/or designated critical habitat, and a PCN should not be required for the potential presence of a listed species. One commenter stated that a PCN should only be required when ESA section 7 consultation is required. One commenter stated that a PCN not be required in Northern long-eared bat habitat when there is no effect to the species, specifically when no clearing is involved. This commenter said that based on the term “in the vicinity” in paragraph (c), non-federal applicants would be required to submit a PCN for every NWP activity within this species' broad range. One commenter said that the Corps should require PCNs for proposed NWP activities that would take place within 10 river miles of ESA-listed species. One commenter stated that non-federal applicants should be allowed to satisfy the PCN requirement by demonstrating that ESA section 7 consultation has already been satisfactorily completed.
Under paragraph (c) of general condition 18, and 33 CFR 330.4(f)(2), PCNs are required if any listed species or designated critical habitat might be affected by the proposed NWP activity or is in the vicinity of the proposed NWP activity, or if the proposed NWP activity is located in designated critical habitat. The district engineer reviews the PCN and determines whether ESA section 7 consultation is required, because under section 7(a)(2) of the ESA, federal agencies are responsible for ensuring that actions they authorize are not likely to jeopardize the continued existence of listed species, or destroy or adversely modify designated critical habitat. The prospective permittee does not decide whether ESA section 7 consultation is required for NWP activities; that is the Corps' responsibility. The prospective permittee's responsibility is to submit a PCN to the district engineer when there is a possibility that the proposed NWP activity might affect listed species or designated critical habitat. We acknowledge that the requirements of general condition 18 will result in more PCNs for listed species that have large ranges, but those requirements are necessary to comply with ESA section 7(a)(2). A PCN threshold of 10 river miles within the location of ESA-listed species would not be an effective PCN threshold, especially for mobile listed species. As discussed below, we have added a new paragraph (f) to general condition 18 to allow ESA compliance through a valid ESA section 10(a)(1)(B) incidental take permit. If the applicant does not have a valid ESA section 10(a)(1)(B) incidental take permit, and the proposed NWP activity may affect listed species or designated critical habitat, then the Corps is required to conduct ESA section 7 consultation.
A few commenters recommended that an ESA section 7 consultation should be completed in 45 days or less after the date of receipt of a complete PCN. A few commenters stated that if the applicant cannot commence the NWP activity even if the 45-day review period has passed, unless the Corps makes a “no effect” determination or ESA section 7 consultation is completed, this general condition places a burden on applicant. One of these commenters suggested that the Corps either adhere to the 45-day review period for complete PCNs or revise this general condition to state that these ESA section 7 consultations will take no more than 90 days. One commenter stated that for linear projects, the Corps should not issue NWP verifications for any crossings of waters of the United States until ESA section 7 consultation is completed for those crossings that require section 7 consultation. This commenter also said the general condition should prohibit the prospective permittee from beginning construction of the linear project until after those consultations are completed.
If formal ESA section 7 consultation is required, there are timeframes that are mandated by section 7(b) of the ESA. The NWPs cannot change those timeframes. If informal ESA section 7 consultation is conducted, there are no timeframes for completion, but written concurrence from the U.S. FWS and/or NMFS is required before informal consultation is concluded. If the U.S. FWS or NMFS will not provide their written concurrence, or explicitly disagrees that the proposed activity “may affect, is not likely to adversely affect” listed species or critical habitat, then formal ESA section 7 consultation is necessary to fulfill the consultation requirements of ESA section 7(a)(2). As stated in paragraph (c) of general condition 18, if the district engineer determines that the proposed NWP activity may affect listed species or designated critical habitat, the activity is not authorized by NWP until the district engineer completes ESA section 7 consultation or determines that the
District engineers have discretion in timing the issuance of NWP verifications for NWP activities that require PCNs. Linear projects often have crossings that require PCNs and crossings that do not require PCNs. For those linear projects, the PCN must also identify the use of NWP(s), regional general permit(s), or individual permit(s) to authorize other separate and distant crossings that require DA authorization (see paragraph (b)(4) of general condition 32). If some or all of the other separate and distance crossings are authorized by NWP without a requirement to submit a PCN (and they do not trigger the PCN requirements in paragraph (c) of general conditions 18 or 20, or other general conditions), then those activities are authorized by NWP unless the district engineer exercises his or her authority at 33 CFR 330.5(d) to suspend or revoke those NWP authorizations. There are also likely to be substantial segments of linear projects that are sited in uplands over which the Corps has no control and responsibility. The entity constructing the linear project can begin construction in the uplands prior to receiving the NWP verification or other DA authorizations.
Several commenters said they support allowing district engineers to add species-specific conditions to NWP verifications. One commenter asked whether district engineers would add species-specific conditions to the NWP itself or to the NWP verification letters. One commenter stated that Corps districts should not be allowed to add activity-specific conditions to NWPs when there are regional conditions related to the protection of listed species.
District engineers have the authority to modify NWPs by adding conditions to the NWP authorization (see 33 CFR 330.5(d)). This includes conditions to protect listed species and designated critical habitat. The conditions are written in the NWP verification letter, but they apply to the NWP authorization. In their NWP verification letters, district engineers may reference regional conditions or add those regional conditions to the NWP authorization to ensure that the permittee is aware of those conditions and to make those conditions easier to enforce.
One commenter said that the Corps is required to seek concurrence from the U.S. FWS and/or NMFS for any “no effect” determination. One commenter voiced support for using regional programmatic consultations to comply with section 7 of the ESA. A few commenters suggested that the Corps develop an informational guidance document and Web site dedicated to region-specific listed species under the jurisdiction of U.S. FWS, similar to what was developed by the NMFS.
Federal agencies are not required to seek concurrence from the U.S. FWS or NMFS for their ESA section 7 “no effect” determinations (see page 3–12 of the 1998 Endangered Species Consultation Handbook issued by the U.S. FWS and NMFS). For the 2017 NWPs, we plan on developing a general information guidance document to assist NWP users in complying with general condition 18. This document will be posted on the Corps Headquarters regulatory program Web site at:
One commenter recommended changing this general condition to require non-federal applicants to submit a list of endangered and threatened species and designated critical habitat locations for the subject county in which the proposed NWP activity will occur, especially for NWPs 3, 12, 13, 14, 21, 39, 44, and 48.
Paragraph (c) of this general condition requires a non-federal permittee to submit a PCN if any listed species or designated critical habitat might be affected or is in the vicinity of the proposed NWP activity, or if the proposed NWP activity is located in designated critical habitat. Other activities authorized by other NWPs might trigger the PCN requirement in paragraph (c), so we will not modify this general condition to focus on the eight NWPs identified by the commenter.
One commenter said that the Corps should include the entire linear project in its action area instead of limiting the action area to the crossings of waters of the United States. This commenter asserted that the Corps' approach for ESA compliance for linear projects does not comply with the ESA. One commenter stated that compensatory mitigation should be required for unavoidable adverse impacts to federally-listed species when NWP activities use treated wood below the water line. One commenter said that the Corps must conduct an activity-specific NEPA analysis when it implements an incidental take statement as a condition of the Corps' NWP verification and that the Corps' implementation of the incidental take statement should cover the entire linear project, not just crossings of waters of the United States.
The U.S. FWS's and NMFS's ESA section 7 regulations at 50 CFR 402.02 define the term “action area” as “. . . all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” When the Corps initiates ESA section 7 consultation on proposed activity that it determines “may affect” listed species or designated critical habitat, it consults on the direct and indirect effects caused by the proposed NWP activity. In paragraph (a) of this general condition, we define the terms “direct effects” and “indirect effects.” Indirect effects can be some distance from the direct effects of the proposed NWP activity. The Corps' approach to conducting ESA section 7 consultations for linear projects complies with the ESA. Section 7(a)(2) consultations for linear projects may include the effects of interdependent and interrelated activities. Interrelated and interdependent activities are not federal actions, because they are not authorized, funded, or carried out by the Corps or other federal agency. Including interrelated and interdependent activities in a formal ESA Section 7 consultation and biological opinion does not grant the Corps any authority to regulate those activities and their effects on listed species and critical habitat. Therefore, the Corps does not have the legal authority to enforce conditions that the U.S. FWS and/or NMFS might impose on those interrelated and interdependent activities in an incidental take statement in a biological opinion. The FWS and NMFS would be responsible for enforcing those provisions of the incidental take statement that apply to the upland activities outside of the Corps' jurisdiction.
District engineers will determine on a case-by-case basis whether compensatory mitigation is required for unavoidable adverse impacts to federally-listed species. The Corps only adopts and incorporates those provisions of an incidental take statement that apply to the actions authorized by the Corps. If the incidental take statement in a biological opinion has provisions that apply to activities in upland areas outside of the Corps' action areas for linear projects, where the Corps does not have the authority to control those upland activities, the Corps will not incorporate those provisions in its NWP authorization. The U.S. FWS and NMFS can use their authorities to enforce provisions of the incidental take statement that apply to upland linear project segments that are outside of the
Several commenters recommended using Habitat Conservation Plans to streamline compliance with this general condition if the prospective permittee has been issued an ESA section 10 permit that also authorizes incidental take that may result from the proposed NWP activity. Several commenters said that PCNs should not be required for non-federal permittees when their “take” of listed species is authorized by ESA section 10 permits and is addressed through HCPs with incidental take statements. A few commenters said that a non-federal permittee should be able to proceed with the proposed NWP activity 15 days after providing the district engineer with the ESA section 10(a)(1)(B) incidental take permit and HCP. One commenter said the PCN requirement of this general condition should be satisfied through a programmatic notification submitted to the district engineer, if more than one activity to be authorized by NWP has been the subject of a prior ESA section 7 consultation.
We have added a new paragraph (f) to this general condition, to cover circumstances in which the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit and approved Habitat Conservation Plan for a project or group of projects that includes the proposed NWP activity. A group of projects may be covered by an ESA section 10(a)(1)(B) and large-scale (
We cannot eliminate the PCN requirement for non-federal permittees that is established by 33 CFR 330.4(f)(2). The PCN requirement is necessary to allow the district engineer to determine, after coordinating with the agency that issued the ESA section 10(a)(1)(B) incidental take permit (
One commenter expressed concern that the requirements of this general condition result in ESA section 7 consultations occurring in the absence of a real potential for listed species conflicts. One commenter said that ESA section 7 consultations should only occur if the site for the proposed activity has an occurrence of listed species or the site is located in designated critical habitat. One commenter stated that the requirements of general condition 18 should only apply to activities in jurisdictional areas that might affect endangered species.
For a non-federal permittee, this general condition requires a PCN if any listed species or designated critical habitat might be affected or is in the vicinity of the proposed NWP activity, or if the proposed NWP activity is located in designated critical habitat. The district engineer will review the PCN to determine if the proposed NWP activity may affect listed species or designated critical habitat and thus require ESA section 7 consultation. If the district engineer determines the proposed NWP activity will have no effect on listed species or designated critical habitat, he or she will issue the NWP verification letter if the proposed activity complies with all other applicable terms and conditions of the NWP and will result in no more than minimal adverse environmental effects. When making an effect determination for the purposes of ESA section 7, the district engineer considers the direct and indirect effects caused by the proposed NWP activity. An NWP activity conducted in jurisdictional waters and wetlands can have indirect effects on listed species or designated critical habitat outside of those jurisdictional waters and wetlands, and thus require the district engineer to conduct ESA section 7 consultation.
This general condition is adopted with the modifications discussed above.
GC 19.
Several commenters stated their support for the proposed modification. Two commenters said that the proposed modification will increase burdens on applicants and create delays in the NWP verification process. This general condition does not require any action by district engineers and will not delay their reviews of PCNs and voluntary requests for NWP verifications. Permittees are responsible for contacting the local office of the U.S. Fish and Wildlife Service to determine if they need to take action to reduce impacts to migratory birds or bald or golden eagles, or obtain incidental take permits under these two laws.
This general condition is adopted as proposed.
GC 20.
One commenter asked how district engineers will determine if NWP activities will affect historic properties and who is expected to satisfy the requirements of section 106 of the NHPA. One commenter recommended revising paragraph (a) as follows: “In cases where the district engineer is notified, or determines based on scoping performed in accordance with 36 CFR 800.4(a), that the activity may affect properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized until the district engineer finds that the requirements of Section 106 of the National Historic Preservation Act (NHPA) and its implementing regulations (36 CFR part 800) have been satisfied.”
District engineers will review PCNs and determine whether proposed NWP activities have the potential to affect historic properties. If the district engineer determines that the proposed NWP activity has no potential to cause effects on historic properties, section 106 consultation is not required. If the district engineer determines that the proposed NWP activity will result in either “no historic properties affected,” “no adverse effects,” or “adverse effects,” he or she will conduct NHPA section 106 consultation with the appropriate consulting parties. The NWPs, via the requirements of general condition 20, provide general guidance on historic properties and compliance with NHPA section 106, but further details on the section 106 process are provided in other Corps regulations and guidance, and do not need to be included in the text of paragraph (a) of this general condition.
Several commenters supported the proposed change to paragraph (b) regarding federal permittees' compliance with section 106 of the NHPA. One commenter suggested modifying paragraph (b) to state that if the district engineer identifies deficiencies in the federal permittee's section 106 compliance, then he or she will consult further with the federal agency and other parties to resolve those deficiencies. Several commenters stated that paragraph (b) exempts non-lead federal agencies from fulfilling their section 106 responsibilities. One commenter said that paragraph (b) results in the Corps designating another agency as the NHPA section 106 compliance lead without the agreement of the other agency. One commenter requested further clarification to address situations where no other federal lead agency has the responsibility.
Federal permittees have an independent obligation to comply with section 106 of the NHPA. If an NWP activity that will be conducted by a federal permittee requires a PCN and the district engineer determines while reviewing the PCN that the federal permittee's section 106 compliance documentation is insufficient, then he or she will notify the federal permittee that additional section 106 consultation may be necessary. Paragraph (b) of this general condition is not equivalent to a lead federal agency concept. The purpose of paragraph (b) is to avoid duplicative consultation efforts, because federal agencies have their own obligation to comply with NHPA section 106. When a federal permittee is conducting an NWP activity, it is either conducting the same undertaking as the Corps (
One commenter recommended revising the fourth sentence of paragraph (b) as follows: “If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary to fulfill the requirements of the NHPA and relevant regulations have been complied with.” This commenter suggested adding the following sentence after the fourth sentence: “If the district engineer identifies deficiencies, then the district engineer will consult further with the federal agency and other parties to resolve them.”
The last sentence of paragraph (b) makes it clear that if there are deficiencies in the federal permittee's documentation of section 106 compliance, it is the federal permittee's responsibility to address those deficiencies. The Corps is not required to conduct that additional consultation on behalf of the federal permittee.
One commenter said that paragraph (c) should be modified to make it clear who is responsible for making an effect determination for the purposes of section 106 of the NHPA. Several comments stated that by referencing “current procedures” in paragraph (c) of this general condition, the Corps suggests to prospective permittees that compliance with the Corps' current regulations and guidance fulfills its section 106 NHPA responsibilities. Several commenters recommended revising this general condition to require non-federal applicants to provide documentation in their PCNs from qualified professionals to state that standard procedures have been followed to identify historic properties. One commenter said that the third sentence in paragraph (c) should include “designated tribal representative” because not all federally recognized tribes have Tribal Historic Preservation Officers.
We have modified paragraph (c) by adding two sentences to make it clear that it is the district engineer's responsibility to make section 106 effects determinations: “Section 106 consultation is required when the district engineer determines that the activity has the potential to cause effects on historic properties. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of section 106 of the NHPA: No historic properties affected, no adverse effect, and adverse effect.” We are retaining the fourth sentence in paragraph (c) to refer to our current procedures for addressing the requirements of section 106 of the NHPA, which are Appendix C to 33 CFR part 325, the April 25, 2005, interim guidance in which we adapt the applicable provisions of 36 CFR part 800 to augment Appendix C, and the January 31, 2007, interim guidance in which we provide further guidance on adapting the applicable provisions of 36 CFR part 800 to Appendix C.
Modifying paragraph (c) to require non-federal applicants to provide documentation from qualified professionals goes beyond the “good faith effort” required to identify historic properties for minor activities authorized by the NWPs. The magnitude and nature of the undertaking and the degree of federal involvement are considerations for determining what is required to identify historic properties (see 36 CFR 800.4(b)(1)), and for many NWP activities these are both minimal. For activities that have the potential to cause effects to historic properties, applicants often hire consultants to assist in the section 106 process. We have modified the third sentence of paragraph (c) to include “designated
Several commenters stated that this general condition does not provide sufficient guidance to non-federal applicants to ensure compliance with section 106 because the information requirements for PCNs are vague and set a low threshold. These commenters expressed concern that district engineers will not have sufficient information from applicants or may not receive PCNs at all. Several commenters stated that this general condition and its PCN requirements unlawfully delegates to non-federal entities the Corps' responsibility to comply with section 106 of the NHPA.
We are not delegating responsibilities to comply with Section 106, but as a permitting agency we can require certain information from project proponents. This general condition requires prospective permittees to submit PCNs for proposed activities that might have the potential to cause effects to historic properties. In this general condition, we changed the word “may” to “might” to be consistent with the language in paragraph (c) of general condition 18, endangered species, because it serves a similar purpose. As with paragraph (c) of general condition 18, paragraph (c) of general condition 20 places the responsibility of determining whether NHPA section 106 is necessary. The district engineer will evaluate the PCN, and if he or she determines that the proposed NWP activity has the potential to cause effects to historic properties, he or she will initiate section 106 consultation with the appropriate consulting parties. For the section 106 consultation, the district engineer will make one of three effect determinations: “no historic properties affected,” “no adverse effect,” and “adverse effect.”
We have made changes to paragraphs (c) and (d) to more clearly articulate the district engineer's process for complying with NHPA section 106 for NWP activities undertaken by non-federal permittees. We have moved the second sentence from paragraph (d) to paragraph (c). We have also added two new sentences to paragraph (c). The first new sentence states that section 106 consultation is required when the district engineer determines the proposed activity has the potential to cause effects to historic properties. The second new sentence states that the district engineer will consult with consulting parties identified under 36 CFR 800.2(c) when he or she determines the proposed activity may result in “no historic properties affected,” “no adverse effects” on historic properties, or “adverse effects” on historic properties. We have also made some edits to the last sentence of paragraph (c) to provide additional clarity.
At the beginning of the first sentence of paragraph (d), we added the phrase “For non-federal permittees,” to make it clear that paragraph (d) applies to non-federal permittees. In what is now the second sentence of paragraph (d), we deleted the phrase “and will occur” because if section 106 consultation is required, the district engineer will do that section 106 consultation.
One commenter said that PCNs should be required for all NWP activities that involve ground disturbance. One commenter stated that this condition sets a lower threshold for requiring review than Appendix C to 33 CFR part 325 and should be revised. One commenter stated that general condition 20 and 32, and their reliance on compliance by permittees, often results in the Corps' failure to consult with federally recognized tribes in a government-to-government relationship.
Requiring PCNs for all NWP activities that involve ground disturbance would result in many additional PCNs for activities that have no potential to cause effects to historic properties. The intent of paragraph (c) is to require non-federal permittees to submit PCNs for any proposed NWP activity that might have the potential to cause effects to historic properties. The PCN requirement gives district engineers the opportunity to make effect determinations for the purposes of complying with section 106 of the NHPA. General condition 20 only addresses historic properties and the requirements of section 106 of the NHPA. As discussed above, general condition 20 does not delegate the Corps' section 106 responsibilities to permittees. In addition, we have made substantial changes to general condition 17, tribal rights, to address the Corps' fiduciary responsibilities towards tribes, which extend beyond historic properties. General condition 17 addresses tribal rights (including treaty rights), protected tribal resources, and tribal lands. District engineers will consult with tribes on NWP activities that have the potential to cause effects to historic properties of significance to those tribes.
Two commenters said they support paragraph (e) and its implementation of section 110(k) for intentional adverse effects. One commenter noted that the NHPA was recodified and the citation to section 110(k) should be corrected to 54 U.S.C. 306113. We have revised the first sentence of paragraph (e) to refer to 54 U.S.C. 306113.
Several commenters said that this general condition unlawfully limits the scope of the Corps' “permit area.” One commenter stated that 33 CFR part 325, Appendix C is not approved by the Advisory Council on Historic Preservation (ACHP) as a program alternative, as required by 36 CFR 800.14. This commenter said that Appendix C is an internal Corps process that does not fulfill the requirements of section 106 of NHPA. One commenter recommended that the Corps continue working with the ACHP in order to bring its regulations into compliance with the NHPA. One commenter stated that Appendix C violates tribal consultation requirements, and more importantly, meaningful consultation with tribes.
General condition 20 does not use the term “permit area.” When evaluating PCNs, district engineers will determine the appropriate scope of analysis for the purposes of NHPA section 106 using its current procedures for addressing the requirements of that statute. The ACHP's regulations at 36 CFR 800.14(a) states that an “agency official may develop procedures to implement section 106 and substitute them for all or part of subpart B of this part if they are consistent with the Council's regulations pursuant to section 110(a)(2)(E) of the act.” Both 36 CFR 800.14(a) and NHPA section 110(a)(2)(E) state that a federal agency's program alternative has to be “consistent” with the ACHP's regulations. Neither of those provisions state that those program alternative have to be “approved” by the ACHP. The Corps complies with section 106 of the NHPA through Appendix C and the interim guidance documents April 25, 2005, and January 31, 2007. We continue to work with the ACHP on this matter. The 2005 and 2007 interim guidance documents were issued to make the regulatory program's NHPA section 106 procedures consistent with the ACHP's regulations. The Corps complies with tribal consultation requirements and its fiduciary responsibilities to tribes through the Department of Defense American Indian and Alaska Native Policy and the Corps' November 1, 2012, Tribal Consultation Policy.
Several commenters said that certain state departments of transportation have been assigned responsibilities by the Federal Highway Administration under the authority in 23 U.S.C. 327 to conduct compliance under section 7 of the Endangered Species Act. These commenters stated that this practice needs to be recognized in general condition 20 for historic properties, because these departments of
If a state agency is a department of transportation to which the Federal Highway Administration has assigned its responsibilities pursuant to 23 U.S.C. 327, then that state agency would be responsible for section 106 compliance under paragraph (b) of this general condition. We do not need to make any changes to the text of this general condition to recognize this assignment of authority. If a PCN is required, non-federal applicants, including state departments of transportation that have not been assigned authority under 23 U.S.C. 327 are asked to provide any documentation which may expedite the review process for NHPA section 106. For NWP activities conducted by non-federal permittees, it is the Corps' responsibility to comply with the requirements of section 106.
One commenter stated that reliance on general conditions 20 and 32, is not a substitute for activity-specific compliance with section 106 of the NHPA. This commenter said that the Corps should conduct a section 106 review out prior to reissuing the NWPs. One commenter said that the general condition should state that the Corps is not obligated to delay issuance of an NWP verification until after an official agreement is obtained from a state.
General condition 20 provides the means for activity-specific compliance with section 106 of the NHPA. General condition 32 describes the general PCN requirements for the NWPs. As discussed in another section of this final rule, we have determined that the issuance or reissuance of the NWPs by Corps Headquarters has no potential to cause effects to historic properties. The NWPs authorize activities over a five-year period, after they are issued and go into effect. When the Corps issues or reissues NWPs, there are no specific NWP activity sites identified; when the NWPs go into effect several weeks after they issued or reissued, they could potentially authorize activities in jurisdictional waters and wetlands anywhere in the United States. In other words, during the rulemaking process for the issuance or reissuance of the NWPs there are no specific historic properties on which to conduct NHPA section 106 consultation. General condition 20 requires completion of NHPA section 106 consultations, and when section 106 consultation is required, the Corps cannot issue an NWP verification letter until after the consultation has been completed.
Several commenters requested clarification of how PCN requirements will be defined to promote a consistent and streamlined approach and a clearer understanding of general condition 20. Several commenters stated that the PCN review timeframe should be limited to 45 days, or a maximum of 90 days when it is necessary to complete section 106 consultation. These commenters said that if the applicant has not gotten a response from the Corps within those timeframes, the applicant should be permitted to proceed with the NWP activity. One commenter said that the Corps should eliminate the open-ended review process for section 106 of the NHPA.
For those NWP activities that require NHPA section 106 consultation, we acknowledge that it will take longer for district engineers to issue NWP verifications because we have to provide sufficient time for consulting parties to provide comments on our “no historic properties affected,” “no adverse effects,” and “adverse effect” determinations. Compliance with section 106 of the NHPA is mandatory, not optional. General condition 20 states that if section 106 consultation is required, the project proponent cannot conduct the NWP activity until section 106 consultation is completed. The review process for section 106 of the NHPA is not open-ended; it concludes after the applicable procedures are followed and the district engineer can make his or her decision on the NWP PCN.
One commenter said that linear undertakings should not be segmented separately and reviewed as individual crossings. This commenter stated that, for linear projects, the Corps should include all areas where historic properties may be directly and indirectly affected by the undertaking, if any historic properties are present.
For linear projects, where the crossings of waters of the United States involve discharges of dredged or fill material into waters of the United States and/or structures or work in a navigable waters of the United States, the undertakings for the purposes of section 106 of the NHPA are the crossings that require DA authorization. The Corps does not have the authority to regulate upland segments of linear projects, and therefore those upland segments are not undertakings for the purposes of section 106 of the NHPA. The ACHP's regulations at 36 CFR 800.16(y) define “undertaking” as: “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.” By including “activity” in its definition of “undertaking,” the ACHP's definition recognizes that federal agencies may not issue permits or licenses for entire projects, and those federal agencies might only issue permits or licenses for specific components of entire projects.
For linear projects, from the Corps' perspective, the crossings of waters of the United States authorized by NWPs or other types of DA permits, are the undertakings. For those crossings that require DA authorization, district engineers consider the direct and indirect effects of those crossings on historic properties that are caused by the discharges of dredged or fill material into waters of the United States and/or structure or work in navigable waters of the United States. If the operation and maintenance of those linear projects do not involve activities that require DA authorization, then the Corps is not required to evaluate the effects of those operation and maintenance activities on historic properties. The Corps' scope of analysis for the purposes of section 106 of the NHPA is the same regardless of whether the activities regulated by the Corps are authorized by NWPs or other general permits, or by individual permits.
This general condition is adopted with the modifications discussed above.
GC 21.
General condition 21 requires permittees to avoid, to the maximum extent practicable, construction
The purpose of this general condition is to address previously unknown remains and artifacts that are revealed during while the authorized NWP activity is being conducted. If the artifacts or remains were known at the time the district engineer reviewed the PCN or voluntary request for NWP verification, he or she would have made an eligibility determination, and if necessary, conducted NHPA section 106 consultation. Section 106 consultation was either not done because the remains or artifacts were unknown at the time the NWP PCN or voluntary request for NWP verification was being evaluated by the district engineer, or section 106 consultation was done for known historic properties included in, or eligible for inclusion in, the National Register of Historic Places. When the discovery of the previously unknown remains and artifacts are reported to the district engineer, he or she will initiate federal, tribal, and state coordination to determine whether the artifacts or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. Section 106 consultation will be conducted when necessary for these discoveries. General condition 21 is not a substitute for section 106 consultation.
This general condition is adopted as proposed.
GC 22.
This general condition is adopted with the modification discussed above.
GC 23.
Several commenters said that the Corps should only require compensatory mitigation for activities that require individual permits. Many commenters said that project proponents should not be allowed to use compensatory mitigation to reduce the impacts of their activities to qualify for NWP authorization. Several commenters expressed support for allowing applicants an option to prepare a mitigation plan to reduce adverse environmental effects to no more than minimal to qualify for NWP authorization. One commenter stated that district engineers should continue to be allowed flexibility in determining when compensatory mitigation is to be required for NWP activities, especially when many aquatic resources are already heavily degraded.
The Corps' regulations at 33 CFR 330.1(e)(3) state that district engineers can require mitigation to ensure that activities authorized by NWPs result in no more than individual and cumulative adverse environmental effects. Under the procedure in 33 CFR 330.1(e)(3), district engineers offer prospective permittees the opportunity to submit mitigation proposals to reduce the adverse environmental effects caused by NWP activities. The mitigation required under the authority of 33 CFR 330.1(e)(3) can be compensatory mitigation, but it can also be additional on-site avoidance and minimization of adverse impacts to jurisdictional waters and wetlands. District engineers have the discretion to determine when compensatory mitigation is to be required for NWP activities, and consider the degree of functions being performed by the jurisdictional waters and wetlands that will be adversely affected by the NWP activities (see paragraph 2 of Section D, District Engineer's Decision).
One commenter stated that compensatory mitigation should only be required for impacts to jurisdictional waters. One commenter suggested that compensatory mitigation should not be required for restoration activities. One commenter said that the reference to the aquatic environment in general condition 23 should be retained.
It is implicit in general condition 23 that compensatory mitigation is only required for NWP activities that impact jurisdictional waters and wetlands. However, under general condition 32 a complete PCN requires a delineation of wetlands, other special aquatic sites, and other waters, and some of those wetlands, other special aquatic sites, and other waters might not be subject to Clean Water Act jurisdiction. Therefore, if compensatory mitigation is required for a proposed NWP activity, and there was no approved jurisdictional determination issued for the project site, there may be occasions where compensatory mitigation was required for impacts to waters and wetlands, where some of those waters and wetlands might not be subject to Clean Water Act jurisdiction. If a project proponent wants an approved jurisdictional determination for a parcel where he or she might be proposing an NWP activity, the project proponent should request and receive that approved jurisdictional determination prior to submitting a PCN for the proposed NWP activity.
In general, compensatory mitigation is not required for restoration activities. In NWP 27, which authorizes aquatic habitat restoration, enhancement, and establishment activities, there is a provision that states that compensatory mitigation is not required for activities authorized by that NWP because they result in net increases in aquatic resource functions and services. We added a similar provision to new NWP 53, which authorizes the removal of low-head dams to restore rivers and streams and improve public safety. The NWP regulations, as well as section 404(e) of the Clean Water Act, refer to adverse environmental effects, so mitigation for NWP activities is
One commenter stated that compensatory mitigation should be required for all unavoidable impacts to wetlands, special aquatic sites, and all stream types (ephemeral, intermittent and perennial). One commenter said that mitigation should only be completed on-site to better compensate for the loss at that location. A few commenters expressed their support for maintaining existing thresholds for compensatory mitigation requirements.
Compensatory mitigation is only required when necessary to ensure that activities authorized by NWPs result in no more than minimal individual and cumulative adverse environmental effects. Avoidance and minimization are other forms of mitigation that may also result in NWP activities causing no more than minimal adverse environmental effects. Under the sequence articulated in 33 CFR 330.1(e)(3), the district engineer first evaluates the PCN and determines whether the proposed activity will cause no more than minimal adverse environmental effects. If the district engineer determines the proposed activity will result in more than minimal adverse environmental effects, he or she will offer the project proponent the opportunity to submit a mitigation proposal to reduce the adverse environmental effects so that they are no more than minimal, individually and cumulatively. If the district engineer determines the mitigation proposal will reduce the adverse environmental effects, so that the net adverse environmental effects are no more than minimal, he or she will add conditions to the NWP authorization to require the project proponent to implement the mitigation proposal. If the district engineer determines that the mitigation proposal will not reduce the adverse environmental effects so that they are no more than minimal, he or she will exercise discretionary authority and instruct the project proponent on how to apply for an individual permit. On-site compensatory mitigation is often not an ecologically effective means of providing compensatory mitigation for impacts to jurisdictional wetlands because hydrologic conditions on the project site are likely to have been altered as a result of the permitted activity (NRC 2001). In the 2008 mitigation rule (33 CFR part 332), there is a framework for evaluating compensatory mitigation options to reduce risk and uncertainty in compensatory mitigation decision-making (see 33 CFR 332.3(a) and (b)). In this general condition, we have not made any changes to the compensatory mitigation thresholds for the NWPs.
One commenter said that the Corps should require all applicants to take all practicable steps to avoid and minimize adverse impacts. Paragraph (a) requires permittees to design their NWP activities to avoid and minimize adverse effects, including both temporary and permanent adverse effects, to the maximum extent practicable on the project site.
One commenter said that mitigation measures should be required for losses of streams and open waters, including mitigation measures to improve floodplain connectivity and to provide flood storage. Another commenter stated that mitigation should be required for impacts to native aquatic vegetation such as eelgrass and kelp. A few commenters said that preservation of high quality aquatic resources should be a priority option for mitigation.
District engineers have the authority to require mitigation for losses of streams and other open waters (see paragraphs (d) and (e) of this general condition). That mitigation may result in the restoration of floodplain connectivity and the provision of one or more floodplain functions. District engineers also have the discretion to require compensatory mitigation for impacts to vegetated estuarine and marine habitats that are caused by NWP activities. We agree that preservation can be used to provide compensatory mitigation, as long as the preservation proposal complies with 33 CFR 332.3(h).
Many commenters said that the
We have retained the
One commenter stated that stream mitigation should only be required if it is practicable. One commenter recommended requiring compensatory mitigation for all losses of stream beds. One commenter said that compensatory mitigation should not be allowed to reduce adverse impacts of losses of stream bed. One commenter suggested establishing a threshold of 500 linear feet for requiring stream compensatory mitigation. One commenter suggested that paragraph (d) should state that the district engineer may require stream mitigation, instead of stating that the district engineer “should” require stream mitigation. A few commenters stated that the Corps should not require compensatory mitigation to offset all losses of stream bed. Several commenters said that compensatory mitigation should not be required for losses of intermittent or ephemeral streams. One commenter said that stream creation or establishment should be acceptable compensatory mitigation. One commenter asked which types of projects can be done to mitigate for the loss of stream length.
Similar to wetland compensatory mitigation, compensatory mitigation for losses of stream bed is only required when district engineers determine such compensatory mitigation is necessary to ensure that activities authorized by NWPs result in no more than minimal individual and cumulative adverse environmental effects. Stream mitigation can reduce the adverse environmental effects of NWP activities so that they are no more than minimal. District engineers have the discretion to require compensatory mitigation for losses of perennial, intermittent, and ephemeral streams. In general, stream compensatory mitigation should be accomplished through rehabilitation, enhancement, and preservation because the Corps' regulations consider streams to be difficult-to-replace aquatic resources (see 33 CFR 332.3(e)(3)). We have added the phrase “if practicable” to the last sentence of paragraph (d) to state that stream rehabilitation, enhancement, or preservation activities should be practicable. Stream compensatory mitigation for NWP activities should not be provided through establishment/creation approaches because establishment/creation activities have not been
Stream restoration and enhancement can be done using a variety of techniques, such as dam removal and modification, culvert replacement or modification, fish passage structures when connectivity cannot be restored or improved by dam removal or culvert replacement, levee removal or setbacks, reconnecting floodplains and other riparian habitats, road removal, road modifications, reducing sediment and pollution inputs to streams, replacing impervious surfaces with pervious surfaces, restoring adequate in-stream or base flows, restoring riparian areas, fencing streams and their riparian areas to exclude livestock, improving in-stream habitat, recreating meanders, and replacing hard bank stabilization structures with bioengineering bank stabilization measures (Roni et al. 2013). Stream restoration projects should focus on restoring ecological processes, through activities such as dam removal, watershed best management practices, improving the riparian zone, and reforestation, instead of focusing on the manipulation the structure of the stream channel (Palmer et al. 2014).
One commenter said that the Corps should require use of a science-based assessment tool that is capable of measuring lost stream functions caused by impacts and stream functions gained from through restoration and/or enhancement activities. One commenter stated that paragraph (d) would allow for continued, unchecked and unmitigated losses of open waters or streams that support salmon or shellfish.
We agree that science-based assessment tools should be used to assess losses of stream function or condition caused by NWP activities, and to assess increases in stream function or condition resulting from stream compensatory mitigation projects. Science-based stream assessment tools can also be used develop ecological performance standards for stream compensatory mitigation projects. However, we recognize that those tools are not available in many areas of the country. Activities authorized by NWPs will result in some losses of streams and other waters that support salmon or shellfish, and district engineers have the discretion to require compensatory mitigation to ensure that the adverse environmental effects resulting from those activities are no more than minimal.
One commenter stated that riparian mitigation requirements should be consistent with the jurisdiction where the mitigation is occurring. Another commenter said that the restoration of riparian areas should not be allowed as a compensatory mitigation option. One commenter stated that buffers should be wider than 25 feet.
Riparian mitigation requirements are determined by district engineers on a case-by-case basis. District engineers can develop local guidelines for riparian mitigation. The restoration of riparian areas is important for rivers, streams, and other open waters, because those riparian areas provide substantial contributions to the ecological functions and services performed by rivers, streams, and other open waters. Paragraph (e) of general condition 23 allows district engineers to require riparian areas a little wider than 25 feet if there are documented water quality or habitat concerns. There are limits to the widths of riparian areas required by district engineers, because compensatory mitigation requirements for NWPs and other DA authorizations must be roughly proportional to the permitted impacts (see 33 CFR 320.4(r)(2) and 33 CFR 332.3(f)(1)). We have modified paragraph (e) to state that compensatory mitigation provided through riparian areas can be accomplished by maintenance/protection of those riparian areas. A well-developed, functional riparian does not need to be restored if it provides ecological functions in its present state.
Several commenters said that paragraph (f)(1) of general condition 23 should be modified to make it clear that the use of mitigation banks or in-lieu fee programs is not mandatory if they are impractical when compared to other mitigation alternatives. One commenter objected to the change in paragraph (f)(1) to establish a preference for the use of mitigation bank or in-lieu fee program credits to provide compensatory mitigation for NWP activities. One commenter said that the proposed modification of paragraph (f)(1) places mitigation banks and in-lieu fee programs on the same level, contrary to the 2008 mitigation rule. This commenter also said that permittees should be allowed to do permittee-responsible mitigation when it is justified. One commenter said that permittee-responsible mitigation remain a viable option, as it may be more ecologically and financially appropriate for some projects. One commenter said that the applicant should be allowed to propose any mitigation option he or she thinks is appropriate, instead of following the hierarchy in 33 CFR 332.3(b). One commenter expressed support for the mitigation hierarchy in 33 CFR 332.3(b). A few commenters object to the hierarchy of mitigation banks being the first consideration. One commenter said that the Corps should select the most environmentally preferable method for wetland mitigation, rather than using the hierarchy listed in the 2008 rule.
As stated in proposed paragraph (f)(1), the use of mitigation bank and in-lieu fee program credits to provide compensatory mitigation for NWP activities is preferred, not required. This preference is based on the hierarchical framework for considering compensatory mitigation options for NWPs and other DA permits that is provided in 33 CFR 332.3(b). That framework was developed to manage risk and uncertainty in aquatic resource compensatory mitigation projects. The proposed paragraph (f)(1) was also made in recognition of the higher risk and uncertainty associated with permittee-responsible mitigation, especially on-site permittee-responsible mitigation where changes to hydrology and other site characteristics caused by the permitted activity make it more difficult to achieve the intended objectives of a compensatory mitigation project (NRC 2001). As stated in the 2001 NRC report, third-party mitigation approaches such as mitigation banks and in-lieu fee programs have some advantages over permittee-responsible mitigation. Paragraph (f)(1) does not supersede the framework established in 33 CFR 332.3(b); it merely reflects Conclusion 5 in the 2001 NRC report. Paragraph (f)(1) does not preclude the use of permittee-responsible mitigation, if such compensatory mitigation is approved by the district engineer after contemplating the considerations discussed in 33 CFR 332.3(a) and (b).
One commenter stated that the proposed change to general condition 23 is unclear as to whether a mitigation plan is required or not. This commenter said that proposed paragraphs (f)(3) and (f)(5) conflict with each other. Another commenter stated that proposed paragraphs (f)(1) and (f)(2) conflict with each other. One commenter said that the public should be involved in the approval process for mitigation plans.
General condition 23 does not require submission of a mitigation plan unless the district engineer determines compensatory mitigation is required to ensure that the proposed NWP activity will result in no more than minimal individual and cumulative adverse environmental effects. If the prospective permittee proposes to use mitigation bank or in-lieu fee program credits to provide compensatory mitigation for the proposed NWP activity the mitigation plan only needs to provide the baseline
We added a new paragraph (f)(2) to state that the amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects. Paragraphs (f)(4) and (f)(6) of general condition 23 (paragraphs (f)(3) and (f)(5) in the proposed rule) do not conflict with each other. They are consistent with 33 CFR 332.4(c)(2)(ii), which addresses the preparation and approval process for mitigation plans for general permit activities. Paragraph (f)(4) describes the requirements for mitigation plans for permittee-responsible mitigation required for NWP activities. Paragraph (f)(6) reflects the flexibility in 33 CFR 332.4(c)(2)(ii) in allowing elements of a compensatory mitigation project to be addressed through permit conditions instead of being addressed in the mitigation plan. We have modified paragraph (f)(3) (proposed paragraph (f)(2)) to apply this paragraph to permittee-responsible mitigation, because mitigation bank credits and in-lieu fee program credits may not be explicitly linked to restoration activities. In addition, the review and approval of mitigation banks and in-lieu fee programs, as well as credit releases from approved mitigation banks and approved in-lieu fee project sites, undergo a rigorous review by the Corps and the other agencies participating in the interagency review process associated with mitigation banks and in-lieu fee programs. There is no public review process for the review of mitigation plans. The district engineer will review the proposed mitigation plan and determine whether it is sufficient for ensuring the NWP activity will cause no more than minimal adverse environmental effects.
One commenter said that when a permittee is a public agency (
The Corps' compensatory mitigation regulations address site protection at 33 CFR 332.7(a) and those regulations allow a range of site protection options, including alternatives to more commonly used site protection instruments such as conservation easements and deed restrictions/restrictive covenants. For a permittee-responsible mitigation project conducted by a public agency or by a state or local government agency, site protection can be provided by agency ownership of the mitigation site, as long as that agency commits to managing and protecting the mitigation site including the aquatic resources and other natural resources on the property. The public agency may also provide site protection by purchasing an easement for the property used for the permittee-responsible mitigation project as long as that easement protects the aquatic resources and other resources on the site over other uses of the land. Section 332.7(a) states that for government property, “long-term protection may be provided through federal facility management plans or integrated natural resources management plans.” Other types of land management plans may also be acceptable approaches to protecting permittee-responsible mitigation sites on publicly-owned lands, and the district engineer should evaluate the public agency's proposed plan for protecting and managing the mitigation site, to determine if that proposed plan satisfies the requirements of 33 CFR 332.7(a). However, if the public agency or state or local government agency decides, in the future, that it has to or wants to use the mitigation site for other purposes, because of changes in statutes, regulations, or agency needs or missions, then the agency will be required to provide alternative compensatory mitigation (see 33 CFR 332.7(a)(4)). In addition, the party responsible for providing the compensatory mitigation must notify the district engineer 60 days prior to taking any action that would void or modify the site protection instrument or site management plan (see 33 CFR 332.7(a)(3)).
Several commenters requested a more thorough explanation of compensatory mitigation monitoring requirements for NWP activities. One commenter asked for guidance on the monitoring requirements for aquatic habitat rehabilitation, enhancement or restoration activities. This commenter stated that monitoring requirements should be commensurate with impacts.
Monitoring requirements for compensatory mitigation projects are determined by district engineers on a case-by-case basis. General requirements for monitoring are provided at 33 CFR 332.6. Monitoring is required to ensure that the compensatory mitigation project site is meeting its performance standards, and to determine if measures such as remediation or adaptive management are necessary to ensure that the compensatory mitigation project is accomplishing its objectives. Monitoring requirements will vary, depending on the specific characteristics of the compensatory mitigation project, such as the compensatory mitigation mechanism (
One commenter stated that mitigation should always be at a 2:1 ratio to ensure that more aquatic habitat is replaced. One commenter said that a national mitigation ratio be used for the NWPs.
The amount of compensatory mitigation to be provided for an NWP activity is determined by the district engineer. Factors used to determine the amount of compensatory required by the district engineer are provided at 33 CFR 332.3(f)(2). Those factors include: The method of compensatory mitigation (
One commenter said that off-site mitigation should not be allowed and on-site avoidance and minimization should be required instead. A few commenters stated that mitigation banking is a way to avoid alternatives analysis procedures.
Off-site compensatory mitigation is an appropriate option for providing compensatory mitigation for NWP activities, as long as the off-site compensatory mitigation project is approved by the district engineer. Off-site compensatory mitigation includes off-site permittee-responsible mitigation, mitigation banks, and in-lieu fee programs. Paragraph (a) of general condition 23 requires on-site avoidance and minimization to the maximum extent practicable for both permanent and temporary adverse effects caused by NWP activities. Compensatory mitigation requirements, including the use of mitigation banks to provide any required compensatory mitigation, are determined after the prospective permittee has complied with the on-site avoidance and minimization requirements in paragraph (a) of this general condition. Alternatives analyses are not required for NWP activities.
Several commenters expressed support for not requiring compensatory mitigation for non-jurisdictional activities, such as tree clearing for overhead power lines that do not involve discharges of dredged or fill material into waters of the United States. One commenter requested examples of activities that are beyond the scope of the district engineer's authority or discretion to require compensatory mitigation.
We have retained the provisions in paragraph (i) as proposed. Because the purpose of mitigation, including compensatory mitigation, in the NWP program is to reduce the adverse environmental effects caused by an NWP activity to ensure that they are no more than minimal, individually and cumulatively, compensatory mitigation requirements established by the district engineer must relate to the direct and indirect effects caused by the NWP activity. That would be the discharges of dredged or fill material in waters of the United States and/or the structures of work in navigable waters of the United States.
Several commenters stated that compensatory mitigation for NWP activities is not effective in offsetting adverse impacts. One commenter stated that post-permit compensatory mitigation cannot be used to make the no more than minimal adverse environmental effects determination, because it is legally impermissible and because the Corps lacks sufficient evidence to conclude that mitigation will render the impacts caused by NWP activities to be no more than minimal. One commenter said that mitigation under the NWPs does not compensate for losses of functions and services, and instead results in adverse impacts. One commenter stated the Corps should establish and manage a database to understand the impact of the NWP program, including the effectiveness of mitigation actions.
The restoration, enhancement, preservation, and in some circumstances, the establishment of aquatic resources has been demonstrated to increase or maintain ecological functions and services, which offset losses of ecological functions and services caused by activities authorized by NWPs and other types of DA permits. For difficult-to-replace aquatic resources, such as streams, bogs, and springs, compensatory mitigation should be provided through in-kind rehabilitation, enhancement, or preservation (see 33 CFR 332.3(e)(3)) because these types of aquatic resources cannot be established by manipulating uplands. When a district engineer receives a permittee-responsible mitigation proposal from the applicant, he or she carefully evaluates that proposal to determine whether it will be ecologically successful and fulfill its objectives in providing certain aquatic resource functions and services. If the permittee-responsible mitigation project is approved, the district engineer requires monitoring to ensure that it is meeting its ecological performance standards and is developing into the target aquatic resource. If the permittee-responsible mitigation project is not meeting its ecological performance standards, the district engineer will work with the permittee to identify actions, including adaptive management, to make adjustments to the mitigation project so that it meets its objectives. If the permittee-responsible mitigation project fails, the permittee may be required to provide alternative compensatory mitigation.
If the required compensatory mitigation is to be provided through mitigation bank or in-lieu fee program credits, oversight by the district engineer, with input from federal and state resource agencies and other agencies, helps ensure that mitigation banks and in-lieu fee projects produce the required amount and type of restored, enhanced, established, and preserved aquatic resources and other natural resources. Mitigation banks and in-lieu fee projects are required to have credit release schedules, which are linked to ecological performance standards and other requirements, to ensure that the mitigation bank or in-lieu fee project is meeting its objectives in providing the desired aquatic resources and functions and services. Monitoring and adaptive management are also required for mitigation banks and in-lieu fee projects.
For the issuance or reissuance of the NWPs, the decision documents for those NWPs describe, in general terms, the mitigation measures taken for NWP activities to ensure they result in no more than minimal individual and cumulative adverse effects. That is a general discussion because of the wide variation of aquatic resource types across the country, the functions and services they provide, and the methods for restoring, enhancing, and in certain circumstances, establishing those aquatic resource. The decision documents also provide a general discussion of studies on aquatic resource restoration and enhancement that demonstrate that these activities can provide increases of aquatic resource functions. To fulfill the requirements of NEPA, the decision document includes an environmental assessment, with a mitigated finding of no significant impact. Mitigated findings of no significant impact are appropriate for fulfilling NEPA requirements (see the Council on Environmental Quality's January 14, 2011, guidance entitled “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact”).
The Corps tracks authorized impacts and permittee-responsible mitigation in its Regulatory program automated information, ORM. The Corps tracks credits produced by approved mitigation banks and in-lieu fee programs in the Regulatory In-Lieu Fee and Banking Information System (RIBITS), which is available at:
One commenter stated that upland buffers should be accepted as compensatory mitigation for NWP activities. One commenter asked how district engineers assess indirect impacts to wetlands authorized by NWPs. One commenter asked when compensatory mitigation is to be required for temporary impacts. One commenter said that district engineers should not require any more stringent methods of compensatory mitigation than what is provided in the 2008 mitigation rule.
Upland buffers can be used to provide compensatory mitigation for NWPs (see
One commenter stated that compensatory mitigation requirements should be determined by district engineers, because they are familiar with the regional conditions and the mitigation needs of their geographic areas of responsibility. Several commenters stated that compensatory mitigation should be required after the 404(b)(1) Guidelines had been followed. One commenter said that the Corps should focus on a consistent nationwide criteria for when compensatory mitigation is required. One commenter said that compensatory mitigation is unnecessary and impractical for the vast majority of NWP activities. One commenter said that compensatory mitigation should be required for all losses of waters of the United States.
Compensatory mitigation requirements for NWP activities are determined by district engineers on a case-by-case basis. The Corps complied with the 404(b)(1) Guidelines when it issued or reissued the NWPs. For a specific activity authorized by an NWP, a separate 404(b)(1) Guidelines analysis is not required. There is a national standard for when compensatory mitigation required, and that standard is found in 33 CFR 330.1(e)(3), which was established in 1991 (see the November 22, 1991, issue of the
One commenter suggested that the entire project should be considered when determining compensatory mitigation requirements. A few commenters said there should not be a threshold for requiring compensatory mitigation, but compensatory mitigation should be required regardless of the impact amount. One commenter objected to increasing compensatory mitigation requirements for the NWPs. One commenter said that compensatory mitigation requirements should be based on impacts to functions, not on a limit threshold.
Compensatory mitigation must be “directly related to the impacts of the proposal, appropriate to the scope and degree of those impacts, and reasonably enforceable” (33 CFR 320.4(r)(2)). The term “proposal” refers to the activity that requires DA authorization. The Corps does not have the authority to enforce permit conditions, including compensatory mitigation requirements, for activities it does not regulate. For the NWP program, the threshold for requiring compensatory mitigation is in 33 CFR 330.1(e)(3), and under that regulation compensatory mitigation is only required when necessary to ensure the authorized activity will cause no more than minimal individual and cumulative adverse environmental effects. The June 1, 2016, proposed rule did not propose to increase compensatory mitigation requirements for the NWPs, but we did seek comments on how to improve compensatory mitigation in the NWP program (see 81 FR 35211). Compensatory mitigation requirements are based on the functions lost as a result of the NWP activity. For wetland losses greater than
Several commenters said that if a district engineer issues a written waiver of a linear foot limit or other NWP limit, then compensatory mitigation should not be required for the waiver because the district engineer already determined that the authorized activity results in no more than minimal adverse environmental effects because of best management practices and other minimization techniques. Another commenter stated that mitigation should always be required for activities that are authorized by a waiver. One commenter said that compensatory mitigation should not be required to receive a waiver. One commenter stated that if compensatory mitigation is required for a district engineer's waiver of the 300 linear foot limit for losses of intermittent or ephemeral stream bed, compensatory mitigation should only be required for the linear feet of losses of stream bed that exceed the 300 linear foot limit.
For a district engineer to issue a waiver, it may be necessary to require compensatory mitigation so that the adverse environmental effects caused by the activity are no more than minimal, individually and cumulatively. The district engineer evaluates the waiver request, and if agency coordination is required for the waiver request, the agency comments to make the determination whether the adverse environmental effects will be no more than minimal. If the district engineer decides the adverse environmental effects will be more than minimal, he or she will offer the project proponent the opportunity to submit a mitigation plan to reduce the adverse environmental effects so that they are no more than minimal. If the district engineer determines the mitigation proposal will reduce the adverse environmental effects so that NWP authorization is appropriate, and add conditions to the NWP authorization to require the permittee to implement the mitigation proposal. If the district engineer decides the mitigation proposal will not sufficiently reduce the adverse environmental effects so that they are no more than minimal, he or she will exercise discretionary authority and require an individual permit. Therefore, whether a waiver request requires compensatory mitigation is at the discretion of the district engineer. The district engineer will decide how much compensatory mitigation is necessary to ensure that the NWP activity with the written waiver of the applicable NWP limit will cause no more than minimal individual and cumulative adverse environmental effects.
Several commenters stated that when district engineers make compensatory mitigation decisions for NWP activities, they should take into consideration whether the affected waters are man-made or natural. One commenter said that mitigation should not be required
District engineers can take into account the type of aquatic resource, and whether it is natural or man-made, when deciding if compensatory mitigation should be required. If the man-made stormwater conveyance systems are not waters of the United States under the current regulations and guidance for identifying waters of the United States, then mitigation should not be required for activities in those systems, especially if the Corps does not regulate those activities. The Corps determines, on a case-by-case basis, when compensatory mitigation is to be required for NWP activities in a linear transportation project, regardless of whether another agency's requirements precluded alternatives for that linear transportation project that would have avoided or minimized impacts to jurisdictional waters or wetlands.
This general condition is adopted with the modifications discussed above.
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The purpose of this general condition is to ensure that acreage limits are not exceeded when two or more NWPs are combined to authorize a single and complete project. When an NWP is combined with a regional general permit to authorize a single and complete activity, it is the district engineer's determination whether the adverse environmental effects will be no more than minimal. Both NWPs and regional general permits must comply with the same standard established under section 404(e) of the Clean Water Act. When district engineers evaluate proposed NWP activities, they consider the cumulative effects of the use of those NWPs on a regional basis. They also consider the cumulative effects of activities authorized by their regional general permits, and may modify, suspend, or revoke their regional general permits when they determine those general permits are resulting in activities that have more than minimal cumulative adverse environmental effects. During the evaluation of applications for individual permits, district engineers conduct cumulative impact analyses to comply with NEPA requirements, if they are preparing environmental assessments or environmental impact statements. If the proposed activity requires an individual permit and involves discharges of dredged or fill material into waters of the United States, the district engineer will also conduct a cumulative effects analysis under the 404(b)(1) Guidelines.
This general condition is adopted as proposed.
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Several commenters said they supported the proposed modification, and some suggested an extension to the 30-day timeframe. Two commenters stated that the 30-day timeframe is not long enough and should be extended to 90 days because permittees have internal reviews and need more time to carefully certify the compliance certification document. One of these commenters asked what is considered “implementation” of the compensatory mitigation project. One commenter said the proposed modification would provide important information to the Corps to ensure that the program is causing no more than minimal adverse environmental impacts. One commenter recommended assigning a timeframe to ensure the receipt of a compliance certification. One commenter agreed with the 30-day timeframe but expressed concerns regarding what would happen if the due date is missed.
We believe that 30 days is sufficient time for permittees to submit their compliance certifications to district engineers. These certifications should be simple statements that do not require much work to prepare. If the proposed 30-day period would be increased to 90 days, it is likely that it would result in more permittees forgetting to submit their certifications. For the purposes of this general condition, implementation of the required compensatory mitigation refers to the completion of construction of the permittee-responsible mitigation project. If the permittee-responsible mitigation project is solely preservation of aquatic resources, then it would be the execution of the site protection mechanism and other required measures for the preservation compensatory mitigation. If mitigation bank or in-lieu fee program credits will be used to fulfill compensatory mitigation requirements, the implementation refers to securing those credits. If the permittee fails to submit the compliance certification on time, there would be non-compliance with this general condition. The district engineer may take appropriate action to address that non-compliance.
One commenter stated that this general condition should be modified to state that the completed certification should be submitted within 30 days of completing the authorized activity or completing the implementation of the required compensatory mitigation. One commenter said the 2012 general condition should be retained and require submission of the certification within 30 days of project completion. This commenter remarked that there is frequently a time lapse between completing the compensatory mitigation requirement and completing the NWP activity.
In general, the required compensatory mitigation should be implemented in
This general condition is adopted with the modification discussed above.
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Several commenters said they support the proposed new general condition and several commenters said they opposed the new general condition. One commenter asked how long a typical section 408 permission review takes and how it would affect the 45-day default authorization for the NWPs. One commenter requested clarification on when the 45-day clock starts for PCNs submitted under general condition 31. Several commenters stated that the general condition should be modified so that it only applies to major section 408 reviews, not to minor section 408 reviews. A few commenters said that a PCN should not be required for an activity that requires section 408 permission, if the NWP activity does not otherwise require a PCN.
We do not have any statistics on how long section 408 reviews typically take. As stated in the text of this general condition, the proposed NWP activity is not authorized by NWP until the appropriate Corps office issues the 408 permission. In other words, if the proposed NWP activity requires section 408 permission the 45-day default authorization does not apply. If a PCN is required under general condition 31, the activities cannot be authorized by NWP until the Corps issues the 408 permission, or determines that a 408 permission is not required. We have modified the last sentence of this general condition to change “Corps district office” to “Corps office” because some section 408 permissions are issued by Corps Headquarters. To ensure that NWP activities that will alter or temporarily or permanently occupy or use USACE projects obtain the required 408 permissions before the project proponent conducts those NWP activities, the general condition must apply to both major and minor section 408 reviews. The PCN requirement is necessary to give district engineers the opportunity to add conditions to the NWP authorization to protect the USACE project and to ensure that any needed internal coordination is done.
One commenter said that Engineer Circular 1165–2–216 should not be treated as a binding rule in the final NWPs. One commenter stated that guidance should be issued to Corps districts on ways to streamline 408 reviews so that they do not delay NWP verifications. One commenter asked whether section 408 and section 404 reviews could be concurrent with each other. One commenter said that section 408 and section 404 reviews should be independent of each other.
The NWP regulations already state that the “NWPs do not authorize interference with any existing or proposed Federal project” (see 33 CFR 330.4(b)(5)). Engineer Circular 1165–2–216 provides the procedures to ensure that activities, including NWP activities, do not interfere with USACE projects. It has been extended for one year while the Corps considers updates and revisions to the Engineer Circular. General condition 31 adds further assurance that activities authorized by the NWPs will not interfere with existing or proposed USACE projects. The 408 permission process must be completed before the NWP verification can be issued. The 408 permission process might require the project proponent to modify his or her proposed activity to avoid or reduce its impact on the USACE project. Where possible, the section 408 and the NWP PCN reviews are conducted concurrently. The section 408 and NWP PCN reviews are independent of each other and they often occur in different Corps offices.
One commenter requested a list of rivers where section 408 permissions are required. One commenter said that the Corps should establish a Web site with a list of federal projects so applicants can determine when section 408 permissions are required. Additional information on the section 408 permission process and the timing of the issuance of authorizations by Regulatory Program offices is provided in Engineer Circular 1165–2–216, which is available at:
The project proponent should contact the appropriate Corps district office if he or she is uncertain whether the proposed activity might alter or temporarily or permanently occupy or use a USACE project.
This general condition is adopted with the modification discussed above.
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Several commenters said they supported the proposed changes to general condition 32 and several commenters said they objected to those proposed changes. One commenter stated that the Corps should avoid changes to the PCN requirements that would result in delays. A few
Other than new general condition 31, we have not made any changes to the PCN requirements for the NWPs that would increase the time it takes for district engineers to make decisions on those PCNs. Some of the proposed changes, such as providing the opportunity for the project proponent to describe mitigation measures in the PCN that would help the district engineer reach a “no more than minimal adverse environmental effects” determination, will help reduce PCN processing times. The proposed changes to general condition 32 regarding linear projects are also intended to provide information that would facilitate the district engineer's review.
One commenter said that PCNs should be required for all NWP activities to provide the public with the opportunity to comment on those activities, to provide information on other proposed activities that may contribute to cumulative impacts. One commenter stated that PCNs should be required for all activities in Clean Water Act section 303(d) impaired waters, and each of those PCNs should include a statement explaining how the proposed activity avoids contributing to the existing water quality impairment. One commenter said that PCNs should be required for all proposed NWP activities located in 100-year floodplains.
Activities authorized by NWPs and other general permits do not require a public notice and comment process; the public notice and comment process occurs during the development of the NWP, regional general permit, or programmatic general permit. Requiring the solicitation of public comment on case-specific NWP activities would be contrary to the streamlined process envisioned by section 404(e) of the Clean Water Act. The Corps tracks the use of the NWPs, especially the NWP PCNs and the activities voluntarily reported to Corps district offices that do not require PCNs, to assess the NWP program's incremental contribution to cumulative environmental effects. Division engineers can add regional conditions to one or more NWPs for activities in Clean Water Act section 303(d) waters, for those NWPs that might contribute further to the impairment of those waters. Fills in 100-year floodplains must comply with the requirements of general condition 10 and do not require additional PCNs.
A few commenters stated that the PCN process should not be used to ensure that NWP activities will result in no more than minimal adverse environmental effects. One commenter said that there no evidence that PCNs will ensure that project impacts are no more than minimal. Two commenters stated that PCNs are an essential mechanism for ensuring NWP activities result in only minimal impacts.
The PCN process has been used for many years to provide flexibility in the NWP program and to ensure that NWP activities have no more than minimal individual and cumulative adverse environmental effects. Nothing in the text of section 404(e) of the Clean Water Act indicates that the Corps cannot use a PCN process for general permits. The PCN process provides an opportunity for the district engineer to do a site- and activity-specific evaluation of a proposed NWP activity, and take into account the characteristics of the project site and proposed activity to determine whether the proposed NWP activity will cause no more than minimal individual and cumulative adverse environmental effects. The PCN process also gives the district engineer the opportunity to add activity-specific conditions to the NWP authorization to satisfy the “no more than minimal adverse environmental effects” requirement for the NWPs. If there was no PCN process available for the NWPs, then there would be no activity-specific conditions added to the NWP authorization, including no compensatory mitigation or other mitigation requirements. In addition, there would be no opportunity to comply with section 7 of the Endangered Species Act or section 106 of the National Historic Preservation Act.
One commenter asked whether the Corps would notify the applicant in circumstances when individual water quality certifications are required for NWP activities. One commenter stated that NWP activities that require PCNs and NWP activities that do not require PCNs are not “similar in nature” and should not be authorized by the same NWP.
If water quality certification has not been previously issued by the state, tribe, or U.S. EPA for the NWP, an individual water quality certification is required (see general condition 25). The district engineer may issue a provisional NWP verification, which explicitly states to the prospective permittee that the proposed activity is not authorized by NWP until he or she obtains an individual water quality certification or a waiver. An NWP authorizes a category of activities that is similar in nature, and whether a PCN is required or not does not alter that category. The PCN process is simply a process whereby district engineers review proposed activities that have the potential to result in more than minimal adverse environmental effects. In response to a PCN, the district engineer can conditions, including mitigation requirements, to ensure that authorized activities cause no more than minimal adverse environmental effects. The district engineer can also exercise discretionary authority and require an individual permit for the proposed activity.
A few commenters said that the final NWPs should provide clear direction to Corps districts to not use additional information requests to delay reviews. A few commenters stated that the Corps should adhere to a 45-day review period for all PCNs that are not subject to activity-specific conditions requiring additional procedures. One commenter stated that PCN review periods should be expedited for time-sensitive maintenance and inspection work for energy projects. Another commenter said that the Corps should allow emergency projects to proceed immediately and conduct after-the-fact review and approvals.
Paragraph (a) is written to provide direction to district engineers to make only one additional information request. Except for certain NWPs (
One commenter said that Corps Headquarters should provide district offices with more guidance and direction on complying with the review timelines for NWP PCNs. A few commenters stated that Corps Headquarters should issue guidance to its districts to make it clear that requests for additional information are limited to
We do not believe that any additional guidance is necessary. General condition 32 and Section D, District Engineer's decision, clearly articulate the process for reviewing PCNs. Paragraph (a) of general condition 32 describes the process for requesting additional information for PCNs to make them complete. Additional information may be required from the applicant to conduct other procedures associated with the PCN process, such as information necessary to conduct ESA section 7 consultation or information needed for NHPA section 106 consultation. General condition 32 states that, as a general rule, the district engineer should make only one request for information to make the PCN complete. We recognize that there may be some situations where a piece of information needed to make the PCN complete was not identified, and the district engineer can request that information to proceed with the evaluation of the PCN. If that flexibility is not provided, the district engineer may be left with the option of suspending or revoking the NWP authorization because he or she was not allowed by the NWP rule to request that piece of additional information. We believe that 30 days is necessary to make completeness determinations for PCNs.
One commenter said that applicants should not be allowed to proceed with NWP activities that require PCNs without receiving a written verification from the Corps. A few commenters said that the statement explaining that the 45-day PCN review period may be extended if general conditions 18, 20, and/or 31 apply to an NWP activity leaves the PCN review period open ended, and disagreed with that approach. One commenter stated that extending the PCN review period beyond 45 days does not follow the congressional mandate to provide a streamlined permitting process. This commenter stated that extensions to the PCN review period should require documentation and substantiation as to why an extension is necessary, and then only be granted for specific and predictable periods of time. This commenter suggested creating timelines for the consultations and coordination procedures that extend the PCN review period to ensure that they occur in a timely manner.
The NWP regulations at 33 CFR part 330 provide a 45-day default authorization for most NWP activities. There are exceptions for certain NWPs, such as NWPs 21, 49, and 50, and for certain general conditions. If ESA section 7 consultation and/or NHPA section 106 consultation is required for a proposed NWP activity, the project proponent cannot proceed with the NWP activity until after those consultations have been completed and the district engineer notifies the project proponent. Activities authorized by the Corps are required to comply with ESA section 7 and NHPA section 106, and those consultations will be completed as soon as practicable. Section 404(e) of the Clean Water Act does not provide any exemptions from complying with ESA section 7 and/or NHPA section 106. The Corps only conducts those consultations where it is required to do so, and the consultation documentation is included in the administrative record for those NWP PCNs. For ESA section 7 consultations, the consultation process does not end until the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service issues their biological opinion for a formal consultation or its written concurrence for a request for informal consultation. For NHPA section 7 consultations, the consultation process does not end until after the applicable steps in the consultation process identified in 36 CFR part 800 have been completed.
One commenter said that the 45-day review should include a pre-application meeting to determine if NWP authorization is appropriate for a proposed activity. One commenter suggested that to avoid delays in PCN reviews, Corps districts should assign one project manager to an individual company to review all of that company's permit applications, and that the project manager would be funded by that company. One commenter recommended applying the 2001 memorandum entitled “Fees in the Section 106 Process” to the PCN coordination process, if the Corps intends to maintain the current coordination timelines.
Pre-application meetings can provide information that will be helpful in processing the NWP PCN, when the PCN is submitted to the district engineer. However, pre-application meetings are optional. Under 33 U.S.C. 2352, the Corps may accept and expend funds contributed by a non-federal public entity or a public-utility company or natural gas company to expedite the evaluation of applications for Department of the Army permits for that entity or company. Guidance on that process is provided in guidance issued by the Corps on August 14, 2015, that is entitled: “Implementation Guidance for Section 1006 of the Water Resources Reform and Development Act of 2014 and Guidance on the Use of Funding Agreements within the Regulatory Program.” A copy of that guidance is available at:
One commenter said that the information requirements for PCNs make the NWPs more like individual permits in terms of the amount of information required. Several commenters recommended requiring more project-specific information requirements for PCNs. One commenter stated that PCNs should include a requirement for alternatives information. One commenter said that PCNs should include detailed mitigation plans. A couple of commenters stated that PCNs should include information about drinking water intakes in the vicinity of proposed NWP activities.
While the NWPs may require a moderate amount of information for a complete PCN, that information is necessary for the district engineer to make his or her determination whether a proposed NWP activity will result in no more than minimal adverse environmental effects. Providing this information to the district engineer early in the NWP authorization process means that little or no information should be needed later in the process, in contrast to individual permits in which a minor amount of information is required to issue public notices, and additional information is provided during the individual permit evaluation process to assist the district engineer in making his or her decision. Pre-construction notifications do not require alternatives analyses because specific activities authorized by general permits do not require alternatives analyses under the 404(b)(1) guidelines (see 40 CFR 230.7(b)(1)). In addition, NEPA documentation, including a NEPA alternatives analysis, is not required for
Three commenters expressed support for having the applicant identify which NWP they are applying for. One of these commenters said that this will allow for streamlining the permitting process, and avoid delays in processing. One commenter said that the district engineer should be required to verify the particular NWP identified in the PCN, instead of saying that the district engineer should verify the activity under that NWP. One commenter suggested that applicant's choice of NWP that most readily authorizes the activity should be added to paragraph (b)(3). One commenter asked whether or not the Corps would notify the applicant that the district engineer is evaluating the proposed activity under a different NWP than what the applicant identified in the PCN. One commenter said that paragraph (b)(3) should state that the district engineer can or should advise the permittee of another NWP that could allow the proposed activity to be authorized more efficiently.
We are retaining proposed paragraph (b)(3), to identify the specific NWP or NWPs that the project proponent wants to use. The district engineer is not required to verify the specific NWP(s) identified in the PCN if any of the specific NWP(s) are clearly not applicable. For example, if the prospective permittee request NWP 27 authorization for a bank stabilization activity then the district engineer can issue an NWP 13 verification if the proposed activity complies with the terms and conditions of NWP 13. An applicant will normally specify the NWP or NWPs that will most readily authorize his or her proposed activity, unless there is reason for requesting verification under another NWP or NWPs. If the district engineer decides after reviewing the PCN that the proposed activity does not qualify for the NWP identified by the project proponent, he or she does not have to notify the applicant that the PCN is being evaluated under another NWP. If the district engineer decides that the proposed activity does not qualify for authorization under any NWP, he or she will notify the applicant and provide instructions on how to apply for authorization under an individual permit or a regional general permit.
Two commenters stated that there is no benefit to having the applicant identify in their PCNs which NWP he or she is proposing to use. These commenters said that regardless of which NWP the applicant identifies, the Corps should authorize the activity under the NWP most appropriate to the project purpose. A couple of commenters said proposed paragraph (b)(3) is unclear whether the proposed activity will be verified under the NWP identified by the applicant because it has less stringent conditions, or whether it would be verified under the most appropriate NWP based on the purpose of the proposed activity and the most pertinent conditions. A few commenters said that the Corps should evaluate proposed activities under the most pertinent NWP(s), even if the applicant has specified a different NWP.
There is some degree of redundancy in the NWPs, where a proposed activity is eligible for authorization more than one NWP. At the end of the day, the standard is the same for all NWPs: NWP activities must result in no more than minimal individual and cumulative adverse environmental effects. So if a proposed activity meets the terms of the requested NWP, and any applicable regional conditions, then the district engineer should issue the NWP verification under the NWP identified in the PCN. In the NWP regulations at 33 CFR 330.2(h), “terms” are defined as: “. . . the limitations and provisions included in the description of the NWP itself” (see 33 CFR 330.2(h)). The NWP general conditions are the same for all of the NWPs. The category of activity authorized by the NWP is the relevant consideration, not the project purpose.
One commenter said that PCNs for proposed NWP activities in FEMA-mapped floodways should require a floodway analysis. Another commenter stated that PCNs for proposed NWP activities located within 100-year floodplains should include require information on floodplain values, hazards, and FEMA-approved maps, and any applicable FEMA-approved state or local floodplain management requirements. One commenter suggested that PCNs should require certification by individuals that meet the Secretary of the Interior's Professional Qualifications Standards to state whether the proposed activity has potential to cause effects to historic properties or whether consultation with tribes needs to be conducted.
We do not believe that it is necessary for a PCN to include a floodway analysis if the proposed NWP activity is located in a FEMA-mapped floodway. That information can be requested and analyzed by the appropriate federal, tribal, state, or local floodplain management authority. District engineers will review PCNs to determine whether they will have more than minimal adverse effects to floodplain values, or cause more than minimal increases in flood hazards. Such information does not need to be provided in the PCN. In accordance with general condition 20, non-federal permittees are required to submit PCNs if the proposed NWP activity might have the potential to cause effects to historic properties. Because the requirement to comply with the consultation requirements of section 106 of the NHPA fall on the Corps for its undertakings, and to consult with tribes when necessary to fulfill its trust obligations to tribes, the PCN does not need to include the certification suggested by the commenter.
A few commenters objected to including proposed mitigation measures in PCNs. Three commenters said that requiring the PCN to include mitigation measures is unnecessary, burdensome, and duplicative. Two commenters requested removal of the proposed requirement, because this information is applicable to proposed activities reviewed under individual permit procedures, instead of NWP activities. One commenter requested flexibility in the amount of detail required for describing mitigation measures in the PCN. One commenter said paragraph (b)(4) should refer to on-site mitigation measures and define those measures as avoidance, minimization, repair, restoration, or reduction of impacts over time to avoid confusion with compensatory mitigation. Two commenters stated that for restoration projects that qualify for NWP authorization, compensatory mitigation should not be required.
The mitigation measures in paragraph (b)(4) may include describing avoidance and minimization of impacts to jurisdictional waters and wetlands on the project site. The prospective permittee is not required to propose any mitigation measures in his or her PCN. The prospective permittee can choose not to propose any mitigation measures. A description of mitigation measures is optional, and the project proponent is encouraged to describe, in the PCN, mitigation measures that will assist the district engineer in reaching a decision, earlier in the process, that the proposed activity will result in no more than minimal adverse environmental effects. The level of detail for the proposed mitigation measures described in the PCN is up to the project proponent. Otherwise, the district engineer may review the PCN and determine that mitigation is necessary to ensure that the proposed activity will cause no more than minimal adverse environmental effects and notify the prospective permittee that a mitigation plan is required. That will add more time to the district engineer's review process. It is the prospective permittee's decision whether to suggest mitigation measures up front in the PCN or wait for the district engineer's request for a mitigation proposal.
The term “mitigation measures” in paragraph (b)(4) refer to all five forms of mitigation identified in paragraph (b) of general condition 23, mitigation. The prospective permittee also has the option of proposing to do compensatory mitigation, especially if he or she believes that the district engineer will require compensatory mitigation for the proposed NWP activity. As stated in NWPs 27 and 54, compensatory mitigation is not required for the restoration activities authorized by those NWPs.
A few commenters objected to a requirement to state the proposed quantity of losses of waters of the United States for each single and complete crossing of waters of the United States for linear projects. One commenter said that for linear projects that have multiple crossings of waterbodies, and only some of those crossings require PCNs, the applicant must discuss the impacts of all crossings, not just those that require PCNs. This commenter also stated that the applicant should not be allowed to construct crossings that do not require PCNs until the Corps district issues its verification for the crossings that require PCNs.
In paragraph (b)(4), we have changed the phrase “waters of the United States” to “wetlands, other special aquatic sites, and other waters” to be consistent with paragraph (b)(5) of this general condition. As discussed below, neither approved jurisdictional determinations or preliminary jurisdictional determinations are not required for NWP PCNs, and if the project proponent wants an approved or preliminary jurisdictional determination for the project site, he or she should request and receive that approved or preliminary jurisdictional determination prior to submitting an NWP PCN.
Two commenters said there is inconsistent language in the PCN requirements for linear projects. They said the paragraph (b)(4) first states that the PCN must include “the anticipated amount of loss of water of the United States expected to result from the NWP activity” and later states that for single and complete linear projects, the PCN “must include the quantity of proposed losses of waters of the United States for each single and complete crossing of waters of the United States.” In the third sentence of paragraph (b)(4), we have changed the word “proposed” to “anticipated” to be consistent with the first sentence of this paragraph.
One commenter stated that an approved jurisdictional determination should not be required for an NWP PCN, and that the final NWPs should clarify how approved and preliminary jurisdictional determinations relate to the NWP PCN process. One commenter said that the Corps' jurisdictional determination process under Regulatory Guidance Letter 08–02 should not require a jurisdictional determination to be performed prior to starting the NWP PCN review process. One commenter stated that the requirement for a full delineation of waters of the United States is a significant cause of delay and cost in light of the uncertainties regarding the 2015 final rule defining waters of the United States. This commenter also said that because delineations are only required to be included with a PCN when proposed impacts are 1/10-acre or greater, all of the wetland impacts cannot be evaluated. One commenter said the Corps should field verify every delineation it receives with a PCN. This commenter also stated that if the Corps cannot verify every delineation, we should randomly select delineations to verify.
An approved or preliminary jurisdictional determination is not required for a complete PCN, or for the district engineer to issue an NWP verification. For a complete PCN, the prospective permittee must submit a delineation of wetlands, other special aquatic sites, and other waters on the project site. The project site is not necessarily the entire parcel of land; it may be a portion of that land if the proposed NWP activity is limited to that portion of the parcel. The delineation of wetlands, other special aquatic sites, and other waters on the project site is necessary for the Corps' evaluation of the NWP PCN and its determination on whether the proposed activity will result in no more than minimal adverse environmental effects. The need for the delineation is independent of whatever regulation defining “waters of the United States” is in place at the time the PCN is submitted. As stated above, neither an approved jurisdictional determination nor a preliminary jurisdictional determination is required to process the PCN, and requests for approved and preliminary jurisdictional determinations will be processed by Corps districts as separate actions. Since 1991, the NWPs have had a requirement for submission of a delineation of affected special aquatic sites, including wetlands (see 56 FR 59145). All NWP PCNs require a delineation of wetlands, other special aquatic sites, and other waters. There is not a 1/10-acre threshold for requiring a delineation with the PCN. District engineers have the option of verifying the accuracy of the delineation, or making the decision on the NWP verification without doing a verification of the delineation.
Paragraph (b)(5) only requires a delineation of wetlands, other special aquatic sites, and other waters to provide information to the district engineer to make his or her determination whether the proposed activity qualifies for NWP authorization. In the third sentence of this paragraph, we have replaced the phrase “waters of the United States” with “wetlands, other special aquatic sites, and other waters” to make it clear that the delineation submitted with the PCN does not require a jurisdictional determination. The delineation only needs to identify wetlands, other special aquatic sites, and other waters on the site and their approximate boundaries, so that the district engineer can evaluate the proposed activity's impacts to those wetlands, other special aquatic sites, and other waters. For a complete PCN, that delineation does not have to be verified by the Corps district. If the district engineer finds errors in the delineation, he or she may make corrections to the delineation or require the applicant to make those corrections, but those corrections should not delay the decision on the NWP verification or the decision to exercise discretionary authority.
If the project proponent wants an approved jurisdictional determination to help him or her determine whether the proposed activity might qualify for NWP authorization, to identify jurisdictional waters and wetlands to provide in support of his or her PCN, or to avoid having to do compensatory mitigation for losses of wetlands, other special aquatic sites, or other waters that are not subject to Clean Water Act jurisdiction, the project proponent must submit a separate request for an approved jurisdictional determination. An NWP PCN and a request for an approved jurisdictional determination are separate actions, and if a project proponent submits a request for an approved jurisdictional determination with his or her NWP PCN, the district engineer will process those requests separately. General condition 32 does not require an approved jurisdictional determination for NWP PCNs; only a delineation of wetlands, other special aquatic sites, and other waters is required to make the PCN. With certain exceptions identified in the NWPs (
One commenter said that paragraph (b)(5) should be modified to state that National Wetland Inventory mapping is not appropriate for determining wetland boundaries, every wetland delineation submitted with a PCN must be based on an actual field investigation, and streams identified on a U.S. Geological Survey (USGS) map are not adequate documentation for a delineation. One commenter suggested adding text to paragraph (b)(5) to state that a USGS topographic quadrangle shall be sufficient to delineate intermittent and ephemeral streams on the project site, and that failure to list or map any stream bed that is not shown on a USGS topographic quadrangle as an intermittent or ephemeral stream shall not be a reason for the district engineer determining the delineation is not complete. This commenter asserted that if a stream is not mapped on a USGS topographic quadrangle map, it should not be considered jurisdictional under the Clean Water Act.
We understand that various published maps, especially published maps generated by remote sensing, do not show all wetlands or accurately depict wetland boundaries, or show all streams. The remote sensing approaches used by the U.S. FWS for its National Wetland Inventory maps result in errors of omission that exclude wetlands that are difficult to identify through photointerpretation (Tiner 1997). These errors of omission are due to wetland type and the size of target mapping units (Tiner 1997). Likewise, many small streams, especially headwater streams, are not mapped on 1:24,000 scale U.S. Geological Survey (USGS) topographic maps (Leopold 1994) or included in other inventories (Meyer and Wallace 2001), including the National Hydrography Dataset (Elmore et al. 2013). Many small streams and rivers are not identified through maps produced by aerial photography or satellite imagery because of inadequate image resolution or trees or other vegetation obscuring the visibility of those streams from above (Benstead and Leigh 2012). However, we do not believe it is necessary to explicitly state in the text of paragraph (b)(5) that National Wetland Inventory maps or USGS topographic maps may, or may not, be adequate for preparing the delineation of wetlands, other special aquatic sites, or other waters for the PCN. A stream may be a jurisdictional water of the United States even if it is not shown on a USGS topographic map.
One commenter suggested adding the term “natural” before “lakes and ponds” in paragraph (b)(5), stating that there is no need to delineate artificial waterbodies or any area that is wet due to irrigation, whether or not they are prior converted cropland. One commenter suggested adding text to this paragraph to state that a jurisdictional determination is not required to make a PCN complete, because a jurisdictional determination is not necessary for the Corps to issue an NWP verification.
Some artificial waterbodies may be waters of the United States. For example, a lake that was created by impounding a jurisdictional river would likely be subject to Clean Water Act jurisdiction. If an area is not a wetland, another type of special aquatic site, or other water, then it does not need to be included in the delineation for the PCN. If the project proponent is uncertain whether a particular artificial waterbody or area of irrigated land is subject to Clean Water Act jurisdiction, and wants a definitive determination from the Corps, then he or she can request an approved jurisdictional determination. Areas of prior converted cropland will be identified on a case-by-case basis. As explained above, we modified paragraph (b)(5) to remove the term “waters of the United States” so that there is no implication that a jurisdictional determination is necessary before the Corps issues an NWP verification.
One commenter expressed support for requiring PCNs to include a mitigation statement. One commenter stated that the mitigation information for a PCN should state that mitigation includes on-site avoidance and minimization measures.
We have not made any changes to paragraph (b)(6). The delineation required by paragraph (b)(5) will document the on-site avoidance and minimization measures on the project site.
One commenter stated that proposed paragraph (b)(8) does not address undiscovered historic properties. Undiscovered historic properties are addressed by general condition 21. If the historic properties are unknown at the time the PCN is submitted, then the prospective permittee cannot be expected to include that information in the PCN. If the non-federal project proponent thinks there might be historic properties that could potentially be affected by the NWP activity, then he or she should submit a PCN and the district engineer will determine whether NHPA section 106 consultation is necessary. We have modified paragraph (b)(10) by changing “Corps district” to “Corps office” because a 408 permission might be issued by Corps Headquarters.
Several commenters encouraged the Corps to develop and use an online PCN application tool for electronic submission of PCNs and supporting documents. A few commenters recommended that the Corps develop an on-line PCN submittal tool and that the tool be made available to states agencies such as water quality certification agencies. One commenter stated that the Corps should continue to allow paper PCNs to be submitted to Corps districts.
At this time, we are not prepared to develop and deploy a national on-line PCN application. Some Corps districts have developed local tools that allow electronic submission of NWP PCNs and supporting documentation. We have modified the last sentence of paragraph (c) as follows: “Applicants may provide electronic files of PCNs and supporting materials if the district engineer has established tools and procedures for electronic submittals.” The general condition still allows for paper PCNs to be submitted to Corps districts.
A few commenters stated that agency coordination should be completed within 30 or 60 days. One commenter suggested increasing the agency coordination period to 30 days, and to require an individual permit for any proposed NWP activity that requires a waiver and any agency objects to the
The purpose of the agency coordination process in paragraph (d) is seek input from other federal and state agencies for certain proposed NWP activities to determine whether those activities will result in no more than minimal individual and cumulative adverse environmental effects. We believe that the current timeframe (up to 25 days) is sufficient for federal and state agencies to provide their views for the “no more than minimal adverse environmental effects” determination. The final decision whether a proposed NWP activity will result in no more than minimal individual and cumulative adverse environmental effects lies solely with the district engineer. District engineers can include local government agencies in agency coordination for proposed NWP activities. As a result of the consultations Corps districts are conducting with tribes on the 2017 NWPs, Corps districts can include interested tribes in agency coordination on proposed NWP activities.
Two commenters stated that under paragraph (d)(3) of general condition 32, the Corps cannot unilaterally impose timelines on State Historic Preservation Officers (SHPOs) or Tribal Historic Preservation Offices (THPOs), because section 106 consultation is not limited to 15 days. A couple of commenters said that 10 calendar days for the SHPO or THPO to submit comments back to the Corps is not reasonable, and that timeframe is in compliance with 36 CFR part 800, which provides 30 days for SHPOs and THPOs to provide their comments. One commenter stated that the Corps does not have the authority to impose a 10-day review period on THPOs, and cannot assume that a tribe has no comments or objections based on a lack of response within that 10-day period. One commenter stated that paragraph (d)(3) should read, “State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative.”
If NHPA section 106 consultation is required, that consultation will be conducted under the requirements in general condition 20, historic properties. For NHPA section 106 consultations conducted to comply with general condition 20, the Corps will comply with the timeframes in 36 CFR part 800, consistent with the Corps' 2005 and 2007 interim guidance. Because paragraph (d) is limited to minimal adverse environmental effects determinations, we are removing coordination with SHPOs and THPOs from this paragraph. As discussed above, district engineers can adopt and implement coordination procedures with tribes to seek their views on proposed NWP activities that require PCNs.
One commenter stated that agency coordination should be required for bank stabilization projects over 200 linear feet. One commenter stated that agency coordination should continue to be required for NWP 48 activities that require PCNs.
We are retaining the agency coordination threshold of 500 linear feet for NWP 13 activities, because that is consistent with the applicable waiver provision in paragraph (b) of NWP 13. We have removed the agency coordination requirement for NWP 48 activities, as we proposed to do in the June 1, 2016, proposed rule.
One commenter noted that paragraph (d) uses the term “activity” instead of “single and complete project” and said that the district engineer would be required to do agency coordination when verifying a linear project with an overall loss greater than 1/2-acre.
Each separate and distant crossing that qualifies for NWP authorization is considered to be a separate NWP authorization. Therefore, the aggregate total of losses of waters of the United States is not used to determine whether agency coordination is required under paragraph (d) of general condition 32. Since each single and complete project authorized by NWPs 12 or 14 has a
A few commenters expressed their support for the proposed PCN form. Several commenters said that the Corps should have included the proposed PCN form with the proposed rule to issue and reissue the NWPs, so that the public can provide comments on the proposed form. One commenter stated that the comment period for the proposed PCN form should be extended by 60 days following the availability of the proposed form.
The proposed PCN form is a separate action from this rulemaking to issue and reissue NWPs. In the June 1, 2016, the public was provided the opportunity to submit comments on the proposed PCN form and we received several comments. The comment period for the proposed PCN form was 30 days while the comment period on the proposed NWPs was 60 days.
One commenter noted that some districts have joint application forms with state agencies, and this commenter said that these districts should find a way to integrate the information required for NWP PCNs on the NWP PCN form with their current joint application forms.
If the NWP PCN form is approved, districts that have joint application forms with state agencies can continue to provide applicants the option to use those joint application forms. Those joint application forms can also be modified to incorporate features of the approved NWP PCN form.
This general condition is adopted with the modifications discussed above.
We proposed to modify paragraph 1 to state that if an applicant requests authorization under one or more specific NWPs, the district engineer should issue the verification letter for those NWPs, if the proposed activity meets the terms and conditions of those NWP(s), unless he or she exercises discretionary authority to require an individual permit. We proposed to modify paragraph 2 to clarify that a condition assessment can also be used to help determine whether a proposed activity will result in no more than minimal adverse environmental effects. In the second sentence of paragraph 3, we proposed to change the text to state that applicants may also propose compensatory mitigation to offset impacts to other types of waters, such as streams. We also proposed to clarify that mitigation measures other than compensatory mitigation may also be used to ensure that a proposed NWP activity results in no more than minimal adverse environmental effects.
A number of commenters objected to the proposed change, stating that the district engineer should be able to determine which NWP should be used to authorize the proposed activity. One commenter said it was unclear what a condition assessment involves and whether the Corps or the applicant would prepare the condition assessment. One commenter said that there should be additional time to comply with general conditions 18 and 20. One commenter stated that paragraph 2 of Section D should include cumulative effects as one of the factors that the district engineer considers when making an adverse environmental
The modification of paragraph 1 of this section states that the district engineer should issue the NWP verification under the NWP requested by the applicant, if the proposed activity meets the terms and conditions of that NWP. If the proposed activity does not meet the terms and conditions of the NWP identified in the PCN, and another NWP would authorize the proposed activity, then the district engineer can authorize the proposed activity under the NWP that he or she identified. However, if the proposed activity meets the terms and conditions of two different NWPs, and the applicant submitted a PCN that identified one of those NWPs, then the district engineer should issue the NWP verification under the NWP the applicant identified in his or her PCN. We have modified paragraph 1 to add a reminder that for those NWPs that have a 1/2-acre limit with a waivable 300 linear foot limit for losses of intermittent or ephemeral stream bed, then the loss of stream bed plus any other losses of jurisdictional waters and wetlands cannot exceed 1/2-acre.
A condition assessment is a type of rapid ecological assessment that examines the relative ability of an aquatic resource to support and maintain a community of organisms having a species composition, diversity, and functional organization comparable to reference aquatic resources in the region (see 33 CFR 332.2). In most circumstances, the prospective permittee would conduct the condition assessment and provide the results to the district engineer. In some cases, the district engineer may conduct the condition assessment. The extended time frames for complying with general conditions 18 and 20 are already addressed by paragraph 4.
We have modified paragraphs 1 and 2 of this section to state that the district engineer will consider, in addition to the direct and indirect effects, the cumulative effects of the NWP activities. The district engineer may require mitigation, including compensatory mitigation, to ensure that the cumulative adverse effects of the NWP activity or activities or no more than minimal. The district engineer's cumulative effects analysis does not have to be an exhaustive analysis, because the required NEPA cumulative effects analysis was done by Corps Headquarters in the decision document supporting the issuance or reissuance of the applicable NWP(s). If the applicable NWP(s) authorize discharges of dredged or fill material into waters of the United States, in the national decision document issued by Corps Headquarters there is a cumulative effects analyses to satisfy the requirements of the 404(b)(1) Guidelines. For pipelines and other linear projects, the cumulative effects of the activities authorized by NWPs for the overall project, within an appropriate geographic region, will be evaluated by district engineers. Unless the pipeline is constructed entirely in waters of the United States and involves activities that require DA authorization, the Corps is not required to evaluate the entire pipeline, or linear project. If the Corps is only authorizing the segments of the linear project, such as a pipeline, that cross jurisdictional waters and wetlands and involve discharges of dredged or fill material into waters of the United States and/or structures or work in navigable waters of the United States, then its analysis will focus on the regulated crossings of waters of the United States.
In item 5, we proposed to add a cross-reference to proposed new general condition 31. If the Corps issues a section 408 permission, then the NWP activity would not be considered as interfering with the federal project. We received no comments on the proposed change, and we have adopted that change.
In the June 1, 2016, proposed rule, we proposed changes to some of the NWP definitions. One commenter recommended removing the definitions from the NWPs and adding them to the Code of Federal Regulations so that they would apply to the entire regulatory program. One commenter stated that the definition of “independent utility” should be added to NWP 12 because this commenter said there is no rational basis for treating linear and non-linear projects differently.
The definitions in Section F were developed for use with the NWPs that are issued or reissued for the 5-year period those NWPs will be in effect. Incorporating those definitions into the Code of Federal Regulations so that they would apply to individual permits, regional general permits, and programmatic general permits would reduce flexibility in the regulatory program. Regional general permits and programmatic general permits may take different approaches to administering general permit programs, especially general permits intended to reduce duplication with other federal, tribal, state, or local agency regulatory programs.
There is a rational basis for distinguishing between linear projects and non-linear projects. For linear projects, impacts to jurisdictional waters and wetlands caused by activities authorized by NWPs are scattered throughout a large landscape that encompasses the point of origin and terminal point of the linear projects, and all of the crossings of jurisdictional waters and wetlands in between the origin and terminus. Under most circumstances, those crossings impact distinctly different waterbodies, although there may be cases where there are multiple crossings of the same waterbody at separate and distant locations. For a long linear project, a large number different waterbodies may be impacted by crossings that are a substantial distance from each other. In contrast, for a non-linear project, the impacts to jurisdictional waters and wetlands are concentrated within a much smaller landscape unit (usually a single parcel of land) that is defined by the boundaries of the non-linear project (
We received a few comments suggesting that we provide a definition of “temporary.” We believe that district engineers should have the discretion to determine on a case-by-case basis what constitutes a temporary impact versus a permanent impact. A district engineer can issue guidelines for his or her district on what constitutes a temporary fill or a temporary structure or work.
A couple of commenters asked for definitions of “repair,” “replacement,” and “previously authorized.” One of these commenters also requested definitions of “modification” and “riprap.” One commenter requested a definition of “minimal adverse effect.”
We do not see a need to define the terms “repair,” “replacement,” “previously authorized,” “modification,” and “riprap.” The commonly understood definitions of these terms apply to the NWPs, and they do not warrant the development of new definitions. The term “minimal adverse effect” cannot be defined because it is a subjective term, with “minimal” and “adverse effect” dependent on the perspective of the person conducting the evaluation or assessment. In paragraph 2 of Section D, District Engineer's Decision, we have provided a list of factors district engineers should consider when making their “no more than minimal adverse environmental effects” determinations for proposed NWP activities.
Several commenters said they support the proposed change. One commenter stated that the Corps regulates under section 404 of the Clean Water Act, some but not all excavation activities. One commenter said that the 2015 final rule defining “waters of the United States” should not be referenced in this definition.
Under the definition of “discharge of dredged material” at 33 CFR 323.2(d), we regulate certain excavation activities in waters of the United States. The NWP definition of “discharge” refers to regulated discharges of dredged or fill material into waters of the United States. The definition of “discharge” does not refer to the 2015 final rule.
Ephemeral streams are distinguished from perennial and intermittent streams by their flow regimes, which are explained in the definition (
The concept of independent utility does not apply to the definition of “single and complete linear project” because the crossings of waters of the United States between the point of origin of a linear project and its terminal point are necessary for the linear project to fulfill its purpose of transporting goods, services, and/or people from the point of origin to the terminal point. In other words, each of those crossings of waters of the United States for the single and complete linear project does not have independent utility. Therefore, It would not be appropriate to include linear projects in this definition, for the reasons explained above. This definition does not conflict with Note 2 of NWP 12 or Note 1 of NWP 14. The term “independent utility” was removed from both of those Notes.
This definition is adopted as proposed.
One commenter supported the proposed changes to this definition. A few commenters said they support the proposed modification on quantification of losses of stream bed in acres. A few commenters objected to that proposed modification. A few commenters expressed disagreement that excavation in stream beds results in a loss of waters of the United States. One commenter said that this definition should not
We have retained acres as an option for quantifying loss of stream bed. The physical, chemical, and biological processes that occur in aquatic ecosystems and other types of aquatic resources take place over the area of stream bed. For example, gross primary production and ecosystem respiration in rivers and streams is represented in grams per square meter per day, secondary production in rivers and streams is quantified in grams per square meter per year, and river nitrogen and phosphorous yields are expressed in kilograms per hectare per year. (Allan and Castillo 2007). For streams, quantifying impacts and compensatory mitigation as linear feet does not take into account the width of the stream, which is important to indicate the area of stream that performs ecological functions and services (
One commenter said that the word “excavation” should be deleted from this definition. One commenter asked for clarification whether excavation activities that remove material from waters of the United States, but do not restore the impact area to pre-construction contours and elevations, cause a loss of waters of the United States. One commenter asked how excavation activities are considered in the first sentence of this definition, which refers to waters of the United States that are temporarily filled, flooded, excavated, or drained, but restored to pre-construction contours and elevations. A few commenters asserted that the proposed definition is arbitrary and capricious, particularly if it is applied to NWP 12 activities.
Excavation activities in jurisdictional waters and wetlands may require DA authorization, if they result in regulable discharges of dredged or fill material. District engineers apply the definitions at 33 CFR 323.2(c)–(f) to determine whether an excavation activity results in a discharge of dredged or fill material that requires DA authorization. For the purposes of this definition, regulated excavation activities in rivers and streams cause a loss of waters of the United States. The fifth sentence of this definition states that waters of the United States that are temporarily filled, flooded, excavated, or drained, but restored to pre-construction contours and elevations after construction, are not considered to result in a loss of waters of the United States. Nationwide permit 12, as well as the other NWPs issued under section 404 of the Clean Water Act, authorizes discharges of dredged or fill material into waters of the United States that can result in permanently or temporarily filling, flooding, excavation, or draining waters of the United States. In other words, NWP 12 is treated no differently than other section 404 NWPs when it comes to applying the definition of “loss of waters of the United States.”
A few commenters agreed with the proposed clarification that states that non-regulated activities are not to be included when calculating losses of waters of the United States. Several commenters said this definition should include the conversion of forested wetlands. One commenter stated that the definition should be modified to state that vegetation cutting does not cause a loss of waters of the United States. One commenter stated that this definition should include permanent losses of wetlands from conversion activities as losses of waters of the United States.
The conversion of forested wetlands to emergent wetlands, other types of wetlands, or to open waters may be a loss of waters of the United States if that conversion involves activities that require DA authorization. For example, mechanized landclearing in a forested wetland that results in a regulated discharge of dredged material and converts the forested wetland to an emergent wetland requires DA authorization. In contrast, if a forested wetland is altered by cutting the trees above their crowns without removing the tree trunks and roots and causing a regulated discharge of dredged material, then that activity would not be considered a “loss of waters of the United States” under this definition.
This definition is adopted as proposed.
We have removed the second sentence of this definition, which cited the definition of “wetland” promulgated in the 2015 final rule defining “waters of the United States.” This definition is adopted with the modification discussed above.
We have removed the reference to 33 CFR 328.3(c)(6) from this definition. This definition is adopted with the modification discussed above.
This definition was taken from the 404(b)(1) Guidelines (40 CFR 230..45). This definition refers to “riffle and pool complexes.” A single pool with some cobbles is not a riffle and pool complex. This definition is adopted as proposed.
One commenter supported the proposed modification and one commenter opposed the proposed modification. One commenter asked for further explanation why we proposed to change “adjacent” to “next” and ask whether this modification would change the meaning of “riparian area.” This commenter said she was uncertain whether the proposed change would result in more or fewer riparian areas requiring mitigation or alter the type of mitigation required.
The proposed modification is intended to make this definition clearer, because riparian areas abut streams, lakes, and estuarine-marine shorelines. The Corps regulatory program has long defined adjacent wetlands as wetlands that are bordering, contiguous, or neighboring. Riparian areas are bordering or contiguous to streams, lakes, and estuarine-marine shorelines. Because “neighboring” ecosystems or habitats features may be adjacent to, but separated from, streams, lakes, and estuarine-marine shorelines by roads, levees, or other man-made features we believe the work “next” is a more precise term than “adjacent.” This change will not alter the mitigation requirements for the NWPs, or change the implementation of paragraph (e) of general condition 23, mitigation. That paragraph addresses the restoration, enhancement, and protection/maintenance of riparian areas as compensatory mitigation for NWP activities.
This definition is adopted as proposed.
The Corps' regulations at 33 CFR 330.2(i) provide different approaches to applying the concept of “single and complete project” to linear projects versus non-linear projects. These differences are explained in the definitions of “single and complete linear project” and “single and complete non-linear project” in Section F of the NWPs. For linear projects, the concept of “single and complete project” means that each separate and distant crossing may be authorized by an NWP. When the district engineer evaluates the PCN for a linear project, he or she considers the cumulative effects of those crossings that require DA authorization (see paragraph 1 of Section D, “District Engineer's Decision”). The correct terminology is “separate and distant,” “not separate and distinct” (see 33 CFR 330.2(i)).
Several commenters said that the definition of “distant” is ambiguous and should be further defined. Several commenters requested that the Corps define “separate and distant,” and requested that the Corps provide thresholds for determining when crossings are separate and distant. One commenter asked how the term “separate and distant” would be applied to determine if the linear project requires an individual permit. One commenter stated that allowing authorization of “separate and distant crossings” under one NWP or separate NWPs is dependent on how the prospective permittee determines the end points of each waterbody crossing.
District engineers will use their discretion to determine what constitutes “distant” for the purposes of determining that separate and distant crossings of waters of the United States qualify for separate NWP authorization. We cannot establish thresholds at a national level because “separate and distant” depends on a variety of factors and is best determined on a case-by-case basis. Factors considered by district engineers may include topography, local hydrology, the distribution of waters and wetlands in the landscape, geology, soils, and other appropriate factors. District engineers will determine when proposed crossings of waters of the United States are not separate and distance and require individual permits because they exceed the acreage or other limits for an NWP. The district engineer's determination that crossings of waters of the United States are separate and distant is dependent on landscape factors, including the distribution of jurisdictional waters and wetlands in the landscape, and not on the prospective permittee's identification of end points for each waterbody crossing.
One commenter stated that the ability to use multiple NWPs to authorize individual segments of linear projects should be eliminated, including pipelines and bank stabilization activities, because that practice violates numerous laws. One commenter stated that the Corps violates the Clean Water Act by treating each crossing of waters of the United States as a single and complete project. That commenter said that a small segment of a pipeline or transmission line crossing a water of the United States would have no independent utility. One commenter said that the definition of “single and complete linear project” should be amended to prohibit piecemealing of activities to meet NWP limits. Two commenters asserted that authorizing each single and complete crossing with an NWP fails to account for cumulative impacts of the linear project.
The Corps' practices for authorizing linear projects by NWP does not violate any laws. The NWP regulations for the Corps' practices were promulgated in 1991 and are still in effect. The definitions in the NWPs are consistent with the NWP regulations issued in 1991. Section 404(e) of the Clean Water Act does not provide any direction on general permit authorization for regulated activities for crossings of waters of the United States for linear projects. As explained elsewhere in this preamble, for a single and complete linear project the separate and distant crossings of waters of the United States do not have independent utility because they are necessary for transporting the goods or services from the point of origin to the terminal point. The definition of “single and complete linear project” does not allow piecemealing. Under paragraph (b)(4) of general condition 32, PCNs for linear projects are required to include those crossings of waters of the United States that require NWP PCNs as well as those
One commenter stated that there should be no changes to the way “single and complete” and “separate and distant” are applied to the NWPs, because any change may result in more individual permits being required for linear projects that have previously been authorized by a NWP.
We have not made any changes to the proposed definition. This definition is adopted as proposed.
We have modified this definition by removing the second sentence from the proposed definition. We also deleted the phrase “, which is defined at 33 CFR 328.3(c)(7)” from the end of the last sentence. These two changes remove the regulation references that were in the 2015 final rule. We also modified the first sentence of this definition by adding the word “jurisdictional” before the second use of the word “wetland” and deleting the parenthetical (
Several commenters said that if the Corps intends to use the term “waterbody” interchangeably with “water of the United States” in the NWP program, then we should delete the definition of “waterbody” from the NWPs and use the term “waters of the United States” instead. In the alternative, these commenters stated that this definition could be modified to avoid using concepts from the 2015 final rule defining “waters of the United States” and removing those regulation references. Several commenters said that this definition should not utilize the 2015 final rule's definitions of “adjacent” and “neighboring.” One commenter asserted that the term “waterbody” should be removed from the NWPs.
We have modified this definition by removing the phrase “under 33 CFR 328.3(a)(1)–(5)” from the second sentence. We have retained the reference to 33 CFR 328.4(c)(2) because that provision of the Corps' regulations was not addressed by the 2015 final rule. The definition of “waterbody” needs to be retained because either the terms “waterbody” or “waterbodies” are used 18 times in the text of the NWPs and general conditions. A waterbody is a single aquatic unit and for a river or stream it includes wetlands adjacent to the river or stream.
This definition is adopted with the modification discussed above.
In compliance with the principles in the President's Memorandum of June 1, 1998, (63 FR 31855) regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.
The paperwork burden associated with the NWP relates exclusively to the preparation of the PCN. The Corps estimates that applicants will submit 31,448 PCNs per year. Paragraph (b) of general condition 32 identifies the information that should be submitted with a PCN, and some NWPs identify additional information to be included in the PCN. While different NWPs require different information be included in a PCN, the Corps estimates that a PCN takes, on average, 11 hours to complete. That results in an average, annual paperwork burden of 345,928 hours.
The NWPs would increase the total paperwork burden associated with this program but decrease the net burden on the public. This is due to the fact that there is new paperwork burden associated with the inclusion of two new NWP (both of which have PCN requirements). Since, however, this time would otherwise be spent on completing an individual permit application, which we estimate also takes, on average, 11 hours to complete, the net effect on the public is zero.
The only real change to the public's paperwork burden from this final rule is a decrease due primarily to a modification to the PCN requirements for NWPs 33 and 48, the modification to paragraph (b) of NWP 3, and, to a lesser extent, a minor increase associated with the minor changes we made to the content required for a complete PCN (see paragraph (b) of general condition 32).
Specifically, we anticipate a reduction in paperwork burden from the final rule to require PCNs only for NWP 33 activities in section 10 waters. There will also be a paperwork reduction because of the change to the PCN thresholds for NWP 48, by eliminating the requirement to submit a PCN for dredged harvesting, tilling, or harrowing in areas inhabited by submerged aquatic vegetation. We estimate that the changes to NWP 33 would result in 210 fewer PCNs, with an estimated reduction of paperwork burden of 2,310 hours. The changes to the PCN thresholds for NWP 48 are expected to result in a reduction of 50 PCNs per year in waters where there are no listed species or critical habitat that would otherwise trigger the requirement to submit PCNs because of general condition 18. We estimate that 50 fewer PCNs will be required for NWP
The following table summarizes the projected changes in paperwork burden for two alternatives relative to the paperwork burden under the 2012 NWPs. The first alternative is to reissue 50 NWPs and issue two new NWPs. The second alternative would result if these NWPs are not issued and reissued and regulated entities would have to obtain standard individual permits to comply with the permit requirements of section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899. The 302 standard individual permits included in the row for the 2012 NWPs represent the standard individual permits that would be required for activities that would be authorized by the changes to NWPs 3, 43, 45, and 52 and the two new NWPs (NWPs 53 and 54). The estimated 15 activities that would require authorization by standard individual permit under the 2017 NWPs represent surface coal mining activities that were authorized by paragraph (a) of the 2012 NWP 21 that will not be completed before the 2012 NWP expires and would thus require standard individual permits to complete the surface coal mining activity. We estimate that imposing a cap of 1,000 linear feet on bulkheads in NWP 13 will result in 10 bulkheads requiring individual permits each year. The modification of NWP 13 to make it clear that it authorizes stream barbs will reduce the number of individual permits by an estimated 10 per year. Those two changes to NWP 13 will result in no net changes in number of the number of individual permits required for bank stabilization activities each year.
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 (OMB) control number.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether the regulatory action is “significant” and therefore subject to review by OMB and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, we have determined under item (4) that this rule is a “significant regulatory action” and the draft final rule was submitted to OMB for review.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The issuance and modification of NWPs does not have federalism implications. We do not believe that the final NWPs will 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. These NWPs will not impose any additional substantive obligations on State or local governments. Therefore, Executive Order 13132 does not apply to this rule.
One commenter stated that completing PCNs puts an administrative and financial burden on local governments, and requested that the Corps evaluate this impact in accordance with the National Environmental Policy Act, or revise the PCN requirements.
Local governments that want to do activities that require DA authorization under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899 must apply for permits from the Corps unless the proposed activity qualifies for authorization under a general permit that does not require notification to the Corps. If the proposed activity does not qualify for general permit authorization, the local government must submit an individual permit application. If the proposed activity potentially qualifies for NWP authorization, but requires submission of a PCN to the district engineer, then the local government must submit a PCN. As stating in our Regulatory Impact Analysis, the direct costs to permit applicants for obtaining NWP authorization are less than the direct costs of obtaining individual permit authorization.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment
For purposes of assessing the impacts of the issuance and modification of NWPs on small entities, a small entity is defined as: (1) A small business based on Small Business Administration size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
The statutes under which the Corps issues, reissues, or modifies nationwide permits are section 404(e) of the Clean Water Act (33 U.S.C. 1344(e)) and section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). Under section 404 of the Clean Water Act, Department of the Army (DA) permits are required for discharges of dredged or fill material into waters of the United States. Under section 10 of the Rivers and Harbors Act of 1899, DA permits are required for any structures or other work that affect the course, location, or condition of navigable waters of the United States. Small entities proposing to discharge dredged or fill material into waters of the United States and/or construct structures or conduct work in navigable waters of the United States must obtain DA permits to conduct those activities, unless a particular activity is exempt from those permit requirements. Individual permits and general permits can be issued by the Corps to satisfy the permit requirements of these two statutes. Nationwide permits are a form of general permit issued by the Chief of Engineers.
Nationwide permits automatically expire and become null and void if they are not modified or reissued within five years of their effective date (see 33 CFR 330.6(b)). Furthermore, section 404(e) of the Clean Water Act states that general permits, including NWPs, can be issued for no more than five years. If the current NWPs are not reissued, they will expire on March 18, 2017, and small entities and other project proponents would be required to obtain alternative forms of DA permits (
When compared to the compliance costs for individual permits, most of the terms and conditions of the NWPs are expected to result in decreases in the costs of complying with the permit requirements of section 10 of the Rivers and Harbors Act of 1899 and section 404 of the Clean Water Act. The anticipated decrease in compliance cost results from the lower cost of obtaining NWP authorization instead of standard individual permits. Unlike standard individual permits, NWPs authorize activities without a requirement for public notice and comment on each proposed activity.
Another requirement of Section 404(e) of the Clean Water Act is that general permits, including nationwide permits, authorize only those activities that result in no more than minimal adverse environmental effects, individually and cumulatively. The terms and conditions of the NWPs, such as acreage or linear foot limits, are imposed to ensure that the NWPs authorize only those activities that result in no more than minimal adverse effects on the aquatic environment and other public interest review factors.
After considering the economic impacts of the NWPs on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. Small entities may obtain required DA authorizations through the NWPs, in cases where there are applicable NWPs authorizing those activities and proposed activities will result in only minimal individual and cumulative adverse environmental effects. The terms and conditions of these NWPs will not impose substantially higher costs on small entities than those of the 2012 NWPs. If an NWP is not available to authorize a particular activity, then another form of DA authorization, such as an individual permit or a regional general permit, must be secured. However, as noted above, we expect a slight to moderate increase in the number of activities than can be authorized through NWPs, because we are issuing two new NWPs. Because those activities required authorization through other forms of DA authorization (
In the June 1, 2016, proposed rule we requested comments on the potential impacts of the NWPs on small entities. One commenter said that the proposed NWPs do not comply with the Regulatory Flexibility Act because the Corps failed to conduct the required analysis to certify will not have a significant impact on small businesses. We believe our Regulatory Flexibility Act analysis satisfies the requirements of that Act.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, Section 205 of the UMRA generally requires the agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows an agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before an agency establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed, under Section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
We have determined that the NWPs do not contain a federal mandate that may result in expenditures of $100 million or more for State, local, and
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the proposed rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.
The NWPs are not subject to this Executive Order because they are not economically significant as defined in Executive Order 12866. In addition, the NWPs do not concern an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Tribes, on the relationship between the federal government and the Tribes, or on the distribution of power and responsibilities between the federal government and Tribes.”
The issuance of these NWPs is generally consistent with current agency practice and will not have substantial direct effects on tribal governments, on the relationship between the federal government and the Tribes, or on the distribution of power and responsibilities between the federal government and Tribes. Therefore, Executive Order 13175 does not apply to this final rule. However, in the spirit of Executive Order 13175, we specifically requested comments from Tribal officials on the proposed rule. Their comments were fully considered during the preparation of this final rule. We have modified general condition 17 to more fully address tribal rights. Each Corps district conducted government-to-government consultation with Tribes, to identify regional conditions or other local NWP modifications to protect aquatic resources of interest to Tribes, as part of the Corps' responsibility to protect tribal trust resources and ensure that activities authorized by NWPs do not cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, and tribal lands.
One commenter stated that they disagreed with our determination that the proposal to reissue and issue the NWPs is not subject to E.O. 13175 because the NWPs are regulations under that Executive Order.
While the NWPs are regulations, we believe the final NWPs will not have substantial direct effects on tribal governments, on the relationship between the federal government and the tribes, or on the distribution of power and responsibilities between the federal government and tribes. We have taken, and will continue to take, measures (such as Corps districts consulting with tribes on specific NWP activities that may have adverse effects on tribal rights) to ensure that the NWPs will not have substantial direct effects on tribal governments, on the relationship between the federal government and the tribes, or on the distribution of power and responsibilities between the federal government and tribes. General condition 17 has been modified to state that no NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. Tribes use NWPs for activities they conduct that require DA authorization under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899. For example, tribes that conduct commercial shellfish aquaculture activities have used NWP 48, and tribes that conduct aquatic habitat restoration activities have used NWP 27.
For the 2017 NWPs, Corps districts conducted consultations with tribes to identify regional conditions to ensure that NWP activities comply with general conditions 17 and 20. Through those consultations, district engineers can also develop coordination procedures with tribes to provide opportunities to review proposed NWP activities and provide their views on whether those activities will cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. When a Corps district receives a pre-construction notification that triggers a need to consult with one or more tribes, that consultation will be completed before the district engineer makes his or her decision on whether to issue the NWP verification. If, after considering mitigation, the district engineer determines the proposed NWP activity will have more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands, he or she will exercise discretionary authority and require an individual permit. Division engineers can modify, suspend, or revoke one or more NWPs in a region to protect tribal rights. A district engineer can modify, suspend, or revoke an NWP to protect tribal rights, protected tribal resources, and tribal lands.
A decision document, which includes an environmental assessment and Finding of No Significant Impact (FONSI) has been prepared for each NWP. The final decision documents for these NWPs are available at:
The Congressional Review Act, 5 U.S.C. 801
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.
The NWPs are not expected to negatively impact any community, and therefore are not expected to cause any disproportionately high and adverse impacts to minority or low-income communities.
These NWPs are not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because they are not likely to have a significant adverse effect on the supply, distribution, or use of energy.
We are issuing new NWPs, modifying existing NWPs, and reissuing NWPs without change under the authority of Section 404 of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401
1.
2.
3.
(b) This NWP also authorizes the removal of accumulated sediments and debris outside the immediate vicinity of existing structures (
(c) This NWP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to conduct the maintenance activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. After conducting the maintenance activity, temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
(d) This NWP does not authorize maintenance dredging for the primary purpose of navigation. This NWP does not authorize beach restoration. This NWP does not authorize new stream channelization or stream relocation projects.
This NWP authorizes the repair, rehabilitation, or replacement of any previously authorized structure or fill that does not qualify for the Clean Water Act section 404(f) exemption for maintenance.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Material resulting from trench excavation may be temporarily sidecast into waters of the United States for no more than three months, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The district engineer may extend the period of temporary side casting for no more than a total of 180 days, where appropriate. In wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil from the trench. The trench cannot be constructed or backfilled in such a manner as to drain waters of the United States (
This NWP may authorize utility lines in or affecting navigable waters of the United States even if there is no associated discharge of dredged or fill material (See 33 CFR part 322). Overhead utility lines constructed over section 10 waters and utility lines that are routed in or under section 10 waters without a discharge of dredged or fill material require a section 10 permit.
This NWP authorizes, to the extent that Department of the Army authorization is required, temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through sub-soil fissures or fractures that might occur during horizontal directional drilling activities conducted for the purpose of installing or replacing utility lines. These remediation activities must be done as soon as practicable, to restore the affected waterbody. District engineers may add special conditions to this NWP to require a remediation plan for addressing inadvertent returns of drilling fluids to waters of the United States during horizontal directional drilling activities conducted for the purpose of installing or replacing utility lines.
This NWP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to conduct the utility line activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. After construction, temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
Where the utility line is constructed or installed in navigable waters of the United States (
For utility line activities crossing a single waterbody more than one time at separate and distant locations, or multiple waterbodies at separate and distant locations, each crossing is considered a single and complete project for purposes of NWP authorization. Utility line activities must comply with 33 CFR 330.6(d).
Utility lines consisting of aerial electric power transmission lines crossing navigable waters of the United States (which are defined at 33 CFR part 329) must comply with the applicable minimum clearances specified in 33 CFR 322.5(i).
Access roads used for both construction and maintenance may be authorized, provided they meet the terms and conditions of this NWP. Access roads used solely for construction of the utility line must be removed upon completion of the work, in accordance with the requirements for temporary fills.
Pipes or pipelines used to transport gaseous, liquid, liquescent, or slurry substances over navigable waters of the United States are considered to be bridges, not utility lines, and may require a permit from the U.S. Coast Guard pursuant to section 9 of the Rivers and Harbors Act of 1899. However, any discharges of dredged or fill material into waters of the United States associated with such pipelines will require a section 404 permit (see NWP 15).
This NWP authorizes utility line maintenance and repair activities that do not qualify for the Clean Water Act section 404(f) exemption for maintenance of currently serviceable fills or fill structures.
For overhead utility lines authorized by this NWP, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
For NWP 12 activities that require pre-construction notification, the PCN must include any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings that require Department of the Army authorization but do not require pre-construction notification (see paragraph (b) of general condition 32). The district engineer will evaluate the PCN in accordance with Section D, “District Engineer's Decision.” The district engineer may require mitigation to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see general condition 23).
13.
(a) No material is placed in excess of the minimum needed for erosion protection;
(b) The activity is no more than 500 feet in length along the bank, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects (an exception is for bulkheads—the district engineer cannot issue a waiver for a bulkhead that is greater than 1,000 feet in length along the bank);
(c) The activity will not exceed an average of one cubic yard per running foot, as measured along the length of the treated bank, below the plane of the ordinary high water mark or the high tide line, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects;
(d) The activity does not involve discharges of dredged or fill material into special aquatic sites, unless the district engineer waives this criterion by
(e) No material is of a type, or is placed in any location, or in any manner, that will impair surface water flow into or out of any waters of the United States;
(f) No material is placed in a manner that will be eroded by normal or expected high flows (properly anchored native trees and treetops may be used in low energy areas);
(g) Native plants appropriate for current site conditions, including salinity, must be used for bioengineering or vegetative bank stabilization;
(h) The activity is not a stream channelization activity; and
(i) The activity must be properly maintained, which may require repairing it after severe storms or erosion events. This NWP authorizes those maintenance and repair activities if they require authorization.
This NWP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to construct the bank stabilization activity. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. After construction, temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
14.
This NWP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to construct the linear transportation project. Appropriate measures must be taken to maintain normal downstream flows and minimize flooding to the maximum extent practicable, when temporary structures, work, and discharges, including cofferdams, are necessary for construction activities, access fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in their entirety and the affected areas returned to pre-construction elevations. The areas affected by temporary fills must be revegetated, as appropriate.
This NWP cannot be used to authorize non-linear features commonly associated with transportation projects, such as vehicle maintenance or storage buildings, parking lots, train stations, or aircraft hangars.
For linear transportation projects crossing a single waterbody more than one time at separate and distant locations, or multiple waterbodies at separate and distant locations, each crossing is considered a single and complete project for purposes of NWP authorization. Linear transportation projects must comply with 33 CFR 330.6(d).
Some discharges for the construction of farm roads or forest roads, or temporary roads for moving mining equipment, may qualify for an exemption under section 404(f) of the Clean Water Act (see 33 CFR 323.4).
For NWP 14 activities that require pre-construction notification, the PCN must include any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings that require Department of the Army authorization but do not require pre-construction notification (see paragraph (b) of general condition 32). The district engineer will evaluate the PCN in accordance with Section D, “District Engineer's Decision.” The district engineer may require mitigation to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see general condition 23).
15.
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18.
(a) The quantity of discharged material and the volume of area excavated do not exceed 25 cubic yards below the plane of the ordinary high water mark or the high tide line;
(b) The discharge will not cause the loss of more than
(c) The discharge is not placed for the purpose of a stream diversion.
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(a) The activities are already authorized, or are currently being processed by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or as part of an integrated permit processing procedure by the Department of the Interior, Office of Surface Mining Reclamation and Enforcement;
(b) The discharge must not cause the loss of greater than
(c) The discharge is not associated with the construction of valley fills. A “valley fill” is a fill structure that is typically constructed within valleys associated with steep, mountainous terrain, associated with surface coal mining activities.
22.
If a removed vessel is disposed of in waters of the United States, a permit from the U.S. EPA may be required (see 40 CFR 229.3). If a Department of the Army permit is required for vessel disposal in waters of the United States, separate authorization will be required.
Compliance with general condition 18, Endangered Species, and general condition 20, Historic Properties, is required for all NWPs. The concern with historic properties is emphasized in the notification requirements for this NWP because of the possibility that shipwrecks may be historic properties.
23.
(a) That agency or department has determined, pursuant to the Council on Environmental Quality's implementing regulations for the National Environmental Policy Act (40 CFR part 1500
(b) The Office of the Chief of Engineers (Attn: CECW–CO) has concurred with that agency's or department's determination that the activity is categorically excluded and approved the activity for authorization under NWP 23.
The Office of the Chief of Engineers may require additional conditions,
The agency or department may submit an application for an activity believed to be categorically excluded to the Office of the Chief of Engineers (Attn: CECW–CO). Prior to approval for authorization under this NWP of any agency's activity, the Office of the Chief of Engineers will solicit public comment. As of the date of issuance of this NWP, agencies with approved categorical exclusions are: the Bureau of Reclamation, Federal Highway Administration, and U.S. Coast Guard. Activities approved for authorization under this NWP as of the date of this notice are found in Corps Regulatory Guidance Letter 05–07, which is available at:
24.
As of the date of the promulgation of this NWP, only New Jersey and Michigan administer their own section 404 permit programs.
Those activities that do not involve an Indian Tribe or State section 404 permit are not included in this NWP, but certain structures will be exempted by Section 154 of Public Law 94–587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.4(b)).
25.
26. [Reserved]
27.
To be authorized by this NWP, the aquatic habitat restoration, enhancement, or establishment activity must be planned, designed, and implemented so that it results in aquatic habitat that resembles an ecological reference. An ecological reference may be based on the characteristics of an intact aquatic habitat or riparian area of the same type that exists in the region. An ecological reference may be based on a conceptual model developed from regional ecological knowledge of the target aquatic habitat type or riparian area.
To the extent that a Corps permit is required, activities authorized by this NWP include, but are not limited to: The removal of accumulated sediments; the installation, removal, and maintenance of small water control structures, dikes, and berms, as well as discharges of dredged or fill material to restore appropriate stream channel configurations after small water control structures, dikes, and berms, are removed; the installation of current deflectors; the enhancement, rehabilitation, or re-establishment of riffle and pool stream structure; the placement of in-stream habitat structures; modifications of the stream bed and/or banks to enhance, rehabilitate, or re-establish stream meanders; the removal of stream barriers, such as undersized culverts, fords, and grade control structures; the backfilling of artificial channels; the removal of existing drainage structures, such as drain tiles, and the filling, blocking, or reshaping of drainage ditches to restore wetland hydrology; the installation of structures or fills necessary to restore or enhance wetland or stream hydrology; the construction of small nesting islands; the construction of open water areas; the construction of oyster habitat over unvegetated bottom in tidal waters; shellfish seeding; activities needed to reestablish vegetation, including plowing or discing for seed bed preparation and the planting of appropriate wetland species; re-establishment of submerged aquatic vegetation in areas where those plant communities previously existed; re-establishment of tidal wetlands in tidal waters where those wetlands previously existed; mechanized land clearing to remove non-native invasive, exotic, or nuisance vegetation; and other related activities. Only native plant species should be planted at the site.
This NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands and streams, on the project site provided there are net increases in aquatic resource functions and services.
Except for the relocation of non-tidal waters on the project site, this NWP does not authorize the conversion of a stream or natural wetlands to another aquatic habitat type (
Compensatory mitigation is not required for activities authorized by this NWP since these activities must result in net increases in aquatic resource functions and services.
(1) Activities conducted on non-Federal public lands and private lands, in accordance with the terms and conditions of a binding stream enhancement or restoration agreement or wetland enhancement, restoration, or establishment agreement between the landowner and the FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating agencies;
(2) Voluntary stream or wetland restoration or enhancement action, or wetland establishment action, documented by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office Technical Guide standards; or
(3) The reclamation of surface coal mine lands, in accordance with an SMCRA permit issued by the OSMRE or the applicable state agency.
However, the permittee must submit a copy of the appropriate documentation to the district engineer to fulfill the reporting requirement.
This NWP can be used to authorize compensatory mitigation projects, including mitigation banks and in-lieu fee projects. However, this NWP does not authorize the reversion of an area used for a compensatory mitigation project to its prior condition, since compensatory mitigation is generally intended to be permanent.
28.
29.
The discharge must not cause the loss of greater than
30.
The repair, maintenance, or replacement of existing water control structures or the repair or maintenance of dikes may be authorized by NWP 3. Some such activities may qualify for an exemption under section 404(f) of the Clean Water Act (see 33 CFR 323.4).
31.
If the maintenance baseline was approved by the district engineer under a prior version of NWP 31, and the district engineer imposed the one-time compensatory mitigation requirement on maintenance for a specific reach of a flood control project authorized by that prior version of NWP 31, during the period this version of NWP 31 is in effect (March 19, 2017, to March 18, 2022) the district engineer will not require additional compensatory mitigation for maintenance activities authorized by this
32.
(i) The terms of a final written Corps non-judicial settlement agreement resolving a violation of Section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899; or the terms of an EPA 309(a) order on consent resolving a violation of section 404 of the Clean Water Act, provided that:
(a) The activities authorized by this NWP cannot adversely affect more than 5 acres of non-tidal waters or 1 acre of tidal waters;
(b) The settlement agreement provides for environmental benefits, to an equal or greater degree, than the environmental detriments caused by the unauthorized activity that is authorized by this NWP; and
(c) The district engineer issues a verification letter authorizing the activity subject to the terms and conditions of this NWP and the settlement agreement, including a specified completion date; or
(ii) The terms of a final Federal court decision, consent decree, or settlement agreement resulting from an enforcement action brought by the United States under section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree, settlement agreement, or non-judicial settlement agreement resulting from a natural resource damage claim brought by a trustee or trustees for natural resources (as defined by the National Contingency Plan at 40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, Section 312 of the National Marine Sanctuaries Act, section 1002 of the Oil Pollution Act of 1990, or the Park System Resource Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is required.
Compliance is a condition of the NWP itself; non-compliance of the terms and conditions of an NWP 32 authorization may result in an additional enforcement action (
33.
34.
35.
36.
(a) The discharge into waters of the United States does not exceed 50 cubic yards of concrete, rock, crushed stone or gravel into forms, or in the form of pre-cast concrete planks or slabs, unless the district engineer waives the 50 cubic yard limit by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects;
(b) The boat ramp does not exceed 20 feet in width, unless the district engineer waives this criterion by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects;
(c) The base material is crushed stone, gravel or other suitable material;
(d) The excavation is limited to the area necessary for site preparation and all excavated material is removed to an area that has no waters of the United States; and,
(e) No material is placed in special aquatic sites, including wetlands.
The use of unsuitable material that is structurally unstable is not authorized. If dredging in navigable waters of the United States is necessary to provide access to the boat ramp, the dredging must be authorized by another NWP, a regional general permit, or an individual permit.
37.
(a) The Natural Resources Conservation Service for a situation requiring immediate action under its emergency Watershed Protection Program (7 CFR part 624);
(b) The U.S. Forest Service under its Burned-Area Emergency Rehabilitation Handbook (FSH 2509.13);
(c) The Department of the Interior for wildland fire management burned area emergency stabilization and rehabilitation (DOI Manual part 620, Ch. 3);
(d) The Office of Surface Mining, or states with approved programs, for abandoned mine land reclamation activities under Title IV of the Surface Mining Control and Reclamation Act (30 CFR subchapter R), where the activity does not involve coal extraction; or
(e) The Farm Service Agency under its Emergency Conservation Program (7 CFR part 701).
In general, the prospective permittee should wait until the district engineer issues an NWP verification or 45 calendar days have passed before proceeding with the watershed protection and rehabilitation activity. However, in cases where there is an unacceptable hazard to life or a significant loss of property or economic hardship will occur, the emergency watershed protection and rehabilitation activity may proceed immediately and the district engineer will consider the information in the pre-construction notification and any comments received as a result of agency coordination to decide whether the NWP 37 authorization should be modified, suspended, or revoked in accordance with the procedures at 33 CFR 330.5.
38.
Activities undertaken entirely on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site by authority of CERCLA as approved or required by EPA, are not required to obtain permits under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.
39.
The discharge must not cause the loss of greater than
For any activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
40.
This NWP also authorizes the construction of farm ponds in non-tidal waters of the United States, excluding perennial streams, provided the farm pond is used solely for agricultural purposes. This NWP does not authorize the construction of aquaculture ponds.
This NWP also authorizes discharges of dredged or fill material into non-tidal waters of the United States to relocate existing serviceable drainage ditches constructed in non-tidal streams.
The discharge must not cause the loss of greater than
Some discharges for agricultural activities may qualify for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4). This NWP authorizes the construction of farm ponds that do not qualify for the Clean Water Act section 404(f)(1)(C) exemption because of the recapture provision at section 404(f)(2).
41.
This NWP does not authorize the relocation of drainage ditches constructed in waters of the United States; the location of the centerline of the reshaped drainage ditch must be approximately the same as the location of the centerline of the original drainage ditch. This NWP does not authorize stream channelization or stream relocation projects.
42.
The discharge must not cause the loss of greater than
43.
This NWP authorizes, to the extent that a section 404 permit is required, discharges of dredged or fill material into non-tidal waters of the United States for the maintenance of stormwater management facilities, low impact development integrated management features, and pollutant reduction green infrastructure features. The maintenance of stormwater management facilities, low impact development integrated management features, and pollutant reduction green infrastructure features that are not waters of the United States does not require a section 404 permit.
The discharge must not cause the loss of greater than
44.
(a) For mining activities involving discharges of dredged or fill material into non-tidal wetlands, the discharge must not cause the loss of greater than
(b) For mining activities involving discharges of dredged or fill material in non-tidal open waters (
(c) The acreage loss under paragraph (a) plus the acreage impact under paragraph (b) does not exceed
The discharge must not cause the loss of more than 300 linear feet of stream bed, unless for intermittent and ephemeral stream beds the district engineer waives the 300 linear foot limit by making a written determination concluding that the discharge will result in no more than minimal adverse environmental effects.
The loss of stream bed plus any other losses of jurisdictional wetlands and waters caused by the NWP activity cannot exceed
This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters.
45.
This NWP does not authorize beach restoration or nourishment.
Minor dredging is limited to the amount necessary to restore the damaged upland area and should not significantly alter the pre-existing bottom contours of the waterbody.
The uplands themselves that are lost as a result of a storm, flood, or other discrete event can be replaced without a section 404 permit, if the uplands are restored to the ordinary high water mark (in non-tidal waters) or high tide line (in tidal waters). (See also 33 CFR 328.5.) This NWP authorizes discharges of dredged or fill material into waters of the United States associated with the restoration of uplands.
46.
This NWP does not authorize discharges of dredged or fill material into ditches constructed in streams or other waters of the United States, or in streams that have been relocated in uplands. This NWP does not authorize discharges of dredged or fill material that increase the capacity of the ditch and drain those areas determined to be waters of the United States prior to construction of the ditch.
47. [Reserved]
48.
This NWP authorizes the installation of buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable waters of the United States. This NWP also authorizes discharges of dredged or fill material into waters of the United States necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities. Rafts and other floating structures must be securely anchored and clearly marked.
This NWP does not authorize:
(a) The cultivation of a nonindigenous species unless that species has been previously cultivated in the waterbody;
(b) The cultivation of an aquatic nuisance species as defined in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990;
(c) Attendant features such as docks, piers, boat ramps, stockpiles, or staging areas, or the deposition of shell material back into waters of the United States as waste; or
(d) Activities that directly affect more than
In addition to the information required by paragraph (b) of general condition 32, the pre-construction notification must also include the following information: (1) A map showing the boundaries of the project area(s), with latitude and longitude coordinates for each corner of each project area; (2) the name(s) of the species that will be cultivated during the period this NWP is in effect; (3) whether canopy predator nets will be used; (4) whether suspended cultivation techniques will be used; and (5) general water depths in the project area(s) (a detailed survey is not required). No
The permittee should notify the applicable U.S. Coast Guard office regarding the project.
To prevent introduction of aquatic nuisance species, no material that has been taken from a different waterbody may be reused in the current project area, unless it has been treated in accordance with the applicable regional aquatic nuisance species management plan.
The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 defines “aquatic nuisance species” as “a nonindigenous species that threatens the diversity or abundance of native species or the ecological stability of infested waters, or commercial, agricultural, aquacultural, or recreational activities dependent on such waters.”
49.
As part of the project, the permittee may conduct new coal mining activities in conjunction with the remining activities when he or she clearly demonstrates to the district engineer that the overall mining plan will result in a net increase in aquatic resource functions. The Corps will consider the SMCRA agency's decision regarding the amount of currently undisturbed adjacent lands needed to facilitate the remining and reclamation of the previously mined area. The total area disturbed by new mining must not exceed 40 percent of the total acreage covered by both the remined area and the additional area necessary to carry out the reclamation of the previously mined area.
50.
The discharge must not cause the loss of greater than
Coal preparation and processing activities outside of the mine site may be authorized by NWP 21.
51.
The discharge must not cause the loss of greater than
Utility lines constructed to transfer the energy from the land-based renewable energy generation facility to a distribution system, regional grid, or other facility are generally considered to be linear projects and each separate and distant crossing of a waterbody is eligible for treatment as a separate single and complete linear project. Those utility lines may be authorized by NWP 12 or another Department of the Army authorization.
If the only activities associated with the construction, expansion, or modification of a land-based renewable energy generation facility that require Department of the Army authorization are discharges of dredged or fill material into waters of the United States to construct, maintain, repair, and/or remove utility lines and/or road crossings, then NWP 12 and/or NWP 14 shall be used if those activities meet the terms and conditions of NWPs 12 and 14, including any applicable regional conditions and any case-specific conditions imposed by the district engineer.
For any activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
52.
For the purposes of this NWP, the term “pilot project” means an experimental project where the water-based renewable energy generation units will be monitored to collect information on their performance and environmental effects at the project site.
The discharge must not cause the loss of greater than
The placement of a transmission line on the bed of a navigable water of the United States from the renewable energy generation unit(s) to a land-based collection and distribution facility is considered a structure under Section 10 of the Rivers and Harbors Act of 1899 (see 33 CFR 322.2(b)), and the placement of the transmission line on the bed of a navigable water of the United States is not a loss of waters of the United States for the purposes of applying the
For each single and complete project, no more than 10 generation units (
This NWP does not authorize activities in coral reefs. Structures in an anchorage area established by the U.S. Coast Guard must comply with the requirements in 33 CFR 322.5(l)(2). Structures may not be placed in established danger zones or restricted areas designated in 33 CFR part 334, Federal navigation channels, shipping safety fairways or traffic separation schemes established by the U.S. Coast Guard (see 33 CFR 322.5(l)(1)), or EPA or Corps designated open water dredged material disposal areas.
Upon completion of the pilot project, the generation units, transmission lines, and other structures or fills associated with the pilot project must be removed to the maximum extent practicable unless they are authorized by a separate Department of the Army authorization, such as another NWP, an individual permit, or a regional general permit. Completion of the pilot project will be identified as the date of expiration of the Federal Energy Regulatory Commission (FERC) license, or the expiration date of the NWP authorization if no FERC license is required.
Utility lines constructed to transfer the energy from the land-based collection facility to a distribution system, regional grid, or other facility are generally considered to be linear projects and each separate and distant crossing of a waterbody is eligible for treatment as a separate single and complete linear project. Those utility lines may be authorized by NWP 12 or another Department of the Army authorization.
An activity that is located on an existing locally or federally maintained U.S. Army Corps of Engineers project requires separate approval from the Chief of Engineers or District Engineer under 33 U.S.C. 408.
If the pilot project generation units, including any transmission lines, are placed in navigable waters of the United States (
Hydrokinetic renewable energy generation projects that require authorization by the Federal Energy Regulatory Commission under the Federal Power Act of 1920 do not require separate authorization from the Corps under section 10 of the Rivers and Harbors Act of 1899.
For any activity that involves the construction of a wind energy generating structure, solar tower, or overhead transmission line, a copy of the PCN and NWP verification will be provided to the Department of Defense Siting Clearinghouse, which will evaluate potential effects on military activities.
53.
For the purposes of this NWP, the term “low-head dam” is defined as a dam built across a stream to pass flows from upstream over all, or nearly all, of the width of the dam crest on a continual and uncontrolled basis. (During a drought, there might not be water flowing over the dam crest.) In general, a low-head dam does not have a separate spillway or spillway gates but it may have an uncontrolled spillway. The dam crest is the top of the dam from left abutment to right abutment, and if present, an uncontrolled spillway. A low-head dam provides little storage function.
The removed low-head dam structure must be deposited and retained in an area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization.
Because the removal of the low-head dam will result in a net increase in ecological functions and services provided by the stream, as a general rule compensatory mitigation is not required for activities authorized by this NWP. However, the district engineer may determine for a particular low-head dam removal activity that compensatory mitigation is necessary to ensure the authorized activity results in no more than minimal adverse environmental effects.
This NWP does not authorize discharges of dredged or fill material into waters of the United States or structures or work in navigable waters to restore the stream in the vicinity of the low-head dam, including the former impoundment area. Nationwide permit 27 or other Department of the Army permits may authorize such activities. This NWP does not authorize discharges of dredged or fill material into waters of the United States or structures or work in navigable waters to stabilize stream banks. Bank stabilization activities may be authorized by NWP 13 or other Department of the Army permits.
54.
(a) The structures and fill area, including sand fills, sills, breakwaters, or reefs, cannot extend into the waterbody more than 30 feet from the mean low water line in tidal waters or the ordinary high water mark in the Great Lakes, unless the district engineer waives this criterion by making a written determination concluding that the activity will result in no more than minimal adverse environmental effects;
(b) The activity is no more than 500 feet in length along the bank, unless the district engineer waives this criterion by making a written determination concluding that the activity will result in no more than minimal adverse environmental effects;
(c) Coir logs, coir mats, stone, native oyster shell, native wood debris, and other structural materials must be adequately anchored, of sufficient weight, or installed in a manner that prevents relocation in most wave action or water flow conditions, except for extremely severe storms;
(d) For living shorelines consisting of tidal or lacustrine fringe wetlands, native plants appropriate for current site conditions, including salinity, must be used if the site is planted by the permittee;
(e) Discharges of dredged or fill material into waters of the United States, and oyster or mussel reef structures in navigable waters, must be the minimum necessary for the establishment and maintenance of the living shoreline;
(f) If sills, breakwaters, or other structures must be constructed to protect fringe wetlands for the living shoreline, those structures must be the minimum size necessary to protect those fringe wetlands;
(g) The activity must be designed, constructed, and maintained so that it has no more than minimal adverse effects on water movement between the waterbody and the shore and the movement of aquatic organisms between the waterbody and the shore; and
(h) The living shoreline must be properly maintained, which may require periodic repair of sills, breakwaters, or reefs, or replacing sand fills after severe storms or erosion events. Vegetation may be replanted to maintain the living shoreline. This NWP authorizes those maintenance and repair activities, including any minor deviations necessary to address changing environmental conditions.
This NWP does not authorize beach nourishment or land reclamation activities.
In waters outside of coastal waters, nature-based bank stabilization techniques, such as bioengineering and vegetative stabilization, may be authorized by NWP 13.
To qualify for NWP authorization, the prospective permittee must comply with the following general conditions, as applicable, in addition to any regional or case-specific conditions imposed by the division engineer or district engineer. Prospective permittees should contact the appropriate Corps district office to determine if regional conditions have been imposed on an NWP. Prospective permittees should also contact the appropriate Corps district office to determine the status of Clean Water Act Section 401 water quality certification and/or Coastal Zone Management Act consistency for an NWP. Every person who may wish to obtain permit authorization under one or more NWPs, or who is currently relying on an existing or prior permit authorization under one or more NWPs, has been and is on notice that all of the provisions of 33 CFR 330.1 through 330.6 apply to every NWP authorization. Note especially 33 CFR 330.5 relating to the modification, suspension, or revocation of any NWP authorization.
1.
(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations or otherwise, must be installed and maintained at the permittee's expense on authorized facilities in navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
(b) If a proposed NWP activity will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the permittee must submit a pre-construction notification (see general condition 32). The district engineer will coordinate the PCN with the Federal agency with direct management responsibility for that river. The permittee shall not begin the NWP activity until notified by the district engineer that the Federal agency with direct management responsibility for that river has determined in writing that the proposed NWP activity will not adversely affect the Wild and Scenic River designation or study status.
(c) Information on Wild and Scenic Rivers may be obtained from the appropriate Federal land management agency responsible for the designated Wild and Scenic River or study river (
17.
18.
(b) Federal agencies should follow their own procedures for complying with the requirements of the ESA. If pre-construction notification is required for the proposed activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation has not been submitted, additional ESA section 7 consultation may be necessary for the activity and the respective federal agency would be responsible for fulfilling its obligation under section 7 of the ESA.
(c) Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally-listed endangered or threatened species or designated critical habitat, the pre-construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed activity or that utilize the designated critical habitat that might be affected by the proposed activity. The district engineer will determine whether the proposed activity “may affect” or will have “no effect” to listed species and designated critical habitat and will notify the non-Federal applicant of the Corps' determination within 45 days of receipt of a complete pre-construction notification. In cases where the non-Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the activity, and has so notified the Corps,
(d) As a result of formal or informal consultation with the FWS or NMFS the district engineer may add species-specific permit conditions to the NWPs.
(e) Authorization of an activity by an NWP does not authorize the “take” of a threatened or endangered species as defined under the ESA. In the absence of separate authorization (
(f) If the non-federal permittee has a valid ESA section 10(a)(1)(B) incidental take permit with an approved Habitat Conservation Plan for a project or a group of projects that includes the proposed NWP activity, the non-federal applicant should provide a copy of that ESA section 10(a)(1)(B) permit with the PCN required by paragraph (c) of this general condition. The district engineer will coordinate with the agency that issued the ESA section 10(a)(1)(B) permit to determine whether the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation conducted for the ESA section 10(a)(1)(B) permit. If that coordination results in concurrence from the agency that the proposed NWP activity and the associated incidental take were considered in the internal ESA section 7 consultation for the ESA section 10(a)(1)(B) permit, the district engineer does not need to conduct a separate ESA section 7 consultation for the proposed NWP activity. The district engineer will notify the non-federal applicant within 45 days of receipt of a complete pre-construction notification whether the ESA section 10(a)(1)(B) permit covers the proposed NWP activity or whether additional ESA section 7 consultation is required.
(g) Information on the location of threatened and endangered species and their critical habitat can be obtained directly from the offices of the FWS and NMFS or their world wide Web pages at
19.
20.
(b) Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act. If pre-construction notification is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106.
(c) Non-federal permittees must submit a pre-construction notification to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre-construction notification must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of, or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction notifications, district engineers will comply with the current procedures for addressing the requirements of section 106 of the National Historic Preservation Act. The district engineer shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. Based on the information submitted in the PCN and these identification efforts, the district engineer shall determine whether the proposed NWP activity has the potential to cause effects on the historic properties. Section 106 consultation is not required when the district engineer determines that the activity does not have the potential to cause effects on historic properties (see 36 CFR 800.3(a)). Section 106 consultation is required when the district engineer determines that the activity has the potential to cause effects on historic properties. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect. Where the non-Federal applicant has identified historic properties on which the activity might have the potential to cause effects and so notified the Corps, the non-Federal applicant shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that NHPA section 106 consultation has been completed.
(d) For non-federal permittees, the district engineer will notify the prospective permittee within 45 days of receipt of a complete pre-construction notification whether NHPA section 106 consultation is required. If NHPA section 106 consultation is required, the district engineer will notify the non-Federal applicant that he or she cannot begin the activity until section 106 consultation is completed. If the non-
(e) Prospective permittees should be aware that section 110k of the NHPA (54 U.S.C. 306113) prevents the Corps from granting a permit or other assistance to an applicant who, with intent to avoid the requirements of section 106 of the NHPA, has intentionally significantly adversely affected a historic property to which the permit would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the Corps, after consultation with the Advisory Council on Historic Preservation (ACHP), determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. If circumstances justify granting the assistance, the Corps is required to notify the ACHP and provide documentation specifying the circumstances, the degree of damage to the integrity of any historic properties affected, and proposed mitigation. This documentation must include any views obtained from the applicant, SHPO/THPO, appropriate Indian tribes if the undertaking occurs on or affects historic properties on tribal lands or affects properties of interest to those tribes, and other parties known to have a legitimate interest in the impacts to the permitted activity on historic properties.
21.
22.
(a) Discharges of dredged or fill material into waters of the United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or directly affecting, critical resource waters, including wetlands adjacent to such waters.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, and 54, notification is required in accordance with general condition 32, for any activity proposed in the designated critical resource waters including wetlands adjacent to those waters. The district engineer may authorize activities under these NWPs only after it is determined that the impacts to the critical resource waters will be no more than minimal.
23.
(a) The activity must be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (
(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating for resource losses) will be required to the extent necessary to ensure that the individual and cumulative adverse environmental effects are no more than minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed
(d) For losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation to ensure that the activity results in no more than minimal adverse environmental effects. Compensatory mitigation for losses of streams should be provided, if practicable, through stream rehabilitation, enhancement, or preservation, since streams are difficult-to-replace resources (see 33 CFR 332.3(e)(3)).
(e) Compensatory mitigation plans for NWP activities in or near streams or other open waters will normally include a requirement for the restoration or enhancement, maintenance, and legal protection (
(f) Compensatory mitigation projects provided to offset losses of aquatic resources must comply with the applicable provisions of 33 CFR part 332.
(1) The prospective permittee is responsible for proposing an appropriate compensatory mitigation option if compensatory mitigation is necessary to ensure that the activity results in no more than minimal adverse environmental effects. For the NWPs, the preferred mechanism for providing compensatory mitigation is mitigation bank credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and (3)). However, if an appropriate number and type of mitigation bank or in-lieu credits are not available at the time the PCN is submitted to the district engineer, the
(2) The amount of compensatory mitigation required by the district engineer must be sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR 332.3(f)).
(3) Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, aquatic resource restoration should be the first compensatory mitigation option considered for permittee-responsible mitigation.
(4) If permittee-responsible mitigation is the proposed option, the prospective permittee is responsible for submitting a mitigation plan. A conceptual or detailed mitigation plan may be used by the district engineer to make the decision on the NWP verification request, but a final mitigation plan that addresses the applicable requirements of 33 CFR 332.4(c)(2) through (14) must be approved by the district engineer before the permittee begins work in waters of the United States, unless the district engineer determines that prior approval of the final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation (see 33 CFR 332.3(k)(3)).
(5) If mitigation bank or in-lieu fee program credits are the proposed option, the mitigation plan only needs to address the baseline conditions at the impact site and the number of credits to be provided.
(6) Compensatory mitigation requirements (
(g) Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. For example, if an NWP has an acreage limit of
(h) Permittees may propose the use of mitigation banks, in-lieu fee programs, or permittee-responsible mitigation. When developing a compensatory mitigation proposal, the permittee must consider appropriate and practicable options consistent with the framework at 33 CFR 332.3(b). For activities resulting in the loss of marine or estuarine resources, permittee-responsible mitigation may be environmentally preferable if there are no mitigation banks or in-lieu fee programs in the area that have marine or estuarine credits available for sale or transfer to the permittee. For permittee-responsible mitigation, the special conditions of the NWP verification must clearly indicate the party or parties responsible for the implementation and performance of the compensatory mitigation project, and, if required, its long-term management.
(i) Where certain functions and services of waters of the United States are permanently adversely affected by a regulated activity, such as discharges of dredged or fill material into waters of the United States that will convert a forested or scrub-shrub wetland to a herbaceous wetland in a permanently maintained utility line right-of-way, mitigation may be required to reduce the adverse environmental effects of the activity to the no more than minimal level.
24.
25.
26.
27.
28.
29.
When the structures or work authorized by this nationwide permit are still in existence at the time the property is transferred, the terms and conditions of this nationwide permit, including any special conditions, will continue to be binding on the new owner(s) of the property. To validate the transfer of this nationwide permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.
30.
(a) A statement that the authorized activity was done in accordance with the NWP authorization, including any general, regional, or activity-specific conditions;
(b) A statement that the implementation of any required compensatory mitigation was completed in accordance with the permit conditions. If credits from a mitigation bank or in-lieu fee program are used to satisfy the compensatory mitigation requirements, the certification must include the documentation required by 33 CFR 332.3(l)(3) to confirm that the permittee secured the appropriate number and resource type of credits; and
(c) The signature of the permittee certifying the completion of the activity and mitigation.
The completed certification document must be submitted to the district engineer within 30 days of completion of the authorized activity or the implementation of any required compensatory mitigation, whichever occurs later.
31.
32.
(1) He or she is notified in writing by the district engineer that the activity may proceed under the NWP with any special conditions imposed by the district or division engineer; or
(2) 45 calendar days have passed from the district engineer's receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. However, if the permittee was required to notify the Corps pursuant to general condition 18 that listed species or critical habitat might be affected or are in the vicinity of the activity, or to notify the Corps pursuant to general condition 20 that the activity might have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification from the Corps that there is “no effect” on listed species or “no potential to cause effects” on historic properties, or that any consultation required under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or section 106 of the National Historic Preservation Act (see 33 CFR 330.4(g)) has been completed. Also, work cannot begin under NWPs 21, 49, or 50 until the permittee has received written approval from the Corps. If the proposed activity requires a written waiver to exceed specified limits of an NWP, the permittee may not begin the activity until the district engineer issues the waiver. If the district or division engineer notifies the permittee in writing that an individual permit is required within 45 calendar days of receipt of a complete PCN, the permittee cannot begin the activity until an individual permit has been obtained. Subsequently, the permittee's right to proceed under the NWP may be modified, suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2).
(b)
(1) Name, address and telephone numbers of the prospective permittee;
(2) Location of the proposed activity;
(3) Identify the specific NWP or NWP(s) the prospective permittee wants to use to authorize the proposed activity;
(4) A description of the proposed activity; the activity's purpose; direct and indirect adverse environmental effects the activity would cause, including the anticipated amount of loss of wetlands, other special aquatic sites, and other waters expected to result from the NWP activity, in acres, linear feet, or other appropriate unit of measure; a description of any proposed mitigation measures intended to reduce the adverse environmental effects caused by the proposed activity; and any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings for linear projects that require Department of the Army authorization but do not require pre-construction notification. The description of the proposed activity and any proposed mitigation measures should be sufficiently detailed to allow the district engineer to determine that the adverse environmental effects of the activity will be no more than minimal and to determine the need for compensatory mitigation or other mitigation measures. For single and complete linear projects, the PCN must include the quantity of anticipated losses of wetlands, other special aquatic sites, and other waters for each single and complete crossing of those wetlands, other special aquatic sites, and other waters. Sketches should be provided when necessary to show that the activity complies with the terms of the NWP. (Sketches usually clarify the activity and when provided results in a quicker decision. Sketches should contain sufficient detail to provide an illustrative description of the proposed activity (
(5) The PCN must include a delineation of wetlands, other special aquatic sites, and other waters, such as lakes and ponds, and perennial, intermittent, and ephemeral streams, on the project site. Wetland delineations must be prepared in accordance with the current method required by the Corps. The permittee may ask the Corps to delineate the special aquatic sites and other waters on the project site, but there may be a delay if the Corps does the delineation, especially if the project site is large or contains many wetlands, other special aquatic sites, and other waters. Furthermore, the 45 day period will not start until the delineation has
(6) If the proposed activity will result in the loss of greater than
(7) For non-Federal permittees, if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, the PCN must include the name(s) of those endangered or threatened species that might be affected by the proposed activity or utilize the designated critical habitat that might be affected by the proposed activity. For NWP activities that require pre-construction notification, Federal permittees must provide documentation demonstrating compliance with the Endangered Species Act;
(8) For non-Federal permittees, if the NWP activity might have the potential to cause effects to a historic property listed on, determined to be eligible for listing on, or potentially eligible for listing on, the National Register of Historic Places, the PCN must state which historic property might have the potential to be affected by the proposed activity or include a vicinity map indicating the location of the historic property. For NWP activities that require pre-construction notification, Federal permittees must provide documentation demonstrating compliance with section 106 of the National Historic Preservation Act;
(9) For an activity that will occur in a component of the National Wild and Scenic River System, or in a river officially designated by Congress as a “study river” for possible inclusion in the system while the river is in an official study status, the PCN must identify the Wild and Scenic River or the “study river” (see general condition 16); and
(10) For an activity that requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a U.S. Army Corps of Engineers federally authorized civil works project, the pre-construction notification must include a statement confirming that the project proponent has submitted a written request for section 408 permission from the Corps office having jurisdiction over that USACE project.
(c)
(d)
(2) Agency coordination is required for: (i) All NWP activities that require pre-construction notification and result in the loss of greater than
(3) When agency coordination is required, the district engineer will immediately provide (
(4) In cases of where the prospective permittee is not a Federal agency, the district engineer will provide a response to NMFS within 30 calendar days of receipt of any Essential Fish Habitat conservation recommendations, as required by section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act.
(5) Applicants are encouraged to provide the Corps with either electronic files or multiple copies of pre-construction notifications to expedite agency coordination.
1. In reviewing the PCN for the proposed activity, the district engineer will determine whether the activity authorized by the NWP will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest. If a project proponent requests authorization by a specific NWP, the district engineer should issue the NWP verification for that activity if it meets the terms and conditions of that NWP, unless he or she determines, after considering mitigation, that the proposed activity will result in more than minimal individual and cumulative adverse effects on the aquatic environment and other aspects of the public interest and exercises discretionary authority to require an individual permit for the proposed activity. For a linear project, this determination will include an evaluation of the individual crossings of waters of the United States to determine whether they individually satisfy the
2. When making minimal adverse environmental effects determinations the district engineer will consider the direct and indirect effects caused by the NWP activity. He or she will also consider the cumulative adverse environmental effects caused by activities authorized by NWP and whether those cumulative adverse environmental effects are no more than minimal. The district engineer will also consider site specific factors, such as the environmental setting in the vicinity of the NWP activity, the type of resource that will be affected by the NWP activity, the functions provided by the aquatic resources that will be affected by the NWP activity, the degree or magnitude to which the aquatic resources perform those functions, the extent that aquatic resource functions will be lost as a result of the NWP activity (
3. If the proposed activity requires a PCN and will result in a loss of greater than
4. If the district engineer determines that the adverse environmental effects of the proposed activity are more than minimal, then the district engineer will notify the applicant either: (a) That the activity does not qualify for authorization under the NWP and instruct the applicant on the procedures to seek authorization under an individual permit; (b) that the activity is authorized under the NWP subject to the applicant's submission of a mitigation plan that would reduce the adverse environmental effects so that they are no more than minimal; or (c) that the activity is authorized under the NWP with specific modifications or conditions. Where the district engineer determines that mitigation is required to ensure no more than minimal adverse environmental effects, the activity will be authorized within the 45-day PCN period (unless additional time is required to comply with general conditions 18, 20, and/or 31, or to evaluate PCNs for activities authorized by NWPs 21, 49, and 50), with activity-specific conditions that state the mitigation requirements. The authorization will include the necessary conceptual or detailed mitigation plan or a requirement that the applicant submit a mitigation plan that would reduce the adverse environmental effects so that they are no more than minimal. When compensatory mitigation is required, no work in waters of the United States may occur until the district engineer has approved a specific mitigation plan or has determined that prior approval of a final mitigation plan is not practicable or not necessary to ensure timely completion of the required compensatory mitigation.
1. District Engineers have authority to determine if an activity complies with the terms and conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project (see general condition 31).
Food and Nutrition Service, USDA.
Final rule and interim final rule.
This final rule implements provisions of the Food, Conservation and Energy Act of 2008 (FCEA) affecting the eligibility, benefits, certification, and employment and training (E&T) requirements for applicant or participant households in the Supplemental Nutrition Assistance Program (SNAP). The rule amends the SNAP regulations to: Exclude military combat pay from the income of SNAP households; raise the minimum standard deduction and the minimum benefit for small households; eliminate the cap on the deduction for dependent care expenses; index resource limits to inflation; exclude retirement and education accounts from countable resources; clarify reporting requirements under simplified reporting; permit States to provide transitional benefits to households leaving State-funded cash assistance programs; allow States to establish telephonic and gestured signature systems; permit States to use E&T funds to provide job retention services; and update requirements regarding the E&T funding cycle. These provisions are intended to more accurately reflect needs, reduce barriers to participation, and improve efficiency in the administration of the program. This rule also replaces outdated language in SNAP certification regulations with the new program name and updates procedures for accessing SNAP benefits in drug and alcohol treatment centers and group living arrangements with use of electronic benefit transfer (EBT) cards. This rule provides States with regulatory options for conducting telephone interviews in lieu of face-to-face interviews and for averaging student work hours.
Finally, the Department is issuing an interim final rule (with a request for additional comment) that will require that drug and alcohol treatment and group living arrangements (GLA) centers to: Submit completed change report forms to the State agency when a resident leaves the center; notify the State agency within 5 days when the center is not able to provide the resident with their EBT card at departure; and return EBT cards to residents with pro-rated benefits based up on the date of their departure.
FNS invites interested persons to submit comments on the interim rule provisions at 7 CFR 273.11(e) and 273.11(f). Comments may be submitted by one of the following methods:
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All comments submitted in response to the interim rule provision will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. FNS will make the comments publicly available on the Internet via
Sasha Gersten-Paal, Branch Chief, Certification Policy Branch, Program Development Division, Food and Nutrition Service (FNS), 3101 Park Center Drive, Room 810, Alexandria, Virginia 22302, (703) 305–2507,
In the discussion of this final rule, we use the following acronyms or other abbreviations to stand in for certain words or phrases:
The Food, Conservation and Energy Act of 2008 (Pub. L. 110–246) (FCEA), enacted on June 18, 2008, amended and renamed the Food Stamp Act of 1977, 7 U.S.C. 2011,
The statutory provisions covered in this rule were effective on October 1, 2008. Many of the eligibility, certification and E&T provisions included in this final rule were mandated by the FCEA to be implemented by State agencies on October 1, 2008. These provisions, addressed in an implementing memo issued on July 3, 2008, describing both mandatory and optional provisions, with corresponding FCEA sections include:
• Section 4001—Changing the program name;
• Section 4101—Excluding military combat pay;
• Section 4102—Raising the standard deduction for small households;
• Section 4103—Eliminating the dependent care deduction caps;
• Section 4104(a)—Indexing the resource limits;
• Section 4104(b)—Excluding retirement accounts from resources;
• Section 4104(c)—Excluding education accounts from resources;
• Section 4107—Increasing the minimum benefit for small households; and
• Section 4122—Funding cycles for E&T programs.
The FCEA also created new program options that State agencies may include in their administration of the program, which State agencies were permitted to implement on October 1, 2008. These provisions, which are addressed in this rule, with corresponding FCEA sections include:
• Section 4105—Expanding simplified reporting;
• Section 4106—Expanding transitional benefits option;
• Section 4108—E&T funding of job retention services; and
• Section 4119—Telephonic signature systems.
FNS informed State agencies of implementation timeframes for all SNAP provisions in the July 3, 2008, FCEA memorandum. The memo is available on the FNS Web site at
On May 4, 2011, the Department published a proposed rule (76 FR 25414) that would codify certain provisions of the FCEA as well as two discretionary provisions into SNAP's certification, eligibility, and E&T rules. The 60-day comment period ended on July 5, 2011. A total of 118 commenters submitted comments. These commenters included the following: 59 advocacy groups, 18 food banks, 15 individuals, 13 non-profit organizations, seven associations and six State agencies. The Department greatly appreciates the comments received on the proposed rule as they have been essential in developing the final rule. The Department received generally favorable feedback from the public on the proposed rule. Where commenters expressed concerns or questions, the Department has considered these issues, and where appropriate, incorporated these comments into the regulatory text.
In this final rule, the Department discusses each statutory and discretionary provision in the proposed rule and the comments made, with some general exceptions. Although the Department considered all comments, the preamble discussion focuses primarily on the most frequent comments and/or those that influenced revisions to the proposed rule, and modifications made to the proposed rule in response to public input. Comments supporting proposed provisions are generally not discussed in detail. The Department also does not discuss comments that only address technical corrections or inadvertent omissions in detail; however, the appropriate corrections are made. For provisions on which no comments were received, the Department is adopting those provisions as proposed. Other comments added value and clarity to the regulations and we incorporate those suggested revisions into the relevant regulatory provisions.
The Department also received comments on several provisions that were outside the scope of the proposed rulemaking. By outside the scope, the Department means that commenters provided substantive feedback on provisions that were not proposed for revisions as part of this rulemaking. Most of the comments that are outside the scope of the proposed rulemaking will generally be identified but not fully discussed in this final rule. Nevertheless, the Department appreciates the feedback on those issues and will consider incorporating some of those perspectives and suggestions in future guidance, rulemaking and/or policy discussions.
To view all public comments on the proposed rule go to
This rule incorporates the nomenclature revisions proposed in the May 4, 2011 proposed rule. These changes are based on Section 4001 of the FCEA, which changed the name of the program as well as the name of the statute that governs the program. The Department is updating nomenclature in sections where substantial changes are being made or the necessary changes have already been identified. This is a long-term and incremental process. The nomenclature changes made in this final rule throughout part 273 include the following:
In addition, this rule incorporates a change at 7 CFR 273.25 to update references to SFSP (Simplified Food Stamp Program) to S–SNAP wherever it occurs and FSP to SNAP.
No. Although the official name of the program changed on October 1, 2008, State agencies may continue to use State-specific names for SNAP. One commenter (State agency) asked whether States may exhaust existing inventory of materials prior to transitioning to a new program name. It has been a longstanding policy of the Department to allow States to use State-specific names. Therefore, it is also a State agency's discretion to deplete materials using the old name prior to changing to a new program name, whether it is SNAP or some other State-specific name. As mentioned in the preamble to the May 4, 2011 proposed rule, FNS continues to request that State agencies discontinue the use of the name, “Food Stamp Program”. In addition, FNS recommends that States that have yet to move to a name other than “Food Stamp Program” should consider adopting the official name, Supplemental Nutrition Assistance Program, or SNAP. Several commenters opposed the use of any other name than SNAP, and another commenter stressed the importance of having a national name for a national program. While we understand the reasoning behind this comment, because the Department has permitted States to use State-specific names for many years, it would be inappropriate and costly to require States to transition to the official Federal program name at this time. However, in recognition of commenters' support of the use of the updated program name exclusively, and in order to support consistency across the program, the Department is updating the final rule to include most of the above-mentioned nomenclature changes throughout Parts 271 through 285, not just in Part 273 as in the proposed rule. These sections include all Department SNAP and Food Distribution program regulations.
The proposed rule changed “food stamps” and “food coupons” to “benefits.” On further review after publication of the proposed rule, the Department determined that the reference to “benefits” is not specific enough in many instances throughout Parts 271 through 285. In this final rule, the Department will change references to “food stamps” to “SNAP benefits” through Parts 271 through 285 and “food coupons” to “SNAP benefits” through Part 273.
The Department proposed revising § 273.11(e) and § 273.11(f) to remove references to food coupons and to update the procedures for providing benefits via EBT cards to residents of DAA centers, and residents of GLAs. The purpose of this proposed provision was to update nomenclature to reflect the electronic issuance of benefits through EBT. Since these procedures are already in use by these types of centers, only the regulatory description of the procedures was proposed to be updated. The proposed regulation would have required that the center advise the State agency of the center's inability to refund the departing resident's benefits, but did not provide a time frame for this requirement.
The Department received 11 comments that addressed client rights as related to residents of these DAA centers and GLAs. In particular, commenters believed that both DAA treatment centers and GLAs should be required to return a pro-rata share of benefits to residents who leave in the middle of the month, return EBT cards to departing residents, and report when residents leave the center. Commenters also said that these centers should not be allowed to act as an authorized representative for the SNAP recipient. Prior to EBT, such centers were required to redeem residents' paper coupons through authorized food stores. Under EBT, both DAA treatment centers and GLAs centers are allowed to be authorized as retailers in order to redeem benefits directly through a financial institution. Both DAA treatment centers and GLAs then use the cash to purchase food for their residents.
One commenter suggested that the Department strengthen the procedures used when residents leave these centers and enhance protections for these vulnerable SNAP participants. The comment included the following specific recommendations: (1) Require both DAA centers and GLAs to submit a completed change report form to the State when the residents depart; (2) require centers to provide EBT cards to departing residents; (3) and require that the EBT cards returned to the departing residents include pro-rated benefits. The commenter pointed out that the current and proposed regulations raise concerns because residents of both DAA treatment centers and GLAs may not be receiving the full amount of benefits they are entitled to when they leave the center. The commenter pointed out that prorating by day is a basic rule in SNAP and recommended pro-rating by day for substance use disorder treatment centers whose residents have departed. FNS believes that these concerns and recommendations are important to ensure that residents of DAA treatment centers and GLAs do not lose SNAP benefits when they leave.
Current regulations require the State to ensure that its procedures prohibit DAA treatment centers from obtaining more than one-half of the household's (typically a single individual) allotment prior to the 16th of the month unless the center permits the return of the benefits to the household's EBT account through a refund, transfer, or other means. The EBT procedures for residents in GLAs vary depending on whether all the residents are certified together as one household or are certified individually.
The current regulations require that the DAA treatment center must provide the household with its EBT card if the center has possession of card when a resident leaves. In the case where the household has already left and the treatment center is unable to return the benefits, the center must promptly inform the State agency and the State agency must provide the household with the EBT card.
The current regulations provide that the day of the month that the resident leaves the treatment center determines how the resident will receive their unspent benefits once they leave the center. Generally, if the household leaves prior to the 16th of the month, the State must ensure that its
Yes. Even though the Department did not propose any changes to the rights of clients at these centers, the comments received on this topic convinced the Department of the need for changes to these provisions to better protect these vulnerable participants. Consequently, the Department has decided to issue several changes to provisions in § 273.11(e) and § 273.11(f) as an interim final rule to ensure that this vulnerable population receives the benefits they are entitled to as soon as possible. The Department has determined that these changes to the current rules are necessary to ensure that this vulnerable population begins receiving all the benefits to which they are entitled as soon as possible. Therefore, the Department has determined pursuant to 5 U.S.C. 553(b)(B) that there is good cause to forego the notice of proposed rulemaking procedure since, in this instance, it is contrary to the public interest. The Department will accept and consider comments on these provisions prior to issuing a final rule. The Department will accept and consider comments on these provisions prior to issuing a final rule.
Most significantly, the rule requires that both DAA treatment centers and GLAs (referred to below as “centers”) must now return a prorated amount of the household's monthly allotment back to the EBT account based on the number of days in the month that the household resided at the center regardless of whether the household leaves before, on, or after the 16th day. No matter the method used by the center to redeem a household's benefits, the household, not the center, will now have sole access to the prorated benefits in the EBT account if the household leaves the center. States' automated systems and EBT make the precise, day-by-day, prorating of benefits easy.
In addition, the interim final rule requires that centers notify the State agency of the household's change in address, and new address if available, and that the center is no longer the household's authorized representative. The center must provide the household with a change report form as soon as it has knowledge the household plans to leave the facility and advise the household to report to the State agency any changes that the household is required to report within 10 days of the change. After the household leaves the center, the center can no longer act as the household's authorized representative for certification purposes or for obtaining or using benefits.
If the household has already left the center, and as a result, the center is unable to refund the benefits to the household, the center is required to notify the State agency within five days of the of the household's departure that the center was unsuccessful in its effort to refund the prorated share. Once notified, the State agency must effect the refund from the center's bank account to the household's EBT account within a reasonable period of time. These procedures are applicable at any time during the month. Five days is a reasonable and necessary amount of time given that the household will have no access to these funds during the time and may be unable to purchase food.
The center is also required to provide the household with its EBT card within 5 days of the household's departure and to return any EBT card not provided to departing residents to the State agency within 5 days.
If the center completed any part of its monthly shopping by the time a household departs, the food purchased on behalf of the departed resident will remain in the center and will be used to feed other residents.
The Department will also consider changing the terminology used in SNAP rules from DAA treatment centers to the more medically correct “Substance Use Disorder” treatment centers. Any such action would be made in future rulemaking, and not for purposes of this interim final rule, to ensure the terminology is changed throughout the SNAP regulations.
Finally, the Department revises outdated references to § 273.1(e)(2) in this final rule. Section 273.1(e)(2) previously discussed the allowability of certain residents of public institutions to apply for SNAP benefits jointly with their SSI application. This language is now contained at 273.11(i). The Department replaces the references to § 273.1(e)(2) with § 273.11(i) in the two sections of the regulations where the old reference is contained, at §§ 273.2 and 273.10.
Section 4101 of FCEA added Section 5(d)(19) of the Act (7 U.S.C. 2014(d)(19)) to exclude special pay to United States Armed Forces members that is received in addition to basic pay as a result of a member's deployment or service in a designated combat zone. The exclusion includes any special pay received pursuant to Chapter 5 of Title 37 of the United States Code and any other payment that is authorized by the Secretary as appropriate to be excluded under Section 5(d)(19) of the Act. To qualify for the exclusion, the pay must be received as a result of deployment to or service in a combat zone and must not have been received immediately prior to the service or deployment in the combat zone.
FNS proposed to add a new paragraph (20) to § 273.9(c) to exclude special combat-related pay received by a household from a person who is serving in the U.S. Armed Forces and is deployed to or serving in a Federally-designated combat zone. This special pay must be received in addition to basic pay and must not be received immediately prior to the service or deployment in the combat zone.
A total of 59 commenters provided feedback on this provision. Forty-nine of those commenters requested guidance to assist State and local agencies identify what constitutes the special pay that is to be excluded from household income. Eleven commenters further requested that the Department explicitly identify what pay is excluded from the service member's leave and earnings statements (LES), for example, hostile fire pay and hazardous duty incentive pay. They requested that the Department expand specific guidance
In considering these comments, FNS consulted with staff at DoD's DFAS. DFAS explained that there are complexities with combat pay; for example, combat zones change and some people may receive special pay when they are not deployed to a combat zone. DFAS recommended issuing guidance, which the Department intends to do shortly after publication of this rule. A combat zone is any area that the President of the United States designates by Executive Order as an area in which the U.S. Armed Forces are engaging or have engaged in combat. DFAS recommended that eligibility workers review a service member's LES to determine what additional pay categories he or she received as a result of the deployment to the combat zone. In most cases, the amount to be excluded should be identifiable by comparing the LES reflecting pay immediately prior to deployment to the LES after deployment. When questions arise as to specific issues or payment codes, DFAS recommended that State agency staff contact the service members' supporting finance office.
The Department is not the Federal agency charged with determining combat zone designations. DoD, and in particular DFAS, has the expertise on specific types of pay a service member receives during a deployment to a combat zone and an understanding of the various issues that can arise in combat-related pay issues. The language in the proposed rule reflects the broader language of Section 5(d)(19) of the Act in that the pay is limited to those special pays listed at Chapter 5 of Title 37 of the United States Code. In addition, the pay must be received in addition to basic pay, received as a result of deployment, and not received before the deployment or service in a combat zone. The Department also wishes to reiterate that only income made available to the household is considered for the purposes of determining a household's eligibility and benefit level. The Department believes that these criteria are sufficiently clear for State agencies to make a determination on the appropriate income exclusion. For these reasons, the Department adopts the proposed provision at § 273.9(c)(20) without change as final and is committed to providing additional guidance shortly after publication of this rulemaking.
Section 4102 of the FCEA amended Section 5(e) of the Act (7 U.S.C. 2014(e)) to raise the minimum standard deduction from $134 to $144, effective in FY 2009 for the 48 contiguous States and the District of Columbia. In addition, it changed the minimum standard deduction amounts for Alaska, Hawaii, the U.S. Virgin Islands and Guam to $246, $203, $127 and $289, respectively. Beginning in FY 2010 and each fiscal year thereafter, FCEA mandated that the minimum standard deduction must be indexed to inflation. FNS calculates this amount and releases it annually to State agencies.
The Department proposed amending the regulations at § 273.9(d)(1)(iii) to incorporate the FCEA changes to the minimum standard deduction. In addition, the Department proposed a technical revision to correct the citation at § 273.12(e)(1)(B) from § 273.9(d)(7) to § 273.9(d)(1).
Yes. Sixty-two commenters indicated their general approval of the proposals regarding the standard deduction. No commenters shared concerns with the proposal.
Not at this time. While only eight commenters requested guidance on the standard deduction, 59 commenters noted a problem with timely updating of standard deduction increases for households participating under demonstration projects. These commenters requested that the Department ensure that States with combined application projects (CAPs) and other demonstration projects make annual updates to the standard deduction on a timely basis. States are already required to comply with the terms and conditions of demonstration projects such as CAPs and make annual updates according to existing SNAP policy.
Section 4103 of the FCEA amended section 5(e)(3) of the Act (7 U.S.C. 2014(e)(3)) to eliminate the caps on the deduction for dependent care expenses, thereby allowing eligible households to deduct the full amount of their dependent care costs. The change was effective October 1, 2008. The law required State agencies to implement the provision for new households applying for benefits as of that date. For ongoing households already on the program, the Department encouraged State agencies to implement the change in the deduction amount as soon as possible on or after October 1, 2008, on a case-by-case basis, at the first opportunity to enter the household's case file. Prior to this change in the law, the caps on the dependent care deduction had not been adjusted for many years, and the caps no longer reflected the actual dependent care costs that low-income households pay. Eliminating the caps enables households to deduct the full costs of dependent care that are allowable and not already reimbursed by another program, and results in a benefit increase for some families with high dependent care costs.
The Department proposed to amend §§ 273.9(d)(4) and 273.10(e)(1)(i)(E) to eliminate the caps on dependent care. In addition, the Department proposed to clarify that expenses for transporting dependents to and from care, and separate activity fees charged by the care provider that are required for the care arrangement, are also deductible as part of the actual costs of care.
The Department also proposed to incorporate into § 273.9(d)(4) longstanding guidance that limits dependent care to include care for children through the age of 15 as well
Overall, commenters supported the Department's proposal to remove the dependent care caps from the SNAP regulations. Commenters from the advocacy community strongly supported the proposals to include transportation costs and activity fees as part of dependent care expenses, but these commenters opposed the proposed limits based on age or incapacitation.
Most of the 81 commenters that addressed dependent care changes enthusiastically supported the proposal to allow households to deduct transportation costs to and from dependent care facilities. Only one commenter opposed the proposal. However, some commenters, including several State agencies, expressed concern about the error-prone nature of determining transportation costs specifically related to dependent care and provided several suggestions to help reduce potential errors. Their suggestions included making transportation costs optional, permitting the use of standard transportation allowances (either developed by the Department or by individual States), and allowing States additional time to implement this provision since it will be new policy for some States. Concerning the potential that transportation costs associated with dependent care may be more error-prone, the Department notes that a number of State agencies have been allowing households to deduct dependent care related transportation costs for years and this has not been identified as a major source of quality control errors.
Current regulations do not require verification of dependent care costs unless the amount being claimed is considered questionable, per § 273.2(f)(2). However, SNAP regulations at § 273.2(f)(3) also permit State agencies to verify on a project level basis or a statewide basis certain eligibility factors that are not otherwise required to be verified under Federal regulations.
A number of commenters, representing both State agencies and advocates, argued that States should not have to verify transportation costs unless questionable. In particular, commenters noted the difficulty of verifying transportation costs related to dependent care. Many commenters from the advocacy community urged the Department to restrict States' use of the optional verification provision at § 273.2(f)(3) for transportation-related dependent care costs. While the Department understands the concern of these commenters, the Department declines the request to impose such a restriction. That is, State agencies have the option to verify transportation costs if questionable. This option allows States to be responsive to current information, such as QC data, which may indicate a need for verification of certain information, whether it be statewide or just in certain project areas. The provisions of § 273.2(f)(2) require that questionable items be verified on a case-by-case basis, but States must establish guidelines for determining what is questionable.
As discussed in the preamble to the proposed rule, an activity fee is an expense associated with a structured care program. The activity should both be necessary for the dependent to experience the typical daily activities offered in the care and enable a household member to be employed, seek employment, or pursue training or education to prepare for employment. We define activity fees in the final regulatory text as an activity or other fee associated with the care provided to the dependent that are necessary for the household to participate in the care. An activity fee does not have to be mandatory to be deductible under this provision, but it does need to be specific and identifiable as with all deductible dependent care costs. Examples of activity fees that may be deductible as dependent care costs include the cost of an art class for an after-school program or an adult day care program, additional equipment fees charged for attending a sports camp, or the cost of field trips sponsored by summer camps. Activity fees that are necessary for the dependent to experience the typical daily activities offered in care should be allowed.
In the proposed rule, the Department requested that commenters provide feedback on the proposal to allow households to deduct separately identifiable activity fees that are necessary for the household to participate in or maintain care. The Department stressed its interest in receiving commenter input on activity fees since State agencies will be responsible for determining whether specific costs qualify as allowable activity fees. In particular, we asked commenters to address whether activity fees are identifiable additional charges paid by households that can be verified, if more detailed guidance was needed to determine allowable costs, and what specific conditions commenters would wish to see in a final rule.
Commenters generally approved of the proposal to allow activity fees. Some commenters addressed the preamble request for feedback on whether activity fees are easily identified and verified and whether more information or guidance is needed on activity fees. Generally, commenters requested clarification on activity fees without giving particular feedback. Eight commenters, mostly advocates, responded that FNS needs to clarify what is meant by activity fees; one State agency disagreed. Other commenters requested guidance on specific issues, such as whether activity fees for a home day care are allowable deductions and when an activity fee is required. One commenter writing on behalf of a group of eligibility workers indicated that identifying and verifying activity fees is dependent on State or local dependent care licensing requirements, and that unregulated or informal dependent care facilities are unlikely to have documented costs such as activity fees. The Department did not make any substantive changes due to the overall general nature of the comments. One technical correction was made. In the final regulatory text, the Department includes an activity or other fee associated with dependent care as an allowable dependent care cost.
Commenters, mostly from the advocacy community, requested clarification on other allowable costs related to dependent care, such as subsidy copays (70), payments made to individuals, related or unrelated, residing with the household but not receiving SNAP benefits (62), payments for the care of non-household members such as a relative that the household is responsible for (3), and payments made for reasonable fees including late fees (14). One commenter suggested there be a standard deduction for the costs.
Such dependent care costs are allowable if they are necessary for a household member to search for employment, or to accept or continue employment, training, or education in preparation for a job (see Section 5(e)(3) of the Act). For example, although the Department will not address other specific additional allowable costs in the regulatory language beyond transportation and activity fees, subsidy co-pays and late fees or application fees would meet the statutory definition at section 5(e)(3) of the Act. However, whether other dependent care costs mentioned by commenters involving household members or non-household members are allowed requires a closer examination of the specific situations to determine whether the costs would meet the statutory definition. If State agencies have questions about specific or complex situations, we recommend that they work with their FNS Regional Office to determine whether these costs qualify for the dependent care deduction.
Commenters also suggested that in order to address a persistent source of confusion, the final rule should specify that care is deductible even if provided by a relative as long as that person is not receiving SNAP benefits as part of the same household as the dependent receiving care. The Department agrees with this suggestion and has included it in the final rule.
Sixty-nine commenters requested that the final rule explicitly allow a deduction for dependent care costs incurred by households with individuals looking for work. The preamble to the proposed rule stated that the Department intended to reinsert language about the deductibility of dependent care costs incurred by job seekers into § 273.9(d)(4), which had been inadvertently dropped in a rulemaking in 1989. However, despite this stated intention, the proposed regulatory language at § 273.9(d)(4) did not actually include this language. We appreciate this observation from commenters and, to address this oversight, the Department is revising the proposed provision at § 273.9(d)(4) to allow household members who are seeking work to deduct dependent care costs.
Most commenters who addressed the provision (66) opposed both criteria and did not want to use the regulatory definition of “elderly or disabled member” to define “incapacitation”; one State agency disagreed. In particular, commenters from the advocacy community opposed any restrictions on the dependent care deduction as long as the household is able to provide documentation if questioned by the State agency. We received conflicting comments as to the age restriction, with suggestions that the age be limited to children until their sixteenth birthday and that the deduction be permitted to children through their eighteenth birthday.
One commenter noted that households with older teens (16 years of age and older) may have legitimate dependent care needs not related to incapacitation, such as enrollment in outside-school care for safety, truancy, foster care or court-ordered supervision requirements. The commenter pointed out that 16-year-olds are required to register for work unless in school half-time or otherwise exempt from registering, but being required to register for work does not necessarily mean a 16 or 17 year old does not need supervision. The comment went on to argue that adolescents may need to be enrolled in after-school or summer programs due to an incapacity or disability. Parents may not have a government-funded option, or may have to private pay a fee for older children to participate in adult supervised activities.
Commenters also questioned what the Department meant by “incapacitation”, which was not defined in the proposed rule.
While the limit on the use of the dependent care deduction with regard to age reflects longstanding guidance from 1987, the Department agrees that there are circumstances where a child 16 or older may still be in need of supervision and has revised this restriction in the final rule to include all children under the age of 18.
The other proposed criterion, incapacitation, accounts for persons who have some physical or mental limitation that requires them to receive dependent care. This also reflects longstanding guidance, although it does not appear to have been widely disseminated. The regulatory definition of disabled is stringent and the proposed definition would not necessarily capture the breadth of situations. The Department wishes to clarify that, for the purpose of this provision only, incapacitation refers to any permanent or temporary condition that prevents an individual from participating fully in normal activities, including but not limited to work or school, without supervision and that requires the care of another person to ensure the health and safety of the individual, or a condition or situation that makes a lack of supervision risky to the health and safety of that individual. By extending dependent care to those who are incapacitated, the dependent care needs of any SNAP household member expected to comply with work requirements, or who is working, in training or education programs, or seeking work, would be allowable as a deduction. The Department believes that this clarification provides both a reasonable consideration of the dependent care expenses of older youth and adults and a measure of protection to the program from abuse.
Allowable medical expenses may be deducted under the excess medical deduction or the dependent care deduction but not both provisions. Prior to the removal of the dependent care caps by Section 4103 of the FCEA, adult dependent care needs were still an allowable deduction under 273.9(d) as medical expenses. Individuals who meet the specific legal definition of “elderly or disabled persons” at § 271.2 have been able to deduct dependent care monthly costs over the $35 threshold of the excess medical deduction as described in § 273.9(d)(3)(x). This provision allows for the costs of “maintaining an attendant, homemaker, home health aide, or child care services, housekeeper, necessary due to age, infirmity, or illness.” Allowing a household with an elderly or adult member with a disability to deduct the entire monthly dependent care costs under the dependent care deduction provision rather than the excess medical deduction provides these households with an additional $35 per month in
Accordingly, for the reasons noted above, the Department is revising the provision from the proposed language at § 273.9(d)(4) to instead specify that dependent care expenses incurred during a job search are deductible, provided the costs are not already paid by another source on behalf of the household, and to clarify that the costs of care provided by a relative may be deducted so long as the relative providing care is not part of the same household as the child or dependent adult receiving care. The Department is also revising proposed § 273.9(d)(4) and current § 273.9(d)(3)(x) to state that the same dependent care costs for a qualifying household member who is elderly or has a disability may be deducted under § 273.9(d)(4) or § 273.9(d)(3)(x) but not both.
Section 4104(a) of the FCEA amended Section 5(g) of the Act (7 U.S.C. 2014(g)) to mandate that current asset limits be indexed to inflation, rounding down to the nearest $250, beginning October 1, 2008.
The Department proposed to amend § 273.8(b) to specify that the asset limits are indexed to inflation as of October 1, 2008, and adjusted on October 1 of each following year. As mandated by the Act, the maximum allowable financial resources shall be adjusted and rounded down to the nearest $250 to reflect changes in the Consumer Price Index for the All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor for the 12-month period ending the preceding June. Each adjustment shall be based on the unrounded amount for the prior 12-month period.
Five commenters addressed this provision. Three commenters approved of the methodology in the proposed rule. One State agency argued that the provision would be difficult to administer as it only affects applicants, and suggested that the Department issue guidance to explain how to handle asset increases for new and ongoing cases. One member of the public stated that the asset limit for a person with a disability should be raised to $5,700.
As stated in the proposed rule, the provision will not adversely affect those currently participating. Participating households have already met a lower resource limit. For example, when the resource limit for the elderly or those with a disability increased to $3,250, effective October 2012, no action was required for ongoing cases of elderly participants because they already met the existing $3,000 limit. Changes to households' resources will be captured on recertification consistent with existing program requirements. The Department has considered the comments and has determined that additional guidance is not necessary to implement this provision successfully.
For the reasons noted above, FNS will adopt in this final rule the provision at § 273.8(b) as proposed, with one technical correction revising the reference to the inflation adjustment procedure at § 273.8(b)(1) for both households with a member who is elderly or has a disability and all other households.
Section 4104(b) amended Section 5(g)(7) of the Act (7 U.S.C. 2014(g)(7)) to exclude from resources any funds in a plan, contract, or account, described in sections 401(a), 403(a), 403(b), 408, 408A, 457(b), and 501(c)(18) of the Internal Revenue Code (IRC) of 1986 and the value of funds in a Federal Thrift Savings Plan account as provided for in 5 U.S.C. 8439.
The Department proposed to amend SNAP regulations at § 273.8(e)(2) to exclude funds from countable resources if they are in accounts that fall under any of the sections of the IRC as noted above.
The Department received 85 comments generally approving the proposed provision; 81 commenters requested that the Department provide detailed guidance on identifying tax-exempted accounts. Nine of these commenters recommended that we should work with the IRS to develop guidelines for identifying the tax-exempted accounts that are excludable. One commenter believes the Department's generic use of the term plans such as “408A plans” implies that other 408A accounts or contracts are not excluded. The commenter recommended the Department amend the regulations to consistently refer to all retirement accounts excluded under this provision. Two commenters recommended that the language be more open-ended, allowing for new programs to be added as Congress approves without the need to do a new rule. The Department believes that the proposed language regarding 408A accounts is clear and will adopt the provision as proposed.
Eleven commenters recommended increasing the $1,500 limit on the value of funeral agreements specified in § 273.8(e)(2), arguing that the $1,500 limit is outdated and unrealistic. Commenters also suggested that the Department adjust the limit for inflation by using the Consumer Price Index for all Urban Consumers. The Department agrees with the commenters that the value of funeral agreements is out of date. However, because the original intent of this limit was to conform SNAP to Aid to Families with Dependent Children policy, which no longer exists, continuing to have a limit is unnecessary. The final rule excludes the value of funeral arrangements from SNAP resources altogether.
While most commenters supported the retirement account provisions of the proposed rule, several urged the Department to issue guidance on how to identify the types of retirement accounts on the source documents that are excludable. One commenter acknowledged the chart the Department included in August 29, 2008 guidance as an important first step in helping identify the type of retirement accounts excluded under this provision (see
The Department has considered these comments and believes the policy guidance on exclusion of retirement accounts from resources provides sufficient guidance in this area and
In this final rule the Department also made minor technical changes to streamline the language from the proposed § 273.8(e)(2)(v) on tax-preferred accounts. Finally, legislation subsequent to this proposed rule added funds in Achieving a Better Life Experience (ABLE) program accounts as tax-favored savings accounts for people with disabilities under IRC Section 529A through the Tax Increase Prevention Act of 2014, Public Law 113–295. The Department is adding qualified ABLE programs as excludable resources at § 273.8(e)(2)(ii), consistent with Department policy issued on April 4, 2016.
Section 4104(c) of the FCEA, which amended Section 5(g)(8) of the Act (7 U.S.C. 2014(g)(8)), excluded education savings accounts described in Sections 529 and 520 of the IRC from resources in SNAP eligibility determinations. The FCEA provided the Secretary with discretion to exclude other education savings accounts.
The Department proposed to add a new paragraph § 273.8(e)(20) to exclude all funds in education savings accounts from resources if the funds are described in section 529 or section 530 of the IRC. (Section 529 of the IRC describes qualified tuition programs that allow a contributor to contribute funds or purchase tuition credits for qualified education expenses for a designated beneficiary. Section 530 of the IRC describes Coverdell Education Savings Accounts, which are trusts created to pay the education expenses of the designated beneficiary.) The Department would also maintain discretion to exclude other tax-preferred education savings accounts in the future.
Virtually the same number of commenters that provided comments on the proposed exclusion of qualifying retirement accounts also provided comments on the exclusion of qualifying education accounts, the only difference being that one hunger advocate commented only on the retirement account provision and one nonprofit commented only on the education account provision. As with the retirement account provision, all commenters generally approved of the proposal.
Several commenters urged the Department to exercise its discretion by excluding any future education accounts if the fund is described in section 529 or section 530 of the IRC, as provided in the FCEA. The Department cannot anticipate changes in the tax law or predict how future education savings accounts will be structured. Therefore, the Department will not amend the regulatory language from the proposed rule to accommodate this comment.
Commenters urged the Department to issue guidance on how to identify the type of education accounts excluded under this provision. The Department appreciates the commenters' recommendation and may develop guidance outside this rulemaking to assist State agencies identify qualified tuition programs described in sections 529 and 530 of the IRC.
One commenter suggested the location of the exclusion of retirement accounts at 7 CFR 273.8(e)(2) while educational accounts are excluded at 7 CFR 273.8(e)(20) may cause some readers to miss the educational accounts exclusion. The Department considered the comment but decided the location of the provisions was not sufficiently critical to relocate the educational accounts exclusion.
In this final rule the Department also made minor technical changes to streamline the language from the proposed § 273.8(e)(20)(iii) on education savings accounts.
Section 4105 of the FCEA removed a restriction in section 6(c)(1)(A) of the Act (7 U.S.C. 2015(c)(1)(A)) that prohibited periodic reporting for certain households, including homeless, migrant and seasonal farm workers, and adults who are elderly or have a disability in households with no earnings. The previous statutory restriction discouraged State agencies from including these households in their simplified reporting systems. As amended by the FCEA, Section 6(c)(1)(A) of the Act now limits the frequency of periodic reporting for homeless and migrant or seasonal farm worker households to every 4 months and for households in which all adult members are elderly or have disabilities with no earned income to once a year. To be consistent with current law, regulations published on January 29, 2010 (75 FR 4912), extended simplified reporting to all households that are certified for at least 4 months.
Yes, the Department received several comments on the proposed language at § 273.12(d)(6)(iii)(B) pertaining to the due dates for periodic reports. One commenter suggested using language similar to that provided for filing monthly reports at § 273.21(h)(1)(i). Another commenter stated that requiring the periodic report between 4 months and 6 months after certification was too rigid a time period and risked the possibility of case closure due to procedural reasons. This commenter also noted that the proposed language on due dates for receipt of periodic reports is too vague and needs to specify the period of time for which changes must be reported.
Although these comments are directed to a paragraph about simplified reporting that the Department had proposed to clarify, the commenters focused on language that had not actually been updated but had been included only as part of a proposed reorganization of § 273.12. For this reason, the Department considers many of these comments to be outside the scope of the proposed rule and will not amend the proposed text to incorporate these comments. However, the Department appreciates the feedback and encourages commenters to resubmit these comments in any future rulemaking that addresses substantive changes to client reporting systems. As discussed below, the Department decided to make certain changes in this rule that were recommended by a commenter that will clarify the regulations.
The Department proposed to reorganize § 273.12 to improve the readability of the section and to clarify aspects of current reporting requirements applicable to the reporting systems covered in this section of the SNAP regulations. Currently, there are four SNAP client reporting systems authorized in SNAP regulations. Three of these client reporting systems—change reporting (also known as incident reporting), quarterly reporting,
The proposed change would have reorganized § 273.12 so that all provisions applicable to each of the three reporting systems contained in this section of the regulations (change, quarterly, and simplified) would be located together for ease of reference.
The Department received comments from 66 individuals and groups about the proposed changes to this section of SNAP regulations. Commenters opposed specific provisions within § 273.12, most of which have been part of codified regulations for years and were not proposed to be revised. Three commenters addressed the proposed reorganization, and they were generally critical of the proposal. Several commenters pointed out that our proposed reorganization was duplicative because the same provisions that applied to all three reporting systems were repeated three times in the reorganized text. They recommended an alternate approach to reorganizing reporting system provisions and also noted numerous technical errors in the proposed reorganized text. They recommended that the Department combine all periodic reporting systems—quarterly, simplified and monthly reporting systems—into a single subsection and extend the client protections that they believe to be part of the monthly reporting system to quarterly and simplified reporting.
No. In view of the negative response from commenters, the Department has decided to exclude the proposed reorganization of client reporting systems in the final rule. The number and specificity of comments about codified regulations on client reporting systems indicates that this is an area of program operations that needs a more detailed approach to improve clarity over and above a reorganization of text. Indeed, the complexity of the issues as well as the continuing evolution of client reporting systems, particularly as State agencies modernize their eligibility and certification systems, indicate such a revision warrants a separate rulemaking. Thus, although we believe that regulations on client reporting systems would benefit from reorganization, we agree that more substantive changes should be considered beyond the proposed reorganization.
The Department will adopt the proposed changes that clarify the timeframes for periodic reporting by certain households under simplified reporting in § 273.12(a)(5)(iii)(A) and § 273.12(a)(5)(iii)(B). The Department is also making edits to the requirement to report changes in vehicle assets at § 273.12(a)(1)(iv) and in liquid resources at § 273.12(a)(1)(v). These changes are made to clarify that households need not report changes in vehicles and liquid resources, if those resources are excluded from the SNAP eligibility determination per § 273.8. In addition, based on comments, the Department is clarifying the provision dealing with State action on “unclear” information at § 273.12(c)(3), and the requirement regarding the timeframe during which households must report changes in income at § 273.12(a)(2).
The comments regarding State action on unclear information obtained by a State focused on data matches, but also apply to any information that is not considered to be verified upon receipt. The commenter pointed out that the information obtained may be old, outdated, or otherwise inaccurate. The commenter suggested that States be prohibited from requiring households to provide verification as a result of a data match unless the information is current and suggests the household is ineligible.
The Department agrees that many data matches that deal with income are “old” because income data is typically reported by quarter and is not available until a month or two after the end of a quarter. Data from new hire, employer, and unearned income data bases are generally more current, but not all data matches will be made prior to the household's current participation. This is why both the current and proposed rules treat such information as unclear.
Some income matches may show minor discrepancies with the income reported by the household, may be based upon data that may be several months old, and may not have been required to be reported. When this occurs, State agencies sometimes follow up using a Request for Contact (RFC). Households that struggle to understand and respond timely to the State's inquiries can inadvertently lose eligibility, even if the unclear information was not accurate or would not have affected eligibility. If a household does not respond to a Request for Contact, they could ultimately be terminated, have to reapply and experience a loss of benefits in the process; even if the matching information was outdated or generally consistent with the information that the household had already reported to the State. This can clearly create an access issue for eligible households. It also contributes to “churning” where households go on and off the program, losing benefits in the process and adding to the States' administrative burdens.
Some data (usually from governmental sources) that provide current information directly from the specific source may be considered to be verified upon receipt and can be acted upon without requiring contact with the household. If a State receives current information that is verified upon receipt—for example, because it is from a highly reliable government source—the State must act on that change using the other information it has in the case file, such as removing income for an individual no longer in the household. If that action results in a reduction in benefits, the State must issue a notice of adverse action that explains why the change was made, so that if a household disagrees with the underlying data that resulted in the change, the household has the ability to provide evidence to the State.
In response to comments, under the final rule, States may not follow up on unclear information with an RFC unless the information the State receives: (1) Is less than 60 days old; and (2) reflects information that, if true, was required to be reported under the applicable reporting requirements in 7 CFR 273.12 for the reporting system to which the household has been assigned. For example, in the case of households assigned to simplified reporting, the unclear information would, if true, place the household's income above 130 percent of the federal poverty line. Or, in the case of households assigned to change reporting, the information, if true, would result in an income change that was above the $100 reporting threshold or reflect a change in household composition.
Under simplified reporting, households are not required to report changes in income outside of the periodic report or a recertification action unless the change would result in an income level above the household's gross income limit as specified at § 273.12(a)(5)(v). It is inconsistent to tell households they are not required to report changes in income below this limit and then, based upon a data match, require that they respond to information (and potentially lose benefits if they fail to respond) that does
Likewise, a similar policy will be applied to households assigned to change reporting. For these households, a State would only follow up on current, unclear information if the information would have been required to be reported if correct. It is also inconsistent to tell households they are not required to report changes in income below $100 and then, based upon a data match, require that they respond to a request for information (and potentially lose benefits if they fail to respond) that does not appear to exceed this threshold. Thus, unclear information that suggests income changed by less than the $100 income change reporting threshold would not be followed up on. Therefore for households subject to change reporting, this rule prohibits States from following up on unclear information that does not meet the criteria for what must be reported in 272.12(a)(1) until the next recertification action or periodic report.
For example, at application a household reports that it has earned income based upon working between 25 and 32 hours a week at $12 an hour. The State verifies the most recent 30 days of income and correctly projects about $1,400 a month in earned income over the certification period based upon working about 27 hours per week. Six months into the certification, an automated data match indicates that the income averaged $1,600 per month for a three-month period. Under the final rule, for a household subject to simplified reporting, a State may not pursue the matter until the household applies for recertification since the income does not exceed the gross income limit and was not required to be reported. For a household subject to change reporting, a State would pursue the matter with an RFC because this discrepancy exceeds the $100 reporting threshold.
Under any reporting system, unclear information that indicates that the information that the State used at the time of certification may have been incorrect is a different matter. States should consistently follow up on new information that indicates differences with the information used at the time of certification as this new information is not a “change” in circumstances subject to reporting and can represent integrity issues. For example, if a work number data match shows earnings in the month of certification that a household member failed to report during the certification process, the State should follow up with an RFC and potentially file a claim against the household for any resulting over-issuance if the household does not provide evidence that the data are incorrect. If the earnings occurred after certification (and was thus a change in circumstances) and did not appear to bring the households eligibility into question, in the case of a household assigned to simplified reporting, the State would follow up on the information at the next certification action or periodic report, but not before.
In the case of household composition changes, if the information is verified upon receipt, the State must take action, regardless of the household's reporting system. Furthermore, a State may not issue an RFC based on unclear information that is not current, or is about a change in household composition that a household would not have been required to report, if accurate.
There are two types of household composition changes that follow different procedures. Under the final rule, if a State receives match information pursuant to a match described in § 272.13 or § 272.14, the State will follow up with a notice of match results and use the procedures in § 273.12(c)(3)(iii). The Department makes conforming changes at § 272.13(b)(4) and § 272.14(c)(4) to reference the verification process in § 273.12(c)(3)(iii).
For households subject to change reporting, if the household fails to respond to the notice of match results or does respond but fails to provide sufficient information to clarify its circumstances, the State agency must issue a notice of adverse action as described in § 273.13 that terminates the case.
For any households subject to reporting requirements other than change reporting, if the household fails to respond to the notice of match results or does respond but refuses to provide sufficient information to clarify its circumstances, the State agency must act on that change using only the other information it has in the case file, such as removing an individual that is no longer in the household and removing his or her income. If benefits are decreased or the household is to be terminated from program participation, the State agency must issue a notice of adverse action as described in § 273.13.
The notices of match results must clearly explain what information is needed from the household and the consequences of failing to respond to the notice as explained above.
For information that does not meet the above criteria related to when a State must follow up on unclear information, the State agency shall not act or follow up on the unclear information until the household's next recertification action or when its next periodic report is due. However, a State may follow up with a household to provide information on a voluntary basis if the information would result in an increase in benefits, but the State may not take adverse action if the household does not respond. The final rule also clarifies that unclear information is information that is not verified or verified information where the effect on the household's certification is not apparent. These provisions are in this final rule at § 273.12(c)(3).
FNS will be updating Quality Control (QC) materials as necessary to ensure that if States follows the requirements laid out in the final rule and households reports any changes in accordance with their reporting system's requirements, there is no household or agency error.
Comments were also received regarding some important differences between the regulatory requirements governing the procedures for monthly reporting at § 273.21 and periodic reporting in § 273.12(a)(5). The comments pointed out that the monthly reporting provisions offered certain protections to households that failed to file required reports on time that were absent from the periodic reporting provisions. The Department examined these differences and included changes in this final rule that would better conform the provisions of the two reporting systems. The additions to the periodic reporting provisions include a requirement to provide household with a notice reminding them of the need to submit a periodic report and the option of reinstating households that provide reports before the end of the issuance month. The final rule also includes language that codifies current policy and practice regarding using a combined report form for SNAP and TANF or Medicaid and that non-applicant household or family members need not provide SSNs or information about citizenship or immigration status on periodic report forms.
In addition, based on a comment received, the Department has made a clarification by referencing the asset limits as indexed to inflation as described in § 273.8(b). Therefore, with this modification, we will adopt the proposed clarification on household requirements for reporting changes of
The Department also received a comment regarding the need to index the amounts of change to income that trigger a report for households assigned to change reporting and the need to make the amount for general assistance (GA) consistent with unearned income generally. The Department agrees with this comment and has increased the amount of change in GA benefits that will require a household to report (in cases that are not jointly processed.) from $50 to $100. The Department has also indexed the $100 amounts that trigger household's reporting requirements to the Consumer Price Index (CPI).
Beginning in FY 2018, and for every fiscal year thereafter, the dollar amounts will be adjusted and rounded to the nearest $25 to reflect changes in the CPI for the All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor (for the 12-month period ending the preceding June).
Finally, based upon a comment received, the Department has clarified the requirement regarding the timeframe in which State agencies shall require households to report changes in income. Current regulations say that the State agency has the flexibility to require the change in income to be reported as early as 10 days from the date that the household becomes aware of the change or as late as 10 days from the date that the household receives the first payment attributable to the change. This flexibility has created confusion when a household reports a change in income, but cannot verify the new amount. If the household waits to report until it has a paycheck in hand, the time spent waiting for the verification may be beyond the required timeframe. Therefore, to improve consistency with reportable changes in income, § 273.12(a)(2) has been modified to require reporting within 10 days of receipt of the first payment attributable to the change. Additionally, § 273.12(a)(2) of the final rule retains language that appeared in the proposed rule at 273.12(b)(6)(ii) that provides States with the option to require that households report changes within 10 days of the end of the month in which the change occurred.
Section 4106 of the FCEA amended Section 11(s)(1) of the Act to permit State agencies to provide transitional SNAP benefits to households with children that cease to receive cash assistance under a State-funded cash assistance program (SFCA). Prior to this change in the law, States had the option to provide transitional SNAP benefits only to households that stopped receiving Federally-funded TANF assistance.
The Department proposed to amend State plan requirements at § 272.2(d)(1)(xvi)(H) and Subpart H in part 273 of the SNAP regulations, to specify that a household's eligibility for TBA may be based on the termination of SFCA in addition to the termination of TANF. The Department proposed to specify that a household may qualify for an additional TBA period if the household participates in a SFCA program that continues after TANF has ended, and then the household subsequently stops participating in the SFCA. The Department also proposed that, in administering TBA based on the termination of SFCA, State agencies would follow the same procedures they currently use to administer TBA based on termination of TANF. In making this change, we proposed to add SFCA to the following provisions in Subpart H of part 273:
• § 273.26—introductory paragraph and paragraph (a);
• § 273.27(a) and (c);
• § 273.29(c) and (d); and
• § 273.32.
Sixty-two commenters requested clarification on the eligibility of households receiving cash assistance, TANF or State Maintenance of Effort (MOE) funded assistance, or SFCA. Specifically, they requested clarification that the exit must be from cash assistance for both TANF and State-funded benefits programs. One commenter requested examples of what would be considered a SFCA program.
Section 11(s)(1)(A) of the Act authorizes States to provide TBA for a household that ceases to receive cash assistance under a State program funded under Part A of Title IV of the Social Security Act. TANF is authorized under part A of Title IV of the Social Security Act, and the cash assistance that eligible low-income households receive may be funded in part by the TANF Federal grant or by State MOE funds. The Department is clarifying the description of TANF at § 273.26(a)(1) as the program authorized under Part A of Title IV of the Social Security Act, and that Federal cash assistance may include both TANF and State MOE funds.
Based on the language in Section 11(s)(1)(B) of the Act, the Department is clarifying in § 273.26(a)(2) that SFCA programs include State-funded programs that provide cash assistance to families with children. These SFCA programs are separate and distinct from State-level programs funded by TANF. An example of an eligible SFCA program would be a State general assistance program that provides cash assistance to families with children. Programs that are not intended for families with children or do not provide a cash benefit are ineligible under this provision. TBA ensures that households with children that are leaving cash assistance for either TANF or State-funded benefits programs can continue to meet their nutritional needs as they transition from these cash assistance programs to the workforce.
Ten commenters requested clarification on whether SFCA programs that rely on local funds would qualify under this provision. Several commenters noted that some States require local governments to contribute funding to statewide SFCA programs. FNS guidance issued on August 29, 2008, (see
Two commenters requested clarification on eligibility for TBA when participation in the SFCA program is concurrent, sequential or provided as an alternative to TANF. They also requested that the regulatory language clarify that State agencies may provide
Commenters raised a number of questions or asked for clarifications on issues that were not addressed in the proposed rule. Such comments addressed aspects of TBA that the Department did not propose to revise. The Department included the existing TBA regulations in the proposed rule in order to incorporate the change in the law with regard to SFCA programs. The Department did not propose amendments to the basic provisions of TBA that are codified in the SNAP regulations. The more frequently mentioned comments included requests for clarification that households with partial sanctions in TANF or SFCA may still receive TBA (63 commenters) and requests for further explanation on the issue of TBA being a frozen benefit that may not be changed except in two instances (62 commenters). For this reason, we consider such comments to be outside the scope of the proposed rule because they did not specifically address issues related to the proposal to add of SFCA programs to the TBA regulations.
We appreciate the effort that commenters put into providing these comments. As with the comments received on client reporting systems, it appears that commenters, particularly those in the advocacy community, have noted a number of TBA-related issues that could benefit from additional guidance. The Department appreciates the thoughts and feedback on TBA issues, and encourages commenters to re-submit these suggestions in future rulemakings.
Yes, one commenter pointed out that the regulations should be revised to clarify that SNAP households should be able to shift from the transitional benefit period back to the regular SNAP program based on a joint TANF/SNAP application. The commenter believed that the TANF application should be treated as a joint TANF/SNAP application, consistent with current 7 CFR 273.2(j). As required for all SNAP non-expedited applications, the State would have 30 days to determine the household's SNAP eligibility using information from the new application. Consistent with these changes, the commenter suggested that the TBA notice be revised to state that households that reapply for TANF cash assistance will be asked to reapply for SNAP at the same time. The commenter also recommended revising the regulations to acknowledge that the State agency may adjust the SNAP benefit to account for automatic annual changes in benefit rules, such as the annual cost of living, standard deduction adjustments and excess shelter deduction cap adjustments. The Department agrees that a revision to the final regulation is needed to clarify this process and made the necessary changes.
The Department is also making minor changes to clarify 273.26(b) and (d) to add MOE and clarify that SFCA may be received concurrently, sequentially or alternatively to TANF, based upon comments. In addition, the Department is amending § 273.27 to again include the State MOE funds and clarify that States need not obtain additional information from household prior to their participation in TBA. Finally, based on a comment that the Department is amending § 273.29 and § 273.32 to clarify that TBA households applying for TANF or SFCA benefits shall be jointly processed for SNAP benefits.
One commenter noted that while 40 States have sanction policies that terminate cash assistance because of noncompliance, it is also common for States to reduce the cash assistance benefit amount by removing the individually sanctioned household member. The Department appreciates this insight and is altering the regulatory language to clarify that when a household has a member who has been sanctioned, the remaining eligible household members may receive transitional SNAP benefits if the cash assistance ends for another reason.
The Food Stamp Act of 1977 established a monthly minimum benefit of $10 per month for one-person and two-person households, and the amount has not been adjusted since that time. Section 4107 of the FCEA amended section 8(a) of the Act (7 U.S.C. 2017(a)) to increase the minimum benefit amount for one-person and two-person households from $10 to eight percent of the maximum allotment for a one-person household, rounded to the nearest whole dollar.
The Department proposed to amend the regulations at § 273.10(e)(2)(ii)(C) to incorporate the FCEA provision indexing the minimum benefit amount to eight percent of the maximum allotment for a one-person household, rounded to the nearest whole dollar. In addition, the Department proposed to update the definition of minimum benefit in § 271.2 to remove the reference to the former minimum benefit amount of $10 and specify that the minimum benefit shall be based on the provisions of § 273.10.
Sixty-one commenters generally approved of the proposal regarding the minimum benefit. Fifty-eight commenters suggested that the Department ensure that States with combined application projects (CAPs) and other demonstration projects make annual updates on a timely basis. Eight commenters requested general guidance. One individual generally agreed with the proposal, but suggested that the minimum benefit amount should be $50.
The Department appreciates commenters' feedback. The FCEA required the increase of the minimum benefit and the Department made a straightforward update to the regulations to implement it. Existing procedures and requirements surrounding the minimum benefit remain. The Department is adopting the provisions as proposed. Any additional guidance will be provided outside of the rulemaking process.
The Department proposed to implement Section 4108 of the FCEA, which amended Section 6(d)(4) of the Act, to add job retention services of up to 90 days as an allowable E&T component. The Department proposed to revise the SNAP regulations at § 273.7(e)(1) to incorporate this change. We received 64 comments in total on this provision.
The Department received 61 comments requesting that the rule specify State agency discretion on the start date of job retention services. The Department agrees that individual circumstances may warrant job retention services that begin at various times, such as on the day a job offer is accepted, the day the individual reports the information to his or her E&T case manager, the first day of the job, or other time based on the availability and type of services. Therefore, the Department will permit State agencies to identify when the 90 days of job retention services start.
The Department also received one comment requesting that job retention services be available to an E&T participant for each new job the individual obtains. The Act provides for a period of not more than 90 days of job retention services after an individual who received E&T services gains employment. For example, if an individual gains employment through a new job, receives 90 days of job retention services, and then later finds a different job, he or she would generally not be eligible for a new 90-day period of job retention services. However, if the individual re-engaged in E&T services and then gains new employment, he or she would be eligible for additional job retention services. For example, there may be circumstances where an individual participates in job search, gains employment and receives 90 days of job retention services. This individual may later reengage with E&T after a job loss to search for work or obtain career or technical training to find a better job and could qualify for an additional 90 days of job retention services. The Department does not want to limit State agencies in helping clients obtain regular employment with good wages and career progression. We understand that State agencies are in a better position to determine when job retention services might be appropriate for a new hire and the Department is allowing for State agency flexibility for this issue in § 273.7(e)(1)(viii).
Because job retention services are an E&T component, they need to be connected to receipt of SNAP even as we recognize that they may not begin until after a job commences and, in some cases, a household has left the SNAP program. The Department is taking this opportunity to clarify that an individual must be receiving SNAP benefits in the month of or the month prior to beginning job retention services. The Department is amending § 273.7(e)(1)(viii) in this final rule to this effect.
The Department received one comment asking whether job retention services would be available to E&T participants if the components they participated in did not lead directly to employment. The Act provides that these services intend to ensure job retention after an individual who received E&T services gains employment. The Act does not require a link between the E&T activity and employment itself. Additionally, we recognize that it may be difficult to establish a link between participation in an E&T component and gained employment when there is a gap in services or a component does not have a direct link to a job. Therefore, the Department is not requiring evidence of a link between an E&T component and job entry in order for the State agency to provide job retention services. State agencies have discretion on the amount of time that may pass between an E&T component and start of job retention services. However, this rule does require that the household must have been receiving SNAP in the month of or the month prior to beginning job retention services.
The Department received 62 comments stating that the proposed rule unnecessarily limited job retention services to individuals losing SNAP benefits as a result of increased earnings. The comments pointed out that there may be circumstances such as where someone leaving SNAP would not have increased earnings but would need job retention services, such as an individual who took a job with reduced hours at a good wage with the hope that hours would increase or a lower-paying job with the opportunity for quick promotion.
The Department agrees that there may be circumstances where job retention services are appropriate for households leaving SNAP. However, there may also be circumstances where an individual or household is leaving SNAP due to an intentional program violation or failure to comply with SNAP work requirements without good cause. Therefore, the Department is clarifying in § 273.7(e)(1)(viii) that State agencies may extend job retention services to individuals who participated in another E&T component and are leaving SNAP for any reason other than a disqualification. As provided in this rule, the State agency may not disqualify an individual who refuses or fails to comply with job retention services.
The Department is taking this opportunity to clarify that an individual need not complete an E&T component in order to start receiving job retention services. For example, an individual assigned to two months of job search may find a job after two weeks and would then be eligible for job retention services.
The Department received one comment asking for clarification on the limits of case management. State agencies may provide E&T case management to participants as long as a participant is engaged in an E&T program or component. Since job retention is an E&T component, individuals receiving job retention services are eligible for case management up to the 90-day limit.
The Department received 60 comments requesting that child care and transportation be included as allowable participant reimbursements under a job retention component. The Department omitted transportation and dependent care from the list of allowable services and reimbursable participation costs in the preamble to the proposed rule because Section (6)(d)(4)(I) of the Act specifically provides for transportation and dependent care as allowable E&T participant reimbursements. The Department is clarifying that transportation and dependent care are allowable participant reimbursements under the job retention component,
Section 11(e)(2)(C)(i) of the Act allows for various types of signatures. Section 4119 of FCEA amended section 11(e) of the Act (7 U.S.C. 2020(e)) to permit a State agency to accept telephonic signatures, subject to certain conditions. These conditions, described at Section 11(e)(1)(C)(ii) of the Act, require that a State agency:
• Record for future reference the verbal assent of the household member and the information to which assent was given;
• Include effective safeguards against impersonation, identity theft and invasions of privacy;
• Not deny or interfere with the household's right to apply in writing;
• Promptly provide to the applicant a written copy of the complete application with instructions for a simple procedure to allow correction of any errors or omission;
• Comply with all statutory provisions for processing applications described at Section 11(e)(1)(B) of the Act;
• Satisfy all requirements in the Act and other laws applicable to SNAP and that the date of the verbal assent is considered to be the date the application is signed; and
• Comply with all other standards established by the Secretary.
In the proposed rule, the Department used the term “spoken signature” to include means of assenting to information other than written or electronic signatures, with the most obvious example being an interactive interview with a SNAP household over the telephone. However, the term “spoken signature” has resulted in confusion and questions as to whether a “spoken signature” and a “telephonic signature” is interchangeable.
To clarify this confusion, the Department uses the term “telephonic signature” in this final rule, which more directly reflects the statutory language. The language in Section 4119 refers to the option for a “telephonic signature”, and lays out requirements for a system to capture telephonic signatures allowing households to sign an application through a recorded verbal assent over the telephone. Although the Department no longer uses the term “spoken signature” in this final rule, an in-office spoken signature may be necessary in some circumstances, for example, as a reasonable accommodation for an applicant with disabilities.
To implement the statutory provisions for telephonic signatures, the Department proposed new § 273.2(c)(7), which addressed specific types of application signatures. As proposed at § 273.2(c)(7)(viii), a State agency opting to accept telephonic signatures must:
• Specify in its State plan that it has chosen this option;
• Use terms that clearly indicate to the household how to provide assent or agreement during an interview, such as “yes”, “no”, “I agree” or “I do not agree”;
• Promptly provide to the applicant a written copy of the completed application, with instructions for a simple procedure for correcting any errors or omissions;
• Allow the household at least 10 calendar days to return the corrections; and
• Use the date of the telephonic signature as the date of the application.
The Department proposed a number of requirements for application signature systems described in proposed § 273.2(c)(7), both to implement the FCEA and to clarify additional standards for such systems. First, the Department proposed to extend certain statutory criteria for telephonic signatures to all types of application signatures, namely the requirements to: Record for future reference the information and the assent to the information on the application; include effective safeguards against impersonation identity theft, and invasions of privacy; not interfere with a household's right to apply in writing; provide applicants a written copy of the completed application with instructions for a simple procedure to correct errors or omissions (excluding applications with a written signature); comply with SNAP regulations for bilingual requirements; and satisfy all applicable statutory requirements for SNAP applications with the date of verbal consent by the household considered to be the date of the application for all purposes.
Second, the Department proposed to specify unique criteria relevant to certain types of signatures. The signature types identified in the proposed rule were handwritten signatures (which may include signing with a mark or “X”), electronic signatures, telephonic signatures, and gestured signatures. As explained in the preamble to the proposed rule, the Department included gestured signatures to provide those with hearing disabilities equal access to SNAP. As a State option under SNAP regulations, a gestured or visual signature may provide an alternative to a handwritten signature and may be an efficient means of giving assent as part of an interactive interview. Gestured signatures to indicate “yes” or “I agree” would include those in American Sign Language, Manually Coded English, or similar language or method during an interview. Except for handwritten signatures, the Department proposed that applicants have at least 10 calendar days to review and correct any errors or omissions to applications with electronic, telephonic or gestured signatures. The Department proposed that States have the option to accept unwritten signatures and written signatures using a mark or “X”, but are not required to do so.
Third, the Department proposed amendments to the regulations so that the provisions would also apply to applications submitted at recertification (§ 273.14(b)(2)) and to monthly, quarterly, and simplified periodic reports (§§ 273.21(h)(2)(vi), 273.12(c)(5)(ii)(F), and 273.12(d)(5)(ii)(F), respectively) required to be submitted under the client periodic reporting systems. Periodic reporting forms are functionally equivalent to applications in that they are clients' signed statements of circumstances. Since unwritten signatures suffice for applications and reapplications, the Department proposed that unwritten signatures should also suffice for periodic reporting forms. However, as with applications, a State agency is not required to accept unwritten signatures. The Department did not propose to extend this option to change reporting forms, since there is no Federal requirement that a household assigned to a change reporting system must sign the report form.
Yes. As part of a general updating of application submission procedures and availability of application provisions, we proposed to reorganize §§ 273.2(c)(1) and 273.2(c)(3). In doing so, the Department reaffirmed certain fundamental aspects to the SNAP application process, including the household's right to file an application
The Department also proposed to add a new provision for application forms at § 273.2(b)(1)(x) to specify that an application form may be an on-line document, a recorded telephonic conversation, or a recorded visually signed conversation.
Many commenters (55) approved of the Department's proposal to add gestured signatures as an optional type of signature for SNAP applications. The Department received no negative comments on this proposal, and the final rule retains the provision, with some modifications, as an optional signature type, described at § 273.2(c)(7)(ix). Those modifications include specifying that a State agency that chooses to accept gestured signatures must specify it has taken this option in its State plan of operation, and eliminating the ten-day period for households to return corrections to the State agency.
Most commenters supported the Department's inclusion of non-traditional signatures for applications, including telephonic signatures, but several requested clarifications with regard to telephonic signature systems. One commenter considered the proposed rule unclear on how to submit applications as recorded oral conversations, and requested that the Department clearly specify that applications may be made by telephone.
The Department wishes to distinguish between applying for SNAP benefits by telephone and providing a telephonic signature to complete an application. Telephonic signatures are not limited to telephonic applications and can be used to sign any application regardless of the means by which the application is completed (
The FCEA requires that these systems record “the verbal assent of the household member and the information to which assent was given.” For a signature to be considered a telephonic signature, the system must make an audio recording over the telephone of the household's verbal assent as well as a summary of what the household is agreeing to, but not the entire telephone conversation. The Department envisions that an acceptable summary could include an eligibility worker's reiteration of the information the household provided during the call, such as updates to income, household composition, or deductions. This definition is not met if State or local office staff attest to securing the verbal assent over the telephone without actually making an audio recording over the telephone of the household member's attestation. The Department encourages States to consult with their legal counsel to ensure that the captured telephonic signature meets the State's legal definition of a signature and the recorded portion constitutes “assent” under that definition. In the final rule, the Department clarifies this requirement at § 273.2(c)(7)(viii)(B).
To be a valid telephonic signature, the recorded verbal assent must be linked to the application itself. This is to ensure the State agency has ready access to the audio file containing the recorded verbal assent. Telephonic signature files must be retrievable and must also comply with Federal records retention requirements in 7 CFR 272.1(f). The Department is revising the proposed regulations at § 273.2(c)(7)(viii)(C) to make this clear. The Department notes that it is also revising the proposed regulations for handwritten, gestured and telephonic signatures, for clarity and consistency, to indicate that the date of application is the date the application is received by the State agency, and that if the application is received outside normal business hours the State agency will consider the date of application the next business day.
Two commenters noted that an application should be treated as filed whenever a household leaves it with a community partner or similar entity charged by the State agency to assist with application processing. These commenters emphasized that households submitting applications at locations other than traditional local SNAP offices should not have their benefits delayed, and treating the application as filed when it is submitted to the community partner would help to address this problem.
In accordance with 273.2(c)(1), the date of the application is the date it is received by the State agency. However, a State may enter into a formal agreement, such as a contract or Memorandum of Understanding (MOU), in which a third-party accepts applications on behalf of the State agency. Such an agreement may stipulate that the date the application is received by the third-party is the date of the application. FNS does not have the authority to enforce program time requirements on entities other than State SNAP agencies. Organizations that fail to deliver the applications on the same date they receive them from a household are delaying the household's filing date and, potentially, the timeframe in which they will begin to receive assistance. Organizations or entities informally engaged in application assistance who do not have a contract or MOU with the State should make every effort to submit applications timely to the State agency so that the filing date will be as early as possible and benefits will not be delayed.
State agencies that choose to implement a telephonic signature process with a contracted third-party, or a third-party acting on behalf of the State agency through a MOU, such as a community-based organization, must ensure the records in the contractor's possession are readily accessible. Also, the State must ensure that the electronic signature files are readily accessible.
In addition, State agencies using a third party should be aware of the following:
• State agencies must follow the appropriate merit system personnel policy.
• Regardless of where the telephonic signature file is stored, the State owns the signature and any other data produced under contract by a third-party entity using Federal funding.
• Telephonic signature files and related data stored on third-party hardware must be transferred to the State agency in a usable format should the third party relationship with the State agency terminate. The third-party cannot retain these records.
• FNS recommends that the State agency include appropriate language in their memorandums of understanding or contractual agreements to ensure the third-party is in compliance with program requirements.
Commenters also requested various clarifications as to the filing date. These include requests to require the automatic recording of the date for applications filed electronically, that the filing date should be the day received by the office during business hours, to allow States to use a statewide definition of receipt of applications, and to allow applications for pre-released institutionalized applicants to be the actual date submitted (not when released). FNS finds that existing program requirements in the regulations and policy memos provide sufficient guidance on these matters.
One commenter spoke to the proposed criteria for effective safeguards against impersonation, identity theft and invasions of privacy for telephonic signature systems, and requested more information on the nature of these safeguards and how states might implement them. As discussed further below, FNS expects States to develop a telephonic signature process that includes necessary safeguards against impersonation, identity theft, and invasions of privacy, as is required by the Act. States have discretion to determine those safeguards and implement them effectively.
Four commenters disagreed with the Department's proposal at § 273.2(c)(7)(iii) that it be optional for States to accept unwritten signatures, arguing that States should be required to accept unwritten signatures unless an alternative exists that provides comparable access to program for people with disabilities.
Relatedly, one commenter stressed that the Department should emphasize that handwritten signatures should always be counted as a signature. The Department agrees. Handwritten signatures transmitted electronically must still be considered a signature for program purposes. For example, signatures received by facsimile are not unwritten signatures.
Section 11(e) of the Act allows telephonic signatures as an option, not a requirement. As stated in the preamble to the proposed rule, the Department has consistently recommended that State agencies consult legal counsel to verify that verbal assent constitutes a valid signature pursuant to State law. Following the statutory option for telephonic signatures, the Department also proposed to give States the option to accept or not accept other types of unwritten signatures, such as gestured or electronic signatures. We also note that for those States choosing not to take the option, unwritten or alternative signatures may still be required for some applicants with disabilities as a reasonable accommodation under Section 504 of the Rehabilitation Act or in compliance with other civil rights laws. These unwritten or alternative signatures that are not part of a formal State option must still meet the requirements of the final rule. For these reasons, the Department will adopt the provision proposed at § 273.2(c)(7)(iii) without change except for a revision to remove the reference including faxed signatures as unwritten signatures at 273.2(c)(7)(iii)(A), and to add clarifying language regarding compliance with civil rights laws.
A total of 13 commenters, including advocates, State agencies, and related associations, opposed the 10-day review period for non-paper applications (
Sixty-two commenters requested clarification on the 10-day review period, stressing that the application process must not be delayed during the time period and that all applications must meet normal/expedited processing times. Most of these commenters said failure to return the form should not result in an intentional program violation (IPV), other sanctions or termination. Four commenters asked for clarification that one signature is sufficient.
No. The Department finds commenters' objections to the proposed 10-day review period persuasive. The Department agrees that the 10-day review proposal would have caused unnecessary action and delay, both for State agencies and applicants. Accordingly, we have dropped proposed language at §§ 273.2(c)(1)(v)(A), 273.2(c)(7)(vii)(D), 273.2(c)(7)(viii)(D), and 273.2(c)(7)(ix)(D).
The final rule retains the post-signature review and correction process for applications with telephonic or gestured signatures. It is statutorily required for applications with telephonic signatures per Section 11(e)(2)(C)(iii)(IV) of the Act, and the Department continues to believe that this process is also appropriate for applications with gestured signatures because these applications are anticipated to be completed initially by a SNAP eligibility worker who will record information provided by the household during an interactive interview. The Department agrees that a post-signature review and correction process is unnecessary for households that have independently entered information on the application and submitted an electronically-signed application. Accordingly, this language is removed from §§ 273.2(c)(1)(v)(A) and 273.2(c)(7)(vii)(D) is removed entirely.
In response to other commenter requests for clarification, the Department wishes to clarify that the application process must not be delayed as a result of the State procedure for household review and correction of information on applications, and that all applications must meet normal/expedited processing times. In addition, only one signature is necessary to be considered a complete application, provided that the signature is provided in a form that is accepted by the State agency. Finally, the household's failure to return the copy of the application or the summarized information used by the State agency to determine eligibility and benefit levels must not result in an IPV, other sanction, or termination.
Additionally, the Department is making technical corrections to this section. First, the Department is removing several references in this section to “paper or electronic” and combining all references to the filing date of the application in
Eight commenters agreed with the Department's proposal that paper application forms must always be available and that States must not interfere with a household's right to file a written application. These commenters further stated that States should affirmatively encourage the filing of paper applications and that the regulations should prohibit States from suggesting to households disadvantages of filing a paper application. The Department understands the concern of commenters that certain low-income populations, such as the elderly, those with a disability and individuals with limited English proficiency, may be discouraged from applying for benefits as States move to an increasingly electronic environment for applying for SNAP benefits, but the Department also believes that the proposed rule language strongly supports household access to paper application and the right to apply in writing. Accordingly, the final rule retains the language proposed at §§ 273.2(c)(1)(ii) and 273.2(c)(3)(ii).
The Department notes a clarification in this final rule at § 273.2(c)(3) that, when filing an application, an applicant must be able to file the application with only a name, address and signature. The existing language had suggested that the process begins with name, address and signature. Technological advances have led to more States using methods other than traditional paper applications for SNAP. We want to emphasize that, regardless of the method used, an applicant's filing date is preserved when name, address and signature is received by the State agency and that all State application procedures—including, but not limited to, paper, online, and telephone processes—must afford applicants the ability to submit an application with just these elements and must make it readily apparent to applicants that this option is available to them. The Department believes it is important to make clear, consistent with longstanding policy, that once a household submits an application with name, address and signature, that application is filed as of the date it is received by the State agency.
The Department proposed at § 273.2(b)(1) and § 273.2(c)(1)(v)(B) to require State agencies to provide households with a paper copy of a non-paper application. This is an extension of the current provision at § 273.2(c)(1), which requires that State agencies must provide applicants with a copy of their applications filed on-line at the SNAP local office. Three State agencies disagreed with the proposed extension of the application copy requirement. However, 64 commenters approved of the Department's proposal and recommended that States be required to provide households with a copy of their filed applications, whether paper or non-paper. Commenters also requested clarification on what is meant by “completed application”. A large number of commenters (65) suggested that in lieu of sending the actual completed application, it would be acceptable for the State agency to send the household a list of information provided by the client and recorded by the State agency.
Commenters also expressed some confusion about the timing of receipt of the completed application. Some commenters suggested that, in addition to the post-signature review and correction process, State agencies should also provide a copy of the information that the State agency used to determine eligibility and benefits. This second copy of the “completed application” would be sent with the notice of eligibility or denial.
Since the 2008 publication of the proposed rule, the Department has learned from multiple State agencies that the previously existing requirement to give households a copy of a completed application filed on-line at SNAP local office has resulted in a significant waste of paper because applicants often leave those copies, which include confidential personal information, at the local office. In response to these concerns, the Department has approved a waiver since 2011 to allow the State agency to offer households a copy of an application completed on-line at the local office. Under this waiver, the local office is obligated to provide a paper copy of an application only if the applicant indicates a desire to receive it after it is offered to them. Currently, almost one third of the State agencies are approved to operate this waiver.
In the proposed rule, the Department intended that the copy of the completed application would be part of the post-signature review and correction process that had been proposed for all non-paper applications. In order to ensure that all applicants have an opportunity to review the information submitted in their application for benefits, and based on the comments received, in the final rule the Department requires State agencies to offer all households a copy of the completed application. At the option of the household, the copy of the completed application may be in electronic form. The State agency will have the discretion to determine the most efficient means to offer this option, for example, by adding a question on the application as to the applicant's preference. This procedure will make the need for the above-mentioned waiver obsolete.
In view of the above considerations, the Department will not adopt the proposed provisions at § 273.2(b)(1)(x) and § 273.2(c)(1)(v)(B) to require State agencies to provide households a copy of completed non-paper applications. Instead, the Department is revising and redesignating the regulations at § 273.2(c)(1)(v) to require that State agencies must offer to provide copies of all applications completed by households regardless of the method by which the applicant submitted the application. The regulation will also specify that the household will have the option to receive the copy of their completed application in electronic format. Because State agencies may have logistical updates to their application process to implement this provision, State agencies will have one year from the date this rule is published to implement this requirement.
The Department is also clarifying that State agencies opting to accept telephonic or gestured signatures may determine the form of the completed application that is sent to these households. As stated in the preamble to the proposed rule, the State agency need not provide a transcript of the recorded application, but it must include the information that the State agency will use to determine eligibility and benefits. Thus, a completed application may be a list of information provided by the household or an exact copy of the application submitted. States will have the flexibility to provide information to households in a way most efficient for them. As with other information forwarded to households by State agencies, State agencies must be in compliance with all Federal laws regarding accessibility for people with disabilities. Since utilizing telephonic or gestured signatures is optional, the Department believes that State agencies taking this option are in the best position to determine the form
Most commenters (63 out of 66) who addressed this issue opposed this proposal, and several indicated a desire for the removal of the signature requirement on periodic reports. Their opposition reflects a misunderstanding, however, about the current requirements for periodic reports. The signature requirement for periodic reports is not a new requirement. As stated in the preamble to the proposed rule, the periodic report is similar to an application in that it includes a household's statement of its circumstances. The signature requirement for periodic reports is found in current regulations at § 273.12(b)(2)(vii) for quarterly and simplified reporting systems, and at § 273.21(h)(2)(vi) for monthly periodic reports. The household's signature on the periodic reports acknowledges an understanding that the information provided in the report may result in the termination or reduction of benefits. The proposed revisions to these paragraphs simply extended to State agencies the option to allow households filing periodic reports to provide a telephonic or gestured signature if the State has opted to accept these types of signatures. This final rule retains these proposed revisions. That is, State agencies electing to use telephonic or gestured signatures may also allow the use of these signatures for periodic reports.
Five commenters, including three State agencies, requested guidance on how States can safeguard all signature systems against impersonation, identity theft and invasions of privacy. States must ensure privacy is maintained according to current requirements. As stated in the preamble to the proposed rule, the Department does not think that this requirement will be a significant burden to State agencies. State agencies already protect households' privacy by following the regulations on the confidentiality of households' records, per § 272.1(c), and by prudent administrative practices. If the Department obtains or develops any more information on technical or other means of compliance, we will issue guidance outside of the rulemaking process.
Five commenters stated that application processing regulations should be in compliance with legislation protecting people with disabilities, including Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA). Existing regulations already require such compliance. Nondiscrimination regulations exist at 7 CFR 272.6, and prohibit discrimination against applicants in any aspect of program administration in accordance with those laws. Regulations requiring compliance with Section 504 of the Rehabilitation Act exist at current § 273.2(c)(3) and at proposed § 273.2(c)(3)(i). Also, regulations require that State agencies provide applications in other languages as required in § 272.4(b).
Section 4122 of the FCEA amended Section 16(h)(1)(A) of the Act (7 U.S.C. 2025(h)(a)(A)) to place a 15-month limit on the availability of unobligated, unexpended E&T funds. The Department proposed to implement Section 4122 of FCEA by removing the reference in § 273.7(d)(3)(ix) stating that funds allocated in accordance with paragraph § 273.7(d)(1) will remain available until obligated or expended. The Department received two comments on this provision. These comments did not address the rule itself, but asked for guidance and technical assistance on the availability of additional E&T funds. The Agricultural Act of 2014 (Pub. L. 113–79) changed the E&T funding cycle to a two-year period. The Department has already issued subsequent guidance on this issue. Because the Agricultural Act of 2014 superseded the provision contained in the proposed rule, the Department is not adopting this provision as proposed.
Yes. Commenters suggested that the Department remind State agencies of the status of unobligated, unexpended funds. The Department currently informs State agencies of available funds and will continue to do so. State agencies may request additional 100 percent Federal funds at any time provided that the State agency can amend its E&T plan and obligate additional funds before the end of the Federal fiscal year.
The Department received one comment recommending that the Department offer technical assistance in planning and managing E&T funds. The Department appreciates this suggestion and will take it into consideration when developing future guidance and designing E&T tools.
Current regulations at § 273.2(e)(1) require a face-to-face interview at initial application and at least every 12 months after that, except for certain households certified for more than 12 months. Under § 273.2(e)(2), the State agency may waive the face-to-face interview and hold a telephone interview if requested by the household based on a hardship such as disability, inadequate transportation or an employment conflict. If the State agency waives the face-to-face interview based on such a household hardship, it must document the waiver in the household's case file. Under § 273.14(b)(3), State agencies must meet the same interview requirements for households at recertification, including a face-to-face interview, and may also waive the face-to-face interview for hardship reasons as provided in § 273.2(e).
The Department proposed to amend §§ 273.2(e)(2) and 273.14(b)(3) to allow State agencies to use a telephone interview rather than a face-to-face interview without the need for the State to ascertain hardship. State agencies would be required to provide a face-to-face interview if requested by the household or if the State agency determines that one is necessary. However, if a household that meets the State agency's hardship criteria requests to waive the in-office interview, the State agency would be required to conduct the interview by telephone or a home visit. The proposal incorporated policy issued by the Department in a June 25, 2009, memorandum, which can be found on the FNS Web site at:
Forty-five commenters supported the proposal to make the telephone interview an option under the regulations. Seventy-one commenters suggested updating the regulatory language to remove reference to “waivers”, ensure that clients retain the right to have a face-to-face interview, and ensure clients continue to have the right to request a telephone interview due to hardship.
Language requiring that households have a face-to-face interview if requested will be retained in the final rule. However, in § 273.2(e)(2), the final rule has been modified from the proposed based upon suggestions made by commenters. The final rule has been modified to: remove references to waivers; clarify requirements for providing face-to-face interviews and that such interviews can be conducted at an applicant's residence; and reiterate that State agencies must provide Limited English Proficient (LEP) households with bilingual personnel during the interview (as already required under § 272.4(b)).
Nine commenters took this opportunity to emphasize their strong support of the SNAP interview, and they requested that clear interview priorities in terms of client rights be established for interviews. They suggested the regulations on interviews be revised to indicate that the face-to-face interview and in-person assistance is the preferred approach for conducting interviews, with the second preferred approach being State agency or client requested telephone interviews, and the last preferred approach being home interviews agreed upon by agency and client. Interestingly, 53 other commenters suggested reducing the requirement for interviews where other methods of contact suffice and the client's benefits will be approved or continued as a result of approved waivers.
Commenters also suggested requiring State agencies to provide households with a toll-free number where households can call for an interview when a scheduled interview did not occur, that State agencies encourage households that missed an interview to reschedule the interview before denying the household for a missed interview, and to permit wider use of interactive voice response system interviews and allow more States to test certification of certain types of households without interview. One commenter disagreed with the automated interview suggestion.
The Department appreciates the unique benefits that accrue to households and program integrity as a result of required interviews. The Department agrees that the interview is a fundamental aspect to this program, and does not intend to eliminate the interview. Therefore, the final regulatory text incorporates the requirement that State agencies must inform each applicant of the opportunity for a face-to-face interview at the time of application and recertification and grant a face-to-face interview to any household that requests one at any time, even if the State chooses the option to make telephone interviews generally available. The final rule also makes clear that if a State does not adopt the option to make telephone interviews generally available, it must provide for such an interview for individuals who meet the hardship criteria, at the household's option. Also, the State agency may provide a home-based interview only if the household meets the hardship criteria and requests one. However, the Department does not believe it is prudent to establish preferred interview methods in the regulations. The Department believes that State agencies should have flexibility to determine the preferred approach for conducting interviews.
Again, the Department emphasizes that State agencies must provide a face-to-face interview if requested by the household or its authorized representative at initial application or recertification; that is, any time during the application process. To ensure consistency and fairness across the caseload, State agencies must establish reasonable standards for which households will be offered a telephone interview. State agencies must also ensure that all households meeting the hardship criteria are offered a telephone interview. Again, the State agency may provide a home-based interview only if a household meets the hardship criteria and requests a home-based interview. The Department will continue to work with State agencies that request waivers of certain aspects of interviews to improve efficiency while preserving client rights and access to the program.
Sixty-three commenters requested clarification that telephone interviews, if used, must be available to all types of households, not only those with limited English proficiency and people with disabilities. SNAP regulations at § 272.6 prohibit discrimination against any applicant or participant in any aspect of SNAP administration, including, but not limited to the certification of households, the issuance of coupons, the conduct of fair hearings or the conduct of any other program service for reasons of age, race, color, sex, disability, religious creed, national origin, or political beliefs. On May 12, 2011, the Department published its final rule, “Civil Rights Protections for SNAP Households”, which implements the provisions of Section 11(c) of the Act, as amended by Section 4117 of the FCEA. In this final rule, the Department amended § 272.6(a) to specifically provide that State agency administration of the program must be consistent with the ADA. The Department also made a change in terminology to update the reference to “handicap” to “disability” in § 272.6 in conformance with the ADA.
In addition, 50 commenters requested assurance that households needing extra assistance in completing the interview process get it. The Department agrees that this is a reasonable expectation for individuals applying for SNAP benefits. However, this issue involves the customer service aspect of the interview process, as opposed to the straightforward goal of eliminating the need for a waiver of the regulations to conduct telephonic interviews. The efficiency and effectiveness of the waiver has already been long-established, and the Department requires that State agencies provide households with assistance in the interview process by requiring State agencies to provide an in-person interview whenever requested. For these reasons, the Department will not revise regulatory language to adopt this suggestion. Nevertheless, it is important to note that the Department examines customer service issues at the State and local offices as part of the Management Evaluation (ME) process, as well as other reviews that target program access requirements. Further, the Department conducts civil rights reviews and examines the State agency complaint system, which is required in § 272.6(d). State agencies are required to develop and implement corrective action to
Under Section 6(e) of the Act (7 U.S.C. 2015(e)) and § 273.5(b), students enrolled at least half-time in an institution of higher education are ineligible to participate in SNAP unless they meet at least one of several criteria. One criterion allows students to participate if they are employed for a minimum of 20 hours a week. Section 6(e)(4) of the Act describes the student work requirement and provides that a student may be eligible for SNAP is if he or she “is employed a minimum of 20 hours per week . . . during the regular school year.” Since there is no methodology for applying this rule in the Act, the Department interpreted the provision as requiring full-time college students to work a minimum of 20 hours every week to be eligible for SNAP.
The Department proposed to amend § 273.5(b)(5) to give State agencies the option, without needing to request a waiver, to determine compliance with the 20-hour minimum work requirement by averaging the number of hours worked over the month, using an 80-hour monthly minimum.
Yes. Sixty commenters, including advocates, food banks and associations, supported the proposal to average student work hours as an option in the regulation. Most of these commenters also suggested that States be permitted to average work hours over a longer period of time to reflect the variable nature of student work schedules, such as a quarter, semester or trimester.
The Department agrees that the option suggested by commenters has merit for students and State agencies, and is adding this option to revised § 273.5(b)(5) in this final rule. The final rule language specifies that work hours performed during academic breaks greater than one month must not be averaged with other months. The Department believes that this will enable students to manage their employment and school workloads efficiently while still requiring students receiving SNAP to work while in school.
In addition to the revision noted above, the Department has eliminated the 80-hour per month language from the proposed rule in the final rule. This language is contained in the Act for work requirements for able-bodied adults without dependents, but it does not appear in the Act with regard to student hours.
Accordingly, the Department will adopt the proposed revision to § 273.5(b)(5) with modifications for the reasons noted above.
We have examined the impacts of this final rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993) and Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011). Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated an “economically” significant rule, under section 3(f)(1) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB). Consistent with the requirements of Executive Orders 12866 and 13563, a Regulatory Impact Analysis (RIA) was developed for this final rule. The RIA is included in the docket for this rule at
The provisions in this final rule are intended to increase SNAP benefit levels for certain participants, reduce barriers to participation and promote efficiency in the administration of the program. The Department has estimated the total SNAP costs to the Government of the FCEA statutory provisions implemented in this rule as $831 million in fiscal year (FY) 2010 and $5.619 billion over the 5 years FY 2010 through FY 2014. The changes to the rule provisions between the proposed rule and the final rule do not have any significant impacts on the cost estimates. As many of the provisions are self-implementing upon the date specified in FCEA, the impacts are already fully incorporated into the President's budget baseline. In addition to the SNAP costs discussed above, the provisions of this rule also result in a major reduction in reporting burden for SNAP clients. We estimate that this reduction in burden yields an overall annual cost savings of $286 million.
Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions 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.
USDA has conducted a series of Tribal consultation sessions to gain input by elected Tribal officials or their designees concerning the impact of this rule on Tribal governments, communities and individuals. These sessions took place in the months of October, November and December of 2010 and January 2011 at locations around the country. These sessions established a baseline of consultation for future actions regarding this rule. Reports from these sessions for consultation were included in the USDA annual reporting on Tribal Consultation and Collaboration. No
We are unaware of any current Tribal laws that could be in conflict with the final rule. However, should a Tribe request consultation, the Food and Nutrition Service will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.
The Regulatory Flexibility Act (5 U.S.C. 601–612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on small entities. Pursuant to that review, the Administrator certifies that this final rule does not have a significant impact on small entities.
State and local human service agencies will be the most affected to the extent that they administer SNAP. The provisions of this final rule, affecting the eligibility, benefits, certification and employment and training requirements for applicant or participant households in SNAP, are implemented through State agencies, which are not small entities as defined by the Regulatory Flexibility Act. In addition, the majority of this rule's provisions were implemented as required by the FCEA on October 1, 2008. This rule amends the SNAP regulations to be consistent with the requirements of the FCEA.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, the Department generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $146 million or more (when adjusted for 2015 inflation; GDP deflator source: Table 1.1.9 at
SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule in 7 CFR 3015, Subpart V and related Notice (48 FR 29115), the Program is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of the Executive Order 13132.
After the FCEA was enacted on June 18, 2008, FNS held a series of conference calls with State agencies and FNS regional offices to explain the SNAP provisions included in the public law and to answer questions that State agencies had about implementing the changes to the program. On July 3, 2008, FNS issued an implementation memorandum that described each SNAP-related provision in the FCEA and provided basic information to assist State agencies in meeting statutorily-mandated implementation timeframes. FNS responded to additional questions that State agencies submitted and posted the answers on the FNS Web site. Another forum for consultation with State officials on implementation of the FCEA provisions included various conferences hosted by FNS regional offices, State agency professional organizations, and program advocacy organizations. During these conferences, held in the latter part of 2008 and early months of 2009, FNS officials responded to a range of questions posed by State agency officials related to implementation of FCEA provisions.
This rule implements changes required by the FCEA. State agencies were generally interested in understanding the timeframes for implementing the various provisions and the implications of the statutory provisions on State agency administration workload and on applicants and participants. FNS was able to answer questions that directly related to the mandatory or optional nature of the provisions and to confirm the statutorily-mandated timeframes for implementation. FNS was also able to respond to questions that involved current regulations or written policy. An example of such an issue was whether uncapped dependent care claimed by an applicant or participant must be verified. FNS was able to answer this question by drawing on current policy at § 273.2(f), which requires that dependent care expenses, like other household costs, must only be verified if questionable or if the State agency opts to require verification of such costs. However, State agencies raised a number of questions that required policy development and could not be answered without promulgation of a new rulemaking. These types of questions raised by State agencies or program advocacy organizations contributed directly to the development of policy in this rule. For example, State agencies asked whether transportation costs associated with getting a dependent to and from care could be counted as part of dependent care expenses and thus be deducted. In this rulemaking, we have clarified specific SNAP policy on this issue that had not been sufficiently developed prior to this rule.
FNS has considered the impact of the final rule on State and local agencies. This rule makes changes that are required by law. Most provisions in this rule implement provisions of the FCEA, which were effective on October 1, 2008. Two additional provisions are discretionary in nature and give State agencies regulatory options that currently may only be waived through SNAP's administrative waiver request procedures, which are outlined in § 272.3(c) of this chapter.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the “Effective
FNS has reviewed this final rule in accordance with the Department Regulation 4300–4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women and persons with disabilities. After a careful review of the rule's intent and provisions, and of the characteristics of SNAP households and individual participants, we have determined that this rule would not have a disproportionate impact on any of these groups. We have no discretion in implementing many of these changes. The changes that are required to be implemented by law have already been implemented as of October 1, 2008. FNS expects that the discretionary provisions included in this final rule will benefit applicants and participants that are among the protected classes of individuals. All data available to FNS indicate that protected individuals have the same opportunity to participate in SNAP as non-protected individuals. FNS specifically prohibits the State and local government agencies that administer the Program from engaging in actions that discriminate based on race, color, national origin, sex, religion, age, disability, marital or family status (SNAP's nondiscrimination policy can be found at § 272.6(a)). Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with the regulations at § 272.6.
The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. Chapter 35; see 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. The proposed rule outlined the provisions of this rule that will affect reporting and recordkeeping requirements and the associated information collection burden maintained approved collections OMB No. 0584–0064 and 0584–0083. Of the provisions in this rule that have been amended in response to public comments, none of these amendments revise the proposed reporting and recordkeeping requirements. Thus, the reporting and recordkeeping requirements will be adopted as final. Section 271.8, Information collection/recordkeeping—OMB assigned control numbers, is revised accordingly.
Since the publication of the proposed rule, the existing information collections in which the PRA burden will be merged have changed. Changes to those collections result in adjustments to the total burden calculation. Due to changes in participation levels and other mathematical corrections
The changes in burden that result from the provisions in this final rule are subject to review and approval by OMB. We have indicated in the Notes column of the table below where “no changes” have been made from the proposed rule. When the information collection requirements have been approved, FNS will publish a separate action in the
FNS is committed to complying with the E—Government Act, 2002 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.
Food stamps, Grant programs-social programs. Reporting and recordkeeping requirements.
Alaska, Civil rights, Food stamps, Grant programs-social programs, Penalties, Reporting and recordkeeping requirements, Unemployment compensation, Wages.
Administrative practice and procedure, Aliens, Claims, Employment, Food stamps, Fraud, Government employees, Grant programs-social programs, Income taxes, Reporting and recordkeeping requirements, Students, Supplemental Security Income, Wages.
7 U.S.C. 2011–2036.
(d) * * *
(1) * * *
(xvi) * * *
(A) Section 273.2(c)(7)(viii) and 273.2(c)(7)(ix) of this chapter, it must include in the Plan's attachment the option to accept telephonic signatures and gestured signatures on the application and reapplication forms (other than for households the State may be required to accept such signatures as a reasonable accommodation under Section 504 of the Rehabilitation Act or in compliance with other civil rights laws) and a description of the procedures being pursued under the provision;
(B) Sections 273.2(e)(2) and 273.14(b)(3) of this chapter, it must include in the Plan's attachment the option to provide telephone interviews in lieu of face-to-face interviews at initial application and reapplication for households other than those that meet the hardship criteria and a description of the procedures being pursued under the provision;
(C) Sections 273.2(f)(1)(xii), 273.2(f)(8)(i)(A), 273.9(d)(5), 273.9(d)(6)(i) and 273.12(a)(4) of this chapter, it must include in the Plan's attachment the options it has selected;
(D) Section 273.5(b)(5) of this chapter, it must include in the Plan's attachment the option to average student work hours and a description of how student work hours will be calculated;
(E) Section 273.8(e)(19) of this chapter, it must include in the Plan's attachment a statement that the option has been selected and a description of the resources being excluded under the provision;
(F) Section 273.9(c)(3) of this chapter, it must include in the Plan's attachment a statement that the option has been selected and a description of the types of educational assistance being excluded under the provision;
(G) Sections 273.9(c)(18) and 273.9(c)(19) of this chapter, it must include in the Plan's attachment a statement of the options selected and a description of the types of payments or the types of income being excluded under the provisions;
(H) Section 273.12(a)(5) of this chapter, it must include in the Plan's attachment a statement that the option has been selected and a description of the types of households to whom the option applies;
(I) Section 273.12(c) of this chapter, it must include in the Plan's attachment a statement that the option has been selected and a description of the deductions affected; and
(J) Section 273.26 of this chapter, it must include in the Plan's attachment a statement that transitional SNAP benefits are available and a description of the eligible cash-assistance programs by which households may qualify for transitional benefits; if one of the eligible programs includes a State-funded cash assistance program; whether household participation in that program runs concurrently, sequentially, or alternatively to TANF; the categories of households eligible for such benefits; the maximum number of months for which transitional benefits will be provided.
(c) * * *
(5) Notwithstanding the preceding paragraphs, waivers may be granted by the Food and Nutrition Service as provided in section 5(f) of the Act. Waivers authorized by this paragraph are not subject to the public comment provisions of paragraph (d) of this section.
(6) Notwithstanding the preceding paragraphs, waivers may be granted by the Food and Nutrition Service as provided in section 6(c) of the Act. Waivers authorized by this paragraph are not subject to the public comment provisions of paragraph (d) of this section.
(b) * * *
(4) Notice to the household of match results. The State must use the procedures laid forth in § 273.12(c)(3)(iii) of this chapter;
(c) * * *
(4) Notice to the household of match results. The State must use the procedures laid forth in § 273.12(c)(3)(iii) of this chapter;
The additions and revisions read as follows:
(b)(1) A State agency may consider an application form to be a paper document, on-line document or a recorded conversation. Each application form shall contain:
(c) * * *
(1)
(ii)
(iii)
(iv)
(v) [Reserved]
(vi)
(A)
(B)
(C)
(3)
(ii)
(7)
(i)
(ii)
(iii)
(A) These may include electronic signature techniques, recorded telephonic signatures, or recorded gestured signatures.
(B) A State agency is not required to obtain a written signature in addition to an unwritten signature.
(iv)
(A) An adult member of the household.
(B) An authorized representative, as described in paragraph (n)(1) of this section.
(v)
(A) Record for future reference the assent of the household member and the information to which assent was given;
(B) Include effective safeguards against impersonation, identity theft, and invasions of privacy;
(C) Not deny or interfere with the right of the household to apply in writing;
(D) Comply with the SNAP regulations regarding bilingual requirements at § 272.4(b) of this chapter; and
(E) Satisfy all requirements for a signature on an application under all laws and guidance applicable to SNAP, including civil rights laws.
(vi)
(A) If the signatory cannot sign with a name, an X is a valid signature.
(B) The State agency may require a witness to attest to an X signature.
(C) An employee of the State agency may serve as a witness.
(vii)
(A) The State agency may accept an electronic signature but is not required to do so.
(B) Some examples of electronic signature are the use of a Personal Identification Number (PIN), a computer password, clicking on an “I accept these conditions” button on a screen, or clicking on a “Submit” button on a screen.
(viii)
(A) A State agency that chooses to accept telephonic signatures under this paragraph (c)(7)(viii) must specify in its State plan of operation that it has selected this option.
(B) To constitute a valid telephonic signature, the State agency's telephonic signature system must make an audio recording of the household's verbal assent and a summary of the information to which the household assents. An example of a telephonic signature is a recording of “Yes” or “No”, “I agree” or “I do not agree”, or otherwise clearly indicating agreement or disagreement during an interview over the telephone. An example of a summary of the information to which the household assents is a recording of a reiteration of the household's details agreed to during the telephone conversation.
(C) A telephonic signature system must provide for linkage from the audio file of the recorded verbal assent to the application so that the State agency has ready access to the household's entire case file.
(D) The State agency shall promptly provide to the household member a written copy of the completed application, with instructions for a simple procedure for correcting any errors or omissions.
(ix)
(A) A State agency that chooses to accept gestured signatures under this paragraph (c)(7)(ix) must specify in its State plan of operation that it has selected this option.
(B) Gestured signatures include the use of signs and expressions to communicate “Yes” or “I agree” in American Sign Language (ASL), Manually Coded English (MCE) or another similar language or method during an interview, in person or over a video link.
(C) The State agency shall promptly provide to the household member a written copy of the completed application, with instructions for a simple procedure for correcting any errors or omissions.
(e) * * *
(2) The State agency may use a telephone interview instead of the face-to-face interview required in paragraph (e)(1) of this section for all applicant households, for specified categories of households, or on a case-by-case basis because of household hardship situations as determined by the State agency. The hardship conditions must include, but are not limited to, illness, transportation difficulties, care of a household member, hardships due to residency in a rural area, prolonged severe weather, or work or training hours that prevent the household from participating in an in-office interview. If a State agency has not already provided that a telephone interview will be used for a household, and that household meets the State agency's hardship criteria and requests to not have an in-office interview, the State agency must offer to the household to conduct the interview by telephone. The State agency may provide a home-based interview only if a household meets the hardship criteria and requests one. A State agency that chooses to routinely interview households by telephone in lieu of the face-to-face interview must specify this choice in its State plan of operation and describe the types of households that will be routinely offered a telephone interview in lieu of a face-to-face interview. The State agency must grant a face-to-face interview to any household that requests one.
(i) State agencies must inform each applicant of the opportunity for a face-to-face interview at the time of application and recertification and grant a face-to-face interview to any household that requests one at any time, even if the State agency has elected the option to routinely provide telephone interviews.
(ii) Like households participating in face-to-face interviews, households interviewed by any means other than the face-to-face interview are not exempt from verification requirements. However, the State agency may use special procedures to permit the household to provide verification and thus obtain its benefits in a timely manner, such as substituting a collateral contact in cases where documentary verification would normally be provided.
(iii) The use of non-face-to-face interviews may not affect the length of a household's certification period.
(iv) State agencies must provide Limited English Proficient (LEP) households with bilingual personnel during the interview as required under § 272.4(b) of this chapter.
(i) * * *
(3) * * *
(i) * * * For households entitled to expedited service, the State agency shall post benefits to the household's EBT card and make them available to the household not later than the seventh calendar day following the date an application was filed. * * * Whatever systems a State agency uses to ensure meeting this delivery standard shall be designed to provide the household with an EBT card and PIN no later than the seventh calendar day following the day the application was filed.
(ii)
(k) * * *
(1) * * *
(i) * * *
(O) * * * It shall also include the client's rights and responsibilities (including fair hearings, authorized representatives, out-of-office interviews, reporting changes and timely reapplication), information on how and where to obtain an EBT card and PIN and how to use an EBT card and PIN (including the commodities clients may purchase with SNAP benefits.
(c) * * *
(1) * * *
(v)
(b) * * *
(5) Be employed for a minimum of 20 hours per week and be paid for such employment or, if self-employed, be employed for a minimum of 20 hours per week and receiving weekly earnings at least equal to the Federal minimum wage multiplied by 20 hours. The State agency may choose to determine compliance with this requirement by calculating whether the student worked an average of 20 hours per week over the period of a month, quarter, trimester or semester. State agencies may choose to exclude hours accrued during academic breaks that do not exceed one month. A State agency that chooses to average student work hours must specify this choice and specify the time period over which the work hours will be averaged in its State plan of operation;
The addition and revision read as follows:
(e) * * *
(1) * * *
(viii) Job retention services that are designed to help achieve satisfactory performance, retain employment and to increase earnings over time. The State agency may offer job retention services, such as case management, job coaching, dependent care assistance and transportation assistance, for up to 90 days to an individual who has secured employment. The State agency may determine the start date for job retention services provided that the individual is participating in SNAP in the month of or the month prior to beginning job retention services. The State agency may provide job retention services to households leaving SNAP up to the 90-day limit unless the individual is leaving SNAP due to a disqualification in accordance with 273.7(f) or 273.16. The participant must have secured employment after or while receiving other employment/training services under the E&T program offered by the State agency. There is no limit to the number of times an individual may receive job retention services as long as the individual has re-engaged with E&T prior to obtaining new employment. An otherwise eligible individual who refuses or fails to accept or comply with job retention services offered by the State agency may not be disqualified as specified in paragraph (f)(2) of this section.
(4) * * *
(iii) Voluntary participants are not subject to the 120-hour cap on monthly participation.
The revisions and addition should read as follows:
(b)
(1) Beginning October 1, 2008, and each October 1 thereafter, the maximum allowable financial resources shall be adjusted and rounded down to the nearest $250 to reflect changes in the Consumer Price Index for the All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor (for the 12-month period ending the preceding June).
(2) Each adjustment shall be based on the unrounded amount for the prior 12-month period.
(c) * * *
(1) Liquid resources, such as cash on hand, money in checking and savings accounts, saving certificates, stocks or bonds, and lump sum payments as specified in § 273.9(c)(8); and
(e) * * *
(2) Household goods, personal effects, the cash value of life insurance policies, one burial plot per household member, and the value of one funeral agreement per household member. The cash value of pension plans or funds shall be excluded. The following retirement accounts shall be excluded:
(i) Funds in a plan, contract, or account that meets the requirements that is described in one of the following sections of the Internal Revenue Code of 1986:
(A) Section 401(a), which includes funds commonly known as “tax qualified retirement plans,” including “401(k) plans”;
(B) Section 403(a), which includes funds that are similar to 401(a) plans but are funded through annuity contracts;
(C) Section 403(b), which includes tax-sheltered annuities, custodial accounts, and retirement income accounts retirement plans for some employees of public schools and tax exempt organizations;
(D) Section 408, which includes traditional Individual Retirement Accounts and traditional Individual Retirement Annuities (IRAs);
(E) Section 408A, which includes plans commonly known as “Roth IRAs” (including the “myRA”);
(F) Section 457(b), which includes plans commonly known as “eligible deferred compensation plans” for employees of state or local government or tax-exempt entities; or
(G) Section 501(c)(18), which includes plans funded by employee contributions.
(ii) Funds in a Section 529A, which includes funds in a qualified ABLE program.
(iii) Funds in the Federal Thrift Savings Fund within the meaning of that term as used in section 7701(j) of the Internal Revenue Code of 1986. as defined by 5 U.S.C. 8439.
(iv) Any other retirement plan or arrangement that is designated as tax-
(iv) Any other retirement account determined by FNS to be appropriate for exclusion.
(20) The following education accounts are excluded from allowable financial resources:
(i) Funds in a qualified tuition program, as defined by section 529 of the Internal Revenue Code of 1986; (ii) Funds in a Coverdell education savings account, as defined by section 530 of the Internal Revenue Code of 1986; and
(iii) Funds in any other education savings account determined by FNS to be appropriate for exclusion.
The addition and revisions read as follows:
(c) * * *
(20) Income received by a member of the United States Armed Forces under Chapter 5 of Title 37 of the United States Code that is:
(i) Received in addition to the service member's basic pay;
(ii) Received as a result of the service member's deployment to or service in an area designated as a combat zone as determined pursuant to Executive Order or Public Law; and
(iii) Not received by the service member prior to the service member's deployment to or service in a Federally-designated combat zone.
(d) * * *
(1) * * *
(iii)
(3) * * *
(x) * * * If a household incurs attendant care costs that could qualify under both the medical deduction of § 273.9(d)(3)(x) and the dependent care deduction of § 273.9(d)(4), the costs may be deducted as a medical expense or a dependent care expense, but not both.
(4)
(i) The costs of care given by an individual care provider or care facility;
(ii) Transportation costs to and from the care facility; and
(iii) Activity or other fees associated with the care provided to the dependent that are necessary for the household to participate in the care.
The revision reads as follows:
(e) * * *
(2) * * *
(ii) * * *
(C) Except during an initial month, all eligible one-person and two-person households shall receive minimum monthly allotments equal to the minimum benefit. The minimum benefit is 8 percent of the maximum allotment for a household of one, rounded to the nearest whole dollar.
The additions and revisions read as follows:
(e) * * *
(5) DAA treatment centers may redeem benefits in various ways depending on the State's system design.
(6) When a household leaves the DAA treatment center, the DAA treatment center must perform the following:
(i) Notify the State agency by sending a completed change report form to the agency informing the agency of the household's change in address, new address if available, and that the DAA treatment center is no longer the household's authorized representative. Also the DAA treatment center must provide the household with a change report form as soon as it has knowledge the households plans to leave the facility and advise the household to return the form to the appropriate office of the State agency within 10 days of any change the household is required to report. After the household leaves the treatment center, the treatment center can no longer act as the household's authorized representative for certification purposes or for obtaining or using benefits.
(ii) Provide the household with its EBT card within 5 days of the household's departure if it was in the possession of the DAA treatment center. The DAA treatment center must return any EBT card not provided to departing residents to the State agency within 5 calendar days.
(iii) Return a prorated amount of the household's monthly allotment back to the household's EBT account based on the number of days in the month that the household resided at the DAA treatment center. If the DAA treatment center is authorized as a retailer, the State agency must require the DAA treatment center to process the refund back to the household's EBT account. Under an EBT system where the treatment center has an aggregate EBT card or uses individual cards as the authorized representative, the State agency must transfer the prorated portion of the household's monthly allotment from a DAA treatment center's bank account back to the household's EBT account. In either case, the household, not the DAA treatment center, must be allowed to have sole access to the household's EBT account at the time the household leaves the DAA treatment center.
(iv) If the household has already left the DAA treatment center, and as a result, the treatment center is unable to refund the benefits in accordance with this paragraph, the DAA treatment center must notify the State agency within 5 days of the household's departure that the DAA treatment center was unsuccessful in its effort to refund the prorated share of its benefits and the State agency must effect the refund from the treatment center's bank account to the household's EBT account within 5 days after receiving notification from the center. These procedures are applicable at any time during the month.
(7) * * * The DAA treatment center shall be strictly liable for all losses or misuse of benefits and/or EBT cards held on behalf of resident households and for all overissuances which occur while the households are residents of the DAA treatment center.
(8) * * * The State agency shall promptly notify FNS when it has reason to believe that a DAA treatment center is misusing benefits and/or EBT cards in its possession. * * * The State agency shall establish a claim for overissuances of benefits held on behalf of resident clients as stipulated in paragraph (e)(7) of this section if any overissuances are discovered during an investigation or hearing procedure for redemption violations. * * *
(f) * * *
(4) If the resident has made application on his/her own behalf, the household is responsible for reporting changes to the State agency as provided in § 273.12(a). If the GLA is acting in the capacity of an authorized representative, the GLA shall notify the State agency, as provided in § 273.12(a), of changes in the household's income or other household circumstances and when the household leaves the GLA. The GLA shall return any household's benefits to the State agency if they are received after the household has left the group living arrangement.
(5) When the household leaves the facility and the GLA acts as an authorized representative for purposes of redeeming benefits using individual household cards or an aggregate card on behalf of the residents (regardless of the method of application), the same provisions applicable to drug and alcoholic treatment centers in paragraphs (e)(5) and (e)(6) of this section also apply to GLAs.
(6) The same provisions applicable to drug and alcoholic treatment centers in paragraphs (e)(7) and (e)(8) of this section also apply to GLAs when acting as an authorized representative. * * *
(7) If the residents are certified on their own behalf, the GLA may either act as the household's authorized representative for purposes of redeeming benefits to be used to purchase meals served either communally or individually to eligible residents or allow eligible residents to retain their EBT card and benefits to purchase and prepare food for their own consumption. * * *
The revisions read as follows:
(a) * * *
(1) * * *
(i) (A) A change of more than $100 in the amount of unearned income, except changes relating to public assistance (PA) or general assistance (GA) in project areas in which GA and food stamp cases are jointly processed. The State agency is responsible for identifying changes during the certification period in the amount of PA, or GA in jointly processed cases. If GA and food stamp cases are not jointly processed, the household is responsible for reporting changes in GA of more than $100.
(B) A change in the source of income, including starting or stopping a job or changing jobs, if the change in employment is accompanied by a change in income.
(C) One of the following, as determined by the State agency (different options may be used for different categories of households as long as no household is required to report under more than one option; the State may also utilize different options in different project areas within the State):
(
(
(D) Beginning FY 2018, and for every fiscal year thereafter, the dollar amounts in paragraphs (a)(1)(i)(A) and (C) of this section shall be adjusted and rounded to the nearest $25 to reflect changes in the Consumer Price Index for the All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor (for the 12-month period ending the preceding June).
(ii) All changes in household composition, such as the addition or loss of a household member.
(iii) Changes in residence and the resulting change in shelter costs.
(iv) Acquisition of a licensed vehicle that is not fully excludable under § 273.8.
(v) A change in liquid resources, such as cash, stocks, bonds, and bank accounts that reach or exceed the resource limits as described in § 273.8(b) for elderly or disabled households and for all other households, unless these assets are excluded under § 273.8.
(2) Certified households must report changes within 10 days of the date the change becomes known to the household, or at the State agency's option, the household must report changes within 10 days of the end of the month in which the change occurred. For reportable changes of income, the State agency shall require that change to be reported within 10 days of the date that the household receives the first payment attributable to the change. For households subject to simplified reporting, the household must report changes no later than 10 days from the end of the calendar month in which the change occurred, provided that the household receives the payment with at least 10 days remaining in the month. If there are not 10 days remaining in the month, the household must report within 10 days from receipt of the payment. Optional procedures for reporting changes are contained in paragraph (f) of this section for households in States with forms for jointly reporting SNAP and public assistance changes and SNAP and general assistance changes.
(5) * * *
(ii) * * *
(B) For households required to submit a periodic report, a written and oral explanation of the reporting requirements including:
(
(
(
(
(iii) Periodic report. (A) Exempt households. The State agency must not require the submission of periodic reports by households certified for 12 months or less in which all adult members are elderly or have a disability with no earned income.
(B) Submission of periodic reports by non-exempt households. Households that are certified for longer than 6 months, except those households described in § 273.12(a)(5)(iii)(A), must file a periodic report between 4 months and 6 months, as required by the State agency. Households in which all adult members are elderly or have a disability with no earned income and are certified for periods lasting between 13 months and 24 months must file a periodic report once a year. In selecting a due date for the periodic report, the State agency must provide itself sufficient time to process reports so that households that have reported changes that will reduce or terminate benefits will receive adequate notice of action on the report in the first month of the new reporting period.
(C) The periodic report form must request from the household information on any changes in circumstances in accordance with paragraphs (a)(1)(i) through (a)(1)(vii) of this section and conform to the requirements of paragraph (b)(2) of this section.
(D) If the household files a complete report resulting in reduction or termination of benefits, the State agency shall send an adequate notice, as defined in § 271.2 of this chapter. The notice must be issued so that the household will receive it no later than the time that its benefits are normally received. If the household fails to provide sufficient information or verification regarding a deductible expense, the State agency will not terminate the household, but will instead determine the household's benefits without regard to the deduction.
(E) If a household fails to file a complete report by the specified filing date, the State agency shall provide the household with a reminder notice advising the household that it has 10 days from the date the State agency mails the notice to file a complete report. If an eligible household files a complete periodic report during this 10 day period, the State agency shall provide it with an opportunity to participate no later than ten days after its normal issuance date If the household does not respond to the reminder notice, the household's participation shall be terminated and the State agency must send an adequate notice of termination described in paragraph (a)(5)(iii)(C) of this section.
(F) If an eligible household that has been terminated for failure to file a complete report files a complete report after its extended filing date under (E), but before the end of the issuance month, the State agency may choose to reinstate the household. If the household has requested a fair hearing on the basis that a complete periodic report was filed, but the State does not have it, the State agency shall reinstate the household if a completed periodic report is filed before the end of the issuance month.
(G) The periodic report form shall be the sole reporting requirement for any information that is required to be reported on the form, except that a household required to report less frequently than quarterly shall report when its monthly gross income exceeds the monthly gross income limit for its household size in accordance with paragraph (a)(5)(v) of this section, and able-bodied adults subject to the time limit of § 273.24 shall report whenever their work hours fall below 20 hours per week, averaged monthly.
(H) If the State agency uses a combined periodic report for SNAP and TANF or Medicaid, the State agency shall clearly indicate on the form that SNAP-only households need not provide information required by another program. Non-applicant household or family members need not provide SSNs or information about citizenship or immigration status.
(iv)
(b) * * *
(2) * * *
(vii) Include a statement to be signed by a member of the household (in accordance with § 273.2(c)(7) regarding acceptable methods of signature) indicating his or her understanding that the information provided may result in reduction or termination of benefits;
(x) If the form requests Social Security numbers, include a statement of the State agency's authority to require Social Security numbers (including the statutory citation, the title of the statute, and the fact that providing Social Security numbers is mandatory except that non-participating household or family members need not provide SSNs or information about citizenship or immigration status), the purpose of requiring Social Security numbers, the routine uses for Social Security numbers, and the effect of not providing Social Security numbers. This statement may be on the form itself or included as an attachment to the form.
(c) * * *
(3) Unclear information. During the certification period, the State agency might obtain unclear information about a household's circumstances from which the State agency cannot readily determine the effect on the household's continued eligibility for SNAP, or in certain cases benefit amounts. The State agency may receive such unclear information from a third party. Unclear information is information that is not verified, or information that is verified but the State needs additional information to act on the change.
(i) The State agency must pursue clarification and verification (if applicable) of household circumstances using the following procedure if unclear information received outside the periodic report is: Fewer than 60 days old relative to the current month of participation; and would, if accurate, have been required to be reported under the requirements that apply to the household under 273.12 based on the reporting system to which they have been assigned. Additionally, the State agency must pursue clarification and verification (if applicable) of household circumstances using the following procedure for any unclear information that appears to present significantly conflicting information from that used by the State agency at the time of certification. The procedures for unclear information regarding matches described in § 272.13 or § 272.14 are found in paragraph (iii) of this section.
(A) The State agency shall issue a written request for contact (RFC) which clearly advises the household of the verification it must provide or the actions it must take to clarify its circumstances, which affords the household at least 10 days to respond and to clarify its circumstances, either by telephone or by correspondence, as the State agency directs, and which states the consequences if the household fails to respond to the RFC.
(B) If the household does not respond to the RFC, or does respond but refuses to provide sufficient information to clarify its circumstances, the State agency must issue a notice of adverse action as described in § 273.13. The State has two options:
(
(
(C) If the household responds to the RFC and provides sufficient information, the State agency must act on the new circumstances in accordance with paragraphs (c)(1) or (c)(2) of this section, as appropriate.
(ii) If the unclear information does not meet the criteria in paragraph (c)(3)(i) of this section and does not relate to the matches described in paragraph (c)(3)(iii) of this section, then the State agency shall not act on the information or require the household to provide information until the household's next certification action or periodic report is due. A State may follow up with a household to provide information on a voluntary basis if that information would result in an increase in benefits but may not take adverse action if the household does not respond.
(iii) Unclear information resulting from certain data matches. If a State receives match information from a match described in § 272.13 or § 272.14, the State shall follow up with a notice of match results as described in § 272.13(b)(4) and § 272.14 (c)(4). The notices must clearly explain what information is needed from the household and the consequences of failing to respond to the notice as explained in paragraphs (c)(3)(iii)(A) and (B) this section.
(A) For households subject to change reporting, if the household fails to respond to the notice of match results or does respond but refuses to provide sufficient information to clarify its circumstances, the State agency shall issue a notice of adverse action as described in § 273.13 that terminates the case.
(B) For all households not subject to change reporting, if the household fails to respond to the notice of match results or does respond but refuses to provide sufficient information to clarify its circumstances, the State agency shall remove the subject individual and the individual's income from the household and adjust benefits accordingly. As appropriate the State agency shall issue a notice of adverse action as described in § 273.13.
The addition reads as follows:
(b) * * *
(2) * * * The provisions of § 273.2(c)(7) regarding acceptable signatures on applications also apply to applications used at recertification. * * *
The revision reads as follows:
(c) * * *
(1) * * * Decisions that result in an increase in household benefits shall be reflected in the household's EBT account within 10 days of the receipt of the hearing decision even if the State agency must provide supplementary benefits or otherwise provide the household with an opportunity to obtain the benefits outside of the normal issuance cycle. * * *
(c) * * *
(2) Committed any act that constitutes a violation of SNAP, SNAP regulations, or any State statute for the purpose of using, presenting, transferring, acquiring, receiving, possessing or trafficking of SNAP benefits or EBT cards.
(h) * * *
(2) * * *
(vi) Include a statement to be signed by a member of the household (in accordance with § 273.2(c)(7) regarding acceptable methods of signature), indicating his or her understanding that the provided information may result in changes in the level of benefits, including reduction and termination;
The revisions read as follows:
(a) * * *
(1) Simplified SNAP (S–SNAP) means a program authorized under 7 U.S.C. 2035.
(c) * * * If a household is not receiving TANF assistance (payments have not been authorized) at the time of its application for S–SNAP, the State agency must process the application using the regular SNAP requirements of § 273.2, including processing within the 30-day time frame, and screening for and provision of expedited service if eligible. The State agency must determine under regular SNAP rules the eligibility and benefits of any household that it has found ineligible for TANF assistance because of time limits, more restrictive resource standards, or other rules that do not apply to SNAP.
(a)
(1) TANF or State Maintenance of Effort (MOE) funded cash assistance programs, as authorized under part A of Title IV of the Social Security Act; or
(2) A State-funded cash assistance (SFCA) program that provides assistance to families with children. Eligible SFCA programs may include programs funded by both state and local funds provided the programs are intended to be statewide.
(b)
(1) A statement that transitional benefits are available;
(2) The eligible programs by which households may qualify for transitional benefits;
(3) If the State agency is offering transitional benefits through a SFCA program, in addition to TANF or MOE, whether the SFCA program participation runs concurrently, sequentially, or alternatively to the TANF or MOE program;
(4) The categories of households eligible for such benefits;
(5) The maximum number of months for which transitional benefits will be provided; and
(6) Any other items required to be included under this subpart H.
(c)
(d)
(1) The household is leaving TANF or MOE due to a full-family TANF sanction or the household is leaving the SFCA program due to a full-family SFCA program sanction;
(2) The household is a member of a category of households designated by the State agency as ineligible for transitional benefits;
(3) All household members are ineligible to receive SNAP benefits because they are:
(i) Disqualified for an intentional program violation in accordance with § 273.16;
(ii) Ineligible for failure to comply with a work requirement in accordance with § 273.7;
(iii) Receiving SSI in a cash-out State in accordance with § 273.20;
(iv) Ineligible students in accordance with § 273.5;
(v) Ineligible aliens in accordance with § 273.4;
(vi) Disqualified for failing to provide information necessary for making a determination of eligibility or for completing any subsequent review of its eligibility in accordance with § 273.2(d) and § 273.21(m)(1)(ii);
(vii) Disqualified for knowingly transferring resources for the purpose of
(viii) Disqualified for receipt of multiple SNAP benefits;
(ix) Disqualified for being a fleeing felon in accordance with § 273.11(n); or
(x) ABAWD who fail to comply with the requirements of § 273.24.
(e)
(1) Disqualified for failure to perform an action under Federal, State or local law relating to a means-tested public assistance program in accordance with § 273.11(k);
(2) Ineligible for failing to cooperate with child support agencies in accordance with § 273.11(o) and (p); or
(3) Ineligible for being delinquent in court-ordered child support in accordance with § 273.11(q).
(f)
The revisions read as follows:
(a) When a household leaves TANF, MOE, or a SFCA program, a State agency that has elected this option shall freeze the household's benefit allotment for up to 5 months after making an adjustment for the loss of TANF, MOE, or the SFCA. * * * Before initiating the transitional period, the State agency, without requiring additional information or verification from the household, must recalculate the household's SNAP benefit amount by removing the TANF payment, MOE payment, or the SFCA payment from the household's SNAP income.
At its option, the State agency may also adjust the benefit to account for:
(1) Changes in household income that it learns about from another State or
Federal means-tested assistance program in which the household participates; or
(2) Automatic annual changes in the SNAP benefit rules, such as the annual cost of living adjustment, the standard deduction adjustment, and the adjustment to the cap on the excess shelter deduction.
(c) When a household leaves TANF, MOE, or SFCA program, the State agency at its option may end the household's existing certification period and assign the household a new certification period that conforms to the transitional period. * * * If the transitional period results in a shortening of the household's certification period, the State agency shall not issue a household a notice of adverse action under § 273.10(f)(4) but shall specify in the transitional notice required under § 273.29 that the household must be recertified when it reaches the end of the transitional benefit period or if it returns to TANF, MOE, or SFCA program during the transitional period.
(c) A statement that if the household returns to TANF, MOE, or SFCA program during its transitional benefit period, it will be asked to reapply for SNAP at the same time. However, if the household has been assigned a new certification period in accordance with § 273.27(c), the notice must inform the household that it must be recertified if it returns to TANF, MOE, or SFCA program during its transitional period;
(d) A statement explaining any changes in the household's benefit amount due to the loss of TANF income, MOE income, or SFCA program income and/or changes in household circumstances learned from another State or Federal means-tested assistance program;
If a household receiving transitional benefits starts to receive TANF, MOE, or SFCA program during the transitional period, the State agency shall use the information from the TANF, MOE, or SFCA application to re-determine continued SNAP eligibility and benefits, at the same time that the TANF, MOE, or SFCA application is being processed and follow procedures in § 273.2(j) for joint processing of SNAP/TANF applications. This includes processing the application within 30 days. However, for a household assigned a new certification period in accordance with § 273.27(c), the household must be recertified if it returns to TANF, MOE, or the SFCA program during its transitional period.
Internal Revenue Service (IRS), Treasury.
Removal of temporary regulations; final regulations; and temporary regulations.
This document contains final and temporary regulations regarding withholding of tax on certain U.S. source income paid to foreign persons, information reporting and backup withholding with respect to payments made to certain U.S. persons, and portfolio interest paid to nonresident alien individuals and foreign corporations. This document finalizes (with minor changes) certain proposed regulations under chapters 3 and 61 and sections 871, 3406, and 6402 of the Internal Revenue Code of 1986 (Code), and withdraws corresponding temporary regulations. This document also includes temporary regulations providing additional rules under chapter 3 of the Code. The text of the temporary regulations also serves as the text of the proposed regulations set forth in a notice of proposed rulemaking published in the Proposed Rules section of this issue of the
Leni Perkins at (202) 317–6942 (not a toll free number).
The collection of information in these temporary regulations is contained in a number of provisions including §§ 1.1441–1, 1.1441–3, 1.1441–4, and 1.1441–5. The IRS intends that the information collection requirements of these regulations will be implemented through use of the W–8 series of forms, Form W–9, Form 1042, Form 1042–S, the 1099 series of forms, and Form 8966, as well as certain income tax returns (for example, Forms 1040, 1040–NR, and 1120F). As a result, for purposes of the Paperwork Reduction Act (44 U.S.C. 3507), the reporting burden associated with the collection of information in these regulations will be reflected in the information collection burden and OMB control number of the appropriate IRS form.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books and records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains amendments to the Income Tax Regulations (26 CFR part 1) under sections 871, 1441, 1461, 6041, 6042, 6045, 6049, and 6050 of the Code, the Employment Tax Regulations (26 CFR part 31) under section 3406 of the Code, and the Procedure and Administration Regulations (26 CFR part 301) under section 6402 of the Code. On January 28, 2013, final regulations (TD 9610) under chapter 4 of the Code (sections 1471 through 1474) were published in the
Comments were received in response to the 2014 temporary coordination regulations, but no public hearing was requested, and none was held. In response to comments, and after further consideration, this document includes final and temporary regulations that revise and clarify certain sections of the 2014 temporary coordination regulations. In some cases, the changes to the 2014 temporary coordination regulations contained in these final and temporary chapter 3 regulations are made to coordinate with final and temporary regulations issued under chapter 4 that are being published in the
Section 1.1441–1T(b)(2)(iv)(A) of the 2014 temporary coordination regulations provides that a U.S. branch of a foreign person that is a participating FFI, registered deemed-compliant FFI, or NFFE may agree to be treated as a U.S. person. In connection with changes in the chapter 4 regulations published concurrently with these regulations, the final regulations remove the requirement that the foreign person of which the U.S. branch is a part have a specified chapter 4 status. Additionally, the requirements for a withholding certificate from a U.S. branch that agrees to be treated as a U.S. person in § 1.1441–1(e)(3)(v)(A) have been modified to remove the requirement that the U.S. branch certify to the chapter 4
Section 1.1441–1T(b)(3)(iii)(A) of the 2014 temporary coordination regulations provides presumption rules for payments made to exempt recipients. Comments requested that if a withholding agent or payor makes a payment (other than a withholdable payment) to an entity payee that is an exempt recipient and has not received a valid withholding certificate but instead has documentary evidence such as a certificate of incorporation indicating that the payee is a foreign person, the withholding agent or payor should be able to presume, based on the documentary evidence, that the payee is a foreign person. The Treasury Department and the IRS decline to adopt this recommendation because the application of such a presumption rule would be limited in scope (given that withholding agents can choose to apply the rules of § 1.1441–1(b)(3)(iii)(A)(
Comments also requested that a withholding agent or payor should be able to presume that an undocumented entity payee is foreign if there is a Global Intermediary Identification Number (GIIN) on file for the payee and the payee's name appears on the IRS FFI List. The Treasury Department and the IRS have declined to adopt this suggestion. U.S. entities can obtain GIINs, and if they do, their names appear on the IRS FFI list, such as when they are acting as sponsoring entities for chapter 4 purposes. Thus, it would not be appropriate for a GIIN to support a presumption of foreign status without more evidence of such status.
Under § 1.1441–1T(b)(3)(iii)(A)(
Generally, a withholding agent must withhold at a 30% rate on any payment of an amount subject to withholding unless it can reliably associate the payment with documentation upon which it can rely to treat the payment as made to a U.S. person or as made to a beneficial owner that is a foreign person entitled to a reduced rate of withholding. § 1.1441–1(b)(1). The 2014 temporary coordination regulations allow a withholding agent to rely on a valid Form W–8 or documentary evidence received by facsimile or scanned and furnished by email unless the withholding agent knows that the person transmitting the withholding certificate or documentary evidence is not authorized to do so, effective for payments made after March 6, 2014. This effective date prevents withholding agents from relying upon scanned or faxed withholding certificates or documentary evidence pursuant to § 1.1441–1T(e)(4)(iv)(C) of the 2014 temporary coordination regulations for payments made on or before March 6, 2014. As a result, withholding agents must instead obtain “hard copies” of the original form or document in order to cure documentation failures for such payments, to the extent allowed under § 1.1441–1(b)(7)(ii). Comments have suggested that the effective date with respect to this provision be modified to allow withholding agents to rely upon forms or documentary evidence received by facsimile or scanned and sent by email after March 6, 2014, regardless of when the payment was made. The Treasury Department and the IRS agree that requiring hard copies of original documentation to cure documentation failures for payments made on or before March 6, 2014, but not for payments after that date, provides minimal benefits compared to the additional effort required for a withholding agent to obtain a hard copy of the documentation. Accordingly, these final regulations modify the effective date as it relates to this provision so that it applies to any open tax year. In addition, to correspond to other changes, § 1.1441–1T(e)(4)(iv)(C) of the 2014 temporary coordination regulations is redesignated as § 1.1441–1(e)(4)(iv)(D) in these final regulations.
When a withholding agent fails to obtain documentation and fails to withhold at the time of payment, the withholding agent is allowed, under certain circumstances, to obtain a valid withholding certificate (and other certifications, as required) to support a reduced rate of withholding. A withholding agent may obtain valid documentation after the date of payment to establish that a reduced rate of withholding was appropriate when it meets the additional requirements under § 1.1441–1(b)(7)(ii) (as amended by the 2014 temporary coordination regulations).
The rules in § 1.1441–1T(b)(7)(ii) of the 2014 temporary coordination regulations establish when additional documentation is required and what the additional documentation is required to contain. These temporary regulations add § 1.1441–1T(b)(7)(ii)(B) with respect to late documentation for income that is effectively connected with the conduct of a trade or business in the United States (effectively connected income). Under this rule, the withholding certificate (in this case, Form W–8ECI) must be associated with a signed affidavit that states that the information and representations contained on the certificate were accurate as of the time of the payment and either (i) the beneficial owner has included the income on its U.S. income tax return for the taxable year in which the income must be reported, or (ii) the beneficial owner will include the income on its U.S. income tax return for the taxable year in which the income must be reported and the due date for filing the return (including any applicable extensions) is after the date on which the affidavit is signed.
This rule is added to ensure compliance with the requirement that the beneficial owner actually include the income on its income tax return for the taxable year in which the income is
A U.S. person is defined by reference to section 7701(b). The definition of nonresident alien individual in the chapter 3 regulations does not specify the exact circumstances under which a dual resident of the United States and another jurisdiction will be treated as a nonresident alien individual under an applicable income tax treaty and § 301.7701(b)–7. These temporary regulations therefore clarify that an individual will not be treated as a U.S. person for a taxable year (or any portion thereof) for which he or she is a dual resident taxpayer who is treated as a nonresident alien pursuant to § 301.7701(b)–7 for purposes of computing his or her U.S. tax liability. A corresponding change has also been made to the definition of a U.S. person in the chapter 4 regulations that are being published concurrently with these regulations.
The 2014 temporary coordination regulations provide that an address that is provided subject to instructions to hold all mail to that address is not considered a permanent residence address; the same rule is provided in the 2013 final chapter 4 regulations. Comments have requested that the definition of permanent residence address be modified to treat an address subject to a hold mail instruction as a permanent residence address if additional documentation is provided. The Treasury Department and the IRS agree that a hold mail instruction should not prevent persons from being able to verify that they have a permanent residence address by providing appropriate additional documentary evidence that supports their residency in the foreign jurisdiction where they are claiming to be resident. These temporary regulations thus revise the definition of “permanent residence address” in § 1.1441–1T(c)(38) to add that an address that is subject to a hold mail instruction can be relied upon as a permanent residence address if the person provides documentary evidence (as described in § 1.1441–1(c)(17)) establishing the person's residence in the country where the person is claiming to be resident. These revisions also provide that if a hold mail instruction is provided to a withholding agent after the withholding certificate was provided, this will be considered a change in circumstances requiring that additional documentary evidence be obtained in order to use the address on the withholding certificate as a permanent residence address.
Under § 1.1441–1(e)(3)(iv), a withholding statement provided by a nonqualified intermediary may include an allocation of a payment to a chapter 4 withholding rate pool of U.S. payees when the requirements of that paragraph are satisfied, and a similar allowance is provided for an FFI withholding statement provided by a nonqualified intermediary in the case of a withholdable payment for chapter 4 purposes. A chapter 4 withholding rate pool of U.S. payees is defined as a pool of payees described in either § 1.1471–3(c)(3)(iii)(B)(
Section 1.1441–1T(e)(3)(iv)(C) of the 2014 temporary coordination regulations prescribes the information required to be included on a withholding statement provided by a nonqualified intermediary (NQI), such as the name, address, TIN (if any), and type of documentation received by the NQI for each payee. Comments have requested that NQIs be permitted to provide, and withholding agents be permitted to rely on, simplified withholding statements that do not include all of the information specified in § 1.1441–1T(e)(3)(iv)(C) of the 2014 temporary coordination regulations. These comments noted that withholding
Section 1.1441–1T(e)(4)(ii)(B)(
In addition, § 1.1441–1T(e)(4)(ii)(B)(
Under the chapter 3 regulations, a withholding agent may apply a reduced rate of withholding under section 1441, 1442, or 1443 on a payment to a foreign entity in certain cases under the terms of an income tax treaty if the person represents that the payment is treated as derived by a resident of the applicable treaty jurisdiction and all of the other requirements for benefits under the applicable treaty are satisfied. A withholding certificate provided by an entity that is claiming reduced withholding under an income tax treaty must contain a statement that the treaty claimant meets the limitation on benefits requirement, if any, under the treaty. Because entitlement to a reduced rate of withholding under a treaty is conditioned on the beneficial owner satisfying limitation on benefits provisions, the requirement for a beneficial owner to provide a treaty statement helps ensure that beneficial owners understand the relevant treaty provisions and qualify for the claims they are making. Under the chapter 3 regulations, a treaty statement provided on a Form W–8BEN–E expires on the last day of the third calendar year following the date the form was signed, but a treaty statement provided with documentary evidence remains valid indefinitely (unlike the documentary evidence itself in most cases). In order to enhance the reliability and increase the accuracy of the claims, to help assure that information is updated when
Section 1.1441–1T(e)(4)(iv)(A) of the 2014 temporary coordination regulations allows a withholding agent to establish an electronic system to collect Forms W–8 (or any other form as the IRS may prescribe) from a beneficial owner or payee. Comments requested that withholding agents be allowed to establish such an electronic system for collecting Forms 8233, “Exemption from Withholding on Compensation for Independent (and Certain Dependent) Personal Services of a Nonresident Alien Individual.” The Treasury Department and the IRS accept this request and have added § 1.1441–1T(e)(4)(iv)(C) to provide the requirements for the system.
Comments requested that the regulations be amended to allow a withholding agent to accept a Form W–8 with an electronic signature when the withholding agent has not developed and maintained an electronic collection system described in § 1.1441–1(e)(4)(iv)(B). The Treasury Department and the IRS have determined that valid electronically signed withholding certificates may be accepted by a withholding agent if the withholding certificates reasonably demonstrate to the withholding agent that they have been electronically signed by the recipient identified on the form or a person authorized by the recipient to sign the form (by, for example, a signature block that includes a time and date stamp and a statement that the certificate has been electronically signed and the name of the person authorized to sign the form). If the withholding certificate contains only a typed name in the signature line and no other information regarding the method of signature, a withholding agent cannot treat the withholding certificate as validly signed. These temporary regulations reflect this change. A coordinating change is also being made to the chapter 4 regulations.
Comments requested more detailed guidance on how a withholding agent could authenticate and verify a form or documentary evidence received by facsimile or email, for example by obtaining an authorization letter from the person who signed the form. The Treasury Department and the IRS have not provided prescriptive guidance on the procedures that must be used for this purpose, in part because the standard under § 1.1441–1(e)(4)(iv)(D) (§ 1.1441–1T(e)(4)(iv)(C) of the 2014 temporary coordination regulations) for a withholding agent with respect to whether a form was provided by someone authorized to provide the form is an actual knowledge standard (that is, the withholding agent must not have actual knowledge that the form was transmitted by a person not authorized to do so by the person required to execute the form). The Treasury Department and the IRS believe that the current regulations offer sufficient flexibility for withholding agents to develop the necessary procedures for authenticating and verifying that the form was transmitted to the withholding agent by a person who was authorized to do so without the need for further guidance.
Comments have requested clarification of guidance provided in the Frequently Asked Questions (FAQ) on the IRS Web site (see
The 2014 temporary coordination regulations allow a withholding agent to continue to accept the prior version of a withholding certificate that has been revised for a period of six months after the date of release of the revised withholding certificate. Comments noted that this period may be difficult for withholding agents to comply with, depending on when the revised version of the form is released and how extensive the revisions are. Comments also noted challenges in coordinating this requirement with the renewal requirements for withholding certificates, which expire as of the end of a calendar year. The Treasury Department and the IRS agree that it is appropriate to extend the period during which prior versions of withholding certificates may be used beyond six months. These final regulations provide that withholding agents generally may use prior versions of withholding certificates until the later of six months after the date of issuance of the most recent revision to the withholding certificate, or the end of the calendar year during which the revised version was issued. However, in certain circumstances, such as when a new status must be established on the withholding certificate because of a new requirement in the regulations, the Treasury Department and the IRS may designate a shorter transition period.
On July 1, 2016, in Notice 2016–42, 2016–29 I.R.B. 67, the Treasury Department and the IRS released the proposed Qualified Intermediary (QI) agreement (the Proposed QI Agreement), which, once finalized, would be effective on or after January 1, 2017. In response to comments received following the publication of the QI agreement (the 2014 QI Agreement) in 2014 in Rev. Proc. 2014–39, 2014–29 I.R.B. 150, the Proposed QI Agreement provided more detailed compliance and review procedures for QIs, requirements applicable to qualified derivatives dealers, and other revisions and corrections. These temporary and final regulations include several revisions that align with the Proposed QI Agreement. These final regulations clarify the rule already provided in the 2014 temporary coordination regulations that when a QI is a participating FFI or a registered deemed-compliant FFI for purposes of chapter 4, it may represent that it assumes chapter 61 reporting
Section 1.1441–1T(e)(5)(ii) of the 2014 temporary coordination regulations lists the types of entities that are eligible to enter into QI agreements, including foreign corporations that are presenting claims of treaty benefits on behalf of their shareholders. In Notice 2016–42, the Treasury Department and the IRS requested comments on the situations where a foreign corporation (other than a reverse hybrid entity) would be seeking to act as a QI on behalf of its shareholders, and questioned why the withholding foreign partnership agreement does not accommodate such situations. No comments were received in response to this request. As a result, and because § 1.1441–1(e)(5)(ii)(D) provides that “any person acceptable to the IRS” may be eligible to be a QI, these final regulations remove from the list of prospective QIs the specific category of foreign corporations presenting treaty benefit claims on behalf of their shareholders.
Form W–8BEN and the instructions to the form describe circumstances under which a foreign person is required to provide a foreign TIN or date of birth on the form. Similarly, Form 1042–S and the instructions to the form outline circumstances under which a withholding agent is required to report such information. These temporary regulations provide that, starting January 1, 2017, for an account maintained at a U.S. office or branch of a withholding agent that is a financial institution, the withholding agent will be required to collect the account holder's foreign TIN, and, in the case of an individual account holder, the account holder's date of birth, on a withholding certificate. A withholding certificate that does not contain a date of birth but is otherwise valid will not be invalid if the withholding agent has such information in its files. For withholding certificates associated with payments made on or after January 1, 2018, a foreign person that does not have a foreign TIN must provide a reasonable explanation as to the lack of a foreign TIN (for example, that the country of residence does not provide TINs).
Under section 887(a), gross income derived by a nonresident individual or foreign corporation that constitutes United States source gross transportation income (USSGTI) is subject to a four-percent tax, and is not subject to tax under section 871, 881, or 882. For these purposes, USSGTI consists of income derived from, or in connection with, (1) the use (or hiring or leasing for use) of a vessel or aircraft or (2) the performance of services directly related to the use of a vessel or aircraft, to the extent the income is treated as derived from U.S. sources under section 863(c)(2). USSGTI does not include such income, however, if it is effectively connected with the trade or business in the United States of a nonresident alien or foreign corporation, within the meaning of section 887(b)(4), nor does it include income taxable in a possession of the United States under the provisions of the Code as made applicable in such possession. Items of income that are not USSGTI, as defined in section 887(b), are not affected by the change to the regulations described in this section, and the normal income tax rules apply.
Under sections 1441 and 1442, items of gross income from U.S. sources paid to nonresident individuals and foreign corporations may be subject to withholding at a 30-percent rate if such items are “amounts subject to withholding” within the meaning of § 1.1441–2. In general, under § 1.1441–2(a), the term “amounts subject to withholding” is broadly defined to include amounts from sources within the United States that constitute fixed or determinable annual or periodical income, which in turn is defined to include all income included in gross income under section 61 subject to certain exceptions. Given the broad definition of “amounts subject to withholding” and the lack of a specific exception for USSGTI, taxpayers have questioned whether amounts paid that constitute USSGTI are subject to withholding under section 1441 or 1442 at a 30-percent rate, notwithstanding that, under section 887(a), a four-percent tax is imposed on a nonresident alien individual or foreign corporation's USSGTI for the taxable year.
Because USSGTI is not subject to section 871 or 881 gross basis tax if section 887(a) applies, it is not an amount subject to withholding under section 1441 or 1442. The temporary regulations clarify this result under § 1.1441–2T(a)(8) by providing that amounts subject to withholding under section 1441 or 1442 do not include gross income of a nonresident alien or foreign corporation that is taxable under section 887(a) at four percent. Comments are requested regarding documentation requirements for applying this exception.
The regulations in § 1.1441–3 include rules for coordinating with section 1445 in the case of distributions from qualified investment entities and United States real property holding companies. Section 1445(a) generally imposes a withholding tax obligation on the transferee when a foreign person disposes of a United States real property interest. Before the enactment of the Protecting Americans from Tax Hikes Act of 2015 (PATH Act), enacted as Division Q of the Consolidated Appropriations Act, 2016, Public Law 114–113, 129 Stat. 2422, the withholding rate under the relevant provisions of section 1445 was 10 percent of either the amount realized or the fair market value of the interest, as applicable. The PATH Act generally increased the withholding rate under section 1445 from 10 percent to 15 percent for dispositions occurring after February 16, 2016 (with certain exceptions for acquisitions of residences). These final regulations incorporate the PATH Act's rate change for these dispositions when referenced in § 1.1441–3.
Compensation for personal services paid to a nonresident alien individual is not subject to withholding under section 1441 if the compensation is effectively connected with the conduct of a trade or business in the United States and is exempt from U.S. federal income tax under an income tax treaty. In order for a nonresident alien individual to claim treaty benefits for reduced withholding, the chapter 3 regulations require that he or she provide a Form 8233 that includes a TIN or proof that an
In April 2016, the IRS released a revised Form W–8BEN–E, “Certification of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities),” and revised instructions, which require an entity claiming treaty benefits to identify the specific type of limitation on benefits provision that the entity meets to be eligible to claim benefits under the treaty (for example, the publicly traded test or the stock ownership and base erosion test, the active trade or business test, etc.). These temporary regulations modify the chapter 3 regulations, consistent with the revised Form W–8BEN–E and instructions, to require that a limitation on benefits statement on Form W–8BEN–E identify the specific limitation on benefits provision on which the taxpayer is relying to claim treaty benefits. This revision to the form and the chapter 3 regulations will further improve the compliance of treaty claimants with the specific requirements of the applicable limitation on benefits provisions in the treaty pursuant to which they seek at-source relief from chapter 3 withholding.
Comments requested that more guidance be provided on when a payee's limitation on benefits claim is unreliable or incorrect. Accordingly, these temporary regulations provide that a withholding agent may rely on a valid Form W–8BEN–E that includes limitation on benefits information unless it has actual knowledge that the information provided with respect to the limitation on benefits is unreliable or incorrect. Withholding agents are generally expected to report this information beginning in 2018.
Under the chapter 3 regulations, a withholding agent may, in certain circumstances, use documentary evidence to document a payee and reduce the rate of withholding if the withholding agent obtains a treaty statement that the payee meets the limitation on benefits provision contained in the applicable income tax treaty. These temporary regulations provide, consistent with the requirements for withholding certificates, that the treaty statement associated with documentary evidence to support a treaty claim must also identify the specific limitation on benefits provision on which the entity relies to claim benefits under the applicable income tax treaty.
More generally, these temporary regulations also clarify a withholding agent's responsibility with respect to claims of benefits under an income tax treaty, whether they are made by an individual or an entity. By way of example, these temporary regulations provide that if the income tax treaty that the treaty claimant references on the form does not exist or is not in force (which a withholding agent can determine by consulting the list of jurisdictions with which the United States has an income tax treaty in force maintained on the IRS Web site, or the State Department's
Under § 1.1441–7(b), a withholding agent must withhold at the full 30-percent rate if it has actual knowledge or reason to know that a payee's claim of U.S. status or of entitlement to a reduced rate of withholding is unreliable or incorrect. Comments requested that a withholding agent should be able to presume that an undocumented entity payee is a foreign person if the withholding agent has on file for the payee a GIIN and confirms that the payee's name and GIIN appear on the IRS FFI list. These comments noted that under § 1.1471–3(e)(4)(ii)(B), for chapter 4 purposes, a withholding agent can reliably associate a withholding certificate with a payment to a participating FFI, a registered deemed-compliant FFI, a sponsoring entity, or a sponsored FFI without applying the rules of § 1.1441–7(b)(5) (relating to when a withholding agent has reason to know that a withholding certificate is unreliable or incorrect due to the presence of U.S. indicia) if the withholding agent has confirmed the entity's GIIN on the current published FFI list. The Treasury Department and the IRS have declined to adopt this suggestion. Because U.S. entities can obtain GIINs, and if they do so, their names would appear on the IRS FFI list (as is the case for U.S. entities that are sponsoring entities, for example), it is not appropriate to allow a GIIN to cure U.S. indicia for purposes of chapter 3.
The 2014 temporary coordination regulations revised the standards of knowledge regarding additional U.S. indicia that will cause a withholding agent to have reason to know that a payee's claim of foreign status is unreliable or incorrect for purposes of chapter 3 or 61 to coordinate with the standards of knowledge that apply for purposes of chapter 4. These revised standards of knowledge generally do not require a withholding agent to take the additional U.S. indicia into account for a preexisting obligation of a direct account holder if the foreign status of the account holder was documented by the withholding agent for purposes of chapter 3 or chapter 61 before July 1, 2014. On May 19, 2014, Treasury and the IRS published Notice 2014–33, 2014–21 I.R.B. 1033, which, among other things, generally allowed a withholding agent or FFI to treat an obligation held by an entity that was issued, opened, or executed on or after July 1, 2014, and before January 1, 2015, as a preexisting obligation described in §§ 1.1471–2(a)(4)(ii), 1.1472–1(b)(2), and 1.1471–4(c)(3). Following the publication of Notice 2014–33, comments noted that, while the modifications made to § 1.1441–7(b) addressed the application of the revised reason to know standards for obligations that were documented by a withholding agent before July 1, 2014, Notice 2014–33 did not address how the standards would apply to entity accounts opened on or after July 1, 2014, and before January 1, 2015, that are treated as preexisting obligations by withholding agents and participating FFIs for purposes of chapter 4, pursuant to Notice 2014–33. These comments requested that a similar modified applicability date be added to § 1.1441–7(b) to allow withholding agents to treat
The 2014 temporary coordination regulations describe the U.S. indicia that will cause a withholding agent to have reason to know that a withholding certificate is unreliable or incorrect for purposes of establishing the account holder's status as a foreign person. Comments have noted that foreign persons that have a trade or business in the United States are likely to have U.S. indicia; therefore, the existence of U.S. indicia on a Form W–8ECI should not cause the withholding agent to have reason to know that the Form W–8ECI is unreliable or incorrect. The Treasury Department and the IRS agree. These final regulations reflect this change by providing that the existence of U.S. indicia on a Form W–8ECI will not cause a withholding agent to have reason to know that the form is unreliable or incorrect for purposes of establishing the account holder's status as a foreign person.
The chapter 3 regulations permit a withholding agent to accept a Form W–8 (or a substitute Form W–8) electronically through a system established by the withholding agent that meets the requirements described in § 1.1441–1(e)(3)(iv)(B). Announcement 98–27, 1998–1 C.B. 865, and Announcement 2001–91, 2001–2 C.B. 221, provide similar requirements for an electronic system established by a withholding agent to receive a Form W–9. Comments requested that specific guidance be given to clarify that a withholding agent is allowed to rely on documentation provided to it by an intermediary or flow-through entity that has established an electronic system to collect documentation from a payee. The primary concern raised in these comments was how a withholding agent was supposed to validate, and whether a withholding agent could rely on, a signature on a beneficial owner withholding certificate received through an electronic system. In Notice 2016–08, 2016–6 I.R.B 304, the Treasury Department and the IRS announced an intent to modify the standards of knowledge under §§ 1.1441–7(b)(10) and 1.1471–3(e)(4)(vi)(A)(
Under the 2014 temporary coordination regulations, a withholding agent must file Form 8655, “Reporting Agent Authorization,” with the IRS if it appoints an agent to act as its reporting agent for filing Form 1042, “Annual Withholding Tax Return for U.S. Source Income of Foreign Persons,” or making tax deposits and payments with respect to Form 1042. A comment suggested that a Form 8655 should be required to be filed only when an agent files a Form 1042 in its own name (and under its own EIN) on behalf of one or more other withholding agents. In response to the comment, these final regulations amend the 2014 temporary coordination regulations to provide that a withholding agent must file a Form 8655 only when its agent files a Form 1042 as the filer on behalf of one or more other withholding agents. This revision is also included in temporary regulations under chapter 4 that are being published concurrently with these temporary and final regulations.
The chapter 3 regulations generally require withholding agents to file an information return on Form 1042–S to report the amounts subject to reporting that were paid during the preceding calendar year and to provide a copy of the form to the recipient of the payment, on or before March 15 of the calendar year following the payment. The withholding agent must retain a copy of each Form 1042–S for the period corresponding to the statute of limitations on assessment and collection applicable to the Form 1042 to which the Form 1042–S relates. The Treasury Department and the IRS have determined that it is appropriate to allow withholding agents to furnish the recipient copy of the Form 1042–S electronically under the same conditions applicable to furnishers of recipient copies of other forms (for example, Form W–2, Form 1099–K), and for this reason, these final regulations include a cross-reference to the requirements under § 1.6050W–2 for certain information statements that are furnished electronically. Statements can be furnished electronically beginning in calendar year 2017 for payments made in calendar year 2016 that are reportable on Form 1042–S.
The Form 1042–S requires, among other information, the foreign TIN of a recipient if (A) the recipient is claiming a reduced rate of, or exemption from, tax under a tax treaty, the person did not provide a U.S. TIN, and the income is not the type of income for which an exemption from the U.S. TIN requirement applies; (B) the recipient receives a payment made with respect to an obligation maintained at a U.S. office or branch of the withholding agent, the withholding agent is a financial institution, and the foreign TIN is available in the withholding agent's electronically searchable information; or (C) the withholding agent is required to collect the foreign TIN on the Form W–8. Comments have requested that the form instructions or the chapter 3 regulations be modified to allow a foreign TIN to be truncated on the recipient copy of the Form 1042–S consistent with the truncation of U.S. TINs on the Form 1042–S. The Treasury Department and the IRS agree with these comments and will modify the Form 1042–S instructions accordingly.
Under § 1.6041–4, returns of information are not required for payments of certain amounts from sources outside the United States that are paid by a non-U.S. payor or a non-U.S. middleman and that are paid and received outside the United States. Section 1.6049–4(f)(16) describes the circumstances under which a payment is considered “paid and received outside the United States” (and is therefore not a reportable payment). Comments have suggested that the definition of “paid and received outside the United States” be limited to allow a broader range of payments to be treated as reportable payments, such as payments for services performed outside the United States. The Treasury Department and the IRS continue to consider this issue but have not incorporated this suggestion into these temporary and final regulations.
Under § 1.6042–2, every person who makes a payment of dividends to any other person during a calendar year must file an information return (that is, Form 1099) that contains the aggregate amount of the dividends, identifying information about the payee, the amount of tax deducted and withheld under section 3406, and such other information as the form requires. The 2014 temporary coordination regulations provide an exception to this filing requirement for payments made by a paying agent on behalf of a passive foreign investment company (PFIC), as defined in section 1297(a), with respect to a shareholder in the PFIC if, among other things, the paying agent obtains from the corporation a written certification signed by an officer of the corporation that states that the corporation is described in section 1297(a) for each calendar year during which the exception is to be applied, and the paying agent has no reason to know that the written certification is unreliable or incorrect. The paying agent must also identify, before payment, that the PFIC is a participating FFI or a reporting Model 1 FFI, and must obtain annually a written certification from the PFIC representing that it will report payments made by the paying agent pursuant to its reporting obligations under chapter 4 or under an applicable intergovernmental agreement (IGA).
Comments have requested that, rather than obtaining an annual certification that is signed by an officer of the corporation, the paying agent should be able to rely on a single written certification of PFIC status until there is a change in circumstances or the paying agent knows or has reason to know that the certification is unreliable or incorrect, and that such certification can be signed by any person that has the authority to sign the certification on behalf of the corporation. The Treasury Department and the IRS decline to accept the request for a single written certification of PFIC status at this time because the annual certification requirement does not appear to present a significant compliance burden and helps assure that the paying agent is meeting its due diligence standards. However, the request that the certification be signed by any person that has the authority to sign the certification on behalf of the corporation has been accepted. A similar change has been made in § 1.6045–1(c)(3)(xiv)(A).
The regulations under § 1.6049–5(c)(1) provide guidance on a payor's use of documentary evidence to establish a payee's foreign status for certain amounts paid outside the United States (as determined under § 1.6049–5(e)) with respect to an offshore obligation. The 2014 temporary coordination regulations included a series of modifications, made in coordination with modifications to regulations under chapter 4, to the conditions under which a withholding agent or a payor (as defined for chapter 61 purposes in § 1.6049–5(c)(5)) may rely on documentary evidence to document a payee's foreign status, and also provided guidance on when an amount is considered paid outside the United States. The 2014 temporary coordination regulations under § 1.6049–5T(c)(1) apply to payments made on or after July 1, 2014, except for certain payments made with respect to preexisting obligations, as described in § 1.1441–7(b)(3)(ii).
In response to requests to allow payors additional time to modify their systems to implement the revised requirements of § 1.6049–5(c)(1), these final regulations allow a payor to continue to use, for accounts opened on or after July 1, 2014, and before January 1, 2015, the rules regarding the use of documentary evidence under § 1.6049–5(c)(1) and (c)(4) as in effect and contained in 26 CFR part 1 revised April 1, 2013 (prior § 1.6049–5(c)), instead of the new rules regarding documentary evidence for offshore obligations under § 1.6049–5T(c)(1) and (c)(4) of the 2014 temporary coordination regulations. For consistency, a payor that applies prior § 1.6049–5(c) to an account or obligation will also be required to apply § 1.1441–6(c)(2) (for documentary evidence used to support a treaty claim) and § 1.6049–5(e) as in effect and contained in 26 CFR part 1 revised April 1, 2013, with respect to the account or obligation. These modifications to the 2014 temporary coordination regulations were previewed in Notice 2014–59.
These regulations also include a change to the presumption rule for U.S. source bank deposit interest in § 1.6049–5(d)(3)(iii)(A). This presumption rule was inadvertently removed in the 2014 temporary coordination regulations and the 2014 QI Agreement, and it was corrected in the Proposed QI Agreement. It is expected to apply only in cases in which chapter 4 withholding does not apply.
These final regulations also include various non-substantive clarifications and corrections to the 2014 temporary coordination regulations, including corrections of erroneous cross-references. For example, these final regulations clarify in § 1.1441–5(c)(2)(iii) that a withholding foreign partnership is required to assume primary withholding responsibility under chapters 3 and 4 to the extent required by the withholding foreign partnership agreement.
Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13653. Therefore, a regulatory assessment is not required.
For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the cross-referenced notice of proposed rulemaking published in the Proposed Rules section of this issue of the
The principal author of these proposed regulations is Leni C. Perkins, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Income taxes, Penalties, Pensions, Railroad retirement, Reporting and recordkeeping requirements, Social security, Unemployment compensation.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
The revisions read as follows:
(b)
(2)
(c) * * *
(2)
(i) The U.S. person (or its authorized agent described in § 1.1441–7(c)(2)) can reliably associate the payment with documentation upon which it can rely to treat the payment as made to a foreign beneficial owner in accordance with § 1.1441–1(e)(1)(ii). See § 1.1441–1(b)(2)(vii) for rules regarding reliable association with documentation.
(ii) The U.S. person (or its authorized agent described in § 1.1441–7(c)(2)) can reliably associate the payment with a withholding certificate described in § 1.1441–5(c)(2)(iv) from a person claiming to be a withholding foreign partnership or § 1.1441–5(e)(v) for a person claiming to be a withholding foreign trust.
(iii) The U.S. person (or its authorized agent described in § 1.1441–7(c)(2)) can reliably associate the payment with a withholding certificate described in § 1.1441–1(e)(3)(ii) from a person representing to be a qualified intermediary that has assumed primary withholding responsibility for the payment in accordance with § 1.1441–1(e)(5)(iv) or a qualified intermediary that has provided a withholding statement that meets the requirements of § 1.1441–1(e)(5)(v)(C) or that includes the payment in a withholding rate pool for payments excepted from withholding.
(iv) The U.S. person (or its authorized agent described in § 1.1441–7(c)(2)) can reliably associate the payment with a withholding certificate described in § 1.1441–1(e)(3)(v) from a person claiming to be a U.S. branch of a foreign bank or of a foreign insurance company that is described in § 1.1441–1(b)(2)(iv)(A) or a U.S. branch designated in accordance with § 1.1441–1(b)(2)(iv)(E).
(3)
(4)
(e)
(j)
(2)
(3)
The revisions and additions read as follows:
This section lists captions contained in §§ 1.1441–1 through 1.1441–10.
(b) * * *
(2) * * *
(vii) * * *
(D) Special rules applicable to a withholding certificate provided by a qualified intermediary that assumes primary withholding responsibility under chapter 3 and chapter 4 of the Internal Revenue Code.
(E) Special rules applicable to a withholding certificate provided by a qualified intermediary that assumes primary Form 1099 reporting and backup withholding responsibility but not primary withholding under chapter 3 and chapter 4.
(F) Special rules applicable to a withholding certificate provided by a qualified intermediary that assumes primary withholding responsibility under chapter 3 and chapter 4 and primary Form 1099 reporting and backup withholding responsibility and a withholding certificate provided by a withholding foreign partnership or a withholding foreign trust.
(3) * * *
(ii) * * *
(C) Documentary evidence furnished for offshore obligation.
(iii) Presumption of U.S. or foreign status.
(A) Payments to exempt recipients.
(
(
(D) Payments with respect to offshore obligations.
(E) Certain payments for services.
(vi) U.S. branches and territory financial institutions not treated as U.S. persons.
(vii) Joint payees.
(A) In general.
(B) Special rule for offshore obligations.
(6) * * *
(ii) Examples.
(7) Liability for failure to obtain documentation timely or to act in accordance with applicable presumptions.
(i) General rule.
(ii) Proof that tax liability has been satisfied.
(A) In general.
(B) Special rule for establishing that income is effectively connected with the conduct of a U.S. trade or business.
(iii) Liability for interest and penalties.
(iv) Special rule for determining validity of withholding certificate containing inconsequential errors.
(v) Special effective date.
(c) * * *
(2) * * *
(i) In general.
(ii) Dual residents.
(5) Financial institution and foreign financial institution (or FFI).
(10) Chapter 3 of the Code (or chapter 3).
(28) Nonwithholding foreign partnership (or NWP).
(29) Withholding foreign partnership (or WP).
(30) Possession of the United States or U.S. territory.
(31) Amount subject to chapter 3 withholding.
(32) EIN.
(33) Flow-through withholding certificate.
(34) Foreign payee.
(35) Intermediary withholding certificate.
(36) Nonwithholding foreign trust (or NWT).
(37) Payment with respect to an offshore obligation.
(38) Permanent residence address.
(i) In general.
(ii) Hold mail instruction.
(39) Standing instructions to pay amounts.
(40) Territory financial institution.
(41) TIN.
(42) Withholding foreign trust (or WT).
(43) Certified deemed-compliant FFI.
(44) Chapter 3 withholding rate pool.
(45) Chapter 3 status.
(46) Chapter 4 of the Code (or chapter 4).
(47) Chapter 4 status.
(48) Chapter 4 withholding rate pool.
(49) Deemed-compliant FFI.
(50) GIIN (or Global Intermediary Identification Number).
(51) NFFE.
(52) Nonparticipating FFI.
(53) Participating FFI.
(54) Preexisting obligation.
(55) Registered deemed-compliant FFI.
(56) Withholdable payment.
(e) * * *
(2) * * *
(ii) * * *
(A) In general.
(B) Requirement to collect foreign TIN and date of birth beginning January 1, 2017.
(3) * * *
(iv) Withholding statement provided by nonqualified intermediary.
(C) * * *
(
(
(
(
(D) Alternative procedures.
(
(
(
(
(
(
(
(
(
(
(E) Notice procedures.
(v) Withholding certificate from certain U.S. branches (including territory financial institutions).
(vi) Reportable amounts.
(4) Applicable rules.
(i) Who may sign the certificate.
(A) In general.
(B) Electronic signatures.
(ii) Period of validity.
(A) General rule.
(
(
(D) * * *
(
(
(
(iii) Retention of documentation.
(iv) Electronic transmission of information
(A) In general.
(B) Requirements.
(
(
(
(
(
(
(C) Form 8233.
(D) Forms and documentary evidence received by facsimile or email.
(E) Third party repositories.
(v) Additional procedures for certificates provided electronically.
(viii) * * *
(C) Reliance on a prior version of a withholding certificate.
(ix) Certificates to furnished for each obligation unless exception applies.
(A) Exception for certain branch or account systems or system maintained by agent.
(B) Reliance on certification provided by introducing brokers.
(
(
(C) Reliance on documentation and certifications provided between principals and agents.
(
(
(D) Reliance upon documentation for accounts acquired in merger or bulk acquisition for value.
(5) Qualified intermediaries.
(i) In general.
(v) * * *
(A) In general.
(B) Content of withholding statement.
(C) Withholding rate pools
(
(
(
(D) Example.
(6) Qualified derivatives dealers.
(f) Effective/applicability date.
(1) In general.
(2) Lack of documentation for past years.
(3) Section 871(m) transactions.
(b) * * *
(3) * * *
(iii) Exceptions to withholding.
(6) Dividend equivalents.
(e) * * *
(7) Payments of dividend equivalents.
(i) In general.
(ii) Payment.
(iii) Premiums and other upfront payments.
(a) General rule.
(1) Withholding on gross amount.
(2) Coordination with chapter 4.
(c) * * *
(4) * * *
(i) * * *
(C) Coordination with REIT/QIE withholding.
(g) * * *
(1) Duty to withhold.
(2) Effective date.
(h) Dividend equivalents.
(1) Withholding on gross amount.
(2) Reliance by withholding agent on reasonable determinations.
(3) Effective/applicability date.
(i) Effective/applicability date.
(a) * * *
(3) * * *
(iii) Exception for specified notional principal contracts.
(b) * * *
(4) Final payment exemption.
(g) Effective/applicability date.
(b) * * *
(2) * * *
(vi) Coordination with chapter 4 requirements for U.S. partnerships, trusts, and estates.
(c) * * *
(1) * * *
(iv) Coordination with chapter 4 for payments made to foreign partnerships.
(v) Examples.
(3) * * *
(iv) Withholding statement provided by nonwithholding foreign partnership and coordination with chapter 4.
(v) Withholding and reporting by a foreign partnership.
(d) Presumption rules.
(1) In general.
(2) Determination of partnership status as U.S. or foreign in the absence of documentation.
(e) * * *
(2) Payments to foreign complex trusts and foreign estates.
(3) * * *
(iii) Coordination with chapter 4 for payments made to foreign simple trusts and foreign grantor trusts.
(5) * * *
(iv) Withholding statement provided by foreign simple trust or foreign grantor trust and coordination with chapter 4.
(g) Effective/applicability date.
(b) * * *
(1) * * *
(i) Identification of limitation on benefits provisions.
(ii) Reason to know based on existence of treaty.
(c) * * *
(1) General rule.
(h) Dividend equivalents.
(i) Effective/applicability dates.
(1) General rule.
(2) Dividend equivalents.
(a) * * *
(2) Withholding agent with respect to dividend equivalents.
(3) Examples.
(4) Effective/applicability date.
(b) * * *
(3) * * *
(i) In general.
(ii) Limits on reason to know for preexisting obligations.
(5) * * *
(i) Classification of U.S. status, U.S. address, or U.S. telephone number.
(ii) U.S. place of birth.
(iii) Standing instructions with respect to offshore obligations.
(6) Withholding certificate—claim of reduced rate of withholding under.
(i) Permanent residence address.
(ii) Mailing address.
(iii) Standing instructions.
(7) Documentary evidence.
(8) Documentary evidence—establishment of foreign status.
(i) Documentary evidence received prior to January 1, 2001.
(ii) Documentary evidence received after December 31, 2000.
(A) Treatment of individual's foreign status.
(B) Presumption of entity's foreign status.
(iii) U.S. place of birth.
(iv) Standing instructions with respect of offshore obligations.
(9) Documentary evidence—claim of reduced rate of withholding under treaty.
(i) Permanent residence address and mailing address.
(ii) Standing instructions.
(10) Indirect account holders.
(11) Limits on reason to know for multiple obligations belonging to a single person.
(12) Reasonable explanation supporting claim of foreign status.
(13) Additional guidance.
(c) Agent.
(1) In general.
(2) Authorized agent.
(3) Liability of withholding agent acting through an agent.
(f) * * *
(1) Liability of withholding agent.
(2) Exception for withholding agents that do not know of conduit financing arrangement.
(i) In general.
(ii) Examples.
(g) Effective/applicability date.
(a) In general.
(b) Exception.
(c) Liability.
(d) Examples.
(e) Effective date.
The additions and revisions read as follows:
(a)
(b)
(2)
(iii)
(iv)
(B) * * *
(
(
(
(C)
(E)
(vi)
(vii) * * *
(B)
(
WA, a withholding agent, makes a payment of U.S. source interest with respect to a grandfathered obligation as described in § 1.1471–2(b) (and thus the payment is not a withholdable payment) to NQI, an intermediary that is a nonqualified intermediary. NQI provides a valid intermediary withholding certificate under paragraph (e)(3)(iii) of this section. NQI does not, however, provide valid documentation from the persons on whose behalf it receives the interest payment, and, therefore, the interest payment cannot be reliably associated with valid documentation provided by a payee. WA must apply the presumption rules of paragraph (b)(3)(v) of this section to the payment.
The facts are the same as in
The facts are the same as in
WA makes a payment of U.S. source interest to NQI1, an intermediary that is not a qualified intermediary. NQI1 provides WA with a valid nonqualified intermediary withholding certificate as well valid beneficial owner withholding certificates from A and B and a valid nonqualified intermediary withholding certificate from NQI2. NQI2 has provided valid beneficial owner documentation from C sufficient to establish C's status as a foreign person. Based on information provided by NQI1, WA can allocate 20% of the interest payment to A, and 20% to B. Based on information that NQI2 provided NQI1 and that NQI1 provides to WA, WA can allocate 60% of the payment to NQI2, but can only allocate one half of that payment (30%) to C. Therefore, WA cannot reliably associate the remainder of the payment made to NQI2 (30% of the total payment) with valid
(C)
(
WA, a withholding agent, makes a payment of U.S. source dividends that is a withholdable payment to QI. QI provides WA with a valid qualified intermediary withholding certificate on which it indicates that it does not assume primary withholding responsibility under chapters 3 and 4 or primary Form 1099 reporting and backup withholding responsibility under chapter 61 and section 3406. QI does not provide any information allocating the dividend to withholding rate pools. WA cannot reliably associate the payment with valid payee documentation and therefore must apply the presumption rules applicable to a withholdable payment under § 1.1471–3(f)(5) to determine the status of the payee for purposes of chapter 4. See
WA makes a payment of U.S. source dividends that is a withholdable payment to QI, which is an NFFE. QI has 5 customers: A, B, C, D, and E, all of whom are individuals except for C. QI has obtained valid documentation from A and B establishing their entitlement to a 15% rate of tax on U.S. source dividends under an income tax treaty. C is a U.S. person that is an exempt recipient as defined in paragraph (c)(20) of this section. D and E are U.S. non-exempt recipients who have provided Forms W–9 to QI. A, B, C, D, and E are each entitled to 20% of the dividend payment. QI provides WA with a valid qualified intermediary withholding certificate as described in paragraph (e)(3)(ii) of this section with which it associates the Forms W–9 from D and E. QI associates the following allocation information with its qualified intermediary withholding certificate: 40% of the payment is allocable to the 15% chapter 3 withholding rate pool, and 20% is allocable to each of D and E. QI does not provide any allocation information regarding the remaining 20% of the payment. WA cannot reliably associate 20% of the payment with valid documentation and, therefore, must apply the presumption rules applicable to a withholdable payment. Because QI is receiving a withholdable payment as an intermediary, under paragraph (b)(3)(iii) of this section WA must apply the presumption rule of § 1.1471–3(f)(5) to treat the portion of the payment that cannot reliably be associated with valid documentation as made to a nonparticipating FFI account holder of QI. As a result, WA is required to withhold at a 30% rate of tax under chapter 4. See § 1.1441–3(a)(2) permitting WA to credit the amount withheld under chapter 4 against the liability for tax due on the payment under section 1441 or 1442. The 40% of the payment allocable to the 15% withholding rate pool and the portion of the payments allocable to D and E are payments that can be reliably associated with documentation.
(D)
(
WA makes a payment of U.S. source interest that is a withholdable payment to QI, a qualified intermediary that is an NFFE. QI provides WA with a withholding certificate that indicates that QI will assume primary withholding responsibility under chapters 3 and 4 of the Code with respect to the payment. In addition, QI attaches a Form W–9 from A, a U.S. non-exempt recipient, as defined in paragraph (c)(21) of this section, and provides the name, address, and TIN of B, a U.S. person that is also a non-exempt recipient but who has not provided a Form W–9. QI associates a withholding statement with its qualified intermediary withholding certificate indicating that 10% of the payment is attributable to A and 10% to B, and that QI will assume primary withholding responsibility under chapters 3 and 4 with respect to the remaining 80% of the payment. WA can reliably associate the entire payment with valid documentation. Although under the presumption rule of paragraph (b)(3)(v) of this section, an undocumented person receiving U.S. source interest is generally presumed to be a foreign person, WA has actual knowledge that B is a U.S. non-exempt recipient and therefore must report the payment on Form 1099 and backup withhold on the interest payment under section 3406.
The facts are the same as in
(E)
(
WA, a withholding agent, makes a payment of U.S. source dividends that is a withholdable payment to QI, a qualified intermediary that is a participating FFI. QI has provided WA with a valid qualified intermediary withholding certificate. QI states on its withholding statement accompanying the certificate that it assumes primary Form 1099 reporting and backup withholding responsibility but does not assume primary withholding responsibility under chapters 3 and 4 of the Code. QI represents that 15% of the dividend is subject to a 30% rate of withholding, 75% of the dividend is subject to a 15% rate of withholding. QI represents that it assumes primary Form 1099 reporting and backup withholding for the remaining 10% of the payment and will not need to provide a chapter 4 withholding rate pool with respect to this portion of the payment or documentation with respect to U.S. non-exempt recipients. WA can reliably associate the entire payment with valid documentation.
(F)
(3)
(ii)
(B)
(C)
(iii)
(A)
(
(
(
(
(
(
(D)
(iv)
(A) If, at the end of the grace period, the documentation is not furnished in the manner required under this section and the account holder is presumed to be a U.S. non-exempt recipient, then backup withholding only applies to amounts credited to the account after the expiration of the grace period. Amounts credited to the account during the grace period shall be treated as owned by a foreign payee and adjustments must be made to correct any underwithholding on such amounts in the manner described in § 1.1461–2.
(v) * * *
(B)
(vi)
(vii)
(B)
(ix)
(x)
A withholding agent, W, makes a payment of U.S. source interest with respect to a grandfathered obligation as described in § 1.1471–2(b) (and thus the payment is not a withholdable payment) to X, Inc. with respect to an account W maintains for X, Inc. outside the United States. W cannot reliably associate the payment to X, Inc. with documentation. Under § 1.6049–4(c)(1)(ii)(A)(
A withholding agent, W, makes a payment of U.S. source interest with respect to a grandfathered obligation as described in § 1.1471–2(b) (and thus the payment is not a withholdable payment) to Y who does not qualify as an exempt recipient under § 1.6049–4(c)(1)(ii). W cannot reliably associate the payment to Y with documentation. Under the presumptions described in paragraph (b)(3)(iii) of this section, W must presume that Y is a U.S. person who is not an exempt recipient for purposes of section 6049. However, W knows that Y is a foreign person. W may not rely on its actual knowledge to withhold under this section rather than backup withhold under section 3406. If W's knowledge is, in fact, incorrect, W would be liable for tax, interest, and, if applicable, penalties, under section 3403. If W's actual knowledge is, in fact, correct, W may nevertheless be liable for tax, interest, or penalties under section 3403 for the amount that W should have withheld based upon the presumptions. Paragraph (b)(7) of this section does not apply to provide relief from liability under section 3403.
A withholding agent, W, makes a payment of U.S. source dividends to X, Inc. with respect to an account that X, Inc. opened with W after June 30, 2014. W cannot reliably associate the payment to X, Inc. with documentation but may treat X, Inc. as an exempt recipient for purposes of this section applying the rules of § 1.6042–3(b)(1)(vii). However, because the dividend payment is a withholdable payment and W did not determine the chapter 3 status of X, Inc. before July 1, 2014, W may treat X, Inc. as a U.S. person that is an exempt recipient only if W obtains documentary evidence supporting X, Inc.'s status as a U.S. person. See paragraph (b)(3)(iii)(A)(
Example 4. A withholding agent, W, is a plan administrator who makes pension payments to person X with a mailing address in a foreign country with which the United States has an income tax treaty in effect. Under that treaty, the type of pension income paid to X is taxable solely in the country of residence. The plan administrator has a record of X's U.S. social security number. W has no actual knowledge or reason to know that X is a foreign person. W may rely on the presumption of paragraph (b)(3)(iii)(C) of this section in order to treat X as a U.S. person. Therefore, any withholding and reporting requirements for the payment are governed by the provisions of section 3405 and the regulations under that section.
(4)
(i) Portfolio interest described in section 871(h) or 881(c) and substitute interest payments described in § 1.871–7(b)(2) or § 1.881–2(b)(2) are exempt from withholding under section 1441(a). See § 1.871–14 for regulations regarding portfolio interest and section 1441(c)(9) for the exemption from withholding for portfolio interest. Documentation establishing foreign status is required for interest on an obligation in registered form to qualify as portfolio interest. See section 871(h)(2)(B)(ii) and § 1.871–14(c)(1)(ii)(C). For special documentation rules regarding foreign-targeted registered obligations described in § 1.871–14(e)(2) (and issued before January 1, 2016), see § 1.871–14(e)(3) and (4) and, in particular, § 1.871–14(e)(4)(i)(A) and (ii)(A) regarding when the withholding agent must receive the documentation. The documentation furnished for purposes of qualifying interest as portfolio interest serves as the basis for the withholding exemption for purposes of this section and establishing foreign status for purposes of section 6049. See § 1.6049–5(b)(8). Documentation establishing foreign status is not required for qualifying interest on an obligation in bearer form described in § 1.871–14(b)(1) (and issued before March 19, 2012) as portfolio interest. However, in certain cases, documentation for portfolio interest on a bearer obligation may have to be furnished in order to establish foreign status for purposes of the information reporting provisions of section 6049 and backup withholding under section 3406. See § 1.6049–5(b)(7).
(5) * * *
(ix) Payments to a foreign person that are governed by section 6050W (dealing with payment card and third party network transactions) are exempt from information reporting under § 1.6050W–1(a)(5)(ii).
(6)
(ii)
FB, a foreign bank, acts as intermediary for five different individuals, A, B, C, D, and E, each of whom owns U.S. securities that generate U.S. source dividends (that are withholdable payments). The dividends are paid by USWA, a U.S. withholding agent. FB furnished USWA with a nonqualified intermediary withholding certificate, described in paragraph (e)(3)(iii) of this section, on which FB certifies its status as a participating FFI (such that withholding under chapter 4 does not apply), to which it attached valid withholding certificates for A, B, C, D, and E. The withholding certificates from A and B claim a 15% reduced rate of withholding under an income tax treaty. C, D, and E claim no reduced rate of withholding. FB provides a withholding statement that meets all of the requirements of paragraph (e)(3)(iv) of this section, including information allocating 20% of each dividend payment to each of A, B, C, D, and E. FB does not have actual knowledge or reason to know that USWA did not withhold the correct amounts or report the dividends on Forms 1042–S to each of A, B, C, D, and E. FB is not required to withhold or to report the dividends to A, B, C, D, and E.
The facts are the same as in
(7)
(A) The withholding agent has appropriately relied on the presumptions described in paragraph (b)(3) of this section (including the grace period described in paragraph (b)(3)(iv) of this section) in order to treat the payee as a U.S. person or, if applicable, on the presumptions described in § 1.1441–4(a)(2)(ii) or (a)(3)(i) to treat the payment as effectively connected income;
(B) The withholding agent can demonstrate to the satisfaction of the district director or the Assistant Commissioner (International) that the proper amount of tax, if any, was in fact paid to the IRS;
(C) No documentation is required under section 1441 or this section in order for a reduced rate of withholding to apply; or
(ii)
(B) [Reserved]. For further guidance, see § 1.1441–1T(b)(7)(ii)(B).
(iv)
(v)
(c)
(2)
(ii) [Reserved]. For further guidance, see § 1.1441–1T(c)(2)(ii).
(3) * * *
(ii) [Reserved]. For further guidance, see § 1.1441–1T(c)(3)(ii).
(5)
(10)
(12)
(16)
(17)
(23)
(25)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(38)
(ii) [Reserved]. For further guidance, see § 1.1441–1T(c)(38)(ii).
(39)
(40)
(41)
(42)
(43)
(44)
(45)
(46)
(47)
(48)
(49)
(50)
(51)
(52)
(53)
(54)
(55)
(56)
(d) * * *
(4)
(e) * * *
(1) * * *
(ii) * * *
(A) * * *
(
(
(2) * * *
(ii)
(B) [Reserved]. For further guidance, see § 1.1441–1T(e)(2)(ii)(B).
(3) * * *
(ii)
(A) The name, permanent residence address, qualified intermediary employer identification number (QI–EIN), and the country under the laws of which the qualified intermediary is created, incorporated, or governed. If required for purposes of chapter 4 or if the qualified intermediary is a participating FFI or registered deemed-compliant FFI and certifies that it is providing (or will provide) a chapter 4 withholding rate pool of U.S. payees under § 1.6049–4(c)(4) with respect to accounts that the qualified intermediary maintains, the withholding certificate must also include the chapter 4 status of the qualified intermediary and its GIIN (if applicable). See paragraph (e)(5)(ii) for the chapter 4 status required of a qualified intermediary, including when a qualified intermediary withholding certificate may include a chapter 4 status of limited FFI (as defined in § 1.1471–1(b)(77)). A qualified intermediary that does not act in its capacity as a qualified intermediary must not use its QI–EIN. Rather, it should provide a nonqualified intermediary withholding certificate, if it is acting as an intermediary, and should use the taxpayer identification number (if any) that it uses for all other purposes and GIIN (if applicable);
(C) A certification that the qualified intermediary has provided, or will provide, a withholding statement as required by paragraph (e)(5)(v) of this section;
(D) A certification that the qualified intermediary meets the requirements of § 1.6049–4(c)(4) when the qualified intermediary provides (or will provide) a withholding statement associated with its Form W–8 that allocates a payment to a chapter 4 withholding rate pool of U.S. payees that hold accounts with the qualified intermediary. Additionally, when the qualified intermediary provides a chapter 4 withholding rate pool of U.S. payees that do not hold accounts maintained by the qualified intermediary, the qualified intermediary provides a certification on the Form W–8 that the qualified intermediary has obtained (or will obtain) documentation from the intermediary or flow through entity allocating the payment to the pool to establish that the entity's status is as a participating FFI, registered deemed-compliant FFI, or qualified intermediary under § 1.1471–3(d)(4) (or, as applicable, § 1.1471–3(e)(4)(vi)(B) or § 1.1441–1(b)(2)(vii)); and
(F) Any other information, certifications, or statements as may be required by the form or accompanying instructions in addition to, or in lieu of, the information and certifications described in this paragraph (e)(3)(ii) or paragraph (e)(3)(v) of this section. See paragraph (e)(5)(v) of this section for the requirements of a withholding statement associated with the qualified intermediary withholding certificate.
(iii)
(A) The name and permanent resident address of the nonqualified intermediary, chapter 4 status (if required for chapter 4 purposes or if the nonqualified intermediary provides the certification described in paragraph (e)(3)(iii)(D) of this section), GIIN (if applicable), and the country under the laws of which the nonqualified intermediary is created, incorporated, or governed;
(C) If the nonqualified intermediary withholding certificate is used to transmit withholding certificates or other appropriate documentation for more than one person on whose behalf the nonqualified intermediary is acting, a withholding statement associated with the Form W–8 that provides all the information required by paragraph (e)(3)(iv) of this section;
(D) If the nonqualified intermediary provides a withholding statement associated with the Form W–8 allocating a payment to a chapter 4 withholding rate pool of U.S. payees, a certification that the nonqualified intermediary meets the requirements of § 1.6049–4(c)(4) with respect to any payees included in such pool that hold accounts maintained (as defined in § 1.1471–5(b)(5)) by the nonqualified intermediary; and
(E) Any other information, certifications, or statements as may be required by the form or accompanying instructions in addition to, or in lieu of, the information, certifications, and statements described in this paragraph (e)(3)(iii) or paragraph (e)(5)(iv) of this section.
(iv)
(B)
(C)
(
(
(
(
(
(
(
(
(
(
(
(
(
This example illustrates the principles of paragraph (e)(3)(iv)(C) of this section. WA makes a withholdable payment of U.S. source dividends to NQI, a nonqualified intermediary. NQI provides WA with a valid intermediary withholding certificate under paragraph (e)(3)(iii) of this section that includes NQI's certification of its status for chapter 4 purposes as a participating FFI. NQI provides a withholding statement on which NQI allocates 20% of the payment to a chapter 4 withholding rate pool of recalcitrant account holders of NQI for purposes of chapter 4 and allocates 80% of the payment equally to A and B, individuals that are account holders of NQI. NQI also provides WA with valid beneficial owner withholding certificates from A and B establishing their status as foreign persons entitled to a 15% rate of withholding under an applicable income tax treaty. Because NQI has certified its status as a participating FFI, withholding under chapter 4 is not required with respect to NQI. See § 1.1471–2(a)(4). Based on the documentation NQI provided to WA with respect to A and B, WA can reliably associate the payment with valid documentation on the portion of the payment allocated to them and, because the payment is a withholdable payment, may rely on the allocation of the payment for NQI's recalcitrant account holders in a chapter 4 withholding rate pool in lieu of payee information with respect to such account holders. See paragraph (e)(3)(iv)(C)(
(D)
(
(
(
(
(
(
(E)
(v)
(A) The name of the territory financial institution or person of which the U.S. branch is a part, the address of the territory financial institution or U.S. branch;
(B) A certification that the payments associated with the certificate are not effectively connected with the conduct of its trade or business in the United States;
(C) The EIN of the U.S. branch or territory financial institution;
(D) When required for chapter 4 purposes, the chapter 4 status and GIIN (if applicable) of the entity of which the U.S. branch is a part; and
(E) Any other information, certifications, or statements as may be required by the form or accompanying instructions in addition to, or in lieu of, the information and certification described in this paragraph (e)(3)(v).
(4)
(i)
(B) [Reserved]. For further guidance, see § 1.1441–1T(e)(4)(i)(B).
(ii)
(
(B)
(
(
(
(
(
(
(
(
(
(
(C)
(D)
(
(
(iii)
(iv)
(C) [Reserved]. For further guidance, see § 1.1441–1T(e)(4)(iv)(C).
(D)
(E) [Reserved]. For further guidance, see § 1.1441–1T(e)(4)(iv)(E).
(v)
(vi)
(vii)
(A) A withholding certificate on which a beneficial owner is claiming the benefit of a reduced rate under an income tax treaty (other than for amounts described in § 1.1441–6(c)(2) or amounts for which a foreign tax identifying number has been provided, as described in § 1.1441–6(c)(2));
(F) A withholding certificate from a person representing to be a withholding foreign partnership or a withholding foreign trust;
(H) A withholding certificate from a person representing to be a U.S. branch or territory financial institution described in paragraph (b)(2)(iv) of this section; and
(I) A withholding certificate provided by an entity acting as a qualified securities lender, as defined for purposes of chapter 3, with respect to a substitute dividend paid in a securities lending or similar transaction.
(viii)
(B)
(C)
(ix)
(A)
(B)
(
SCO is a U.S. securities clearing organization that provides clearing services for correspondent broker, CB, a U.S. corporation. Pursuant to a fully disclosed clearing agreement, CB fully discloses the identity of each of its customers to SCO. Part of SCO's clearing duties include the crediting of income and gross proceeds of readily tradable instruments (as defined in § 31.3406(h)-1(d)) to each customer's account. For each disclosed customer that is a foreign beneficial owner, CB provides SCO with information required under paragraphs (e)(3)(iv)(B) and (C) of this section that is necessary to apply the correct rate of withholding and to file Forms 1042–S. SCO may use the representations and beneficial owner information provided by CB to determine the proper amount of withholding and to file Forms 1042–S. CB is responsible for determining the validity of the withholding certificates or other appropriate documentation under § 1.1441–1(b).
(C)
(
(D)
(5) * * *
(ii)
(A) A foreign financial institution that is a participating FFI (including a reporting Model 2 FFI), a registered deemed-compliant FFI (including a reporting Model 1 FFI), an FFI treated as a deemed-compliant FFI under an applicable IGA that is subject to due
(B) A foreign branch or office of a U.S. financial institution or a foreign branch or office of a U.S. clearing organization that is either a reporting Model 1 FFI or agrees to the reporting requirements applicable to a participating FFI with respect to its U.S. accounts;
(C) [Reserved].
(D) Any other person acceptable to the IRS.
(iii)
(B)
(iv)
(v)
(B)
(
(
(
(
(
(C)
(
(
(
(
(D)
The following example illustrates the application of paragraph (e)(5)(v)(C) of this section for a qualified intermediary providing chapter 4 withholding rate pools on an FFI withholding statement provided to a withholding agent. WA makes a payment of U.S. source interest that is a withholdable payment to QI, a qualified intermediary that is an FFI and a non-U.S. payor (as defined in § 1.6049–5(c)(5)), and A and B are account holders of QI (as defined under § 1.1471–5(a)) and are both U.S. non-exempt recipients (as defined paragraph (c)(21) of this section). Ten percent of the payment is attributable to both A and B. A has provided WA with a Form W–9, but B has not provided WA with a Form W–9. QI assumes primary withholding responsibility under chapters 3 and 4 with respect to the payment, 80 percent of which is allocable to foreign payees who are account holders other than A and B. As a participating FFI, QI is required to report with respect to its U.S. accounts under § 1.1471–4(d) (as incorporated into its qualified intermediary agreement). Provided that QI reports A's account as a U.S. account under the requirements referenced in the preceding sentence, QI is not required to provide WA with a Form W–9 from A and may instead include A in a chapter 4 withholding rate pool of U.S. payees, allocating 10% of the payment to this pool. See § 1.6049–4(c)(4)(iii) concerning when reporting under section 6049 for a payment of interest is not required when an FFI that is a non-U.S. payor reports an account holder receiving the payment under its chapter 4 requirements. With respect to B, the interest payment is subject to backup withholding under section 3406. Because B is a recalcitrant account holder of QI for withholdable payments and because QI assumes primary chapter 4 withholding responsibility, however, QI may include the portion of the payment allocated to B with the remaining 80% of the payment for which QI assumes primary withholding responsibility. WA can reliably associate the full amount of the payment based on the withholding statement and does so regardless of whether WA knows B is a U.S. non-exempt recipient that is receiving a portion of the payment. See § 31.3406(g)–1(e) (providing exemption to backup withholding when withholding was applied under chapter 4).
(f)
(2)
(3)
(4) [Reserved]. For further guidance, see § 1.1441–1T(f)(4).
(a) through (b)(7)(ii)(A) [Reserved]. For further guidance, see § 1.1441–1(a) through (b)(7)(ii)(A).
(B)
(b)(7)(iii) through (c)(2)(i) [Reserved]. For further guidance, see § 1.1441–1(b)(7)(iii) through (c)(2)(i).
(ii)
(c)(3) through (c)(3)(i) [Reserved]. For further guidance, see § 1.1441–1(c)(3) through (c)(3)(i).
(ii)
(c)(4) through (c)(38)(i) [Reserved]. For further guidance, see § 1.1441–1(c)(4) through (c)(38)(i).
(ii)
(c)(39) through (e)(2)(ii)(A) [Reserved]. For further guidance, see § 1.1441–1(c)(39) through (e)(2)(ii)(A).
(B)
(e)(3) through (e)(3)(iv)(C)(
(
(
(
(
(
(e)(3)(iv)(C)(
(B)
(e)(4)(ii) through (e)(4)(ii)(A)(
(
(e)(4)(ii)(B) through (e)(4)(iv)(B)(
(C)
(e)(4)(iv)(D) [Reserved]. For further guidance, see § 1.1441–1(e)(4)(iv)(D).
(E)
A, a foreign corporation, completes a Form W–8BEN–E and a Form W–8ECI and uploads the forms to X, a third party repository (X is an entity that maintains withholding certificates on an electronic data aggregation site). WA, a withholding agent, enters into a contract with A under which it will make payments to A of U.S. source FDAP that are not effectively connected with A's conduct of a trade or business in the United States. X is not an agent of WA or A. Prior to receiving a payment, A sends WA an email with a link that authorizes WA to access A's Form W–8BEN–E on X's system. The link does not authorize WA to access A's Form W–8ECI. X's system meets the requirements of a third party repository, and WA can treat the Form W–8BEN–E as furnished by A.
The facts are the same as
FP is a foreign partnership that is acting on behalf of its partners, A and B, who are both foreign individuals. FP completes a Form W–8IMY and uploads it to X, a third party repository. FP also uploads Forms W–8BEN from both A and B and a valid withholding statement allocating 50% of the payment to A and 50% to B. WA is a withholding agent that makes payments to FP as an intermediary for A and B. FP sends WA an email with a link to its Form W–8IMY on X's system. The link also provides WA access to FP's withholding statement and A's and B's Forms W–8BEN. FP also has processes in place that ensure it will provide a new withholding statement or withholding certificate to X's repository in the event of a change in the information previously provided that affects the validity of the withholding statement and that ensure it will update WA if there is a new withholding statement. X's system meets the requirements of a third party repository, and WA can treat the Form W–8IMY (and withholding statement) as furnished by FP. In addition, because FP is acting as an agent of A and B, the beneficial owners, WA can treat the Forms W–8BEN for A and B as furnished by A and B.
(e)(4)(v) through (f)(3) [Reserved]. For further guidance, see § 1.1441–1(e)(4)(v) through (f)(3).
(4)
(g)
The revisions and additions read as follows:
(a) * * *
(8) [Reserved]. For further guidance, see § 1.1441–2T(a)(8).
(f)
(2) [Reserved]. For further guidance, see § 1.1441–2T(f)(2).
(a) through (a)(7) [Reserved]. For further guidance, see § 1.1441–2(a) through (a)(7).
(8) Amounts of United States source gross transportation income, as defined in section 887(b)(1), that is taxable under section 887(a).
(b) through (f)(1) [Reserved]. For further guidance, see § 1.1441–2(b) through (f)(1).
(2)
(g)
The revisions read as follows:
(a)
(2)
(c) * * *
(4)
(A)
(B)
(
(
(C)
(d)
(2)
(i)
(a) * * *
(2) * * *
(ii)
(B)
(b) * * *
(2)
(iii)
C, a nonresident alien individual, submits Form 8233 to W, a withholding agent. The statement on Form 8233 does not include all the information required by paragraph (b)(2)(ii) of this section. Therefore, W has reason to know that he or she cannot readily determine whether C's compensation for personal services is eligible for an exemption from withholding and, therefore, W must withhold.
D, a nonresident alien individual, is performing services for W, a withholding agent. W has accepted a statement on Form 8233 submitted by D, according to the provisions of this section. W receives notice from the IRS that the eligibility of D's compensation for a withholding exemption is in doubt. Therefore, W has reason to know that the eligibility of the compensation for a withholding exemption cannot be readily determined, as of the date W receives the notification, and W must withhold tax under section 1441 on amounts paid after receipt of the notification.
E, a nonresident alien individual, submits Form 8233 to W, a
(v)
(3)
(g)
(b) * * *
(2) * * *
(iii)
(vi)
(c)
(C) If the withholding agent can reliably associate a partner's distributive share of the payment with a qualified intermediary withholding certificate under § 1.1441–1(e)(3)(ii), a nonqualified intermediary withholding certificate under § 1.1441–1(e)(3)(iii), or a U.S. branch certificate under § 1.1441–1(e)(3)(v) (including one provided by a territory financial institution), then the rules of § 1.1441–1(b)(2)(v) shall apply to determine who the payee is in the same manner as if the partner's distributive share of the payment had been paid directly to such intermediary or U.S. branch or territory financial institution;
(iv)
(v)
FP is a nonwithholding foreign partnership organized in Country X. FP has two partners, FC, a foreign corporation, and USP, a U.S. partnership. USWH, a U.S. withholding agent, makes a payment of U.S. source interest to FP that is not a withholdable payment. FP has provided USWH with a valid nonwithholding foreign partnership certificate, as described in paragraph (c)(3)(iii) of this section, with which it associates a beneficial owner withholding certificate from FC and a Form W–9, “Request for Taxpayer Identification Number and Certification,” from USP together with the withholding statement required by paragraph (c)(3)(iv) of this section. USWH can reliably associate the payment of interest with the withholding certificates from FC and USP. Under paragraph (c)(1)(i) of this section, the payees of the interest payment are FC and USP.
The facts are the same as in
USWH makes a payment of U.S. source dividends to WFP, a withholding foreign partnership, that is not a withholdable payment. WFP has two partners, FC1 and FC2, both foreign corporations. USWH can reliably associate the payment with a valid withholding foreign partnership withholding certificate from WFP. Therefore, under paragraph (c)(1)(ii)(A) of this section, WFP is the payee of the interest.
USWH makes a payment of U.S. source royalties that is not a withholdable payment to FP, a foreign partnership. USWH can reliably associate the royalties with a valid withholding certificate from FP on which FP certifies that the income is effectively connected with the conduct of a trade or business in the United States. Therefore, under paragraph (c)(1)(ii)(B) of this section, FP is the payee of the royalties.
(2)
(ii)
(iii)
(A) The name, permanent residence address (as described in § 1.1441–1(e)(2)(ii)), the employer identification number of the partnership, the country under the laws of which the partnership is created or governed, the chapter 4 status of the partnership if required for purposes of chapter 4 or if the partnership provides (or will provide) a withholding statement associated with the Form W–8 allocating a payment to a chapter 4 withholding rate pool of U.S. payees under § 1.6049–4(c)(4) with respect to its partners, and the GIIN of the partnership (if applicable). If the partnership provides (or will provide) a chapter 4 withholding rate pool of U.S. payees as described in the preceding sentence, the partnership must certify to its chapter 4 status as a participating FFI (including a reporting Model 2 FFI) or registered deemed-compliant FFI (including a reporting Model 1 FFI);
(B) A certification that the partnership is a withholding foreign partnership within the meaning of paragraph (c)(2)(i) of this section, and, for a partnership that is an FFI receiving a withholdable payment, a certification that the partnership is acting as a participating FFI, a registered deemed-compliant FFI, or a nonreporting IGA FFI (as defined in § 1.1471–1(b)(83)); and
(3)
(ii)
(A) The name, permanent residence address (as described in § 1.1441–1(e)(2)(ii)), the employer identification number of the partnership, if any, the country under the laws of which the partnership is created or governed, and the chapter 4 status of the partnership (for a nonwithholding foreign partnership receiving a withholdable payment or providing a withholding statement associated with the Form W–8 allocating a payment to a chapter 4 withholding rate pool of U.S. payees), and the GIIN of the partnership (if applicable);
(iv)
(v)
(d) * * *
(2)
(3)
(4)
(e) * * *
(3) * * *
(iii)
(5)
(ii)
(iii) * * *
(A) The name, permanent residence address (as described in § 1.1441–1(e)(2)(ii)), the employer identification number, if required, of the trust, the country under the laws of which the trust is created, the chapter 4 status of the trust if required for purposes of chapter 4 or if the trust provides (or will provide) a withholding statement associated with the Form W–8 allocating a payment to a chapter 4 withholding rate pool of U.S. payees under § 1.6049–4(c)(4) with respect to the nonwithholding foreign trust's owners and beneficiaries, and the GIIN of the trust (if applicable). If a nonwithholding foreign trust provides (or will provide) a chapter 4 withholding rate pool of U.S. payees as described in the preceding sentence, the trust must certify to its chapter 4 status as a participating FFI (including a reporting Model 2 FFI) or registered deemed-compliant FFI (including a reporting Model 1 FFI);
(iv)
(v)
(6) * * *
(ii)
(f)
(g)
(a)
(b)
(i) [Reserved]. For further guidance, § 1.1441–6T(b)(1)(i).
(ii) [Reserved]. For further guidance, § 1.1441–6T(b)(1)(ii).
(2)
(iv)
(i)
(ii)
(i)
(ii)
(i)
(ii)
[Reserved]. For further guidance, see § 1.1441–6T(b)(2)(iv)
(c)
(5) * * *
(i) [Reserved]. For further guidance, see § 1.1441–6T(c)(5)(i).
(i)
(2)
(3) [Reserved]. For further guidance, see § 1.1441–6T(i)(3).
(a) through (b)(1) introductory text [Reserved]. For further guidance, see § 1.1441–6(a) through (b)(1) introductory text.
(i)
(ii)
(b)(2)(i) through (iv) Example 3 [Reserved]. For further guidance, see § 1.1441–6(b)(2)(i) through (b)(2)(iv) Example 3.
(i)
(ii)
(c) introductory text through (c)(4) [Reserved]. For further guidance, see § 1.1441–6(c) through (c)(4).
(5)
(c)(5)(ii) through (i)(2) [Reserved]. For further guidance, see § 1.1441–6(c)(5)(ii) through (i)(2).
(3)
(j)
The revisions read as follows:
(b)
(2)
(3)
(ii)
(4)
(ii)
F, a foreign person that has a direct account relationship with USB, a bank that is a U.S. person, provides USB with a beneficial owner withholding certificate for the purpose of claiming a reduced rate of withholding on U.S. source dividends (which is a withholdable payment). F resides in a treaty country that has a limitation on benefits provision in its income tax treaty with the United States. The withholding certificate includes a certification of F's status for chapter 4 purposes to except the payment from withholding under chapter 4, but does not contain a statement regarding
F, a foreign person and entity that has a direct account relationship with USB, a broker that is a U.S. person, provides USB with a withholding certificate for the purpose of claiming the portfolio interest exception under section 881(c) with respect to interest paid on an obligation issued before July 1, 2014. The payment of interest is not a withholdable payment under § 1.1471–2(b) (referring to payments made with respect to grandfathered obligations), and, therefore, withholding does not apply to the payment under chapter 4. See § 1.1441–3(c)(4)(i) for rules coordinating withholding under chapters 3 and 4. F indicates on its withholding certificate, however, that it is a partnership. USB may not treat F as a beneficial owner of the interest for purposes of the portfolio interest exception because F has indicated on its withholding certificate that it is a foreign partnership, and such entity classification is inconsistent with its claim as a beneficial owner.
(5)
(i)
(A) A withholding agent may treat a direct account holder as a foreign person if the beneficial owner withholding certificate has been provided by an individual and—
(
(
(
(
(B) A withholding agent may treat a direct account holder as a foreign person if the beneficial owner withholding certificate has been provided by an entity that the withholding agent does not know, or does not have reason to know, is a flow-through entity and—
(
(
(ii)
(iii)
(6)
(i)
(ii)
(A) The withholding agent has in its possession or obtains documentary evidence described in § 1.1471–3(c)(5)(i) supporting the account holder's claim of residence in the applicable treaty country (and the additional documentation does not contain an address outside the treaty country);
(B) The withholding agent has in its possession, or obtains, documentation that establishes that the direct account holder is an entity organized in a treaty country (or an entity managed and controlled in a treaty country, if the applicable treaty so requires);
(C) The withholding agent knows that the address outside the applicable treaty country (other than a P.O. box, or in-care-of address) is a branch of the account holder that is an entity that is a resident of the applicable treaty country; or
(D) The withholding agent obtains a written statement from the direct account holder that reasonably establishes entitlement to treaty benefits.
(iii)
(7)
(8)
(i)
(ii)
(A)
(
(
(
(B)
(
(
(
(iii)
(iv)
(9)
(i)
(A) Has in its possession or obtains additional documentary evidence described in § 1.1471–3(c)(5)(i) supporting the direct account holder's claim of residence in the applicable treaty country (and the documentary evidence does not contain an address outside the applicable treaty country, a P.O. box, an in-care-of address, or the address of a financial institution);
(B) Has in its possession or obtains documentary evidence described in § 1.1471–3(c)(5)(i) that establishes the direct account holder is an entity organized in a treaty country (or an entity managed and controlled in a treaty country, if the applicable treaty so requires); or
(C) Obtains a valid beneficial owner withholding certificate on Form W–8 that contains a permanent residence address and a mailing address in the applicable treaty country.
(ii)
(10)
(i) The withholding agent must review the withholding statement described in § 1.1441–1(e)(3)(iv) and may not rely on information in the statement to the extent the information does not support the claims made for any payee. For this purpose, a withholding agent may not treat a payee as a foreign person if an address in the United States is provided for such payee and may not treat a person as a resident of a country with which the United States has an income tax treaty if the address for that person is outside the applicable treaty country. Notwithstanding a U.S. address or an address outside a treaty country, the withholding agent may treat a payee as a foreign person or a foreign person as a resident of a treaty country if the withholding statement is accompanied by a valid withholding certificate and documentary evidence (as described in § 1.1471–3(c)(5)(i)) or a reasonable explanation is provided, in writing, by the nonqualified intermediary, flow-through entity, or U.S. branch supporting the payee's foreign status or the foreign person's residency in a treaty country.
(ii) The withholding agent must review each withholding certificate in accordance with the requirements of paragraphs (b)(5) and (6) of this section and verify that the information on the withholding certificate is consistent with the information on the withholding statement required under § 1.1441–1(e)(3)(iv). If there is a discrepancy between the withholding certificate and the withholding statement, the withholding agent may choose to rely on the withholding certificate, if valid, and instruct the nonqualified intermediary, flow-through entity, or U.S. branch to correct the withholding statement or apply the presumption rules of §§ 1.1441–1(b), 1.1441–5(d) and (e)(6), 1.6049–5(d), and 1.1471–3(f) (for a withholdable payment for chapter 4 purposes) to the payment allocable to the payee who provided the withholding certificate. If the withholding agent chooses to rely upon the withholding certificate, the withholding agent is required to instruct the intermediary or flow-through entity to correct the withholding statement and confirm that the intermediary or flow-through entity does not know or have reason to know that the withholding certificate is unreliable or inaccurate.
(iii) The withholding agent must review the documentary evidence provided by the nonqualified intermediary, flow-through entity, or U.S. branch to determine that there is no obvious indication that the payee is a U.S. non-exempt recipient or that the documentary evidence does not establish the identity of the person who provided the documentation (
(iv) [Reserved]. For further guidance, see § 1.1441–7T(b)(10)(iv).
(11)
(i) The withholding agent's computerized systems link the obligations by reference to a data element such as client number, EIN, or foreign tax identifying number and consolidates the account information and payment information for the obligations; or
(ii) The withholding agent has treated the obligations as consolidated obligations for purposes of sharing documentation pursuant to § 1.1441–1(e)(4)(ix).
(12)
(i) The individual certifies that he or she—
(A) Is a student at a U.S. educational institution and holds the appropriate visa;
(B) Is a teacher, trainee, or intern at a U.S. educational institution or a participant in an educational or cultural exchange visitor program, and holds the appropriate visa;
(C) Is a foreign individual assigned to a diplomatic post or a position in a consulate, embassy, or international organization in the United States; or
(D) Is a spouse or unmarried child under the age of 21 years of one of the persons described in paragraphs (b)(12)(i)(A) through (C) of this section;
(ii) The individual provides information demonstrating that he or she has not met the substantial presence test set forth in § 301.7701(b)–1(c) of this chapter (
(iii) The individual certifies that he or she meets the closer connection exception described in § 301.7701(b)–2, states the country to which the individual has a closer connection, and demonstrates how that closer connection has been established; or
(iv) With respect a payment entitled to a reduced rate of tax under a U.S. income tax treaty, the individual certifies that he or she is treated as a resident of a country other than the United States and is not treated as a U.S. resident or U.S. citizen for purposes of that income tax treaty.
(13)
(c)
(2)
(i) There is a written agreement between the withholding agent and the person acting as agent that clearly provides which obligations under chapter 3 that the agent is authorized to fulfill;
(ii) A Form 8655, “Reporting Agent Authorization,” is filed with the IRS by a withholding agent if its agent (including any sub-agent) acts as a reporting agent for filing Form 1042 on behalf of the withholding agent and the agent (or sub-agent) identifies itself (instead of the withholding agent) as the filer on the Form 1042;
(iii) Books and records and relevant personnel of the agent (including any sub-agent) are available to the withholding agent (on a continuous basis, including after termination of the relationship) in order to evaluate the withholding agent's compliance with the provisions of chapters 3, 4, and 61 of the Code, section 3406, and the regulations under those provisions; and
(iv) The U.S. withholding agent remains fully liable for the acts of its agent (or for any sub-agent) and does not assert any of the defenses that may otherwise be available, including under common law principles of agency in order to avoid tax liability under the Code.
(3)
(f) * * *
(2) * * *
(ii)
(i) DS is a U.S. subsidiary of FP, a corporation organized in Country N, a country that does not have an income tax treaty with the United States. FS is a special purpose subsidiary of FP that is incorporated in Country T, a country that has an income tax treaty with the United States that prohibits the imposition of withholding tax on payments of interest. FS is capitalized with $10,000,000 in debt from BK, a Country N bank, and $1,000,000 in capital from FS.
(ii) On May 1, 1995, C, a U.S. person, purchases an automobile from DS in return for an installment note. On July 1, 1995, DS sells a number of installment notes, including C's, to FS in exchange for $10,000,000. DS continues to service the installment notes for FS, and C is not notified of the sale of its obligation and continues to make payments to DS. But for the withholding tax on payments of interest by DS to BK, DS would have borrowed directly from BK, pledging the installment notes as collateral.
(iii) The C installment note is a financing transaction, whether held by DS or by FS, and the FS note held by BK also is a financing transaction. After FS purchases the installment note, and during the time the installment note is held by FS, the transactions constitute a financing arrangement, within the meaning of § 1.881–3(a)(2)(i). BK is the financing entity, FS is the intermediate entity, and C is the financed entity. Because the participation of FS in the financing arrangement reduces the tax imposed by section 881 and because there was a tax avoidance plan, FS is a conduit entity.
(iv) Because C does not know or have reason to know of the tax avoidance plan (and by extension that the financing arrangement is a conduit financing arrangement), C is not required to withhold tax under section 1441. However, DS, who knows that FS's participation in the financing arrangement is pursuant to a tax avoidance plan and is a withholding agent for purposes of section 1441, is not relieved of its withholding responsibilities.
Assume the same facts as in
(i) DC is a U.S. corporation that is in the process of negotiating a loan of $10,000,000 from BK1, a bank located in Country N, a country that does not have an income tax treaty with the United States. Before the loan agreement is signed, DC's tax lawyers point out that interest on the loan would not be subject to withholding tax if the loan were made by BK2, a subsidiary of BK1 that is incorporated in Country T, a country that has an income tax treaty with the United States that prohibits the imposition of withholding tax on payments of interest. BK1 makes a loan to BK2 to enable BK2 to make the loan to DC. Without the loan from BK1 to BK2, BK2 would not have been able to make the loan to DC.
(ii) The loan from BK1 to BK2 and the loan from BK2 to DC are both financing transactions and together constitute a financing arrangement within the meaning of § 1.881–3(a)(2)(i). BK1 is the financing entity, BK2 is the intermediate entity, and DC is the financed entity. Because the participation of BK2 in the financing arrangement reduces the tax imposed by section 881 and because there is a tax avoidance plan, BK2 is a conduit entity.
(iii) Because DC is a party to the tax avoidance plan (and accordingly knows of its existence), DC must withhold tax under section 1441. If DC does not withhold tax on its payment of interest, BK2, a party to the plan and a withholding agent for purposes of section 1441, must withhold tax as required by section 1441.
(i) DC is a U.S. corporation that has a long-standing banking relationship with BK2, a U.S. subsidiary of BK1, a bank incorporated in Country N, a country that does not have an income tax treaty with the United States. DC has borrowed amounts of as much as $75,000,000 from BK2 in the past. On January 1, 1995, DC asks to borrow $50,000,000 from BK2. BK2 does not have the funds available to make a loan of that size. BK2 considers asking BK1 to enter into a loan with DC but rejects this possibility because of the additional withholding tax that would be incurred. Accordingly, BK2 borrows the necessary amount from BK1 with the intention of on-lending to DC. BK1 does not make the loan directly to DC because of the withholding tax that would apply to payments of interest from DC to BK1. DC does not negotiate with BK1 and has no reason to know that BK1 was the source of the loan.
(ii) The loan from BK2 to DC and the loan from BK1 to BK2 are both financing transactions and together constitute a financing arrangement within the meaning of § 1.881–3(a)(2)(i). BK1 is the financing entity, BK2 is the intermediate entity, and DC is the financed entity. The participation of BK2 in the financing arrangement reduces the tax imposed by section 881. Because the participation of BK2 in the financing arrangement reduces the tax imposed by section 881 and because there was a tax avoidance plan, BK2 is a conduit entity.
(iii) Because DC does not know or have reason to know of the tax avoidance plan (and by extension that the financing arrangement is a conduit financing arrangement), DC is not required to withhold tax under section 1441. However, BK2, who is also a withholding agent under section 1441 and who knows that the financing arrangement is a conduit financing
(g)
(2) [Reserved]. For further guidance, see § 1.1441–7T(g)(2).
(a) through (b)(10)(iii) [Reserved]. For further guidance, see § 1.1441–7(a) through (b)(10)(iii).
(iv) If the beneficial owner is claiming a reduced rate of withholding under an income tax treaty, the rules of § 1.1441–6(b)(1)(ii) also apply to determine whether the withholding agent has reason to know that a claim for treaty benefits is unreliable or incorrect.
(b)(11) through (g)(1) [Reserved]. For further guidance, see § 1.1441–7(b)(11) through (g)(1).
(2)
(h)
(b)
(c)
(ii)
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(C)
(2) * * *
(ii) * * *
(E) Any item required to be reported on Form 1099, and such other forms as are prescribed pursuant to the information reporting provisions of sections 6041 through 6050W and the regulations under those sections;
(H) Interest (including original issue discount) paid with respect to foreign-targeted registered obligations issued before January 1, 2016, that are described in § 1.871–14(e)(2) to the extent the documentation requirements described in § 1.871–14(e)(3) and (e)(4) are required to be satisfied (taking into account the provisions of § 1.871–14(e)(4)(ii), if applicable;
(I) Interest on a foreign-targeted bearer obligation (see §§ 1.1441–1(b)(4)(i) and 1.1441–2(a)) issued before March 19, 2012;
(3) * * *
(i) The name, address, taxpayer identifying number of the withholding agent, and the withholding agent's status for chapter 3 purposes (based on the status codes applicable for chapter 3 purposes provided on the form);
(iii) For a payment not subject to withholding under chapter 4, the rate of withholding applied or the basis for exempting the payment from withholding under chapter 3, and the exemption applicable to the payment for chapter 4 purposes (based on the exemption codes provided on the form);
(4)
(A)
(B)
(C)
(
(
(
(D)
(ii)
(iv)
(v)
(5)
(i)
(a) * * *
(2)
(A) The repayment to the beneficial owner or payee occurs before the earlier of the due date (not including extensions) for filing Form 1042–S for the calendar year of overwithholding or the date the Form 1042–S is actually filed with the IRS; and
(B) The withholding agent states on a timely filed (not including extensions) Form 1042 for the calendar year of overwithholding, that the filing of the Form 1042 constitutes a claim for credit in accordance with § 1.6414–1.
(4)
(i) N is a nonresident alien individual who is a resident of the United Kingdom. In December 2001, a domestic corporation C pays a dividend of $100 to N, at which time C withholds $30 and remits the balance of $70 to N. On February 10, 2002, prior to the time that C files its Form 1042 and Form 1042–S with respect to the payment, N furnishes a valid Form W–8 described in § 1.1441–1(e)(2)(i) upon which C may rely to reduce the rate of withholding to 15% under the provisions of the U.S.-U.K. tax treaty. Consequently, N advises C that its tax liability is only $15 and not $30 and requests reimbursement of $15. Although C has already deposited the $30 that was withheld, as required by § 1.6302–2(a)(1)(iv), C repays N in the amount of $15.
(ii) During 2001, C makes no other payments upon which tax is required to be withheld under chapter 3 of the Code; accordingly, its return on Form 1042 for such year, which is filed on March 15, 2002, shows total tax withheld of $30, an adjusted total tax withheld of $15, and $30 previously paid for such year. Pursuant to § 1.6414–1(b), C claims a credit for the overpayment of $15 shown on the Form 1042 for 2001. Accordingly, it is permitted to reduce by $15 any deposit required by § 1.6302–2 to be made of tax withheld during the calendar year 2002. The Form 1042–S required to be filed by C with respect to the dividend of $100 paid to N in 2001 is required to show tax withheld under chapter 3 of $30 and tax repaid to N of $15.
The facts are the same as in
The facts are the same as in
(d)
(d) * * *
(5) * * *
(i) An amount paid with respect to a notional principal contract is not required to be reported if the amount is paid by a non-U.S. payor or a non-U.S. middleman and is paid and received outside the United States (as defined in § 1.6049–4(f)(16)).
(ii) An amount paid with respect to a notional principal contract is not required to be reported if the amount is paid by a payor that has no actual knowledge that the payee is a U.S. person and is paid and received outside the United States (as defined in § 1.6049–4(f)(16)), and the payor is—
(j)
(a) * * *
(1) Returns of information are not required for payments that a payor can, prior to payment, reliably associate with documentation upon which it may rely to treat as made to a foreign beneficial owner in accordance with § 1.1441–1(e)(1)(ii) or as made to a foreign payee in accordance with § 1.6049–5(d)(1) or presumed to be made to a foreign payee under § 1.6049–5(d)(2), (3), (4), or (5). Returns of information are also not required for a payment that a payor or middleman can, prior to payment, reliably associate with documentation upon which it may rely to treat as made to a foreign intermediary or flow-through entity in accordance with § 1.1441–1(b) if it obtains from the intermediary or flow-through entity a withholding statement described in § 1.6049–5(b)(14) that allocates the payment to a chapter 4 withholding rate pool (as defined in § 1.6049–4(f)(5)) or specific payees to which withholding applies under chapter 4. Payments excepted from reporting under this paragraph (a)(1) may be reportable, for purposes of chapter 3 of the Internal Revenue Code (Code), under § 1.1461–1(b) and (c) and, for purposes of chapter 4 of the Code, under § 1.1474–1(d)(2). The provisions in § 1.6049–5(c) regarding documentation of foreign status shall apply for purposes of this paragraph (a)(1). The provisions in § 1.6049–5(c)(5) regarding the definitions of U.S. payor and non-U.S. payor shall also apply for purposes of this paragraph (a)(1). See § 1.1441–1(b)(3)(iii)(B) and (C) for special payee rules regarding scholarships, grants, pensions, annuities, etc. The provisions of § 1.1441–1 shall apply by substituting the term “payor” for the term “withholding agent” and without regard to the fact that the provisions apply only to amounts subject to withholding under chapter 3 of the Code and the regulations under that chapter.
(2) Returns of information are not required for payments of amounts from sources outside the United States (determined under the provisions of part I, subchapter N, chapter 1 of the Code and the regulations under those provisions) paid by a non-U.S. payor or non-U.S. middleman and that are paid and received outside the United States. For a definition of non-U.S. payor and non-U.S. middleman, see § 1.6049–5(c)(5). For circumstances in which an amount is considered to be paid and received outside the United States, see § 1.6049–4(f)(16).
(3) If a foreign intermediary, as described in § 1.1441–1(c)(13), or a U.S. branch that is not treated as a U.S. person receives a payment from a payor, which payment the payor can reliably associate with a valid withholding certificate described in § 1.1441–1(e)(3)(ii) or (iii), or § 1.1441–1(e)(3)(v), respectively, furnished by such intermediary or branch, then the intermediary or branch is not required to report such payment when it, in turn, pays the amount, unless, and to the extent, the intermediary or branch knows that the payment is required to be reported under this section and was not so reported. For example, if a U.S. branch described in § 1.1441–1(b)(2)(iv) fails to provide information regarding U.S. persons that are not exempt from reporting under § 1.6041–3(q) to the person from whom the U.S. branch receives the payment, the U.S. branch must report the payment on an information return. See, however, paragraph (a)(7) of this section for when reporting under section 6041is coordinated with reporting under chapter 4 of the Code or an applicable IGA (as defined in § 1.6049–4(f)(7)). The exception described in this paragraph (a)(3) for amounts paid by a foreign intermediary shall not apply to a qualified intermediary that assumes reporting responsibility under chapter 61 of the Code with respect to amounts reportable under the agreement described in § 1.1441–1(e)(5)(iii).
(7) Returns of information are not required for payments with respect to which a return is not required by applying the rules of § 1.6049–4(c)(4) (by substituting the term “a payment subject to reporting under section 6041” for the term “an interest payment”).
(b)
(d)
(a) * * *
(1) * * *
(i) Every person who makes a payment of dividends (as defined in § 1.6042–3) to any other person during a calendar year. The information return shall show the aggregate amount of the dividends, the name, address, and taxpayer identifying number of the person to whom paid, the amount of tax deducted and withheld under section 3406 from the dividends, if any, and such other information as required by the forms. An information return is generally not required if the amount of dividends paid to the other person during the calendar year aggregates less than $10 or if the payment is made to a person who is an exempt recipient described in § 1.6049–4(c)(1)(ii) unless the payor backup withholds under section 3406 on such payment (because, for example, the payee has failed to furnish a Form W–9), in which case the payor must make a return under this section, unless the payor refunds the amount withheld pursuant to § 31.6413(a)–3 of this chapter. Further, a return of information is not required under this section for—
(A) Payments with respect to which a return is not required by applying the rules of § 1.6049–4(c)(4) (by substituting the term “dividend” for the term “interest”); or
(B) Payments made by a paying agent on behalf of a corporation described in section 1297(a) with respect to a shareholder of the corporation if—
(
(
(
(
(f)
The revisions and addition read as follows:
(b) * * *
(1) * * *
(iii) Distributions or payments that a payor can, prior to payment, reliably associate with documentation upon which it may rely to treat as made to a foreign beneficial owner in accordance with § 1.1441–1(e)(1)(ii) or as made to a foreign payee in accordance with § 1.6049–5(d)(1) or presumed to be made to a foreign payee under § 1.6049–5(d)(2), (3), (4), or (5). Returns of information are also not required for payments that a payor or middleman can, prior to payment, reliably associate with documentation upon which it may rely to treat as made to a foreign intermediary in accordance with § 1.1441–1(b) if it obtains from the intermediary entity a withholding statement (described in § 1.6049–5(b)(14)) that allocates the payment to a chapter 4 withholding rate pool (as defined in § 1.6049–4(f)(5)) or to specific payees to which withholding under chapter 4 applies. Payments excepted from reporting under this paragraph (b)(1)(iii) may be reportable, for purposes of chapter 3 of the Internal Revenue Code (Code), under § 1.1461–1(b) and (c) or, for chapter 4 purposes, under § 1.1474–1(d)(2). The provisions in § 1.6049–5(c) regarding documentation of foreign status shall apply for purposes of this paragraph (b)(1)(iii). The provisions in § 1.6049–5(c) regarding the definitions of U.S. payor and non-U.S. payor shall also apply for purposes of this paragraph (b)(1)(iii). The provisions of § 1.1441–1 shall apply by substituting the term
(iv) Distributions or payments from sources outside the United States (as determined under the provisions of part I, subchapter N, chapter 1 of the Code and the regulations under those provisions) that are paid by a non-U.S. payor or non-U.S. middleman and that are paid and received outside the United States. For a definition of non-U.S. payor and non-U.S. middleman, see § 1.6049–5(c)(5). For circumstances in which an amount is considered to be paid and received outside the United States, see § 1.6049–4(f)(16).
(vi) If a foreign intermediary, as described in § 1.1441–1(c)(13), or a U.S. branch that is not treated as a U.S. person receives a payment from a payor, which payment the payor can reliably associate with a valid withholding certificate described in § 1.1441–1(e)(3)(ii) or (iii), or § 1.1441–1(e)(3)(v), respectively, furnished by such intermediary or branch, then the intermediary or branch is not required to report such payment when it, in turn, pays the amount, unless, and to the extent, the intermediary or branch knows that the payment is required to be reported under this section and was not so reported. For example, if a U.S. branch described in § 1.1441–1(b)(2)(iv) fails to provide information regarding U.S. persons that are not exempt from reporting under § 1.6049–4(c)(1)(ii) to the person from whom the U.S. branch receives the payment, the amount paid by the U.S. branch to such person is a dividend. See, however, § 1.6042–2(a)(1)(i)(A) for when reporting under
(3)
(d)
The revisions and addition read as follows:
(c) * * *
(3) * * *
(ii)
(A) So designated by the Internal Revenue Service in a revenue ruling or revenue procedure (see § 601.601(d)(2) of this chapter); or
(B) A sale with respect to which a return is not required by applying the rules of § 1.6049–4(c)(4) (by substituting the term “a sale subject to reporting under section 6045” for the term “an interest payment”).
(xiv)
(A) The stock transfer agent obtains from the corporation a written certification signed by a person authorized to sign on behalf of the corporation, that states that the corporation is described in section 1297(a) for each calendar year during which the stock transfer agent relies on the provisions of paragraph (c)(3)(xiv) of this section, and the stock transfer agent has no reason to know that the written certification is unreliable or incorrect;
(B) The stock transfer agent identifies, prior to payment, the corporation as a participating FFI (including a reporting Model 2 FFI) (as defined in § 1.6049–4(f)(10) or (f)(14), respectively), or reporting Model 1 FFI (as defined in § 1.6049–4(f)(13)), in accordance with the requirements of § 1.1471–3(d)(4) (substituting the terms “stock transfer agent” and “corporation” for the terms “withholding agent” and “payee,” respectively) and validates that status annually;
(C) The stock transfer agent obtains a written certification representing that the corporation shall report the payment as part of its account holder reporting obligations under chapter 4 of the Code or an applicable IGA (as defined in § 1.6049–4(f)(7)) and provided the stock transfer agent does not know that the corporation is not reporting the payment as required. The paying agent may rely on the written certification until there is a change in circumstances or the paying agent knows or has reason to know that the statement is unreliable or incorrect. A stock transfer agent that knows that the corporation is not reporting the payment as required under chapter 4 of the Code or an applicable IGA must report all payments reportable under this section that it makes during the year in which it obtains such knowledge; and
(D) The stock transfer agent is not also acting in its capacity as a custodian, nominee, or other agent of the payee with respect to the payment.
(g) * * *
(1) * * *
(i) With respect to a sale effected at an office of a broker either inside or outside the United States, the broker may treat the customer as an exempt foreign person if the broker can, prior to the payment, reliably associate the payment with documentation upon which it can rely in order to treat the customer as a foreign beneficial owner in accordance with § 1.1441–1(e)(1)(ii), as made to a foreign payee in accordance with § 1.6049–5(d)(1), or presumed to be made to a foreign payee under § 1.6049–5(d)(2) or (3). For purposes of this paragraph (g)(1)(i), the provisions in § 1.6049–5(c) regarding rules applicable to documentation of foreign status shall apply with respect to a sale when the broker completes the acts necessary to effect the sale at an office outside the United States, as described in paragraph (g)(3)(iii)(A) of this section, and no office of the same broker within the United States negotiated the sale with the customer or received instructions with respect to the sale from the customer. The provisions in § 1.6049–5(c) regarding the definitions of U.S. payor, U.S. middleman, non-U.S. payor, and non-U.S. middleman shall also apply for purposes of this paragraph (g)(1)(i). The provisions of § 1.1441–1 shall apply by substituting the terms “broker” and “customer” for the terms “withholding agent” and “payee,” respectively, and without regard for the fact that the provisions apply to amounts subject to withholding under chapter 3 of the Code. The provisions of § 1.6049–5(d) shall apply by substituting the terms “broker” and “customer” for the terms “payor” and “payee,” respectively. For purposes of this paragraph (g)(1)(i), a broker that is required to obtain, or chooses to obtain, a beneficial owner withholding certificate described in § 1.1441–1(e)(2)(i) from an individual may rely on the withholding certificate only to the
(3) * * *
(iv)
(4)
FC is a foreign corporation that is not a U.S. payor or U.S. middleman described in § 1.6049–5(c)(5) that regularly issues and retires its own debt obligations. A is an individual whose residence address is inside the United States, who holds a bond issued by FC that is in registered form (within the meaning of section 163(f) and the regulations under that section). The bond is retired by FP, a foreign corporation that is a broker within the meaning of paragraph (a)(1) of this section and the designated paying agent of FC. FP mails the proceeds to A at A's U.S. address. The sale would be considered to be effected at an office outside the United States under paragraph (g)(3)(iii)(A) of this section except that the proceeds of the sale are mailed to a U.S. address. For that reason, the sale is considered to be effected at an office of the broker inside the United States under paragraph (g)(3)(iii)(B) of this section. Therefore, FC is a broker under paragraph (a)(1) of this section with respect to this transaction because, although it is not a U.S. payor or U.S. middleman, as described in § 1.6049–5(c)(5), it is deemed to effect the sale in the United States. FP is a broker for the same reasons. However, under the multiple broker exception under paragraph (c)(3)(iii) of this section, FP, rather than FC, is required to report the payment because FP is responsible for paying the holder the proceeds from the retired obligations. Under paragraph (g)(1)(i) of this section, FP may not treat A as an exempt foreign person and must make an information return under section 6045 with respect to the retirement of the FC bond, unless FP obtains the certificate or documentation described in paragraph (g)(1)(i) of this section.
The facts are the same as in
The facts are the same as in
The facts are the same as in
The facts are the same as in
The facts are the same as in
Customer A owns U.S. corporate bonds issued in registered form after July 18, 1984, and carrying a stated rate of interest. The bonds are held through an account with foreign bank, X, and are held in street name. X is a wholly-owned subsidiary of a U.S. company and is not a qualified intermediary within the meaning of § 1.1441–1(e)(5)(ii). X has no documentation regarding A. A instructs X to sell the bonds. In order to effect the sale, X acts through its agent in the United States, Y. Y sells the bonds and remits the sales proceeds to X. X credits A's account in the foreign country. X does not provide documentation to Y and has no actual knowledge that A is a foreign person but it does appear that A is an entity (rather than an individual).
(i)
(ii)
The facts are the same as in
(i)
(ii)
(m) * * *
(2) * * *
(ii)
(n) * * *
(12) * * *
(ii)
(q)
(b)
(c) * * *
(4)
(A) The FFI is a participating FFI (including a reporting Model 2 FFI) reporting the account holder of the U.S. account (as defined in § 1.1471–1(b)(133)) pursuant to either § 1.1471–4(d)(3) or (5) for the year in which the payment is made (including reporting of the account holder's TIN).
(B) The FFI is a registered deemed-compliant FFI (other than a reporting Model 1 FFI) reporting the account holder of the U.S. account pursuant to the conditions of its applicable deemed-compliant status under § 1.1471–5(f)(1) for the year in which the payment is made (including reporting of the account holder's TIN).
(C) The FFI is a reporting Model 1 FFI reporting the account holder of the reportable U.S. account pursuant to an applicable Model 1 IGA for the year in which the payment is made (including reporting of the account holder's TIN).
(ii)
(A) Has U.S. indicia for which appropriate documentation sufficient to treat the account as held by other than a specified U.S. person has not been provided pursuant to the due diligence requirements described in an applicable Model 1 IGA, and
(B) Is therefore treated as a U.S. reportable account that the FFI is required to report pursuant to the applicable Model 1 IGA.
(iii)
(iv)
USP is a payor that makes an interest payment that is not a withholdable payment (as defined in paragraph (f)(15) of this section) to RM2, a U.S. payor and reporting Model 2 FFI. The payment is paid and received outside of the United States and is not an amount subject to withholding under chapter 3. RM2 receives the payment as an intermediary with respect to a preexisting account held by A. RM2 has account information with respect to A which includes U.S. indicia as described in § 1.1441–7(b)(5) or (8). A does not provide consent for RM2 to report A's account. Under the presumption rules described in § 1.6049–5(d)(2)(i), RM2 is required to treat A as a U.S. non-exempt recipient. Despite this presumption rule, and because backup withholding does not apply under § 31.3406(g)–1(e), no information return shall be required with respect to the payment under paragraph (c)(4)(ii) of this section if A is reported by RM2 consistent with § 1.1471–4(d)(6) as a non-consenting account holder. Additionally, RM2 may include A in the chapter 4 withholding rate pool of U.S. payees on the withholding statement provided to USP consistent with the requirements of paragraph (c)(4)(iii) of this section.
(f) * * *
(3)
(4) * * *
(ii)
In January 1984, Broker B, a U.S. payor, purchases on behalf of its customer, Individual A, an obligation issued by partnership in a public offering on that date. Broker B holds the obligation for A throughout 1984. Broker B is required to make an information return showing the amount of original issue discount treated as paid to A under § 1.6049–5(f).
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(ii)
(A) An amount is described in this paragraph (f)(16)(ii)(A) if it is paid by an issuer or the paying agent of the issuer with respect to an obligation that is—
(
(
(
(B) An amount is described in this paragraph (f)(16)(ii)(B) if it is paid by a U.S. middleman (as defined in § 1.6049–5(c)(5)) that, as a custodian, nominee, or other agent of a payee, collects the amount for or on behalf of the payee.
(iii)
(iv)
FC is a foreign corporation that is not a U.S. payor or U.S. middleman, as defined in § 1.6049–5(c)(5). A holds FC coupon bonds that are not in registered form under section 163(f) and the regulations . FB, a foreign branch of DC, a domestic corporation, is the designated paying agent with respect to the bonds issued by FC. A does not have an account with FB. A presents a coupon to FB at its office outside the United States with instructions to transfer funds to a bank account maintained by A in the United States. FB transfers the funds in accordance with A's instructions. Even though the amount is credited to an account in the United States, the interest on the FC bonds is paid and received outside the United States under paragraph (f)(16)(ii) of this section and § 1.6049–5(e)(3) because the coupon is presented for payment outside the United States; because FC is a foreign person that is not a U.S. payor or U.S. middleman, as defined in § 1.6049–5(d)(1); because FB is not acting as A's agent; and because the obligation is not registered under the Securities Act of 1933 (15 U.S.C. 77a), listed on a securities exchange that is registered as a national securities exchange in the United States, or included in an interdealer quotation system.
FC is a foreign corporation that is not a U.S. payor or U.S. middleman, as defined in § 1.6049–5(d)(1). B, a United States citizen, holds a bond issued by FC in registered form under section 163(f) and the regulations thereunder and registered under the Securities Act of 1933 (15 U.S.C. 77a). The bond is not a foreign-targeted registered obligation as defined in § 1.871–14(e)(2). DB, a United States branch of a foreign corporation engaged in the commercial banking business, is the registrar of the bonds issued by FC. DB supplies FC with a list of the holders of the FC bonds. Interest on the FC bonds is paid to B and other bondholders by checks prepared by FC at its principal office outside the United States, and B's check is mailed from there to his designated address in the United States. The bond is described in paragraph (f)(16)(ii)(A)(
The facts are the same as in
(h)
The addition and revisions read as follows:
(b) * * *
(6) Amounts from sources outside the United States (determined under the provisions of part I, subchapter N, chapter 1 of the Internal Revenue Code (Code) and the regulations under those provisions) paid by a non-U.S. payor or a non-U.S. middleman (as defined in paragraph (c)(5) of this section) and paid and received outside the United States. See § 1.6049–4(f)(16) for circumstances in which a payment is considered to be paid and received outside the United States.
(7) Portfolio interest, as defined in § 1.871–14(b)(1), paid with respect to obligations in bearer form described in section 871(h)(2)(A), as in effect prior to the amendment by section 502 of the Hiring Incentives to Restore Employment Act of 2010 (HIRE Act), Public Law 111–147, or section 881(c)(2)(A), as in effect prior to the amendment by section 502 of the HIRE Act, that were issued prior to March 19, 2012, or with respect to a foreign-targeted registered obligation described in § 1.871–14(e)(2) that was issued prior to January 1, 2016, and for which the documentation requirements described in § 1.871–14(e)(3) and (4) have been satisfied (other than by a U.S. middleman (as defined in paragraph (c)(5) of this section) that, as a custodian or nominee of the payee, collects the amount for, or on behalf of, the payee, regardless of whether the middleman is also acting as agent of the payor).
(8) Portfolio interest described in § 1.871–14(c)(1)(ii), paid with respect to obligations in registered form described in section 871(h)(2) or 881(c)(2) that is not described in paragraph (b)(7) of this section.
(10)(i) Amounts paid and received outside the United States under § 1.6049–4(f)(16) (other than by a U.S. middleman (as defined in paragraph (c)(5) of this section) that are paid by a custodian or nominee or other agent of the payee, of amounts that that it receives for, or on behalf of, the payee, regardless of whether the middleman is also acting as agent of the payor) with respect to an obligation that: Has a face amount or principal amount of not less than $500,000 (as determined based on the spot rate on the date of issuance if in foreign currency); has a maturity (at issue) of 183 days or less; satisfies the requirements of sections 163(f)(2)(B)(i) and (ii)(I), as in effect prior to the amendment by section 502 of the HIRE Act, and the regulations thereunder (as if the obligation would otherwise be a registration-required obligation within the meaning of section 163(f)(2)(A)) (however, an original issue discount obligation with a maturity of 183 days or less from the date of issuance is not required to satisfy the certification requirement of § 1.163–5(c)(2)(i)(D)(
By accepting this obligation, the holder represents and warrants that it is not a United States person (other than an exempt recipient described in section 6049(b)(4) of the Internal Revenue Code and regulations thereunder) and that it is not acting for or on behalf of a United States person (other than an exempt recipient described in section 6049(b)(4) of the Internal Revenue Code and the regulations thereunder).
(ii) If the obligation is in registered form, it must be registered in the name of an exempt recipient described in § 1.6049–4(c)(1)(ii). For purposes of this paragraph (b)(10), a middleman may treat an obligation as described in
(11) Amounts paid with respect to an account or deposit with a U.S. or foreign branch of a domestic or foreign corporation or partnership that is paid with respect to an obligation described in either paragraph (b)(11)(i) or (ii) of this section, if the branch is engaged in the commercial banking business; and the interest or OID is paid and received outside the United States as defined in § 1.6049–4(f)(16) (other than by a U.S. middleman (as defined in paragraph (c)(5) of this section) that acts as a custodian, nominee, or other agent of the payee, and collects the amount for, or on behalf of, the payee, regardless of whether the middleman is also acting as agent of the payor). The exemption from reporting described in this paragraph (b)(11) shall not apply if the payor has actual knowledge that the payee is a U.S. person who is not an exempt recipient.
(i) An obligation is described in this paragraph (b)(11)(i) if it is not in registered form (within the meaning of section 163(f) and the regulations under that section), is described in section 163(f)(2)(B), as in effect prior to the amendment by section 502 of the HIRE Act, and issued in accordance with the procedures of § 1.163–5(c)(2)(i)(C) or (D), and, in the case of a U.S. branch, is part of a larger single public offering of securities. For purposes of this paragraph (b)(11)(i), a middleman may treat an obligation as described in section 163(f)(2)(B), as in effect prior to the amendment by section 502 of the HIRE Act, if the obligation, and any detachable coupons, contains the statement described in section 163(f)(2)(B)(ii)(II), as in effect prior to the amendment by section 502 of the HIRE Act, and the regulations under that section.
(ii)(A) An obligation is described in this paragraph (b)(11)(ii) if it produces income described in section 871(i)(2)(A); has a face amount or principal amount of not less than $500,000 (as determined based on the spot rate on the date of issuance if in foreign currency); satisfies the requirements of sections 163(f)(2)(B)(i) and (ii)(I), as in effect prior to the amendment by section 502 of the HIRE Act, and the regulations thereunder (as if the obligation would otherwise be a registration-required obligation within the meaning of section 163(f)(2)(A)) and is issued in accordance with the procedures of § 1.163–5(c)(2)(i)(C) or (D) (however, an original issue discount obligation with a maturity of 183 days or less from the date of issuance is not required to satisfy the certification requirement of § 1.163–5(c)(2)(i)(D)(
(12) Payments that a payor can, prior to payment, reliably associate with documentation upon which it may rely to treat the payment as made to a foreign beneficial owner in accordance with § 1.1441–1(e)(1)(ii) or as made to a foreign payee in accordance with paragraph (d)(1) of this section or presumed to be made to a foreign payee under paragraph (d)(2) or (3) of this section. However, such payments may be reportable under § 1.1461–1(b) and (c) or under § 1.1474–1(d)(2) (for a chapter 4 reportable amount (as described in § 1.1471–1(b)(18)). The provisions of § 1.1441–1 shall apply by substituting the term “payor” for the term “withholding agent” and without regard to the fact that the provisions apply only to amounts subject to withholding under chapter 3 of the Code. In the event of a conflict between the provisions of § 1.1441–1 and paragraph (d) of this section in determining the foreign status of the payee, the provisions of § 1.1441–1 shall govern for payments of amounts subject to withholding under chapter 3 of the Code and the provisions of paragraph (d) of this section shall govern in other cases. This paragraph (b)(12) does not apply to interest paid on or after January 1, 2013, to a nonresident alien individual to the extent provided in § 1.6049–8.
(14) Payments that a payor or middleman can, prior to payment, reliably associate with documentation upon which it may rely to treat as made to a foreign intermediary or flow-through entity in accordance with § 1.1441–1(b) if it obtains from the foreign intermediary or flow-through entity a withholding statement under § 1.1471–3(c)(3)(iii)(B)(2) (describing an FFI withholding statement), § 1.1471–3(c)(3)(iii)(B)(3) (describing a chapter 4 withholding statement), § 1.1441–1(e)(3)(iv) (describing a withholding statement provided by a non-qualified intermediary), § 1.1441–1(e)(5)(v) (describing a withholding statement provided by a qualified intermediary), or under § 1.1441–5 (describing a withholding statement provided by a foreign partnership, foreign simple trust, or foreign grantor trust), that allocates the payment (or portion of a payment) to a chapter 4 withholding rate pool or specific payees to which withholding applies under chapter 4. The provisions of each of the foregoing sections shall apply by substituting the term “payor” for the term “withholding agent.” A payor or middleman may rely on a withholding statement provided by a foreign intermediary or flow-through entity that identifies a chapter 4 withholding rate pool of U.S. payees (as described in § 1.6049–4(c)(4)) or, with respect to a withholdable payment, a chapter 4 withholding rate pool of recalcitrant account holders (as described in § 1.1471–4(d)(6)) provided that the payor or middleman identifies the foreign intermediary or flow-through entity that maintains the accounts (as described in § 1.1471–5(b)(5)) included in the chapter 4 withholding rate pool as a participating FFI (including a reporting Model 2 FFI) or registered deemed-compliant FFI (including a reporting Model 1 FFI) by applying the rules in § 1.1471–3(d)(4) or in § 1.1471–3(e)(4)(vi)(B), as applicable, for identifying the payee of a payment (by substituting the term “payor” for the term “withholding agent”). See, however, § 1.1441–1(e)(5)(v)(C)(
(15) If a foreign intermediary, as described in § 1.1441–1(c)(13), or a U.S. branch that is not treated as a U.S. person receives a payment from a payor, which payment the payor can reliably associate with a valid withholding certificate described in § 1.1441–1(e)(3)(ii) or (iii), or § 1.1441–1(e)(3)(v), respectively, furnished by such intermediary or branch, then the intermediary or branch is not required to report such payment when it, in turn, pays the amount, unless, and to the extent, the intermediary or branch knows that the payment is required to be reported under this section and was not so reported. For example, if a U.S. branch described in § 1.1441–1(b)(2)(iv) fails to provide information regarding U.S. persons that are not exempt from reporting under § 1.6049–4(c)(1)(ii) to the person from whom the U.S. branch receives the payment, the amount paid by the U.S. branch to such person is interest or original issue discount. See, however, § 1.6049–4(c)(4) for when reporting under section 6049 is coordinated with reporting under chapter 4 or an applicable IGA (as defined in § 1.6049–4(f)(7)). The exception for payments described in this paragraph (b)(15) shall not apply to a qualified intermediary that assumes reporting responsibility under chapter 61 of the Code for the payment under the agreement described in § 1.1441–1(e)(5)(iii).
(c)
(A) An account maintained at an office or branch of a bank or other financial institution located outside the United States; or
(B) An obligation as defined in § 1.6049–4(f)(3) (other than an account described in paragraph (c)(1)(i)(A) of this section), contract, or other instrument with respect to which the payor is either engaged in business as a broker or dealer in securities or a financial institution (as defined in § 1.1471–5(e)) that engages in significant activities at an office or branch located outside the United States. For purposes of the preceding sentence, an office or branch of such payor shall be considered to engage in significant activities with respect to an obligation when it participates materially and actively in negotiating the obligation under the principles described in § 1.864–4(c)(5)(iii) (substituting the term “obligation” for the term “stock or security”).
(ii) A payor may rely on documentary evidence if the payor has established procedures to obtain, review, and maintain documentary evidence sufficient to establish the identity of the payee and the status of that person as a foreign person; and the payor obtains, reviews, and maintains such documentary evidence in accordance with those procedures. A payor maintains the documents reviewed for purposes of this paragraph (c)(1) by retaining an original, certified copy, or photocopy (including a microfiche, electronic scan, or similar means of electronic storage) of the documents reviewed for as long as it may be relevant to the determination of the payor's obligation to report under § 1.6049–4 and this section and noting in its records the date on which the document was received and reviewed. Documentary evidence furnished for a payment of an amount subject to withholding under chapter 3 of the Code or that is a chapter 4 reportable amount under § 1.1474–1(d)(2) must contain all of the information that is necessary to complete a Form 1042–S for that payment. See §§ 1.1471–3(c) and 1.1471–4(c) for additional documentation requirements to identify a payee or account holder for chapter 4 purposes that may apply in addition to the requirements under paragraph (c) of this section.
(iii) Even if an account or obligation (as defined in § 1.6049–4(f)(3)) is not maintained outside the United States (maintained in the United States), a payor may rely on documentary evidence associated with a withholding certificate described in § 1.1441–1(e)(3)(iii) with respect to the persons for whom an entity acting as an intermediary collects the payment. A payor may also rely on documentary evidence associated with a flow-through withholding certificate for payments treated as made to foreign partners of a nonwithholding foreign partnership, as defined in § 1.1441–1(c)(28), the foreign beneficiaries of a foreign simple trust, as defined in § 1.1441–1(c)(24), or foreign owners of a foreign grantor trust, as defined in § 1.1441–1(c)(26), even though the partnership or trust account is an obligation maintained in the United States.
(iv) For accounts opened on or after July 1, 2014, and before January 1, 2015, and for obligations entered into on or after July 1, 2014, and before January 1, 2015, a payor may continue to apply the rules of §§ 1.6049–5(c)(1) and (c)(4) as in effect and contained in 26 CFR part 1 revised April 1, 2013, rather than this paragraph (c)(1) and paragraph (c)(4) of this section. A payor that applies the rules of §§ 1.6049–5(c)(1) and (c)(4) as in effect and contained in 26 CFR part 1 revised April 1, 2013, to an account or obligation must also apply § 1.1441–6(c)(2) (to the extent applicable) and § 1.6049–5(e) both as in effect and contained in 26 CFR part 1 revised April, 2013, with respect to the account or obligation.
(2)
(3)
(4)
(i)
(ii)
(iii)
(5) * * *
(i) * * *
(F) A U.S. branch or territory financial institution described in § 1.1441–1(b)(2)(iv) that is treated as a U.S. person.
(6)
FC is a foreign corporation that is not engaged in a trade or business in the United States during the current calendar year. D, an individual who is a resident and citizen of the United States, holds a registered obligation issued by FC in a public offering. Interest is paid on the obligation within the United States by DC, a U.S. corporation that is the designated paying agent of FC. D does not have an account with DC. Although interest paid on the obligation issued by FC is foreign source, the interest paid by DC to D is considered to be interest under paragraph (b)(6) of this section for purposes of information reporting under section 6049 because it is not paid and received outside the United States within the meaning of § 1.6049–4(f)(16).
The facts are the same as in
The facts are the same as in
The facts are the same as in
(d)
(i) The provisions of § 1.1441–1(b)(2)(ii), dealing with payments to a U.S. agent or intermediary of a foreign person, shall not apply. Thus, a payment to a U.S. agent or intermediary of a foreign person is treated as a payment to a U.S. payee.
(ii) Payments to U.S. branches or territory financial institution described in § 1.1441–1(b)(2)(iv) shall be treated as payments to a foreign payee, irrespective of the fact that the U.S. branch or territory financial institution is otherwise treated as a U.S. person for payments of amounts subject to withholding under chapter 3 and withholdable payments, and irrespective of the fact that the branch or territory financial institution is treated as a U.S. payor for purposes of paragraph (c)(5) of this section.
(2)
(ii)
(iii)
(3)
(ii)
(iii)
(4)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(e)
(2)
(3)
(4)
(5)
FC is a foreign corporation that is not a U.S. payor or U.S. middleman, as defined in paragraph (c)(5) of this section. A holds FC coupon bonds that are not in registered form under section 163(f) and the regulations thereunder. FB, a foreign branch of DC, is the designated paying agent with respect to the bonds issued by FC. A does not have an account with FB. A presents a coupon from a FC bond for payment to FB at its office outside the United States. FB pays A with a check drawn against a bank account maintained in the United States. For purposes of section 6049, the place of payment of interest on the FC bond by FB to A is considered to be outside the United States under paragraph (e)(3) of this section.
Individual C deposits funds in an account with FB, a foreign country X branch of DB, a U.S. corporation engaged in the commercial banking business. FB maintains an office and employees in foreign country X, accepts deposits, and conducts one or more of the other activities listed in § 1.864–4(c)(5)(i). The terms of C's deposit provide that it will be payable with accrued interest. Under paragraph (e)(2) of this section, FB is considered to pay the interest on C's deposit outside the United States.
DC, a U.S. corporation engaged in the commercial banking business, maintains FB, a branch in foreign country X. FB has an office and employees in foreign country X, accepts deposits, and engages in one or more of the other activities listed in § 1.864–4(c)(5)(i). D, a United States citizen, purchases a certificate of deposit issued in 1980 by FB. The certificate of deposit has a maturity of 20 years and has detachable interest coupons payable at six-month intervals. D presents some of the coupons at the U.S. office of DC and receives payment in cash. Because the coupon is presented to DC for payment within the United States, DC is considered to have made the payment within the United States under paragraph (e)(3) of this section.
FB is recognized by both foreign country X and by the Federal Reserve Bank as a foreign country X branch of DC, a U.S. corporation engaged in the commercial banking business. A local foreign country X bank serves as FB's resident agent in Country X. FB maintains no physical office or employees in foreign country X. All the records, accounts, and transactions of FB are handled at the United States office of DC. E deposits funds in an amount maintained with FB. Interest earned on the deposit is periodically credited to E's account with FB by employees of DC. For purposes of section 6049, the place of payment of the interest on E's deposit with FB is considered to be within the United States by reason of paragraphs (e)(1) and (e)(2) of this section.
DC is a U.S. corporation. A holds bonds that were issued by DC in registered form under section 163(f), as in effect prior to the amendment by section 502 of the HIRE Act of 2010, and the regulations thereunder and that are foreign-targeted registered obligations as defined in § 1.871–14(e)(2). DB, a commercial banking business, is the registrar of bonds issued by DC. Interest on the DC bonds is paid to A and other bondholders by check prepared by DB at its principal office inside the United States and mailed from there to A's address outside the United States. The check is drawn on a United States account maintained by DC with DB within the United States. The place of payment to A by DB of the interest on the DC bonds is considered to be outside the United States under paragraph (e)(4) of this section.
(g)
(c) * * *
(1) * * *
(ii) Returns of information are not required for payments of royalties from sources outside the United States paid by a non-U.S. payor or non-U.S. middleman and that are paid and received outside the United States. For a definition of non-U.S. payor or non-U.S. middleman, see § 1.6049–5(c)(5). For circumstances in which a payment is considered to be paid and received outside the United States, see § 1.6049–4(f)(16).
26 U.S.C. 7805 * * *
(e)
(f)
(a) * * *
(3) * * *
(i)
(i)
26 U.S.C. 7805 * * *
(e) In the case of a nonresident alien individual or foreign corporation, the appropriate income tax return on which the claim for refund or credit is made must contain the tax identification number of the taxpayer required pursuant to section 6109 and the entire amount of income of the taxpayer subject to tax, even if the tax liability for that income was fully satisfied at source through withholding under chapters 3 or 4 of the Internal Revenue Code (Code). Also, if the overpayment of tax resulted from the withholding of tax at source under chapter 3 or 4 of the Code, a copy of the Form 1042–S, “Foreign Person's U.S. Source Income subject to Withholding,” Form 8805, “Foreign Partner's Information Statement of Section 1446 Withholding Tax,” or other statement (required under § 1.1446–3(d)(2) of this chapter) required to be provided to the beneficial owner or partner pursuant to § 1.1461–1(c)(1)(i), § 1.1474–1(d)(1)(i), or § 1.1446–3(d) of this chapter must be attached to the return. For purposes of claiming a refund, the Form 8805 or other statement must include the taxpayer identification number of the beneficial owner or partner even if not otherwise required. No claim for refund or credit under chapter 65 of the Code may be made by the taxpayer for any amount that the payor has repaid to the taxpayer pursuant to reimbursement or set-off procedures (described in § 1.1461–2(a)(2),(3) or § 1.1474–2(a)(3), (4) of this chapter). In addition, no claim for refund or credit may be made by a taxpayer for any amount that has been repaid to a qualified intermediary (as described in § 1.1441–1(e)(5)(ii)) or a participating FFI (as described in § 1.1471–1(b)(91)) pursuant to a collective refund filed by such entity on behalf of the taxpayer. See § 1.1441–1(e)(5)(iii) (describing a qualified intermediary agreement) and § 1.1471–4(h) (describing a collective refund). Upon request, a taxpayer must also submit such documentation as the IRS, may require establishing that the taxpayer is the beneficial owner of the income for which a claim for refund or credit is being made and verifying the grounds and facts set forth in taxpayer's claim as required by § 301.6402–2(b)(1). See § 1.1474–5 for additional requirements that may apply in the case of a refund of tax withheld under chapter 4.
(f)
(2) References in paragraph (e) of this section to Form 8805 or other statements required under § 1.1446–3(d)(2) shall apply to partnership taxable years beginning after April 29, 2008. References in paragraph (e) of this section to amounts withheld under chapter 4 of the Code and claims made with respect to amounts withheld under chapter 4 of the Code shall apply to withholdable payments made after June 30, 2014.
Internal Revenue Service (IRS), Treasury.
Removal of temporary regulations; final regulations; temporary regulations.
This document contains final and temporary regulations under chapter 4 of Subtitle A (sections 1471 through 1474) of the Internal Revenue Code of 1986 (Code) regarding information reporting by foreign financial institutions (FFIs) with respect to U.S. accounts and withholding on certain payments to FFIs and other foreign entities. This document finalizes (with changes) certain proposed regulations under chapter 4, and withdraws corresponding temporary regulations. This document also includes temporary regulations providing additional rules under chapter 4. The text of the temporary regulations also serves as the text of proposed regulations set forth in a notice of proposed rulemaking published in the Proposed Rules section of this issue of the
Kamela Nelan at (202) 317–6942 (not a toll free number).
The collection of information in these final and temporary regulations is contained in a number of provisions including §§ 1.1471–3, 1.1471–4, 1.1472–1, 1.1474–1, and 1.1474–6. In addition, these final and temporary regulations amend a number of collections of information set out in final regulations under chapter 4 issued in TD 9610 and temporary regulations under chapter 4 issued in TD 9657. The IRS intends that the information collection requirements of these final and temporary regulations will be satisfied by filing Forms 8957, 8966, the W–8 series of forms, W–9, 1042, 1042–S, and the 1099 series of forms, as well as certain income tax returns (for example, Forms 1040 and 1120F). As a result, for purposes of the Paperwork Reduction Act (44 U.S.C. 3507), the reporting burden associated with the collection of information in these final and temporary regulations will be reflected in the information collection burden and OMB control number of the appropriate IRS form. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
Books and records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains amendments to the regulations under chapter 4 of the Code (sections 1471 through 1474) commonly known as the Foreign Account Tax Compliance Act, or FATCA. Chapter 4 generally requires U.S. withholding agents to withhold tax on certain payments to FFIs that do not agree to report certain information to the IRS regarding their U.S. accounts, and on certain payments to certain nonfinancial foreign entities (NFFEs) that do not provide information on their substantial United States owners (substantial U.S. owners) to withholding agents.
On January 28, 2013, final regulations (TD 9610) under chapter 4 were published in the
On March 6, 2014, the Treasury Department and the IRS published temporary regulations (TD 9658) under chapters 3 and 61 and sections 3406 and 6402 (79 FR 12726) (temporary coordination regulations). A notice of proposed rulemaking cross-referencing the temporary coordination regulations was published in the
Comments were received in response to the 2014 temporary regulations, but no public hearing was requested and none was held. After consideration of the comments received, this Treasury decision generally adopts as final regulations the 2014 temporary regulations, with the modifications described in the Summary of Comments and Explanation of Revisions and Provisions of this preamble, and removes the corresponding temporary regulations. This Treasury decision also includes corrections and makes certain modifications to the 2013 final regulations. Additionally, this Treasury decision includes temporary regulations, cross-referenced in a notice of proposed rulemaking published in the Proposed Rules section of this issue of the
Part I of the Summary of Comments and Explanation of Revisions and Provisions of this preamble summarizes comments received regarding the 2014 temporary regulations and explains the changes made to the 2013 final
The 2014 temporary regulations define the term
Under the 2014 temporary regulations, the term
To provide an inclusive definition of nonreporting IGA FFI consistent with the IGAs and to coordinate with the Instructions for Form W–8BEN–E, these final regulations revise the definition of nonreporting IGA FFI in the 2014 temporary regulations to mean an FFI that is a resident of, or located or established in, a Model 1 or Model 2 IGA jurisdiction, as the context requires, and that is a nonreporting financial institution described in Annex II of the Model 1 or Model 2 IGA, a registered deemed-compliant FFI described in § 1.1471–5(f)(1)(i)(A) through (F), a certified deemed-compliant FFI described in § 1.1471–5(f)(2)(i) through (v), or an exempt beneficial owner described in § 1.1471–6.
To coordinate with the revised definition of nonreporting IGA FFI, these final regulations modify the definition of certified deemed-compliant FFI to exclude nonreporting IGA FFIs because some nonreporting IGA FFIs are required to obtain global intermediary identification numbers (GIINs). These final regulations instead include all nonreporting IGA FFIs in the definition of deemed-compliant FFI in § 1.1471–5(f).
These final regulations also modify the documentation rules in § 1.1471–3(d)(7)(i) to incorporate the registration requirements for certain nonreporting IGA FFIs. Under these final regulations, a withholding agent must obtain a GIIN from a nonreporting IGA FFI that is treated as a registered deemed-compliant FFI under Annex II of the Model 2 IGA or that is a registered deemed-compliant FFI described in § 1.1471–5(f)(1)(i)(A) through (F).
Under the 2014 temporary regulations, the term
Comments to the 2014 temporary regulations and revised Forms W–8BEN and W–8BEN–E (published shortly after the 2014 temporary regulations were published) noted difficulties for withholding agents and FFIs to document new account holders and payees by the time specified in the 2014 temporary regulations. In response to comments, Notice 2014–33 was issued and announced further transitional relief for withholding agents to treat certain new entity accounts as preexisting accounts for purposes of documenting such account holders. These final regulations implement the transitional relief by modifying the definition of a preexisting obligation to provide that a withholding agent or an FFI may treat an obligation held by an entity with the withholding agent or FFI that is issued, opened, or executed on or after July 1, 2014, and before January 1, 2015, as a preexisting obligation. However, the timeframe for documenting preexisting entity obligations in § 1.1471–4(c)(3) is unchanged; that is, the timeframes provided in § 1.1471–4(c)(3) apply to all preexisting entity obligations, including those obligations described in the preceding sentence. Furthermore, as provided in Notice 2014–33, these final regulations specify that if a participating FFI treats an entity account opened on or after July 1, 2014, and before January 1, 2015, as a preexisting account, the FFI may not apply the exception from identification and documentation for certain low-value preexisting entity accounts under § 1.1471–4(c)(3)(iii)(A) to that account.
These final regulations also clarify the definition of a preexisting obligation in the 2014 temporary regulations to remove the references to withholding agents in the second and third sentences of § 1.1471–1(b)(104)(i) because the term
The 2014 temporary regulations define the term
The regulations under chapter 3 also provide that an alien individual who has made an election under section 6013(g) or (h) to be treated as a resident of the United States is treated as a nonresident alien individual for purposes of chapter 3. In order to have a consistent rule, these final regulations provide that a U.S. person does not include an alien individual who has made an election under section 6013(g) or (h) to be treated as a resident of the United States.
These final regulations also revise the definition of U.S. person to remove an unnecessary restriction on certain foreign insurance companies. The 2014 temporary regulations provide that a U.S. person includes a foreign insurance company that has made an election under section 953(d) to be treated as a U.S. person if the foreign insurance company is not a specified insurance company (as defined in § 1.1471–5(e)(1)(iv)) and is not licensed to do business in any state. The preamble to the 2014 temporary regulations explains that the definition of U.S. person in the 2013 final regulations is modified in the 2014 temporary regulations to include certain foreign insurance companies that have made an election under section 953(d) in light of the existing requirements applicable to these types of entities to report U.S. owners on the entity's U.S. income tax return. The requirement included in the 2014 temporary regulations that a U.S. person that is not a specified insurance company not be licensed to do business in any state is unnecessary because insurance companies that are not specified insurance companies are required under section 953(d) to report information regarding their U.S. owners regardless of whether they are licensed to do business in a state. These final regulations revise the 2014 temporary regulations to provide that a U.S. person includes a foreign insurance company that has made an election under section 953(d) and that is not a specified insurance company (regardless of whether such entity is licensed to do business in a state).
The 2013 final regulations define the term
The 2014 temporary regulations generally provide that a foreign branch of a U.S. financial institution is a withholding agent and is not an FFI. The 2014 temporary regulations also provide that a foreign branch of a U.S. financial institution that is a reporting Model 1 FFI is both a withholding agent and a registered deemed-compliant FFI, and must withhold in accordance with § 1.1471–2 and § 1.1472–1(b). However, the 2014 temporary regulations do not fully coordinate such branch's withholding and documentation obligations as a U.S. withholding agent with its obligations as a reporting Model 1 FFI. These final regulations clarify in § 1.1471–2(a)(2)(v) that a foreign branch of a U.S. financial institution is a U.S. withholding agent and a payee that is a U.S. person, and therefore has primary withholding responsibility on withholdable payments that it makes and is not subject to withholding under chapter 4 on withholdable payments that it receives. A foreign branch of a U.S. financial institution that is a reporting Model 1 FFI or that has entered into a qualified intermediary (QI) agreement may also be an FFI. The treatment of a foreign branch as an FFI, however, does not affect its withholding responsibilities as a U.S. withholding agent. These final regulations allow a foreign branch that is treated as an FFI to apply the procedures under Annex I of an applicable Model 1 or Model 2 IGA to document the chapter 4 status of a payee of a withholdable payment that is a holder of an account maintained by the branch in the Model 1 or Model 2 IGA jurisdiction.
Under the 2013 final regulations, a withholdable payment does not include a payment made under a grandfathered obligation. A grandfathered obligation includes certain obligations outstanding on July 1, 2014, as well as any agreement requiring a secured party to make a payment with respect to, or to repay, collateral posted to secure a grandfathered obligation. If collateral (or a pool of collateral) is posted to secure both grandfathered obligations and obligations that are not grandfathered,
The Treasury Department and the IRS also received comments requesting that the definition of grandfathered obligation include a new obligation that is created as a result of posting a grandfathered obligation as collateral. Under the 2013 final regulations, to the extent that a secured party is treated as the beneficial owner of a grandfathered obligation that is pledged as collateral after July 1, 2014, payments made by the secured party to the pledgor are treated as made under a newly created obligation, resulting in substitute payments. Under the 2014 temporary regulations, such substitute payments are subject to withholding if paid after January 1, 2017 (when the transitional exception from withholding for payments on collateral arrangements expires). The comment noted difficulties for certain withholding agents that are financial institutions to determine whether payments made with respect to collateral are substitute payments or payments made with respect to the collateral because collateral is frequently rehypothecated from omnibus accounts that include collateral from many counterparties. As previewed in Notice 2015–66, these final regulations amend the definition of grandfathered obligation to include any obligation that gives rise to a payment of substitute interest (as defined in § 1.861–2(a)(7)) and that arises from the payee posting collateral that is a grandfathered obligation under § 1.1471–2(b)(2)(i)(A)(
The 2014 temporary regulations provide that a withholding agent is required to treat a modification of an obligation as material only if the withholding agent has actual knowledge thereof, such as in the event the withholding agent receives a disclosure indicating that there has been or will be a material modification to the obligation. A comment requested that receipt of disclosure from the issuer be the only instance in which a withholding agent has actual knowledge of a material modification. The Treasury Department and the IRS considered similar comments when drafting the 2014 temporary regulations and believe that the 2014 temporary regulations strike the correct balance by providing withholding agents with a standard that is narrow in scope without limiting the circumstances when there is actual knowledge. While the expectation is that a withholding agent that is a broker might only have actual knowledge of a material modification upon receiving notice from the issuer, the Treasury Department and the IRS do not believe that it is appropriate to foreclose the possibility that a withholding agent might otherwise have actual knowledge of the material modification absent notice from the issuer. Therefore, these final regulations do not include any revisions to the determination of a material modification.
The 2014 temporary regulations provide that a withholding agent may treat a person receiving a withholdable payment as a QI if the withholding agent can reliably associate the payment with a valid Form W–8IMY, “Certificate for Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting,” as described in § 1.1471–3(c)(3)(iii). Section 1.1471–3(c)(3)(iii) provides the requirements for a withholding certificate of an intermediary, flow-through entity, or U.S. branch. QIs must provide a qualified intermediary withholding certificate (that is, a Form W–8IMY) to a withholding agent, even when the QI is acting as a qualified derivatives dealer (QDD) under § 1.1441–1(e)(6)(i). See § 1.1441–1(e)(3)(ii) and (e)(6)(i)(A). To coordinate with the requirements of a QI that is acting as a QDD, these final regulations provide that an intermediary, QI, flow-through entity, or U.S. branch must provide a valid Form W–8IMY to a withholding agent for chapter 4 purposes. This revision is intended only to clarify which entities provide a Form W–8IMY and does not affect the general meaning of intermediary in the chapter 4 regulations as including QIs.
The 2014 temporary regulations provide that a U.S. branch of a participating FFI or registered deemed-compliant FFI (whether or not the U.S. branch is treated as a U.S. person) must provide on its withholding certificate the GIIN assigned to the participating FFI or a registered deemed-compliant FFI. Under § 1.1441–1T(b)(2)(iv)(C) of the temporary coordination regulations, a U.S. branch of an FFI that agrees to be treated as a U.S. person is subject to the withholding, due diligence, and information reporting rules that apply to U.S. withholding agents under chapters 3 and 4 and must be either a participating FFI or registered deemed-compliant FFI to qualify for treatment as a U.S. person. Under the 2014 temporary regulations, a U.S. branch of an FFI that does not agree to be treated as a U.S. person is required to report for chapter 4 purposes under § 1.1471–4T(d)(2)(iii)(C). Due to the expiration on January 1, 2017, of the transitional rules in § 1.1471–4T(e)(2)(v) and (e)(3)(iv) (relating to limited FFI and limited branch statuses), it may become more difficult for an FFI to continue to be able to claim participating FFI or registered deemed-compliant FFI status, including when it has other branches that do not agree to comply with the requirements to be a participating FFI or registered deemed-compliant FFI, and therefore more difficult for a U.S. branch to avoid being withheld upon under chapter 4 (even though the U.S. branch is compliant with FATCA and subject to IRS examination and summons procedures in the same manner as a U.S. withholding agent).
In recognition that a U.S. branch of an FFI that agrees to be treated as a U.S. person is subject to withholding, due diligence, and information reporting requirements similar to any other U.S. withholding agent (and U.S. payor for chapter 61 reporting), these final regulations no longer require a U.S. branch of an FFI that agrees to be treated as a U.S. person to be a participating FFI or registered deemed-compliant FFI when acting as an intermediary. Therefore, a U.S. branch of an FFI that acts as an intermediary and that agrees to be treated as a U.S. person will not need to furnish a GIIN of the FFI of which it forms a part. In order to prevent a U.S. branch that is treated as a U.S. person from acting on behalf of other branches of the FFI that are treated
Under these final regulations, a U.S. branch that does not agree to be treated as a U.S. person is not required to be part of an FFI that is a participating FFI or registered deemed-compliant FFI, provided that such branch, when acting as an intermediary for a payment, applies the rules described in § 1.1471–4(d)(2)(iii)(C). Section 1.1471–4(d)(2)(iii)(C) of these final regulations provides that such a U.S. branch must report its U.S. accounts and accounts held by owner-documented FFIs under § 1.1471–4(d)(3), (d)(5), or (d)(6) and apply the withholding and due diligence rules in § 1.1471–4(b) and (c)(2) to all of its accounts as if the U.S. branch were a participating FFI. These final regulations do not impose the verification requirements in § 1.1471–4(f) and (g) on such U.S. branches because such branches are subject to IRS examination and summons procedures in the same manner as a U.S. withholding agent.
Under these final regulations, a withholding agent making a withholdable payment to an intermediary that is a U.S. branch that is not treated as a U.S. person must obtain the EIN of the U.S. branch and a certification that the U.S. branch is applying the rules described in § 1.1471–4(d)(2)(iii)(C). However, for a payment made before June 30, 2017, that the withholding agent can reliably associate with valid documentation from an intermediary that is a U.S. branch not treated as a U.S. person, the withholding agent will not be required to obtain the certification described in the preceding sentence. Therefore, a withholding agent that has previously documented such U.S. branch will have additional time to obtain the certification that the U.S. branch is applying the rules described in § 1.1471–4(d)(2)(iii)(C).
Because a U.S. branch of an FFI treated as a U.S. person is not required to be part of a participating FFI, and a U.S. branch not treated as a U.S. person may avoid being withheld upon under chapter 4 even if the FFI of which it is a part has one or more branches that are treated as nonparticipating FFIs, these final regulations modify the definition of the term
The changes in these final regulations only affect a U.S. branch when it is acting as an intermediary for a payment. For a U.S. branch that receives a payment for an entity that is the beneficial owner of the payment, see § 1.1471–3(c)(3)(ii) and the Instructions for Form W–8BEN–E (requiring a U.S. branch to provide on its withholding certificate a GIIN of the participating FFI or registered deemed-compliant FFI of which it is a part or any branch of such FFI).
The FFI agreement permits a participating FFI to provide a withholding statement that allocates a portion of a withholdable payment to a group of account holders for whom no reporting is required on any of Form 1042–S, “Foreign Person's U.S. Source Income Subject to Withholding,” the Form 1099 series, and Form 8966, “FATCA Report” (an
To coordinate with the allowance in the FFI agreement, these final regulations provide that an FFI may include on its FFI withholding statement an allocation of a portion of a withholdable payment to a pool of account holders (other than nonqualified intermediaries and flow-through entities) for whom no reporting is required on any of Forms 1042–S, 1099, and 8966, provided the FFI provides to the withholding agent, for each account holder in the pool: (1) Payee-specific information (including chapter 4 status) and any other information required for purposes of chapter 3 or 61 on the withholding statement; and (2) documentation. For example, a participating FFI may provide on its withholding statement an exempt payee pool for a payment of U.S. source interest on a bank deposit not subject to withholding or reporting under chapter 4 that is allocable to a pool of foreign account holders (that is, a withholdable payment that is not required to be reported on any of Forms 1042–S, 1099, and 8966) and provide the withholding agent with documentation for each account holder in the pool.
Under the 2014 temporary regulations, an FFI withholding statement, a chapter 4 withholding statement, or an exempt beneficial owner withholding statement that includes payee-specific information for purposes of chapter 4 must indicate both the portion of the payment allocated to each payee and each payee's chapter 4 status. The 2014 temporary regulations also provide that an FFI withholding statement, a chapter 4 withholding statement, or an exempt beneficial owner withholding statement must include any other information that the withholding agent needs in order to fulfill its obligations under chapter 4. Since a withholding agent is required to report the chapter 4 status code for each payee on Form 1042–S, these final regulations clarify that the chapter 4 status of a payee shown on a withholding statement must be the applicable chapter 4 status code used to report the payee on Form 1042–S. This modification is consistent with the requirement in the temporary coordination regulations that a nonqualified intermediary withholding statement include the chapter 4 status code for each payee (excluding a payee included in a chapter 4 withholding rate pool) used for filing Form 1042–S. Additionally, to coordinate with the temporary coordination regulations, these final regulations clarify that an FFI withholding statement provided by an FFI other than an FFI acting as a QI, WP, or WT must identify the GIIN of an intermediary or flow-through entity when required under § 1.1471–3(d) and the chapter 4 status code used for filing Form 1042–S. Finally, the description of the recalcitrant account holder pool on an FFI withholding statement in § 1.1471–3(c)(3)(iii)(B)(
Under the 2014 temporary regulations, a chapter 4 withholding statement must include an allocation of the payment to each payee (other than a payee that is a nonparticipating FFI). The Treasury Department and the IRS have determined that allocation information is unnecessary for purposes of this withholding statement when there is no withholding or reporting requirement with respect to a payment. Therefore, these final regulations provide that a chapter 4 withholding statement may include an allocation of a portion of the payment to a pool of payees (rather than to each payee) for whom no reporting is required on any of Forms 1042–S, 1099, and 8966, provided that the withholding statement contains payee-specific information (including chapter 4 status) and any other information required for purposes of chapter 3 or 61, and documentation is provided to the withholding agent for each payee in the pool.
The 2014 temporary regulations permit a chapter 4 withholding statement to include pooled allocation information with respect to payees that are nonparticipating FFIs. These final regulations clarify that when a chapter 4 withholding statement provides pooled allocation information with respect to payees that are treated as nonparticipating FFIs, the withholding agent does not need to obtain documentation for each nonparticipating FFI included in the pool. These final regulations also remove an unnecessary cross-reference to chapter 61 in § 1.1471–3(c)(3)(iii)(B)(
Under the 2013 final regulations, acceptable documentary evidence supporting a claim of foreign status includes, with respect to an entity, official documentation issued by an authorized government body. However, some common types of organizational documentation may not be considered “issued” by a governmental body (for example, articles of incorporation and partnership agreements). Therefore, these final regulations revise the 2013 final regulations to provide that acceptable documentary evidence supporting a claim of foreign status includes any documentation that substantiates that the entity is actually organized or created under the laws of a foreign country.
A comment noted that contemporaneous receipt of a beneficial owner withholding certificate and documentary evidence is not always practical and should not be a condition for indefinite validity of a withholding certificate. The Treasury Department and the IRS agree with the comment and have determined that these rules should be revised in both chapters 3 and 4. With respect to individuals, these final regulations cross-reference § 1.1441–1(e)(4)(ii)(B)(
Under the 2013 final regulations, a withholding agent cannot rely on a withholding certificate or documentation if it knows or has reason to know that a change in circumstances affects the correctness of the certificate or documentation. The 2013 final regulations define a change in circumstances as a change that would affect a person's chapter 4 status and require the person whose name is on the certificate or documentation to notify the withholding agent within 30 days and provide a new certificate or documentation following a change in circumstance.
A comment requested relief from a withholding agent's requirement to obtain new documentation from an FFI following a change in circumstances that does not affect whether withholding under chapter 4 is required on payments to the FFI. In response to the comment, these final regulations provide that a withholding agent will not have reason to know of a change in circumstances with respect to an FFI's chapter 4 status that results solely because the jurisdiction in which the FFI is resident, organized, or located is one that is later treated as having an IGA in effect (including a jurisdiction that had a Model 2 IGA in effect and is later treated as having a Model 1 IGA in effect). In lieu of providing a new withholding certificate to the withholding agent to document the new chapter 4 status, these final regulations allow an FFI to provide to the withholding agent oral or written confirmation (including by email) of the FFI's change in its chapter 4 status within 30 days after the change in circumstances described in the preceding sentence or a change in circumstances with respect to the FFI's chapter 4 status that results solely because a jurisdiction is later treated as not having an IGA in effect. In such a case, the withholding agent must retain a record of the confirmation, which will become part of the FFI's withholding certificate or other documentation. See section II.C.1.iii of this Summary of Comments and Explanation of Revisions and Provisions for an explanation of temporary regulations on a withholding agent's reason to know of a change in circumstances if a jurisdiction ceases to be treated as having an IGA in effect.
The 2014 temporary regulations provide that a withholding agent may accept a withholding certificate, written statement, or other such form as the IRS may prescribe, electronically in accordance with the requirements of § 1.1441–1(e)(4)(iv). A comment to the temporary coordination regulations requested a modification of the effective date of § 1.1441–1(e)(4)(iv) so that withholding agents may rely upon forms or documentary evidence received electronically after March 6, 2014, even if the payment was made prior to such date. The Treasury Department and the IRS agree with this comment, and have determined that the applicability date for reliance on electronically
Under the 2013 final regulations, a withholding agent can accept a prior version of a withholding certificate for six months after the revision date of an updated version of the certificate, unless the IRS has issued guidance that indicates otherwise. The temporary coordination regulations include a similar rule for chapter 3 purposes. In regulations published elsewhere in this issue of the
The 2013 final regulations provide that a withholding agent may treat a withholding certificate as valid, notwithstanding that the certificate contains an inconsequential error, if the withholding agent has sufficient documentation on file to supplement the information missing from the withholding certificate due to the error and such documentation is conclusive. The 2013 final regulations include an example of a withholding agent using government issued identification to cure an abbreviation of a country of residence on a withholding certificate provided by an individual, implying that any abbreviation (whether ambiguous or unambiguous) must be cured. However, since the Instructions for Form W–8BEN do not require an individual to provide the full name of a country, an unambiguous abbreviation is not an error. For consistency with chapter 3 (see § 1.1441–1(b)(7)(iv)), these final regulations revise the example to provide that an abbreviation of a country of residence is an inconsequential error that would need to be cured only if it is an ambiguous abbreviation.
The 2014 temporary regulations provide that a withholding agent receiving a Form W–9, “Request for Taxpayer Identification Number and Certification,” indicating that the payee is a U.S. person that is not a specified U.S. person must treat the payee as a specified U.S. person if the withholding agent knows or has reason to know that the payee's claim that it is other than a specified U.S. person is incorrect. A comment requested that the final regulations either eliminate reason to know in § 1.1471–3T(d)(2)(i) or clarify when a withholding agent would have reason to know that a Form W–9 is incorrect with respect to an entity payee. The comment also notes that it would be burdensome for withholding agents to research publicly available information to determine if the entity's claim that it is not a specified U.S. person is incorrect. The Treasury Department and the IRS believe that reason to know is the appropriate standard for Form W–9 because it is the same as the standard of knowledge applied to forms in the W–8 series and the application of reason to know to Form W–9 is already clear. Reason to know is defined generally in § 1.1471–3(e)(4) and specifically for withholding certificates in § 1.1471–3(e)(4)(ii)(A). Under § 1.1471–3(e)(4)(ii)(A), a withholding agent has reason to know that a withholding certificate is unreliable or incorrect if the withholding certificate is incomplete with respect to any item on the certificate that is relevant to the claims made by the person, the withholding certificate contains any information that is inconsistent with the person's claim, the withholding agent has other account information that is inconsistent with the person's claim, or the withholding certificate lacks information necessary to establish entitlement to an exemption from withholding for chapter 4 purposes. Therefore, these final regulations do not adopt the comment.
These final regulations modify the procedures for withholding agents to document the chapter 4 status of a payee that is a sponsored investment entity or sponsored controlled foreign corporation described § 1.1471–5(f)(1)(i)(F) or a sponsored direct reporting NFFE described in § 1.1472–1(c)(5) (each referred to as a sponsored entity for purposes of this section I.C.2.ii) to incorporate the provisions of Notice 2015–66. Under the 2014 temporary regulations, for a transitional period that was to expire on January 1, 2016, a withholding agent may obtain the GIIN of a sponsoring entity if the sponsored entity has not yet obtained a GIIN. A comment noted that it would be difficult for withholding agents to verify the GIINs of sponsored entities by the date provided in the 2014 temporary regulations. In response to the comment, the Treasury Department and the IRS announced in Notice 2015–66 that the 2014 temporary regulations would be amended to extend the time for withholding agents to verify sponsored entity GIINs. These final regulations, therefore, extend the transitional period to apply to withholdable payments made before January 1, 2017. These final regulations also provide that a withholding agent is not required to verify the GIIN of a sponsored entity before January 1, 2017 (even if the sponsored entity obtains a GIIN before such date), if the withholding agent verifies the GIIN of the sponsoring entity in the manner described in these final regulations.
Notice 2015–66 announced that sponsoring entities must register their sponsored entities by January 1, 2017, and, beginning on that date, sponsoring entities must use the GIIN of the sponsored entity when reporting with respect to the sponsored entity on Form 8966 and must provide the GIIN to withholding agents making payments to the sponsored entity. The Notice also informed withholding agents that they would be required to obtain GIINs of sponsored entities for payments made on or after January 1, 2017. After Notice 2015–66 was issued, comments requested additional time for withholding agents to obtain the GIIN of a sponsored entity. In response to the comments, these final regulations provide that for a payment made after December 31, 2016, to a payee that the withholding agent has documented prior to January 1, 2017, as a sponsored
As announced in Notice 2015–66, and to coordinate with the transitional dates for documentation and GIIN verification discussed in the preceding paragraph, these final regulations provide that a sponsoring entity must register each sponsored entity for which it acts by the later of January 1, 2017, or the date the sponsored entity identifies itself to a withholding agent or financial institution as having such status.
The 2014 temporary regulations provide rules in both § 1.1471–3T(d)(4)(v) and (e) for when a withholding agent has reason to know that a payee's claim of status as a participating FFI or registered deemed-compliant FFI is invalid or incorrect. However, § 1.1471–3T(d)(4)(v) is duplicative of the more detailed rules on reason to know in § 1.1471–3T(e). To eliminate this duplication, these final regulations modify § 1.1471–3T(d)(4)(v) to cross-reference § 1.1471–3(e) for the applicable reason to know rules.
Under § 1.1472–1(b), a withholding agent making a withholdable payment to a NFFE that does not provide information on its substantial U.S. owners (or certify that it has no substantial U.S. owners) must withhold on the payment unless the NFFE is an excepted NFFE described in § 1.1472–1(c)(1) (for example, an active NFFE described in § 1.1472–1(c)(1)(iv)). A withholding agent making a withholdable payment must apply the documentation rules in § 1.1471–3(d) to determine the chapter 4 status of a payee. Specifically, under § 1.1471–3(d)(11)(ix), a withholding agent may treat a payee as an active NFFE described in § 1.1472–1(c)(1)(iv) if the NFFE provides a withholding certificate identifying itself as an active NFFE. In contrast, a reporting Model 1 FFI or reporting Model 2 FFI documenting an account for purposes of satisfying the due diligence requirements of a Model 1 or Model 2 IGA applies the procedures in Annex I of the applicable IGA to determine whether an account holder is an active or passive NFFE. The chapter 4 regulations provide that a NFFE must determine its status under chapter 4 for purposes of documenting itself to a withholding agent making a withholdable payment to the NFFE. See § 1.1471–3(d)(11) and (12). A comment requested that the chapter 4 regulations be revised to permit a NFFE to determine its status under the Model 1 or Model 2 IGA of the jurisdiction where the NFFE is organized for purposes of certifying its status to both a withholding agent documenting a payee under the chapter 4 regulations and an FFI documenting an account holder under an applicable IGA. The Treasury Department and the IRS have decided that the chapter 4 regulations should not be revised in this regard. The due diligence procedures under the Model 1 IGA and Model 2 IGA allow financial institutions subject to an applicable IGA to document using such procedures and are not broadly intended for NFFEs. An entity resident in, or organized under the laws of, an applicable IGA jurisdiction may apply the IGA to determine its classification as an FFI or NFFE; however, it may not otherwise apply the IGA to determine whether it is an active or passive NFFE or whether it should identify controlling U.S. persons instead of substantial U.S. owners when it is documenting itself to a withholding agent making a withholdable payment to the entity.
The 2014 temporary regulations provide that an excepted inter-affiliate FFI may hold a depository account with a withholding agent that is not a member of the expanded affiliated group if the account is held in the country in which the excepted inter-affiliate FFI is operating to pay for expenses in that country. The 2014 temporary regulations also include identification rules for excepted inter-affiliate FFIs that provide that a withholding agent that is a participating FFI may treat a payee as an excepted inter-affiliate FFI if it has obtained a withholding certificate or a written statement (in the case of an offshore obligation) identifying the payee as such an entity.
Although the 2014 temporary regulations provide that an excepted inter-affiliate FFI is permitted to hold “a depository account” in the country in which the entity is operating to pay for expenses in that country, these final regulations permit an excepted inter-affiliate FFI to hold more than one depository account in a country in which the FFI is operating to pay for expenses in that country.
In addition, the restriction on withholding agents of an excepted inter-affiliate FFI to participating FFIs in § 1.1471–3(d)(11)(xii) is inconsistent with the allowance for an excepted inter-affiliate FFI to hold a depository account with a withholding agent that is not a member of the FFI's expanded affiliated group in § 1.1471–5(e)(5)(iv)(B). Therefore, these final regulations replace “participating FFI” with “withholding agent” in § 1.1471–3(d)(11)(xii)(A) through (C). Additionally, since an excepted inter-affiliate FFI can receive any payments from a member of the FFI's expanded affiliated group (not only payments of U.S. source bank deposit interest), these final regulations revise the reason to know rule in § 1.1471–3(d)(11)(xii)(C) so that it is limited to withholding agents that are not members of the FFI's expanded affiliated group.
The 2014 temporary regulations provide that a withholding agent that receives a payee's claim of status as a participating FFI or registered deemed-compliant FFI must verify: (1) The GIIN assigned to the FFI identifying its country of residence or place of organization; or (2) with respect to a payment that is made to a branch of, or an entity that is disregarded as an entity separate from, a participating FFI or registered deemed-compliant FFI located outside of the FFI's country of residence or organization, the GIIN assigned to the FFI identifying the country in which the branch or disregarded entity receiving the payment is located. However, a
Under the 2014 temporary regulations, a withholding agent has reason to know that a withholdable payment is made to a limited branch (including a disregarded entity) of a participating FFI or registered deemed-compliant FFI when: (1) The withholding agent is directed to make the payment to an address in a jurisdiction other than that of the participating FFI or registered deemed-compliant FFI (or branch (including a disregarded entity) of such FFI) that is identified by such FFI as receiving the payment; and (2) the withholding agent does not receive a GIIN assigned to the FFI identifying the country in which the branch (or disregarded entity) is located. A comment noted that an FFI may direct a payment to an account held by the FFI at another financial institution at a location outside the FFI's country of residence where the FFI does not have a branch. In response to the comment, these final regulations provide that a withholding agent is not required to apply the reason to know rule to an FFI that is an investment entity. In addition, if an FFI other than an investment entity directs a withholding agent to make a payment to an account held by the FFI and maintained by another financial institution at a location outside the jurisdiction where the FFI is resident or incorporated or the jurisdiction where the branch receiving the payment is located, the FFI must provide to the withholding agent a statement in writing that the FFI is not directing the payment to any branch of such FFI that is not a participating FFI or a registered deemed-compliant FFI. Additionally, these final regulations clarify that if a withholding agent is required to apply the reason to know rule described in this paragraph, it must treat the branch as other than a participating FFI or registered deemed-compliant FFI.
The 2014 temporary regulations revised the reason to know standard for claims of chapter 4 status in the 2013 final regulations to provide that, if a withholding agent has classified an entity as engaged in a particular type of business based on its records, the withholding agent has reason to know that the chapter 4 status claimed by the entity is unreliable or incorrect if the entity's claim conflicts with the withholding agent's classification of the entity's business type. The intent of the 2014 temporary regulations was to limit the reason to know rules to
Under the 2013 final regulations, a withholding agent that receives documentation for a payee through an intermediary or flow-through entity is required to review the documentation by applying the standards of knowledge applicable to chapter 4. The 2014 temporary regulations permit a withholding agent to accept a Form W–8 (or a substitute Form W–8) electronically through a system established by the withholding agent that meets the requirements described in § 1.1441–1(e)(4)(iv)(B). A comment requested that withholding agents be allowed to rely on documentation that the intermediary or flow-through entity received through an electronic system established by the intermediary or flow-through entity (rather than the withholding agent) to collect documentation from a payee. In Notice 2016–08, the Treasury Department and the IRS announced an intent to modify the standards of knowledge under §§ 1.1441–7(b)(10) and 1.1471–3(e)(4)(vi)(A)(
These final regulations clarify that a withholding agent that receives documentation from an intermediary or flow-through entity that is a reporting Model 1 FFI or reporting Model 2 FFI may rely on the chapter 4 status for a payee that is determined based on payee documentation or information that is publicly available that determines the chapter 4 status of the payee if such documentation or information is permitted under an applicable IGA, provided that the withholding agent has the information necessary to report on Form 1042–S. See § 1.1441–1(e)(3)(iv)(C)(
The chapter 3 regulations provide that a withholding agent may rely on the foreign status of an individual account
The chapter 4 regulations require a withholding agent to apply the presumption rules in § 1.1471–3(f) if the withholding agent cannot reliably associate a payment with valid documentation. Under § 1.1471–3(f)(4), a withholding agent must presume that an entity payee is a nonparticipating FFI and withhold on withholdable payments to the entity if the withholding agent cannot document the entity's chapter 4 status. A comment suggested that a reporting Model 1 FFI that receives a withholdable payment as an intermediary on behalf of, or makes a withholdable payment to, an account held by an undocumented entity should be permitted to treat such account as a U.S. reportable account and not as a nonparticipating FFI subject to withholding pursuant to the presumption rules under § 1.1471–3(f)(4). The Treasury Department and the IRS do not agree with the comment. Under Annex I of the Model 1 and Model 2 IGA, reporting Model 1 FFIs and reporting Model 2 FFIs must apply the due diligence procedures described in Annex I to document the status of their account holders under the IGA as U.S. reportable accounts, nonparticipating FFIs, or additionally in the case of a reporting Model 2 FFI, non-consenting U.S. accounts, and if such procedures are applied, cases in which an entity account is undocumented should not arise. If a reporting Model 1 FFI or reporting Model 2 FFI does not have information in its possession or that is publicly available based on which it can reasonably determine the status of an entity account holder the FFI must obtain a self-certification to establish the status of such entity (or in some cases, a self-certification to establish the status of the controlling persons of a passive NFFE) consistent with Annex I of the applicable IGA. In cases where a reporting Model 1 FFI or reporting Model 2 FFI acts as an intermediary for a withholdable payment that is allocated to an entity account and is unable to document the account by obtaining such information or self-certification consistent with the procedures described in Annex I of the applicable IGA, the chapter 4 regulations provide presumption rules for withholdable payments made to such account (and if an FFI has many such undocumented accounts, the U.S. Competent Authority may determine that there is significant non-compliance with the requirements of the IGA with respect to the FFI). In such cases, the reporting Model 1 FFI or reporting Model 2 FFI must apply the presumption rules in § 1.1471–3(f) to treat such entity account as a nonparticipating FFI and provide sufficient information to the upstream withholding agent to withhold on the payment (or, if such reporting Model 1 FFI or reporting Model 2 FFI is a WP, WT, or a QI that assumes primary withholding responsibility on the payment for chapters 3 and 4, the WP, WT, or QI must withhold). Withholding on undocumented entity accounts as accounts of nonparticipating FFIs is consistent with the IGAs, which contemplates that nonparticipating FFIs would remain subject to withholding on withholdable payments received through a reporting Model 1 FFI or reporting Model 2 FFI.
Under section 1471(b)(1)(D)(i), a participating FFI must agree to withhold on passthru payments (that is, withholdable payments and foreign passthru payments) made to recalcitrant account holders of the FFI and nonparticipating FFIs. The 2013 final regulations reserve on the definition of foreign passthru payment and provide that a participating FFI is not required to withhold tax on a foreign passthru payment made to a recalcitrant account holder or a nonparticipating FFI before the later of January 1, 2017, or the date of publication in the
The 2013 final regulations require a participating FFI to certify to the IRS that the FFI has complied with the applicable due diligence requirements with respect to preexisting accounts of the FFI and that the FFI did not have any formal or informal practices or procedures in place from August 6, 2011, through the date of such certification to assist account holders in the avoidance of chapter 4. Under the 2013 final regulations, this certification must be made no later than 60 days following the date that is two years after the effective date of the participating FFI's FFI agreement. As announced in Notice 2016–08, these final regulations modify the time for an FFI to make this certification by providing that the certification must be submitted to the IRS by the due date of the FFI's first certification of compliance required under § 1.1471–4(f)(3). Additionally, in order to mitigate any increased burden caused by the modified due date (for example, if an FFI has undergone changes in management personnel since August 6, 2011), these final regulations require a participating FFI to certify that
Comments requested an exemption from filing Form 8966 for a participating FFI that is a partnership filing Form 1065 and Schedule K–1 to report its U.S. partners. While the forms collect some overlapping information, the Schedule K–1 does not provide all of the same information as Form 8966. In particular, Form 8966 collects information about both direct and indirect owners of a passive NFFE, while Form 1065 and Schedule K–1 only identifies direct partners. Therefore, the Treasury Department and the IRS at this time do not believe that it would be appropriate to provide an exemption for partnerships from having to file Form 8966 on behalf of its U.S. partners. The Treasury Department and the IRS will evaluate the information received on Forms 8966 filed with the IRS and may assess the utility of that information, taking into account any information filed on Form 1065 and Schedule K–1 and any other relevant information about offshore activities of U.S. persons that are filed with the IRS.
Under § 1.1471–4(d)(2)(ii)(F), a participating FFI that maintains an account of a nonparticipating FFI must report to the IRS foreign reportable amounts paid to or with respect to the account for each of calendar years 2015 and 2016. A foreign reportable amount is defined in the 2014 temporary regulations as a foreign source payment described in § 1.1471–4(d)(4)(iv) (which includes gross proceeds). In lieu of reporting foreign reportable amounts, a participating FFI may report all income, gross proceeds, and redemptions (irrespective of source) paid to the nonparticipating FFI's account by the participating FFI during the year. Under a transitional rule in § 1.1471–4(d)(7)(ii)(B), a participating FFI is not required to report gross proceeds paid to a U.S. account or an account held by an owner-documented FFI in the 2015 calendar year. As announced in Notice 2016–08, these final regulations provide that a participating FFI is not required to report gross proceeds from the sale or redemption of property paid or credited to a custodial account that are paid to or with respect to an account held by a nonparticipating FFI for calendar year 2015. This exception applies regardless of whether the FFI is reporting foreign reportable amounts or all income, gross proceeds, and redemptions. These final regulations also remove an incorrect reference to a registered deemed-compliant FFI in the first sentence of § 1.1471–4(d)(2)(ii)(F).
Under the 2013 final regulations, a participating FFI is required to report each U.S. account, which is defined as an account held by one or more specified U.S. persons or U.S. owned foreign entities. With respect to U.S. owned foreign entities, the Treasury Department and the IRS intended for participating FFIs to report only substantial U.S. owners of NFFEs that are passive NFFEs (defined in § 1.1471–1(b)(94)). Accordingly, these final regulations revise the reporting requirements for participating FFIs to clarify that FFIs are required to report on accounts held by passive NFFEs that are U.S. owned foreign entities. Conforming changes have also been made throughout these final regulations.
The 2013 final regulations allow a participating FFI to elect to report cash value insurance contracts or annuity contracts that are U.S. accounts in a manner similar to section 6047(d), but require that such reporting include the account balance or value of the account. In contrast, a participating FFI that elects to perform chapter 61 reporting on a U.S. account other than a cash value insurance contract or annuity contract does not need to report the account balance or value. These final regulations remove the requirement for an FFI that elects to report a U.S. account that is a cash value insurance contract or annuity contract under section 6047(d) to report the account balance or value in order to achieve parity with the election to report other U.S. accounts under chapter 61. This revision reduces burden on FFIs electing to report U.S. accounts that are cash value insurance contracts or annuity contracts on Form 1099–R, “Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.,” in lieu of Form 8966.
The 2014 temporary regulations require that each member of an expanded affiliated group have a chapter 4 status of participating FFI, deemed-compliant FFI, or exempt beneficial owner in order for any member of such group to obtain a chapter 4 status of participating FFI or registered deemed-compliant FFI. Each member of the group (except a certified deemed-compliant FFI or exempt beneficial owner) must also agree to the status for which it applies for all of its branches. For a transitional period, an expanded affiliated group may include an FFI that cannot comply with the requirements of a participating FFI if certain conditions specified in the regulations are satisfied (limited FFI). Another transitional rule allows an FFI to have a branch that cannot satisfy all the requirements of a participating FFI if certain requirements specified in the regulations are satisfied (limited branch).
Under the 2013 final regulations, the transitional period for limited branch or limited FFI status expires on December 31, 2015. In Notice 2015–66, the Treasury Department and the IRS announced that this transitional period will be extended in order to provide FFIs and other stakeholders additional time to determine whether to continue operating in jurisdictions where limited branches or limited FFIs exist. Accordingly, these final regulations extend the availability of limited branch status and limited FFI status until December 31, 2016.
One of the conditions in the 2013 final regulations for limited FFI or limited branch status is that the FFI or branch agree that it will not open accounts that it is required to treat as U.S. accounts or accounts held by nonparticipating FFIs, including accounts transferred from any member
A comment stated that certain jurisdictions prohibit FFIs resident in, or organized under the laws of, the jurisdiction from registering with the IRS for the status of limited FFI. As previewed in Notice 2015–66, these final regulations provide that a prohibition from registration will not prevent an FFI from becoming a limited FFI if certain conditions specified in these final regulations are satisfied. A member of the FFI's expanded affiliated group that is a U.S. financial institution, participating FFI, or reporting Model 1 FFI must register on the FATCA registration Web site as a lead FI and identify the FFI as a limited FFI. If the limited FFI is prohibited from being identified by its legal name on the FATCA registration Web site, the lead FI may use the term
The 2013 final regulations provide that the responsible officer of a participating FFI must submit the certification of compliance required in § 1.1471–4(f)(3) to the IRS six months following the end of each certification period. As previewed in Notice 2016–08, to conform the time for submitting the certification of compliance to the time specified in the FFI agreement, these final regulations provide that the certification of compliance must be submitted on or before July 1 of the calendar year following the end of each certification period. The IRS intends to publish instructions for making this certification, which will require an FFI to complete and submit the certification electronically through the FATCA registration Web site. Accordingly, these final regulations specify that a responsible officer of a participating FFI must make a certification of effective internal controls or qualified certification on the form and in the manner prescribed by the IRS.
In addition, § 1.1471–4(f)(3)(i) states that if the participating FFI has failed to remediate any material failures as of the date of the certification, the FFI must make the qualified certification described in § 1.1471–4(f)(3)(iii). However, § 1.1471–4(f)(3)(iii) provides that the responsible officer must make the qualified certification if it has identified either an event of default or a material failure that the participating FFI has not corrected as of the date of the certification. These final regulations conform these sections by modifying § 1.1471–4(f)(3)(i) so that a qualified certification must be made if the FFI has identified an event of default (in addition to a material failure) that has not been corrected as of the date of the certification.
The 2014 temporary regulations provide that the IRS, based upon the information reporting forms described in § 1.1471–4(d)(3)(v), (d)(5)(vii), or (d)(6)(iv) (Form 8966 or Form 1099) filed with the IRS for each calendar year, may request additional information with respect to the information reported on the forms or may request the account statements described in § 1.1471–4(d)(4)(v). The 2014 temporary regulations are silent on whether the IRS can request such information if the FFI does not file information reporting forms for the calendar year.
As described in the preamble to the 2014 temporary regulations, the 2014 temporary regulations add a second sentence to § 1.1471–4T(f)(4)(i) to “further allow the IRS to request additional information to determine an FFI's compliance with the applicable FFI agreement.” The Treasury Department and the IRS did not intend for the 2014 temporary regulations to be limited such that the IRS cannot request information if the FFI fails to file the specified information reporting forms. Thus, these final regulations clarify that IRS requests for additional information under § 1.1471–4(f)(4)(i) may be based on the absence of any information reporting forms filed by the FFI with the IRS for the calendar year, and that the IRS may request additional information with respect to the information reported or required to be reported, including confirmation that the FFI has no reporting requirements.
Comments requested that the definition of a U.S. account exclude accounts held by U.S. individuals resident in the same jurisdiction as the FFI with which the account is held. This comment is not adopted. The U.S. federal income tax system largely relies on voluntary compliance, and third party information reporting of the financial accounts of U.S. taxpayers is used to encourage voluntary compliance. For this reason, U.S. financial institutions are generally required to report under chapter 61 U.S. and foreign source investment income paid to account holders that are U.S. individuals. However, before FATCA, FFIs (in particular, non-U.S. payors) generally were not required to report foreign source payments made to U.S. taxpayers. The information reporting required by FATCA is intended to address the use of foreign accounts to facilitate tax evasion, and also to strengthen the integrity of the voluntary
Under the 2013 final regulations, FFI means, with respect to any entity that is not resident in a country that has in effect a Model 1 IGA or Model 2 IGA, any financial institution that is a foreign entity; and, with respect to any entity that is resident in a country that has in effect a Model 1 IGA or Model 2 IGA, FFI means any entity that is treated as a financial institution pursuant to such IGA. Because some IGAs use an organizational test, rather than a residence test, to determine whether a financial institution is covered by the IGA, these final regulations modify the definition of FFI to refer to an entity that is (or is not) resident in, or organized under the laws of, as applicable, a country that has in effect an IGA. In addition, with respect to an entity resident in a country that has in effect a Model 1 or Model 2 IGA, these final regulations modify the definition of FFI to mean an entity that is treated as a FATCA Partner Financial Institution under the IGA, not any entity that is treated as a financial institution under the IGA, because the term
One of the requirements for an excepted nonfinancial group entity is that the entity cannot be formed in connection with or availed of by certain arrangements or investment vehicles. The 2014 temporary regulations provide that an entity will not be considered to have been formed in connection with or availed of by an arrangement or investment vehicle if the entity existed at least six months prior to its acquisition by the arrangement or investment vehicle and, prior to the acquisition, regularly conducted activities in the ordinary course of business. A comment noted that the phrase “ordinary course of business” is unclear with respect to a holding company, captive finance company, or treasury center. In response to the comment, these final regulations clarify the 2014 temporary regulations by cross-referencing § 1.1471–5(e)(5)(i)(C), (D), or (E) (as applicable) to describe the activities of a holding company, captive finance company, or treasury center.
A comment noted that the treatment of receivables related to financing to customers as passive assets makes it difficult for an expanded affiliated group to qualify as a nonfinancial group, even if the receivables are originated by a captive finance company in the expanded affiliated group. The Treasury Department and the IRS believe that certain receivables related to financing to customers should not make a group ineligible to qualify as a nonfinancial group because customer financing is common in some nonfinancial businesses and is not necessarily indicative of a financial business. Further, customer financing is a permissible activity for a captive finance company, but status as a captive finance company is only relevant for qualifying as a nonfinancial group entity. Therefore, these final regulations exclude from the passive income and asset tests in § 1.1471–5(e)(5)(i)(B)(
A comment noted that it is difficult for a nonfinancial group operating on a non-calendar fiscal year basis to measure its income and assets on a calendar year basis in order to determine whether it meets the income and asset tests in § 1.1471–5(e)(5)(i)(B)(
A comment requested elimination of the requirement that each FFI in a nonfinancial group be a participating FFI or deemed-compliant FFI. The Treasury Department and the IRS believe that a limitation on the types of FFIs that can be members of nonfinancial groups is necessary to prevent an excepted nonfinancial group entity from acting as a “blocker” for a nonparticipating FFI. The Treasury Department and the IRS also note that the rules for a participating FFI group similarly prohibit nonparticipating FFI members. However, since the 2014 temporary regulations permit participating FFI groups to include exempt beneficial owners (see § 1.1471–4T(e)(1)), these final regulations provide the same allowance for exempt beneficial owners to be members of nonfinancial groups.
A comment described situations in which an acquisition of an entity by a member of the expanded affiliated group or a change in chapter 4 status of a member of an expanded affiliated group may disqualify the group as a nonfinancial group. The comment requested a grace period for certain unintentional disqualifications from nonfinancial group status. The Treasury Department and the IRS agree with the comment and have determined that the rules for an acquisition or a change in chapter 4 status of a member of a nonfinancial group should not be stricter than those for a participating FFI group. The FFI agreement allows 90 days for a lead FI of an FFI group to inform the IRS of an acquisition or sale of a member of the FFI group or a change affecting the chapter 4 status of a member of the group before the acquisition or change becomes an event of default. In response to the comment and for consistency with the treatment of FFI groups, these final regulations provide that a change affecting the chapter 4 status of a member of a nonfinancial group, or an acquisition by a member of the expanded affiliated group of an FFI that does not have a permissible chapter 4 status, disqualifies the group as a nonfinancial group 90 days after such change or acquisition.
The 2013 final regulations require a registered deemed-compliant FFI that is a local FFI or restricted fund to make a
Under the 2013 final regulations, an FFI may not be a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle if it is a QI, WP, or WT. In Notice 2016–42, 2016–29 I.R.B. 67, the Treasury Department and the IRS announced that they are considering including in the WP Agreement an allowance for consolidated periodic reviews and certifications for WPs that are FFIs, similar to the allowance for QIs (see section 10.02(B) of the QI Agreement in Revenue Procedure 2014–39, 2014–29 I.R.B. 150 (as may be amended)). In order to accommodate an allowance for consolidated periodic reviews and certifications for WPs, these final regulations provide that a WP may be a sponsored investment entity to the extent permitted in the WP Agreement if the WP otherwise meets the requirements for status as a sponsored investment entity.
The 2013 final regulations provide that a sponsoring entity of a sponsored investment entity or controlled foreign corporation must be authorized to act on behalf of the FFI “to fulfill the requirements of the FFI agreement.” See § 1.1471–5(f)(1)(i)(F)(
The preamble to the 2014 temporary regulations states that the 2014 temporary regulations revise the 2013 final regulations to clarify that a sponsoring entity will not be jointly and severally liable for a sponsored FFI's withholding and reporting obligations under chapter 4, even if the sponsoring entity performs these responsibilities on behalf of such FFI, unless the sponsoring entity is also a withholding agent that is separately liable for such obligations. The text of the 2014 temporary regulations, however, inaccurately provides that a sponsoring entity of a sponsored FFI will not be liable for any failure to comply with the obligations contained in § 1.1471–5(f)(1)(i)(F)(
Under the 2014 temporary regulations, a responsible officer of a registered deemed-compliant FFI must periodically certify to the IRS that all of the requirements of the deemed-compliant status claimed by the FFI have been satisfied since the later of the date that the registered deemed-compliant FFI registers, or June 30, 2014. The 2014 temporary regulations provide that the certification is made every three years, but do not specify the date when the certification is due. The 2014 temporary regulations also allow a registered deemed-compliant FFI to make a certification on behalf of all registered deemed-compliant FFIs in the same expanded affiliated group.
As previewed in Notice 2016–08, these final regulations provide that a registered deemed-compliant FFI makes its certification on or before July 1 of the calendar year following the end of each certification period (consistent with the timing for certifications of compliance made by participating FFIs included in these final regulations). These final regulations also provide that the first certification period begins on the later of the date the FFI registers as a deemed-compliant FFI and is issued a GIIN, or June 30, 2014, and ends on the close of the third full calendar year following this date. Each subsequent certification period is the three calendar year period following the previous certification period. Under these final regulations, the FFI will certify to its compliance with the requirements of the deemed-compliant status during the certification period (rather than all periods since the later of the date that the FFI registers, or June 30, 2014).
In addition, these final regulations provide that the certification of compliance must be made on the form and in the manner prescribed by the IRS (consistent with the requirements for certifications of compliance by participating FFIs included in these final regulations). These final regulations also clarify that if a responsible officer of a registered deemed-compliant FFI makes the certification collectively for the FFI's expanded affiliated group, the certification must provide that all of the requirements for the deemed-compliant status claimed by each member of the expanded affiliated group that is a registered deemed-compliant FFI (other than a member that is a reporting Model 1 FFI or deemed-compliant FFI under an applicable Model 1 IGA) have been satisfied during the certification period.
A comment requested a three-year grace period during which a sponsored, closely held investment vehicle that becomes noncompliant with the requirements of its deemed-compliant status may retain its chapter 4 status.
In response to comments to the 2013 final regulations, the 2014 temporary regulations include significant revisions to the requirements for limited liability debt investment entities (LLDIEs) in order to accommodate industry practices and expand the types of securitization vehicles that qualify as LLDIEs. Since the 2014 temporary regulations were published, the Treasury Department and the IRS have received additional comments requesting modifications to the requirements for LLDIEs. One comment noted that it is unclear under the laws of certain foreign jurisdictions whether a person has authority to fulfill the requirements of a participating FFI. The comment requested that an FFI be permitted to base the determination of authority solely on whether or not the FFI's trust documents contain an explicit reference to the obligations of a participating FFI. The Treasury Department and the IRS do not believe that this would be an appropriate test because it is unlikely that a trust document would have an explicit reference to the obligations of a participating FFI prior to 2013, thereby undermining the rule.
The 2014 temporary regulations provide that substantially all of the assets of an LLDIE must consist of debt instruments or interests therein. The Treasury Department and the IRS received comments that borrowers on a debt instrument held by the LLDIE may encounter financial trouble such that the lender may foreclose or restructure the debt or the borrower may enter bankruptcy proceedings. Under these circumstances, the LLDIE may hold non-debt assets, such as equity or real estate, that may represent a significant portion of the LLDIE's assets during the wind down period. The comments requested that “debt instruments or interests therein” include equity or other non-debt assets acquired upon a foreclosure or restructuring of the debt. The Treasury Department and the IRS agree that an entity should not lose its status as an LLDIE because it holds certain non-debt assets as a result of foreclosures or restructurings. Therefore, these final regulations revise the 2014 temporary regulations to provide that debt instruments or interests therein include assets acquired pursuant to a restructuring, workout, or similar event with respect to a debt instrument.
The 2014 temporary regulations added a category of certified deemed-compliant FFI for certain investment entities described in § 1.1471–5(e)(4)(i)(A) that do not maintain financial accounts under the heading “Investment advisors and investment managers.” A comment noted that an investment entity may meet the substantive requirements of this category even if it is not an investment advisor or investment manager. The Treasury Department and the IRS agree with the comment that the rule in the 2014 temporary regulations is not limited to investment entities that are investment advisors or investment managers. For clarity and in response to this comment, these final regulations change the heading of § 1.1471–5(f)(2)(v) to “Certain investment entities that do not maintain financial accounts.”
Under § 1.1471–2(a)(3), participating FFIs that comply with the withholding requirements of § 1.1471–4(b), exempt beneficial owners, section 501(c) entities described in § 1.1471–5(e)(5)(v), and nonprofit organizations described in § 1.1471–5(e)(5)(vi) are deemed to satisfy their withholding obligations under section 1471(a) and § 1.1471–2. However, under § 1.1472–1(a), only participating FFIs are deemed to satisfy their withholding obligations under section 1472(a). These final regulations revise § 1.1472–1(a) to add exempt beneficial owners, section 501(c) entities described in § 1.1471–5(e)(5)(v), and nonprofit organizations to coordinate with § 1.1471–2(a)(3). In addition, these final regulations cross-reference § 1.1471–5(f) for when deemed-compliant FFIs are deemed to satisfy their withholding obligations under section 1472(a) with respect to withholdable payments to account holders that are NFFEs.
A comment requested an exception from withholding on withholdable payments that are property and casualty insurance premiums made to “hedge fund reinsurance companies.” According to the comment, such companies generally would not have any substantial U.S. owners because they do not allow a U.S. person to hold 10 percent or more of the voting stock in order prevent the company from being a controlled foreign corporation. The comment assumes that the entity is a NFFE but does not analyze the issue of whether the entity is properly characterized as an FFI or NFFE. Under § 1.1471–5(e)(4)(i)(C), an entity that functions or holds itself out as a hedge fund is an FFI. As an FFI, a hedge fund that has agreed to the terms of the FFI agreement would be required to report U.S. accounts, which are not limited to U.S. persons that hold 10 percent or more of the fund and would generally include any specified U.S. person that owns, directly or indirectly, more than zero percent of the investment entity. In the case of an insurance company that is a passive NFFE, it may elect to be a direct reporting NFFE and report any substantial U.S. owners (which are defined as specified U.S. persons that hold 10 percent of the stock by vote or value) to the IRS if the NFFE does not wish to disclose its substantial U.S. owners to a withholding agent. In addition, if a passive NFFE has no substantial U.S. owners, it may certify that to a withholding agent to avoid withholding on withholdable payments. The Treasury Department and the IRS believe that the chapter 4 regulations already mitigate any burden imposed by FATCA on passive NFFEs by providing an exception for direct reporting NFFEs. Therefore, these final regulations do not adopt this comment.
Under the 2014 temporary regulations, a NFFE satisfies the asset test to be an active NFFE if less than 50 percent of the weighted average percentage of assets (tested quarterly) held by the NFFE are assets that produce or are held for the production of passive income, as determined after the application of § 1.1472–1(c)(1)(iv)(B). To remove ambiguity, these final regulations clarify that a NFFE satisfies the asset test if the
Under the 2014 temporary regulations, a direct reporting NFFE must make a periodic certification to the IRS regarding its compliance with the requirements of a direct reporting NFFE within each six month period following the end of each certification period. The 2014 temporary regulations provide that the first certification period begins on the date a GIIN is issued to the NFFE. To account for GIINs issued before the implementation of FATCA, and for consistency with certifications by other entities, these final regulations amend the date that the first certification period begins for a direct reporting NFFE to the later of the date a GIIN is issued to the NFFE, or June 30, 2014. These final regulations also require that the NFFE make the periodic certification on the form and in the manner prescribed by the IRS (consistent with other certifications of compliance included in these final regulations). Finally, these final regulations provide that the certification will be due on or before July 1 of the calendar year following the end of each certification period to conform to the due dates for the certifications of compliance by participating FFIs and registered deemed-compliant FFIs included in these final regulations.
Under the 2014 temporary regulations, a NFFE can elect to be treated as a direct reporting NFFE by registering with the IRS on Form 8957, “Foreign Account Tax Compliance Act (FATCA) Registration,” or the FATCA registration Web site. The 2014 temporary regulations provide that this election can only be revoked if the NFFE obtains consent from the Commissioner and, upon revocation, the NFFE must notify its sponsoring entity (for a NFFE that is a sponsored direct reporting NFFE) and all relevant withholding agents of the revocation. The 2014 temporary regulations also provide that the IRS may revoke the direct reporting status of a NFFE upon an event of default.
The Treasury Department and the IRS have determined that the requirement for a direct reporting NFFE to obtain consent to revoke its direct reporting NFFE status is unnecessary. Therefore, these final regulations remove this requirement and provide that a direct reporting NFFE may revoke its election by canceling its registration account on the FATCA registration Web site and by notifying the IRS in such manner as the IRS may prescribe in the Instructions for Form 8966. Further, these final regulations amend the notification requirements in the 2014 temporary regulations to require a NFFE to send notification within 30 days of the revocation to each financial institution (in addition to each withholding agent) from which it receives payments or with which it holds an account for which the NFFE provided a withholding certificate or written statement representing its status as a direct reporting NFFE. This amendment reflects that a NFFE may have provided documentation of its status to a financial institution that is not a withholding agent, and that in certain cases a NFFE is permitted to provide a written statement (rather than a withholding certificate).
Under the 2013 final regulations, the term
The 2013 final regulations under section 1473 provide an exclusion from the definition of withholdable payments for certain non-intermediated offshore payments of U.S. source FDAP income made prior to January 1, 2017. Under the 2014 temporary regulations, this transitional rule was expanded to apply to a non-U.S. insurance broker that pays insurance and reinsurance premiums to a foreign insurance or reinsurance company. Comments requested that the transitional rule for offshore payments made by non-U.S. insurance brokers be extended for another year to allow non-U.S. brokers additional time to develop withholding and information reporting systems. A comment requesting further guidance about the sourcing of premiums was also submitted.
Withholding under chapter 4 is intended to incentivize foreign entities to report certain information about U.S. persons that make use of offshore accounts or passive NFFEs. The preamble to the 2013 final chapter 4 regulations stated that “[t]his information reporting strengthens the integrity of the U.S. voluntary tax compliance system by placing U.S. taxpayers that have access to international investment opportunities on an equal footing with U.S. taxpayers that do not have such access or otherwise choose to invest within the United States.” 78 FR 5874. Withholding under chapter 4 is broad and may apply whenever a withholding agent, whether U.S. or foreign, makes a withholdable payment to ensure that the information reporting objectives of chapter 4 are met. As a result, chapter 4 withholding under sections 1471 and 1472 may apply to a withholdable payment made by a non-U.S. payor to a foreign payee. Consistent with these information reporting objectives of chapter 4, a passive NFFE may avoid being subject to withholding under chapter 4 by furnishing the documentation described in § 1.1471–3(d)(12) to its withholding agent or by electing to be treated as a direct reporting NFFE and providing information directly to the IRS.
The Treasury Department and the IRS have not accepted the comment to extend further the offshore payment transition rule to exclude from the definition of withholdable payments insurance and reinsurance premiums that are U.S. source FDAP income and paid by a non-U.S. broker to a foreign
From a policy perspective, the question of whether a foreign insurance or reinsurance company is a passive foreign investment company within the meaning of section 1297 is similar to the question of whether the foreign insurance or reinsurance company is a passive NFFE. On April 24, 2015, the Treasury Department and the IRS published proposed regulations (REG–108214–15) in the
Under the 2013 final regulations, a withholding agent must file Form 8655, “Reporting Agent Authorization,” with the IRS if it appoints an agent to act as its reporting agent for filing Form 1042 or making tax deposits and payments with respect to Form 1042. A comment suggested that Form 8655 should only be required to be filed when an agent files a Form 1042 in its own name (and under its own EIN) on behalf of another withholding agent. In response to the comment, these final regulations amend the 2013 final regulations to provide that a withholding agent must file Form 8655 only when its agent files a Form 1042 as the filer on behalf of the withholding agent. This revision is also included in final regulations under chapter 3 that are published elsewhere in this issue of the
The 2014 temporary regulations require withholding agents to file Form 1042–S, “Foreign Person's U.S. Source Income Subject to Withholding,” to report a chapter 4 reportable amount and to furnish a copy of the form to the recipient and any intermediary or flow-through entity. The chapter 3 regulations include a similar filing requirement for amounts subject to reporting under chapter 3. The Treasury Department and the IRS have determined that withholding agents should be permitted to send Forms 1042–S to recipients electronically for purposes of both chapters 3 and 4 if certain requirements are met. These final regulations allow electronic recipient copies of Form 1042–S for chapter 4 purposes by cross-referencing § 1.1461–1(c)(1)(i)(A) (added in regulations published elsewhere in this issue of the
The 2014 temporary regulations require reporting by a withholding agent that makes a withholdable payment to an FFI that it treats as an owner-documented FFI, regardless of whether the owner-documented FFI is reported by another FFI or withholding agent under § 1.1471–4(d) or § 1.1474–1(i)(1). These final regulations relieve a withholding agent of this reporting when: (1) The withholding agent obtains from a participating FFI or reporting Model 1 FFI receiving a withholdable payment allocable to the owner-documented FFI a certification that the FFI is reporting for the year of the payment to the IRS all of the information described in § 1.1471–4(d) or § 1.1474–1T(i)(1) (as appropriate); and (2) the withholding agent does not know or have reason to know that the certification is incorrect or unreliable. These final regulations also amend the requirements for an FFI withholding statement to permit an FFI to include the certification described in the preceding sentence on the FFI's withholding statement.
Finally, the 2014 temporary regulations do not allow a withholding agent reporting under § 1.1474–1T(i)(1) on an owner-documented FFI to request an extension of time to file Form 8966. However, an FFI that otherwise qualifies to be an owner-documented FFI but instead reports its accounts as a participating FFI on Form 8966 would be eligible for the extensions of time to file Form 8966 provided in § 1.1471–4(d)(3)(vii). In order to allow a withholding agent the same period of time to report the accounts of an owner-documented FFI as the FFI could have if it performed its own reporting, these final regulations provide that such withholding agent may request an automatic 90-day extension of time to file Form 8966 and, under certain hardship conditions, an additional 90-day extension.
The 2014 temporary regulations require reporting on Form 8966 by a withholding agent of information about any substantial U.S. owners of a passive NFFE to which the withholding agent makes a withholdable payment, and require this reporting regardless of whether the passive NFFE is reported by a participating FFI as a U.S. account or by a reporting Model 1 FFI as a U.S. reportable account under an applicable IGA. To eliminate duplicative reporting of U.S. owners, these final regulations relieve a withholding agent of reporting with respect to a passive NFFE with one or more substantial U.S. owners if: (1) The NFFE is an account holder of a participating FFI or a registered deemed-compliant FFI; (2) the withholding agent obtains the certification described in § 1.1471–3(c)(3)(iii)(B)(
The 2014 temporary regulations do not provide an exception for intermediaries and flow-through entities receiving a payment for a passive NFFE with one or more substantial U.S. owners that are not required to report under § 1.1471–4(d) or an applicable IGA, even though reporting by those entities duplicates the reporting required of the withholding agent under § 1.1474–1(i)(2). To eliminate this duplicative reporting, these final regulations provide that an entity not subject to any other coordination rule in § 1.1474–1(i)(2) (including as described in the preceding paragraph) that is a flow-through entity or an entity acting as an intermediary for a withholdable payment allocable to a passive NFFE is not required report on the substantial U.S. owners of the passive NFFE under § 1.1474–1(i)(2) if: (1) The entity provides to the withholding agent from which it receives the payment documentation with respect to the passive NFFE's substantial U.S. owners sufficient for the withholding agent to report this information under § 1.1474–1(i)(2); and (2) the intermediary or flow-through entity does not know or have reason to know that the withholding agent does not report this information.
The 2013 final regulations provide that a failure by a financial institution to file Form 1042–S or Form 8966 electronically is a failure to comply with the information reporting requirements under section 6723. However, section 6723 applies only to a “specified information reporting requirement,” which does not include Form 1042–S or Form 8966. See section 6724(d)(3). The correct citation is section 6721, which provides penalties applicable to an “information return,” which is defined in section 6724(d)(1) to include any form, statement, or schedule required to be filed under chapter 4. Therefore, these final regulations correct the 2013 final regulations to cross-reference section 6721 rather than section 6723.
These final regulations include various nonsubstantive clarifications and corrections to the 2013 final regulations and the 2014 temporary regulations.
Erroneous cross-references are corrected in §§ 1.1471–2(a)(4)(iii), 1.1471–3(c)(6)(ii)(C)(
These final regulations revise § 1.1471–4(a)(4), which provides rules concerning expanded affiliated groups, to conform to the revisions to § 1.1471–4T(e)(1) in the 2014 temporary regulations, which allow exempt beneficial owners and certified deemed-compliant FFIs to be members of an expanded affiliated group that includes a participating FFI. These final regulations also modify references to territory financial institutions acting as intermediaries in § 1.1471–4(d)(2)(ii)(B) to refer to both territory financial institutions acting as intermediaries and territory financial institutions that are flow-through entities, because the rules described in these sections apply to both types of territory financial institutions. In § 1.1471–4(d)(3)(vii) and (d)(6)(vi), references to Form 8809 are revised because the IRS created a new form (Form 8809–I, “Application for Extension of Time to File FATCA Form 8966”) for applications for extensions of time to file Form 8966.
The 2013 final regulations are inconsistent when describing the specified U.S. persons that a participating FFI is required to report with respect to an owner-documented FFI. Under § 1.1471–4(d)(2)(ii)(D), a participating FFI is required to report the information described in § 1.1471–4(d)(3)(iv) or (d)(5)(iii) with respect to each specified U.S. person identified in § 1.1471–3(d)(6)(iv)(A)(
In response to comments and after further consideration, this document includes temporary regulations that revise or clarify certain sections of the 2013 final regulations. The following portions of this preamble provide a discussion of the additions and modifications made by these temporary regulations to the 2013 final regulations.
The 2013 final regulations provide that an address that is provided subject to an instruction to hold all mail to that address is not a permanent residence address. The temporary coordination regulations apply this rule to chapter 3. A comment noted that some withholding agents interpret this provision to mean that a payee that provides an address subject to a hold mail instruction cannot generally establish non-U.S. status (because, for example, a Form W–8BEN requires a permanent residence address). The Treasury Department and the IRS agree with this interpretation but did not intend for an account to be treated as undocumented if there is a permanent residence address with a hold mail instruction. In regulations published elsewhere in this issue of the
The 2013 final regulations provide that a withholding agent may reliably associate a withholdable payment with valid documentation supporting a payee's chapter 4 status if the documentation is obtained “either directly or through an agent.” See § 1.1471–3(c)(1). The 2013 final regulations further provide that such documentation must be “provided by a payee.” Id. For chapter 3 purposes, a withholding agent can reliably associate a payment with a Form W–8BEN that is “furnished by” the beneficial owner. See § 1.1441–1(e)(1)(ii)(A)(
In consideration of this comment, the temporary coordination regulations are revised in regulations published elsewhere in this issue of the
The 2014 temporary regulations and the temporary coordination regulations do not permit a withholding agent to accept Forms W–8 with an electronic signature, other than Forms W–8 electronically transmitted through the withholding agent's electronic system. The Treasury Department and the IRS have determined that Forms W–8 received by facsimile, email, or from a third party repository may include an electronic signature, and that this rule should be consistent in chapters 3 and 4. Therefore, the temporary coordination regulations are revised in regulations published elsewhere in this issue of the
Temporary regulations under chapter 3 that are published elsewhere in this issue of the
On July 29, 2016, the Treasury Department and the IRS released Announcement 2016–27, 2016–33 I.R.B. 238, which provides that on January 1, 2017, the Treasury Department will begin updating the list of jurisdictions treated as if they have an IGA in effect to provide that certain jurisdictions that have not brought their IGA into force will no longer be treated as if they have an IGA in effect. The list of jurisdictions treated as if they have an IGA in effect (the “IGA List”) is located at
The 2013 final regulations provide rules for when a withholding agent may rely on documentation received after the time of payment to establish that no withholding was required under chapter 4 on the payment. The temporary coordination regulations provide similar rules for establishing that no withholding was required under chapter 3. In regulations published elsewhere in this issue of the
Under the 2013 final regulations, an FFI cannot qualify as an owner-documented FFI if it is a member of an expanded affiliated group with any FFI that is a depository institution, custodial institution, or specified insurance company. That is, under the 2013 final regulations, all FFIs in the expanded affiliated group must be investment entities. The 2013 final regulations further provide that a withholding agent cannot act as a designated withholding agent for an owner-documented FFI if the withholding agent knows or has reason to know that the owner-documented FFI is a member of an expanded affiliated group with any FFI other than an FFI that is also treated as an owner-documented FFI by the withholding agent. These temporary regulations modify the reason to know rule for designated withholding agents to conform to the requirements of an owner-documented FFI that is a member of an expanded affiliated group. Under these temporary regulations, a withholding agent cannot act as a designated withholding agent for an owner-documented FFI if the withholding agent knows or has reason to know that the owner-documented FFI is a member of an expanded affiliated group with any FFI that is a depository institution, custodial institution, or specified insurance company,
The 2013 final regulations provide limitations on the standards of knowledge that apply in a merger or bulk acquisition if a participating FFI (transferee FFI) acquires the accounts of a participating FFI or deemed-compliant FFI (including a U.S. branch of either such FFI) that applies the due diligence requirements of § 1.1471–4(c) as a condition of its status, or of a U.S. financial institution (transferor FI), provided certain requirements are met. One such requirement is that a transferor FI that is a branch of a participating FFI or of a registered deemed-compliant FFI (other than a U.S. branch that is treated as a U.S. person) or that is a deemed-compliant FFI that applies the due diligence rules of § 1.1471–4(c) as a condition of its status provide a written representation to the transferee FFI regarding the transferor FI's application of required due diligence procedures. Because this written representation is to be provided by all transferor FIs that are FFIs, these temporary regulations provide that a transferee FFI must obtain the written representation described in § 1.1471–4(c)(2)(ii)(B)(
The 2014 temporary regulations require a participating FFI to report information with respect to U.S. accounts and accounts held by owner-documented FFIs maintained at any time during the calendar year. A participating FFI is also required to report foreign reportable amounts paid to accounts held by nonparticipating FFIs. Comments requested guidance on reporting accounts acquired in a merger or bulk acquisition on Form 8966. In response to the comment, these temporary regulations provide that if a participating FFI (successor) acquires accounts of another participating FFI (predecessor) in a merger or bulk acquisition of accounts, the successor may assume the predecessor's obligations to report the acquired accounts under § 1.1471–4(d) with respect to the calendar year of the merger or acquisition (acquisition year) provided certain requirements are met. First, the successor must acquire substantially all of the accounts maintained by the predecessor, or substantially all of the accounts maintained at a branch of the predecessor, in a merger or bulk acquisition of accounts. Second, the successor must agree to report the acquired accounts for the acquisition year on Forms 8966 to the extent required in § 1.1471–4(d)(3) or (d)(5). Third, the successor may not elect to report under section 1471(c)(2) and § 1.1471–4(d)(5) with respect any acquired account that is a U.S. account for the acquisition year. Fourth, the successor must notify the IRS on the form and in the manner prescribed by the IRS that Form 8966 is being filed on a combined basis. If the requirements described in this paragraph are not satisfied, the predecessor is required to report the acquired accounts for the portion of the acquisition that it maintains the accounts (marking the accounts as closed), and the successor is required to report the acquired accounts for the portion of the acquisition year that it maintains the accounts. For the rules for reporting on Forms 1042–S for chapter 4 purposes following a merger or bulk acquisition, see section II.E of this Summary of Comments and Explanation of Revisions and Provisions.
Under the 2013 final regulations, a participating FFI reporting an account that is a debt or equity interest in the FFI must report the gross amounts paid or credited to the account holder during the calendar year including payments in redemption (in whole or part) of the account. A comment requested clarification of the requirements for such reporting by a participating FFI that is a partnership for U.S. tax purposes. The comment noted disparities between the amount required to be reported by the partnership on Form 8966 and the amount of income allocated to the partner by the partnership, including that the reporting would overstate the partner's share of
In response to the comment, these temporary regulations modify the account reporting requirements for participating FFIs that are partnerships. Under these temporary regulations, a participating FFI that is a partnership reporting an account under § 1.1471–4(d)(3) must report the partner's distributive share of the partnership's income or loss for the calendar year, without regard to whether any such amount is distributed to the partner during the year, and any guaranteed payments for the use of capital. The amount required to be reported with respect to a partner may be determined based on the partnership's tax returns or, if the tax returns are unavailable by the due date for filing Form 8966, the partnership's financial statements or any other reasonable method used by the partnership for calculating the partner's share of partnership income by such date. These temporary regulations provide that the modifications to account reporting by partnerships described in this paragraph apply beginning with reporting with respect to calendar year 2017. However, taxpayers may apply these temporary regulations retroactively to January 28, 2013.
Under the 2013 final regulations, a participating FFI is required to report payments made with respect to an account that the FFI is required to treat as a U.S. account or account held by an owner-documented FFI. The 2013 final regulations provide that in the case of an account closed or transferred in its entirety by an account holder, the payments made with respect to the account are the payments made to the account until the date of transfer or closure and the amount withdrawn or transferred. The Treasury Department and the IRS intended for FFIs to report a closed or transferred account regardless of who initiates the closure or transfer. Therefore, these temporary regulations modify the 2013 final regulations to require reporting on a closed or transferred account when the account is closed or transferred by any person (not just the account holder). This modification is necessary to prevent FFIs from abusing the rules by claiming that no reporting is required if the FFI initiates the closure or transfer rather than the account holder. This modification is also consistent with the reporting required on closed accounts under the Model 1 IGA, which is not limited to accounts closed by the account holder.
Revenue Procedure 99–50, 1999–2 C.B. 757, provides procedures for combined reporting on Forms 1042–S following a merger or acquisition for purposes of chapter 3. To provide a consistent rule for reporting on Forms 1042–S under chapters 3 and 4 in these cases, these temporary regulations provide that a withholding agent required to report on Forms 1042–S under chapter 4 may rely on the procedures used for combined reporting on Form 1042–S that apply for chapter 3 purposes (even if the withholding agent is not required to report under chapter 3) following a merger or acquisition provided that all of the requirements for such reporting provided in the Instructions for Form 1042–S are satisfied.
Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required.
For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), please refer to the cross-referenced notice of proposed rulemaking published in the Proposed Rules section in this issue of the
The principal author of these regulations is Kamela Nelan, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1 and 301 are amended as follows:
26 U.S.C. 7805 * * *
The revisions and additions read as follows:
This section lists the table of contents for §§ 1.1471–1 through 1.1474–7 and § 301.1474–1 of this chapter.
(b) Definitions.
(7) Backup withholding.
(8) Beneficial owner.
(9) Blocked account.
(10) Branch.
(11) Broker.
(12) Cash value.
(13) Cash value insurance contract.
(14) Certified deemed-compliant FFI.
(15) Change in circumstances.
(16) Chapter 3.
(17) Chapter 4.
(18) Chapter 4 reportable amount.
(19) Chapter 4 status.
(20) Chapter 4 withholding rate pool.
(21) Clearing organization.
(22) Complex trust.
(23) Consolidated obligations.
(24) Custodial account.
(25) Custodial institution.
(26) Customer master file.
(27) Deemed-compliant FFI.
(28) Deferred annuity contract.
(29) Depository account.
(30) Depository institution.
(31) Direct reporting NFFE.
(32) Documentary evidence.
(33) Documentation.
(34) Dormant account.
(35) Effective date of the FFI agreement.
(36) EIN.
(37) Election to be withheld upon.
(38) Electronically searchable information.
(39) Entity.
(40) Entity account.
(41) Excepted NFFE.
(42) Exempt beneficial owner.
(43) Exempt recipient.
(44) Expanded affiliated group.
(45) FATF.
(46) FATF-compliant jurisdiction.
(47) FFI.
(48) FFI agreement.
(49) Financial account.
(50) Financial institution.
(51) Flow-through entity.
(52) Flow-through withholding certificate.
(53) Foreign entity.
(54) Foreign passthru payment.
(55) Foreign payee.
(56) Foreign person.
(57) GIIN.
(58) Grandfathered obligation.
(59) Grantor trust.
(60) Gross proceeds.
(61) Group annuity contract.
(62) Group insurance contract.
(63) Immediate annuity.
(64) Individual account.
(65) Insurance company.
(66) Insurance contract.
(67) Intergovernmental agreement (IGA).
(68) Intermediary.
(69) Intermediary withholding certificate.
(70) Investment entity.
(71) Investment-linked annuity contract.
(72) Investment-linked insurance contract.
(73) IRS FFI list.
(74) Life annuity contract.
(75) Life insurance contract.
(76) Limited branch.
(77) Limited FFI.
(78) Model 1 IGA.
(79) Model 2 IGA.
(80) NFFE.
(81) Non-exempt recipient.
(82) Nonparticipating FFI.
(83) Nonreporting IGA FFI.
(84) Non-U.S. account.
(85) NQI.
(86) NWP.
(87) NWT.
(88) Offshore obligation.
(89) Owner.
(90) Owner-documented FFI.
(91) Participating FFI.
(92) Participating FFI group.
(93) Partnership.
(94) Passive NFFE.
(95) Passthru payment.
(96) Payee.
(97) Payment with respect to an offshore obligation.
(98) Payor.
(99) Permanent residence address.
(100) Person.
(101) Preexisting account.
(102) Preexisting entity account.
(103) Preexisting individual account.
(104) Preexisting obligation.
(105) Pre-FATCA Form W–8.
(106) Prima facie FFI.
(107) QI.
(108) QI agreement.
(109) QI branch of a U.S. financial institution.
(110) Recalcitrant account holder.
(111) Registered deemed-compliant FFI.
(112) Relationship manager.
(113) Reportable payment.
(114) Reporting Model 1 FFI.
(115) Reporting Model 2 FFI.
(116) Responsible officer.
(117) Restricted distributor.
(118) Simple trust.
(119) Specified insurance company.
(120) Specified U.S. person.
(121) Sponsored FFI.
(122) Sponsored FFI group.
(123) Sponsored direct reporting NFFE.
(124) Sponsoring entity.
(125) Standardized industry coding system.
(126) Standing instructions to pay amounts.
(127) Subject to withholding.
(128) Substantial U.S. owner.
(129) Territory entity.
(130) Territory financial institution.
(131) Territory financial institution treated as a U.S. person.
(132) Territory NFFE.
(133) TIN.
(134) U.S. account.
(135) U.S. branch treated as a U.S. person.
(136) U.S. financial institution.
(137) U.S. indicia.
(138) U.S. owned foreign entity.
(139) U.S. payee.
(140) U.S. payor.
(141) U.S. person.
(142) U.S. source FDAP income.
(143) U.S. territory.
(144) U.S. withholding agent.
(145) Withholdable payment.
(146) Withholding.
(147) Withholding agent.
(148) Withholding certificate.
(149) WP.
(150) Written statement.
(151) WT.
(a) * * *
(2) * * *
(i) Requirement to withhold on payments of U.S. source FDAP income to participating FFIs and deemed-compliant FFIs that are NQIs, NWPs, or NWTs, and U.S. branches acting as intermediaries.
(4) * * *
(ii) Exception to withholding for certain payments made prior to July 1, 2016 (transitional).
(5) Withholding requirements if source or character of payment is unknown.
(a) * * *
(3) * * *
(v) Disregarded entity or limited branch.
(vi) U.S. branch of treated as a U.S. person.
(c) * * *
(3) * * *
(iii) * * *
(H) Rules applicable to a withholding certificate of a U.S. branch.
(5) * * *
(ii) * * *
(B) Preexisting obligation documentary evidence.
(8) * * *
(iv) Document sharing for gross proceeds.
(v) Preexisting account.
(d) * * *
(4) Identification of participating FFIs and registered deemed-compliant FFIs.
(vi) Sponsored investment entities and sponsored controlled foreign corporations.
(A) In general.
(B) Payments made prior to January 1, 2017 (transitional).
(C) Payments made after December 31, 2016, to payees documented prior to January 1, 2017.
(5) * * *
(iii) Certain investment entities that do not maintain financial accounts.
(A) In general.
(B) Offshore obligations.
(6) * * *
(iii) Documentation for owners and debt holders of payee.
(vii) Exception for certain offshore obligations of $1,000,000 or less.
(11) * * *
(x) Identifying a direct reporting NFFE (other than a sponsored direct reporting NFFE).
(A) In general.
(B) Exception for offshore obligations.
(C) Special rule for preexisting offshore obligations.
(xi) Identifying a sponsored direct reporting NFFE.
(A) In general.
(1) Payments made prior to January 1, 2017 (transitional).
(2) Payments made after December 31, 2016, to payees documented prior to January 1, 2017.
(B) Exception for offshore obligations.
(xii) Identification of excepted inter-affiliate FFI.
(A) In general.
(B) Offshore obligations.
(C) Reason to know.
(e) * * *
(3) GIIN verification.
(iii) Special rules for direct reporting NFFEs.
(iv) Special rules for sponsored direct reporting NFFEs and sponsoring entities.
(A) Sponsored direct reporting NFFEs.
(B) Sponsoring entities (transitional).
(4) * * *
(i) Reason to know regarding an entity's chapter 4 status.
(ii) Reason to know applicable to withholding certificates.
(B) Withholding certificate provided by an FFI.
(iii) Reason to know applicable to written statements.
(iv) Reason to know applicable to documentary evidence.
(B) Standards of knowledge applicable to certain types of documentary evidence.
(vii) * * *
(B) Reason to know there are U.S. indicia associated with preexisting obligations.
(D) Limits on reason to know for multiple obligations belonging to a single person.
(f) * * *
(2) Presumptions of classification as an individual or entity and entity as the beneficial owner.
(5) Presumption of chapter 4 status of payee with respect to a payment to an intermediary or flow-through entity.
(b) * * *
(3) * * *
(i) In general.
(ii) Withholding not required.
(iii) Election to withhold under section 3406.
(7) Withholding requirements for U.S. branches of FFIs treated as U.S. persons.
(c) * * *
(2) * * *
(v) Documentation rules for U.S. branches of FFIs that are treated as U.S. persons.
(5) * * *
(iv) * * *
(E) Exception for preexisting individual accounts previously documented as held by foreign individuals.
(d) * * *
(2) * * *
(ii) * * *
(D) Special reporting of accounts held by owner-documented FFIs.
(E) Requirement to identify the GIIN of a branch that maintains an account.
(F) Reporting by participating FFIs and registered deemed-compliant FFIs (including QIs, WPs, WTs, and certain U.S. branches not treated as U.S. persons) for accounts of nonparticipating FFIs (transitional).
(iii) * * *
(C) Rules for U.S. branches of FFIs not treated as U.S. persons.
(3) * * *
(v) Form for reporting accounts under section 1471(c)(1).
(vi) Time and manner of filing.
(vii) Extensions in filing.
(4) * * *
(iv) * * *
(D) Transfers and closings of deposit, custodial, insurance, and annuity financial accounts.
(6) * * *
(vi) Extensions in filing.
(vii) Record retention requirements.
(7) Special reporting rules with respect to the 2014 and 2015 calendar years.
(ii) * * *
(A) Reporting with respect to the 2014 calendar year.
(iv) * * *
(B) Special determination date and timing for reporting with respect to the 2014 calendar year.
(e) * * *
(2) * * *
(vi) Exception from restriction on opening U.S. accounts and nonparticipating FFI accounts.
(3) * * *
(v) Exception from registration requirement.
(A) Conditions for exception.
(B) Confirmation requirements of lead FI.
(vi) Exception from restriction on opening U.S. accounts and nonparticipating FFI accounts.
(i) * * *
(2) Requesting waiver or closure of a U.S. account.
(a) * * *
(3) * * *
(ii) Financial accounts held by agents that are not financial institutions.
(iii) Jointly held accounts.
(iv) Account holder for insurance and annuity contracts.
(v) Examples.
(b) * * *
(1) * * *
(iii) * * *
(A) Equity or debt interests in an investment entity.
(3) * * *
(v) Value of interest determined, directly or indirectly, primarily by reference to assets that give rise (or could give rise) to withholdable payments.
(vi) Return earned on the interest (including upon a sale, exchange, or redemption) determined, directly or indirectly, primarily by reference to one or more investment entities or passive NFFEs.
(vii) Cash value insurance contract.
(4) * * *
(iv) Currency translation of balance or value.
(e) * * *
(4) * * *
(iii) * * *
(B) Special rule for start-up entities.
(f) * * *
(1) * * *
(i) * * *
(E) Qualified credit card issuers and servicers.
(2) * * *
(v) Certain investment entities that do not maintain financial accounts.
(4) Definition of a restricted distributor.
(i) * * *
(1) Scope of paragraph.
(2) Expanded affiliated group defined.
(3) Member of expanded affiliated group.
(4) Ownership test.
(i) Corporations.
(A) Stock not to include certain preferred stock.
(B) Valuation.
(ii) Partnerships.
(iii) Trusts.
(5) Treatment of warrants, options, and obligations convertible into equity for determining ownership.
(6) Exception for FFIs holding certain capital investments.
(7) Seed capital.
(8) Anti-abuse rule.
(9) Exception for limited life debt investment entities.
(10) Partnerships, trusts, and other non-corporate entities.
(j) Sponsoring entity verification.
(k) Sponsoring entity event of default.
(l) Effective/applicability date.
(d) * * *
(4) Income on certain transactions.
(f) * * *
(3) Narrow participation retirement funds.
(c) * * *
(1) Payments to an excepted NFFE.
(vi) Direct reporting NFFEs.
(vii) Sponsored direct reporting NFFEs.
(2) Payments made to an exempt beneficial owner.
(3) Definition of direct reporting NFFE.
(4) Election to be treated as a direct reporting NFFE.
(i) Manner of making election.
(ii) Effective date of election.
(iii) Revocation of election by NFFE.
(iv) Revocation of election by Commissioner.
(v) Event of default.
(vi) Notice of event of default.
(vii) Remediation of event of default.
(5) Election by a direct reporting NFFE to be treated as a sponsored direct reporting NFFE.
(i) Definition of sponsored direct reporting NFFE.
(ii) Requirements for sponsoring entity of a sponsored direct reporting NFFE.
(iii) Revocation of status as sponsoring entity.
(iv) Liability of sponsoring entity.
(d) * * *
(2) Payments made to a NFFE that is a QI, WP, or WT.
(f) Sponsoring entity verification.
(g) Sponsoring entity event of default.
(h) Effective/applicability date.
(a) * * *
(3) * * *
(i) * * *
(C) Special rule for gross proceeds from sales settled by a clearing organization.
(4) * * *
(vii) Collateral arrangements prior to 2017 (transitional).
(viii) Certain dividend equivalents.
(d) * * *
(4) * * *
(i) * * *
(C) Amounts paid to a U.S. branch.
(iii) Reporting by participating FFIs and deemed-compliant FFIs (including QIs, WPs, and WTs) and U.S. branches not treated as U.S. persons.
(A) * * *
(B) Special reporting requirements of participating FFIs, deemed-compliant FFIs, FFIs that make an election under section 1471(b)(3), and U.S. branches not treated as U.S. persons.
(C) Reporting by a U.S. branch treated as a U.S. person.
(i) * * *
(4) Extensions of time to file.
(c) * * *
(2) Determining the amount of the distribution from certain domestic corporations subject to section 1445 or chapter 4 withholding.
(f) Coordination with section 3406.
(g) Effective/applicability date.
(b) * * *
(6)
(7)
(10)
(20)
(i) A pool of payees consisting of each class of recalcitrant account holders described in § 1.1471–4(d)(6) (or with respect to an FFI that is a QI, a single pool of recalcitrant account holders without the need to subdivide into each class of recalcitrant account holders described in § 1.1471–4(d)(6)), including a separate pool of account holders to which the escrow procedures for dormant accounts apply; or
(ii) A pool of payees that are U.S. persons as described in § 1.1471–3(c)(3)(iii)(B)(
(23)
(31)
(35)
(41)
(43)
(48)
(50)
(67)
(76)
(77)
(81)
(83)
(i) A nonreporting financial institution described in Annex II of the Model 1 IGA;
(ii) A nonreporting financial institution described in Annex II of the Model 2 IGA;
(iii) A registered deemed-compliant FFI described in § 1.1471–5(f)(1)(i)(A) through (F);
(iv) A certified deemed-compliant FFI described in § 1.1471–5(f)(2)(i) through (v); or
(v) An exempt beneficial owner described in § 1.1471–6.
(88)
(91)
(98)
(99) [Reserved]. For further guidance, see § 1.1471–1T(b)(99).
(100)
(104) * * *
(i) The term
(ii) * * *
(A) The account holder or payee also holds with the withholding agent (or a member of the withholding agent's expanded affiliated group or sponsored FFI group) an account, instrument, contract, or equity interest that is a preexisting obligation under paragraph (b)(104)(i) of this section;
(B) The withholding agent (and, as applicable, the member of the withholding agent's expanded affiliated group or sponsored FFI group) treats both of the aforementioned obligations, and any other obligations of the payee or account holder that are treated as preexisting obligations under this paragraph (b)(104)(ii), as consolidated obligations; and
(C) With respect to an obligation that is subject to AML due diligence, the withholding agent is permitted to satisfy such AML due diligence for the obligation by relying upon the AML due diligence performed for the preexisting obligation described in paragraph (b)(104)(i) of this section.
(105)
(113)
(115)
(123)
(124)
(125)
(128)
(135)
(141)
(ii) The term
(146)
(c)
(a) [Reserved]. For further guidance, see § 1.1471–1(a).
(b) [Reserved]. For further guidance, see § 1.1471–1(b).
(1) through (98) [Reserved]. For further guidance, see § 1.1471–1(b)(1) through (98).
(99)
(100) through (151) [Reserved]. For further guidance, see § 1.1471–1(b)(100) through (151).
(c) [Reserved]. For further guidance, see § 1.1471–1(c).
(d)
(a) * * *
(1)
(2) * * *
(i)
(ii)
(iii) * * *
(A)
(v)
(4) * * *
(ii)
(B)
(iii)
(b) * * *
(2) * * *
(i) * * *
(A) * * *
(
(
(
(
(ii) * * *
(A) * * *
(
(B) * * *
(
(iv)
(4) * * *
(ii)
(c)
The revisions and additions read as follows:
(a) * * *
(3) * * *
(iii)
(v)
(vi)
(c) * * *
(1) [Reserved]. For further guidance, see § 1.1471–3T(c)(1).
(3) * * *
(ii) * * *
(C) The person's entity classification for U.S. tax purposes;
(D) The person's chapter 4 status; and
(iii)
(
(B) * * *
(
(
(
(
(
(
(
(
(
(H)
(5) * * *
(i) * * *
(D)
(ii) * * *
(B)
(6) * * *
(ii) * * *
(A)
(B) * * *
(
(
(
(
(
(C) * * *
(
(
(
(
(
(
(E) * * *
(
(
(
(iv)
(v) * * *
(A)
(B)
(vii)
(7) * * *
(i)
(ii) [Reserved]. For further guidance, see § 1.1471–3T(c)(7)(ii).
(8) * * *
(iii)
(v)
(9) * * *
(ii) * * *
(B) The third-party data provider must be in the business of providing credit reports or business reports to customers unrelated to it and must have reviewed all information it has for the entity and verified that such additional information does not conflict with the chapter 4 status claimed by the entity. For purposes of this paragraph (c)(9)(ii)(B), a customer is related to a third-party data provider if they have a relationship with each other that is described in section 267(b).
(v)
(d) * * *
(1)
(2) * * *
(i)
(iii)
(4) * * *
(i)
(ii)
(iii)
(A) * * *
(
(iv) * * *
(A) For payments made prior to January 1, 2015, a withholding agent may treat a payee that is an FFI or branch of an FFI (including an entity that is disregarded as an entity separate from the FFI) as a reporting Model 1 FFI if it receives a withholding certificate from the payee indicating that the payee is a reporting Model 1 FFI and the country in which the payee is a reporting Model 1 FFI, regardless of whether the certificate contains a GIIN for the payee.
(C) For payments made prior to January 1, 2015, with respect to an offshore obligation, a withholding agent may treat a payee as a reporting Model 1 FFI if the payee informs the withholding agent that the payee is a reporting Model 1 FFI and provides the country in which the payee is a reporting Model 1 FFI. In the case of a payment of U.S. source FDAP income, such payee must also provide a written statement that it is the beneficial owner and documentary evidence supporting the payee's claim of foreign status (as described in paragraph (c)(5)(i) of this section).
(D) For payments made on or after January 1, 2015, that do not constitute U.S. source FDAP income, the withholding agent may continue to treat a payee as a reporting Model 1 FFI if the payee provides the withholding agent with its GIIN, either orally or in writing, and the withholding agent verifies the GIIN in the manner described in paragraph (e)(3) of this section.
(v)
(vi)
(B)
(C)
(5) * * *
(i)
(ii)
(B)
(iii)
(B)
(6) * * *
(i) * * *
(F) [Reserved]. For further guidance, see § 1.1471–3T(d)(6)(i)(F).
(vii) * * *
(A) * * *
(
(7)
(11) * * *
(viii) * * *
(A)
(C)
(x)
(B)
(
(
(
(C)
(xi)
(
(
(B)
(
(
(xii)
(B)
(C)
(12) * * *
(iii) * * *
(A)
(B)
(e) * * *
(2)
(3)
(ii)
(iii)
(iv)
(B)
(4)
(i)
(ii)
(B)
(iii)
(iv)
(B)
(
(v)
(B) * * *
(
(
(vi) * * *
(B)
(vii) * * *
(B)
(viii)
(f) * * *
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(ii)
(8)
(9)
(ii)
(g)
(a) through (a)(3)(vii) [Reserved]. For further guidance, see § 1.1471–3(a) through (a)(3)(vii).
(b) through (b)(4) [Reserved]. For further guidance, see § 1.1471–3(b) through (b)(4).
(c) [Reserved]. For further guidance, see § 1.1471–3(c).
(1)
(2) [Reserved]. For further guidance, see § 1.1471–3(c)(2).
(3) [Reserved]. For further guidance, see § 1.1471–3(c)(3).
(i) through (ii) [Reserved]. For further guidance, see § 1.1471–3(c)(3)(i) through (ii).
(iii) [Reserved]. For further guidance, see § 1.1471–3(c)(3)(iii).
(A) [Reserved]. For further guidance, see § 1.1471–3(c)(3)(iii)(A).
(B) [Reserved]. For further guidance, see § 1.1471–3(c)(3)(iii)(B).
(
(
(C) through (H) [Reserved]. For further guidance, see § 1.1471–3(c)(3)(iii)(C) through (H).
(iv) through (v) [Reserved]. For further guidance, see § 1.1471–3(c)(3)(iv) through (v).
(4) through (5) [Reserved]. For further guidance, see § 1.1471–3(c)(4) through (5).
(6) [Reserved]. For further guidance, see § 1.1471–3(c)(6).
(i) [Reserved]. For further guidance, see § 1.1471–3(c)(6)(i).
(ii) [Reserved]. For further guidance, see § 1.1471–3(c)(6)(ii).
(A) through (D) [Reserved]. For further guidance, see § 1.1471–3(c)(6)(ii)(A) through (D).
(E) [Reserved]. For further guidance, see § 1.1471–3(c)(6)(ii)(E).
(
(
(iii) through (vii) [Reserved]. For further guidance, see § 1.1471–3(c)(6)(iii) through (vii).
(7) [Reserved]. For further guidance, see § 1.1471–3(c)(7).
(i) [Reserved]. For further guidance, see § 1.1471–3(c)(7)(i).
(ii)
(8) through (9) [Reserved]. For further guidance, see § 1.1471–3(c)(8) through (c)(9)(v).
(d) [Reserved]. For further guidance, see § 1.1471–3(d).
(1) through (5) [Reserved]. For further guidance, see § 1.1471–3(d)(1) through (5).
(6) [Reserved]. For further guidance, see § 1.1471–3(d)(6).
(i) [Reserved]. For further guidance, see § 1.1471–3(d)(6)(i).
(A) through (E) [Reserved]. For further guidance, see § 1.1471–3(d)(6)(i)(A) through (E).
(F) The withholding agent does not know or have reason to know that the payee is a member of an expanded affiliated group with any FFI that is a depository institution, custodial institution, or specified insurance company, or that the FFI has any specified U.S. persons that own an equity interest in the FFI or a debt interest (other than a debt interest that is not a financial account or that has a balance or value not exceeding $50,000) in the FFI other than those identified on the FFI owner reporting statement described in paragraph (d)(6)(iv) of this section.
(ii) through (vii) [Reserved]. For further guidance, see § 1.1471–3(d)(6)(ii) through (d)(6)(vii)(B).
(7) through (12) [Reserved]. For further guidance, see § 1.1471–3(d)(7) through (12)(iii)(B).
(e) through (g) [Reserved]. For further guidance, see § 1.1471–3(e) through (g).
(h)
The revisions and additions read as follows:
(a) * * *
(3)
(4)
(b) * * *
(1)
(2)
(3)
(ii)
(iii)
(4)
(6)
(7)
(c) * * *
(1)
(2) * * *
(ii) * * *
(B) * * *
(
(
(v)
(3) * * *
(ii)
(iii) * * *
(A)
(5) * * *
(iv) * * *
(B) * * *
(
(
(E)
(7)
(d) * * *
(1)
(2) * * *
(i)
(ii) * * *
(A)
(B)
(
(
(
(D)
(E)
(F)
(G) [Reserved]. For further guidance, see § 1.1471–4T(d)(2)(ii)(G).
(iii) * * *
(A)
(
(
(B)
(C)
(3) * * *
(ii) * * *
(E) Such other information as is otherwise required to be reported under this paragraph (d)(3) or in the form described in paragraph (d)(3)(v) of this section and its accompanying instructions.
(iii)
(F) Such other information as is otherwise required to be reported under this paragraph (d)(3) or in the form described in paragraph (d)(3)(v) of this section and its accompanying instructions.
(vii)
(4) * * *
(i)
(iv) * * *
(C) [Reserved]. For further guidance, see § 1.1471–4T(d)(4)(iv)(C).
(D) [Reserved]. For further guidance, see § 1.1471–4T(d)(4)(iv)(D).
(5) * * *
(i) * * *
(A)
(B)
(ii) * * *
(B) In the case of an account holder that is a U.S. owned foreign entity that is a passive NFFE—
(v)
(vi)
(vii)
(6) * * *
(vi)
(7)
(ii) * * *
(A)
(
(iii)
(iv) * * *
(A)
(B)
(8)
(9) * * *
(e) * * *
(1)
(2) * * *
(ii)
(iv) * * *
(D) Except as otherwise provided in paragraph (e)(2)(vi) of this section, agree that each such branch will not open accounts that it is required to treat as U.S. accounts or accounts held by nonparticipating FFIs, including accounts transferred from any branch of the FFI or from any member of its expanded affiliated group; and
(v)
(vi)
(A) The branch does not solicit U.S. accounts or accounts for nonparticipating FFIs from persons not resident in the same jurisdiction in which such branch is located or operating; and
(B) The branch is not used by the FFI or any FFI in its expanded affiliated group to circumvent the obligations of such FFI under section 1471.
(3) * * *
(iii) * * *
(A) Except as otherwise provided in paragraph (e)(3)(v) of this section, register as part of its expanded affiliated group's FFI agreement process for limited FFI status;
(C) Except as otherwise provided in paragraph (e)(3)(vi) of this section, agree as part of such registration that it will not open accounts that it is required to treat as U.S. accounts or accounts held by nonparticipating FFIs, including accounts transferred from any member of its expanded affiliated group; and
(iv)
(v)
(
(
(
(B)
(
(
(
(vi)
(A) Such FFI does not solicit U.S. accounts or accounts for nonparticipating FFIs from persons not resident in the same jurisdiction in which the FFI is resident or organized; and
(B) The FFI is not used by another FFI in the FFI's expanded affiliated group to circumvent the obligations of such other FFI under section 1471.
(4)
(f) * * *
(1)
(3) * * *
(i)
(4) * * *
(i)
(ii)
(g) * * *
(1)
(ii) Failure to significantly reduce, over a period of time, the number of account holders or payees that the participating FFI is required to treat as recalcitrant account holders or nonparticipating FFIs, as a result of the participating FFI failing to comply with the due diligence procedures for the identification and documentation of account holders and payees, as set forth in paragraph (c) of this section;
(2)
(j)
(2) [Reserved]. For further guidance, see § 1.1471–4T(j)(2).
(a) through (b) [Reserved]. For further guidance, see § 1.1471–4(a) through (b)(7).
(c) [Reserved]. For further guidance, see § 1.1471–4(c).
(1) through (2) [Reserved]. For further guidance, see § 1.1471–4(c)(1) through (2).
(i) [Reserved]. For further guidance, see § 1.1471–4(c)(2)(i).
(ii) [Reserved]. For further guidance, see § 1.1471–4(c)(2)(ii).
(A) [Reserved]. For further guidance, see § 1.1471–4(c)(2)(ii)(A).
(B) [Reserved]. For further guidance, see § 1.1471–4(c)(2)(ii)(B).
(
(
(
(
(
(iii) through (v) [Reserved]. For further guidance, see § 1.1471–4(c)(2)(iii) through (v).
(3) through (7) [Reserved]. For further guidance, see § 1.1471–4(c)(3) through (7).
(d) [Reserved]. For further guidance, see § 1.1471–4(d).
(1) [Reserved]. For further guidance, see § 1.1471–4(d)(1).
(2) [Reserved]. For further guidance, see § 1.1471–4(d)(2).
(i) [Reserved]. For further guidance, see § 1.1471–4(d)(2)(i).
(ii) [Reserved]. For further guidance, see § 1.1471–4(d)(2)(ii).
(A) through (F) [Reserved]. For further guidance, see § 1.1471–4(d)(2)(ii)(A) through (F).
(G)
(
(
(
(
(iii) [Reserved]. For further guidance, see § 1.1471–4(d)(2)(iii) through (d)(2)(iii)(C).
(3) [Reserved]. For further guidance, see § 1.1471–4(d)(3) through (d)(3)(vii).
(4) [Reserved]. For further guidance, see § 1.1471–4(d)(4).
(i) through (iii) [Reserved]. For further guidance, see § 1.1471–4(d)(4)(i) through (iii).
(iv) [Reserved]. For further guidance, see § 1.1471–4(d)(4)(iv).
(A) through (B) [Reserved]. For further guidance, see § 1.1471–4(d)(4)(iv)(A) through (B).
(C)
(D)
(
(E) through (F) [Reserved]. For further guidance, see § 1.1471–4(d)(4)(iv)(E) through (F).
(v) [Reserved]. For further guidance, see § 1.1471–4(d)(4)(v).
(5) through (9) [Reserved]. For further guidance, see § 1.1471–4(d)(5) through (d)(9),
(e) through (i) [Reserved]. For further guidance, see § 1.1471–4(e) through (i).
(j) [Reserved]. For further guidance, see § 1.1471–4(j).
(1) [Reserved]. For further guidance, see § 1.1471–4(j)(1).
(2)
(k)
(a) * * *
(3) * * *
(i)
(4) * * *
(i)
(b) * * *
(1) * * *
(iii) * * *
(B) * * *
(
(3) * * *
(iv)
(v) * * *
(A)
(B) * * *
(
(
(vi)
(B)
(
(
(c)
(d)
(e) * * *
(1) * * *
(v) * * *
(A) Is part of an expanded affiliated group that includes a depository institution, custodial institution, specified insurance company, or investment entity described in paragraphs (e)(4)(i)(B) or (C) of this section; or
(3) * * *
(ii)
(4) * * *
(v) * * *
(5) * * *
(i) * * *
(A) * * *
(
(B)
(
(
(C)
(D) * * *
(
(
(
(iv) * * *
(B) The entity does not hold an account (other than depository accounts in the country in which the entity is operating to pay for expenses in that country) with or receive payments from any withholding agent other than a member of its expanded affiliated group;
(f)
(1) * * *
(i) * * *
(A) * * *
(
(
(B) * * *
(
(
(C) * * *
(
(D) * * *
(
(
(
(
(
(E)
(
(
(F) * * *
(
(
(
(
(
(
(
(
(
(
(
(ii) * * *
(B) Have its responsible officer certify, on or before July 1 of the calendar year following the end of each certification period, that all of the requirements for the deemed-compliant status claimed by the FFI have been satisfied during the certification period. The responsible officer may certify collectively for the FFI's expanded affiliated group that all of the requirements for the deemed-compliant status claimed by each member of the expanded affiliated group that is a registered deemed-compliant FFI (other than a member that is a reporting Model 1 FFI or deemed-compliant FFI under an applicable Model 1 IGA) have been satisfied. The certification must be made on the form and in the manner prescribed by the IRS. The first certification period begins on the later of the date the FFI registers as a deemed-compliant FFI and is issued a GIIN, or June 30, 2014, and ends at the close of the third full calendar year following that date. Each subsequent certification period is the three calendar year period following the previous certification period.
(2)
(i) * * *
(B) The FFI's business consists primarily of receiving deposits from and making loans to, with respect to a bank, retail customers that are unrelated to such bank and, with respect to a credit union or similar cooperative credit organization, members, provided that no such member has a greater than 5 percent interest in such credit union or cooperative credit organization. For purposes of this paragraph (f)(2)(i)(B), a customer is related to a bank if the customer and the bank have a relationship described in section 267(b). For purposes of determining whether a member has a greater than 5 percent interest in a credit union or cooperative credit organization, the member must aggregate the ownership or beneficial interests in the credit union or cooperative credit organization that are owned or held by a related member. A member of a credit union or cooperative credit organization is related to another member if the relationship of such members is described in section 267(b).
(iii)
(A) The FFI is an FFI solely because it is an investment entity and is not a QI, WP, or WT.
(B) A participating FFI, reporting Model 1 FFI, or U.S. financial institution agrees to fulfill all due diligence, withholding, and reporting responsibilities that the FFI would have assumed if it were a participating FFI.
(C) Twenty or fewer individuals own all of the debt and equity interests in the FFI (disregarding debt interests owned by U.S. financial institutions, participating FFIs, registered deemed-compliant FFIs, and certified deemed-compliant FFIs and equity interests owned by an entity if that entity owns 100 percent of the equity interests in the FFI and is itself a sponsored FFI under this paragraph (f)(2)(iii).
(D) The sponsoring entity complies with the following requirements—
(
(
(
(
(
(
(E) The IRS may revoke a sponsoring entity's status as a sponsoring entity with respect to all sponsored FFIs if there is a material failure by the sponsoring entity to comply with its obligations under paragraph (f)(2)(iii)(D) of this section with respect to any sponsored FFI. A sponsoring entity is not liable for any failure to comply with the obligations contained in paragraph (f)(2)(iii)(D) of this section unless the sponsoring entity is a withholding agent that is separately liable for the failure to withhold on or report with respect to a payment made by the sponsoring entity on behalf of the sponsored FFI. A sponsored FFI will remain liable for any failure of its sponsoring entity to comply with the obligations contained in paragraph (f)(2)(iii)(D) of this section that the sponsoring entity has agreed to undertake on behalf of the FFI, even if the sponsoring entity is also a withholding agent and is itself separately liable for the failure to withhold on or report with respect to a payment made by the sponsoring entity on behalf of the sponsored FFI. The same tax, interest, or penalties, however, shall not be collected more than once.
(iv)
(A) The FFI is an investment entity that issued one or more classes of debt or equity interests to investors pursuant to a trust indenture or similar agreement and all of such interests were issued on or before January 17, 2013.
(B) The FFI was in existence as of January 17, 2013, and has entered into a trust indenture or similar agreement that requires the FFI to pay to investors holding substantially all of the interests in the FFI, no later than a set date or period following the maturity of the last asset held by the FFI, all amounts that such investors are entitled to receive from the FFI.
(C) The FFI was formed and operated for the purpose of purchasing or
(D) Substantially all of the assets of the FFI consist of debt instruments or interests therein (including assets acquired pursuant to a foreclosure, restructuring, workout, or similar event with respect to a debt instrument).
(E) All payments made to the investors of the FFI (other than holders of a de minimis interest) are either cleared through a clearing organization or custodial institution that is a participating FFI, reporting Model 1 FFI, or U.S. financial institution or made through a transfer agent that is a participating FFI, reporting Model 1 FFI, or U.S. financial institution.
(F) The FFI's trustee or fiduciary is not authorized through a fiduciary duty or otherwise to fulfill the obligations of a participating FFI under § 1.1471–4 and no other person has the authority to fulfill the obligations of a participating FFI under § 1.1471–4 on behalf of the FFI.
(v)
(A) The FFI is a financial institution solely because it is described in paragraph (e)(4)(i)(A) of this section.
(B) The FFI does not maintain financial accounts.
(4) * * *
(i) The distributor provides investment services to at least 30 customers unrelated to each other and fewer than half of the distributor's customers are related to each other. For purposes of this paragraph (f)(4)(i), customers are related to each other if they have a relationship with each other described in section 267(b).
(g) * * *
(1)
(3) * * *
(i) * * *
(D)
(i)
(2)
(3)
(4)
(i)
(A)
(B)
(ii)
(iii)
(5)
(i) Ownership of a warrant, option, obligation convertible into stock, or other similar instrument creating an interest in a corporation will be considered for purposes of paragraph (i)(4) of this section to the extent that the common parent or member of the expanded affiliated group that holds such instrument also maintains voting rights with respect to such corporation. However, interests described in § 1.1504–4(d)(2) will not be treated as options.
(ii) Ownership of a warrant, option, obligation convertible into an equity interest, or other similar instrument creating an interest in a corporation or entity other than a corporation will be considered for purposes of paragraph (i)(4) of this section to the extent that such instrument is reasonably certain to be exercised, based on all of the facts and circumstances and in accordance with the principles set forth in § 1.1504–4(g).
(6)
(i) The member that owns the investment entity is an FFI that is in the business of providing seed capital to form investment entities, the interests in which it intends to sell to investors that do not have a relationship with each other described in section 267(b);
(ii) The investment entity is created in the ordinary course of such other FFI's business described in paragraph (i)(6)(i) of this section;
(iii) As of the date the FFI acquired the equity interest, any equity interest in the investment entity in excess of 50 percent of the total value of the stock of the investment entity is intended to be held by such other FFI (including ownership by other members of such other FFI's expanded affiliated group) for no more than three years from the date on which such other FFI first acquired an equity interest in the investment entity; and
(iv) In the case of an equity interest that has been held by such other FFI for over three years from the date referenced in paragraph (i)(6)(iii) of this section, the aggregate value of the equity interest held by such other FFI and the equity interests held by other members of its expanded affiliated group is 50 percent or less of the total value of the stock of the investment entity.
(7)
(8)
(9)
(10)
(j)
(k)
(l)
(d) * * *
(1)
(4)
(f) * * *
(2) * * *
(iii) * * *
(B) The fund receives at least 50 percent of its total contributions (other than transfers of assets from accounts described in § 1.1471–5(b)(2)(i)(A) (referring to retirement and pension accounts), from retirement and pension accounts described in an applicable Model 1 or Model 2 IGA, or from other retirement funds described in this paragraph (f) or in an applicable Model 1 or Model 2 IGA) from the sponsoring employers;
(C) Distributions or withdrawals from the fund are allowed only upon the occurrence of specified events related to retirement, disability, or death (except rollover distributions to accounts described in § 1.1471–5(b)(2)(i)(A) (referring to retirement and pension accounts), to retirement and pension accounts described in an applicable Model 1 or Model 2 IGA, or to other
(3) * * *
(ii) The fund is sponsored by one or more employers and each of these employers are not investment entities or passive NFFEs;
(iii) Employee and employer contributions to the fund (other than transfers of assets from other retirement plans described in paragraph (f)(1) of this section, from accounts described in § 1.1471–5(b)(2)(i)(A) (referring to retirement and pension accounts), or retirement and pension accounts described in an applicable Model 1 or Model 2 IGA) are limited by reference to earned income and compensation of the employee, respectively;
(5)
(6)
(g)
(h) * * *
(2)
(i) The entity undertakes commercial financial activity described in paragraph (h)(1) of this section solely for or at the direction of other exempt beneficial owners and such commercial financial activity is consistent with the purposes of the entity;
(ii) The entity has no outstanding debt that would be a financial account under § 1.1471–5(b)(1)(iii); and
(iii) The entity otherwise maintains financial accounts only for exempt beneficial owners, or, in the case of a foreign central bank of issue as described in paragraph (d), the entity only maintains financial accounts that are depository accounts for current or former employees of the entity (and the spouses and children of such employees) or financial accounts for exempt beneficial owners.
(i)
(a)
(b) * * *
(1)
(2)
(c) * * *
(1)
(i)
(ii)
(iii)
(iv)
(C)
(v)
(vi)
(vii)
(2)
(3)
(i) The NFFE must register on Form 8957, “FATCA Registration,” (or such other form as the IRS may prescribe) with the IRS to obtain a GIIN pursuant to the procedures prescribed by the IRS;
(ii) The NFFE must report directly to the IRS on Form 8966, “FATCA Report,” (or such other form as the IRS may prescribe) the following information for each calendar year (or, may be required by the IRS to certify on Form 8966, or in such other manner as the IRS may prescribe, that the NFFE has no substantial U.S. owners):
(A) The name, address, and TIN of each substantial U.S. owner (as defined in § 1.1473–1(b)) of such NFFE;
(B) The total of all payments made to each substantial U.S. owner (including the gross amounts paid or credited to the substantial U.S. owner with respect to such owner's equity interest in the NFFE during the calendar year, which include payments in redemption or liquidation (in whole or part) of the substantial U.S. owner's equity interest in the NFFE);
(C) The value of each substantial U.S. owner's equity interest in the NFFE determined by applying the rules described in § 1.1471–5(b)(4) (substituting the term
(D) The name, address, and GIIN of the NFFE; and
(E) Any other information as required by Form 8966 (or such other form as the IRS may prescribe) and its accompanying instructions;
(iii) The NFFE must obtain a written certification (contained on a withholding certificate or in a written statement) from each person that would be treated as a substantial U.S. owner of the NFFE if such person were a specified U.S. person. Such written certification must indicate whether the person is a substantial U.S. owner of the NFFE, and if so, the name, address and TIN of the person. If the NFFE has reason to know that such written certification is unreliable or incorrect, it must contact the person and request a revised written certification. If no revised written certification is received, the NFFE must treat the person as a substantial U.S. owner and report on Form 8966 the information required under paragraph (c)(3)(ii) of this section. The NFFE has reason to know that such a written certification is unreliable or incorrect if the certification is inconsistent with information in the NFFE's possession, including information that the NFFE provides to a financial institution in order for the financial institution to meet its AML or other account identification due diligence procedures with respect to the NFFE's account, information that is publicly available, or U.S. indicia as described in § 1.1441–7(b) for which appropriate documentation sufficient to cure the U.S. indicia in the manner set forth in § 1.1441–7(b)(8) has not been obtained;
(iv) The NFFE must keep records that it produces in the ordinary course of its business that summarize the activity (including the gross amounts described in paragraph (c)(3)(ii)(B) of this section that are paid or credited to each of its substantial U.S. owners) relating to its transactions with respect to the equity of the NFFE held by each of its substantial U.S. owners for any calendar year in which the owner was required to be reported under paragraph (c)(3)(ii)
(v) The NFFE must respond to requests made by the IRS for additional information with respect to any substantial U.S. owner that is subject to reporting by the NFFE or with respect to the records described in paragraph (c)(3)(iii) or (iv) of this section;
(vi) The NFFE must make a periodic certification to the IRS on or before July 1 of the calendar year following the end of each certification period relating to its compliance with respect to the election described in paragraphs (c)(3) and (4) of this section on the form and in the manner prescribed by the IRS. The first certification period begins on the later of the date a GIIN is issued or June 30, 2014, and ends at the close of the third full calendar year following that date. Each subsequent certification period is the three calendar year period following the close of the previous certification period. The certification will require an officer of the NFFE to certify to the following statements—
(A)(1) The NFFE has not had any events of default described in paragraph (c)(4)(v) of this section; or
(2) If there are any events of default, appropriate measures were taken to remediate such failures and to prevent such failures from recurring; and
(B) With respect to any failure to report to the extent required under paragraph (c)(3)(ii), the NFFE has corrected such failure by filing the appropriate information returns; and
(vii) The NFFE has not had its status as a direct reporting NFFE revoked by the IRS.
(4)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(5)
(ii)
(A) Is authorized to act on behalf of the NFFE;
(B) Has registered with the IRS as a sponsoring entity;
(C) Has registered the NFFE with the IRS as a sponsored direct reporting NFFE by the later of January 1, 2017, or the date that the NFFE identifies itself to a withholding agent or financial institution as qualifying as a sponsored direct reporting NFFE under paragraph (c)(5) of this section;
(D) Agrees to perform, on behalf of the NFFE, all due diligence, reporting, and other requirements that the NFFE would have been required to perform as a direct reporting NFFE;
(E) Identifies the NFFE in all reporting completed on the NFFE's behalf;
(F) Complies with the certification and other requirements in paragraphs (f) and (g) of this section;
(G) Has not had its status as a sponsoring entity revoked; and
(H) Agrees to notify all relevant withholding agents and the IRS if its status as a sponsoring entity is revoked, if it otherwise ceases to be the sponsoring entity of any of its sponsored direct reporting NFFEs (for example, if the sponsored direct reporting NFFE changes sponsors), or if the status of any of its sponsored direct reporting NFFEs has been revoked.
(iii)
(iv)
(d) * * *
(1)
(2)
(f)
(g)
(h)
(a) * * *
(1) * * *
(ii) For any sales or other dispositions occurring after December 31, 2018, any gross proceeds from the sale or other disposition (as defined in paragraph (a)(3)(i) of this section) of any property of a type that can produce interest or dividends that are U.S. source FDAP income.
(2) * * *
(vi)
(3) * * *
(iii) * * *
(B) * * *
(
(4) * * *
(vi)
(vii)
(5) * * *
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(b) * * *
(2) * * *
(v)
(f)
The revisions and additions read as follows:
(a) * * *
(3) * * *
(ii) * * *
(B) A Form 8655, “Reporting Agent Authorization,” is filed with the IRS by a withholding agent if its agent (including any sub-agent) acts as a reporting agent for filing Form 1042 on behalf of the withholding agent and the agent (or sub-agent) identifies itself as the filer on the Form 1042;
(d) * * *
(1) * * *
(i)
(ii) * * *
(A) * * *
(
(
(
(
(
(
(B) * * *
(
(
(
(
(
(
(
(2) * * *
(i)
(A) An amount of a withholdable payment that is subject to withholding under chapter 4 paid after June 30, 2014;
(B) An amount of a withholdable payment of U.S. source FDAP income (including an amount that would be a withholdable payment but for the fact that it is an amount effectively connected with a U.S. trade or business, as described in § 1.1471–3(a)(4)(ii)) that is also reportable on Form 1042–S under § 1.1461–1(c)(2)(i); or
(C) A foreign passthru payment subject to withholding under chapter 4.
(3) * * *
(vii) The EIN or GIIN (as applicable), status for chapter 3 and chapter 4 purposes (as required on the instructions to the form) of an entity reported under paragraph (d)(3)(vi) of this section;
(4) * * *
(i) * * *
(B)
(C)
(
(
(E)
(ii) * * *
(B)
(C)
(iii)
(B)
(C)
(vii) [Reserved]. For further guidance, see § 1.1474–1T(d)(4)(vii).
(i) * * *
(1)
(ii) Beginning in calendar year 2015, if a withholding agent (other than an FFI reporting accounts held by owner-documented FFIs under § 1.1471–4(d)) makes during a calendar year a withholdable payment to an entity account holder or payee of an obligation and the withholding agent treats the entity as an owner-documented FFI under § 1.1471–3(d)(6), the withholding agent is required to report for such calendar year with respect to each specified U.S. person identified in § 1.1471–3(d)(6)(iv)(A)(
(iii) The information that a withholding agent (other than an FFI reporting accounts held by owner-documented FFIs under § 1.1471–4(d)) is required to report under paragraphs (i)(1)(i) and (ii) of this section must be made on Form 8966 (or such other form as the IRS may prescribe) and filed on or before March 31 of the calendar year following the year in which the withholdable payment was made. A withholding agent is not required to report under paragraph (i)(1)(i) or (ii) of this section on a withholdable payment made to a participating FFI or reporting Model 1 FFI that is allocated to a payee that is an owner-documented FFI on an FFI withholding statement when the participating FFI or reporting Model 1 FFI includes on the statement the certification described in § 1.1471–3(c)(3)(iii)(B)(
(A) The name of the owner-documented FFI;
(B) The name, address, and TIN of each specified U.S. person identified in § 1.1471–3(d)(6)(iv)(A)(
(C) For the period from July 1 through December 31, 2014, the total of all withholdable payments made to the owner-documented FFI, and with respect to payments made after the 2014 calendar year, the total of all withholdable payments made to the owner-documented FFI during the calendar year;
(D) The account balance or value of the account held by the owner-documented FFI; and
(E) Any other information required on Form 8966 and its accompanying instructions provided for purposes of such reporting.
(2)
(iii) For the period from July 1, 2014 through December 31, 2014, the total of all withholdable payments made to the NFFE and, with respect to payments made after the 2014 calendar year, the total of all withholdable payments made to the NFFE during the calendar year; and
(4)
(j)
(a) through (c) [Reserved]. For further guidance, see § 1.1474–1(a) through (c)(3).
(d) [Reserved]. For further guidance, see § 1.1474–1(d).
(1) through (3)(ix) [Reserved]. For further guidance, see § 1.1474–1(d)(1) through (3)(ix).
(4) [Reserved]. For further guidance, see § 1.1474–1(d)(4).
(i) through (vi) [Reserved]. For further guidance, see § 1.1474–1(d)(4)(i) through (vi).
(vii)
(e) through (j) [Reserved]. For further guidance, see § 1.1474–1(e) through (j).
(k)
(b) * * *
(1)
(f)
(g)
(c)