Forest Service
Census Bureau
Economic Development Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Defense Acquisition Regulations System
Navy Department
Energy Information Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Inspector General Office, Health and Human Services Department
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
National Park Service
Foreign Claims Settlement Commission
Federal Aviation Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
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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Bureau of Consumer Financial Protection.
Final rule.
The Bureau of Consumer Financial Protection (Bureau) is adjusting for inflation the maximum amount of each civil penalty within the Bureau's jurisdiction. These adjustments are required by the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), as amended by the Debt Collection Improvement Act of 1996 and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The inflation adjustments mandated by the Inflation Adjustment Act serve to maintain the deterrent effect of civil penalties and to promote compliance with the law.
This final rule is effective January 15, 2017.
Jaclyn Maier, Counsel, Office of Regulations, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552, at (202) 435–7700.
The Inflation Adjustment Act,
Specifically, Federal agencies are directed to adjust annually each civil penalty provided by law within the jurisdiction of the agency by the “cost-of-living adjustment.”
For the 2017 annual adjustment, the multiplier reflecting the “cost-of-living adjustment” is 1.01636.
The new penalty amounts that apply to civil penalties assessed after January 15, 2017 are as follows:
The Bureau issues this final rule under the Inflation Adjustment Act,
Under the APA, notice and opportunity for public comment are not required if the Bureau finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest.
Section 553(d) of the APA generally requires publication of a final rule not less than 30 days before its effective date, except (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule.
Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis.
In accordance with the Paperwork Reduction Act of 1995,
Administrative practice and procedure, Consumer protection, Penalties.
12 U.S.C. 2609(d); 12 U.S.C. 5113(d)(2); 12 U.S.C. 5565(c); 15 U.S.C. 1639e(k); 15 U.S.C. 1717a(a); 28 U.S.C. 2461 note.
(a) The maximum amount of each civil penalty within the jurisdiction of the Consumer Financial Protection Bureau to impose is adjusted in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, (28 U.S.C. 2461 note) as follows:
(b) The adjustments in paragraph (a) of this section shall apply to civil penalties assessed after January 15, 2017, regardless of when the violation for which the penalty is assessed occurred.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective January 12, 2017. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS–420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954–4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260–3, 8260–4, 8260–5, 8260–15A, and 8260–15B when required by an entry on 8260–15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective January 12, 2017. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops–M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS–420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954–4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260–3, 8260–4, 8260–5, 8260–15A, and 8260–15B when required by an entry on 8260–15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
Federal Aviation Administration (FAA), DOT
Notice of amended emergency restriction/prohibition order.
This document provides notice of the Amended Emergency Restriction/Prohibition Order No. FAA–2016–9288, issued by the Secretary of the Department of Transportation on January 9, 2017, and effective on January 10, 2017, to Samsung Galaxy Note 7 Users and air carriers. The Amended Emergency Restriction/Prohibition Order continues to prohibit persons from offering for air transportation or transporting via air any Samsung Galaxy Note 7 device on their person, in carry-on baggage, in checked baggage, or as cargo; requires individuals who inadvertently bring a Samsung Galaxy Note 7 device onto an aircraft immediately power off the device, not use or charge the device while aboard the aircraft, protect the device from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and keep the device on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight; requires air carriers to deny boarding to a passenger in possession of a Samsung Galaxy Note 7 device unless and until the passenger divests themselves and their baggage of the Samsung Galaxy Note 7 device; and requires that if an air carrier flight crew member identifies that a passenger is in possession of a Samsung Galaxy Note 7 device while the aircraft is in flight, the crew member must instruct the passenger to power off the device and not to use or charge the device onboard the aircraft and protect the device from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and keep the device on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight. The Amended Emergency Restriction/Prohibition Order only removes the requirement for air carriers to alert passengers to the prohibition against air transport of a Samsung Galaxy Note 7 device, in particular, immediately prior to boarding.
The Amended Emergency Restriction/Prohibition Order issued on January 9, 2017, by the Secretary of the Department of Transportation and provided in this document is effective on January 10, 2017.
Ryan Landers, Office of the Chief Counsel, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; telephone: (404)–305–5200; email:
The full text of the Amended Emergency Restriction/Prohibition Order No. FAA–2016–9288 issued January 9, 2017, is as follows:
The Emergency Restriction/Prohibition Order (Order) issued by the United States Department of Transportation (DOT) on October 14, 2016, is hereby amended to remove the requirement for air carriers to alert passengers to the prohibition against air
This Amended Emergency Restriction/Prohibition Order (Amended Order) is issued by the DOT pursuant to 49 U.S.C. 5121(d) and will be effective on January 9, 2017. This Amended Order is issued to all persons who transport or offer a Samsung Galaxy Note 7 device for air transportation in commerce within the United States. Individuals who own or possess a Samsung Galaxy Note 7 device may not transport the device on their person, in carry-on baggage, in checked baggage, nor offer the device for air cargo shipment. This prohibition includes all Samsung Galaxy Note 7 devices. Samsung Galaxy Note 7 devices are properly classified as lithium ion batteries contained in equipment, UN3481, Class 9 (49 CFR 172.101).
By this Amended Order, DOT is:
* Continuing to prohibit persons from transporting or offering for air transportation a Samsung Galaxy Note 7 device, by either carrying it on their person or in carry-on baggage when boarding an aircraft, placing the Samsung Galaxy Note 7 device in checked baggage, or shipping it via air as cargo;
* continuing to require air carriers to handle Samsung Galaxy Note 7 devices consistently with other forbidden hazardous materials under title 49 of the Code of Federal Regulations, and to deny boarding to a passenger in possession of a Samsung Galaxy Note 7 device unless and until the passenger divests themselves and their baggage, including carry-on and checked, of the Samsung Galaxy Note 7 device;
* continuing to require that persons who inadvertently bring a Samsung Galaxy Note 7 device onto an aircraft immediately power off the device, do not use or charge the device while aboard the aircraft, protect the device from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and keep the device on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight; and
* continuing to require that if an air carrier flight crew member identifies that a passenger is in possession of a Samsung Galaxy Note 7 device while the aircraft is in flight, the crew member must instruct the passenger to power off the device, do not use or charge the device while aboard the aircraft, protect the device from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and keep the device on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight.
Upon information derived from the Samsung Galaxy Note 7 device recall under Order issued September 15, 2016, recent incidents of a dangerous evolution of heat with Samsung Galaxy Note 7 replacement devices, Samsung's October 11, 2016, decision to stop manufacturing and selling Samsung Galaxy Note 7 devices due to the inability to identify the root cause of the incidents, and the U.S. Consumer Product Safety Commission (CPSC) recall of all Samsung Galaxy Note 7 devices issued October 13, 2016, the Secretary of Transportation (Secretary) has found an unsafe condition and that an unsafe practice exists and constitutes an imminent hazard to the safety of air transportation. For more detailed information, see “Background/Basis for Order” below.
(1) Shall not transport, nor offer for transportation, via air a Samsung Galaxy Note 7 device. By virtue of the Order issued October 14, 2016, and the CPSC recalls, the Samsung Galaxy Note 7 devices are forbidden for transportation by air. For purposes of this Amended Order, transporting or offering for transportation includes bringing a Samsung Galaxy Note 7 device aboard an aircraft on your person (
(2) Shall ensure that a prohibited Samsung Galaxy Note 7 device inadvertently brought aboard an aircraft is immediately powered off, not used or charged while aboard the aircraft, protected from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and kept on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight.
By virtue of the Order issued October 14, 2016, this Amended Order, and the CPSC recalls, the Samsung Galaxy Note 7 device is a forbidden hazardous material. In accordance with 49 CFR part 175, air carriers must not accept these devices for air transportation by knowingly permitting a passenger to board an aircraft with a Samsung Galaxy Note 7 device. Damaged or recalled lithium ion batteries, including those contained in equipment, are not permitted to be transported by air, and a Samsung Galaxy Note 7 device is categorized as “forbidden.” 49 CFR 173.21(c). Upon inquiry from a passenger, air carriers are required to make passengers aware of the continuing prohibition against the transportation of Samsung Galaxy Note 7 devices aboard aircraft on their person, in carry on or checked baggage, and in cargo. If an air carrier representative identifies that a passenger is in possession of a Samsung Galaxy Note 7 device prior to boarding the aircraft, the air carrier must deny boarding to the passenger unless and until the passenger divests themselves, including on their person and in checked and carry-on baggage, of the Samsung Galaxy Note 7 device. If an air carrier flight crew member identifies that a passenger is in possession of a Samsung Galaxy Note 7 device while the aircraft is in flight, the crew member must instruct the passenger to power off the device, not use or charge the device while aboard the aircraft, protect the device from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and keep the device on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight.
This Amended Order applies to all persons who transport Samsung Galaxy Note 7 devices, or offer them for transportation, by air in commerce (as defined by 49 U.S.C. 5102(1)) to, from, and within the United States, and their
The Secretary has the authority to regulate the transportation of lithium ion batteries contained in equipment in commerce. 49 U.S.C. 5103(b). The Secretary has designated lithium ion batteries contained in equipment, UN 3481, as a hazardous material subject to the requirements of the HMR. 49 U.S.C. 5103(a); 49 CFR 172.101. Persons who offer for transportation, or transport, lithium ion batteries contained in equipment by air in commerce to, from, and within the United States are a “person,” as defined by 49 U.S.C. 5102(9), in addition to being a “person” under 1 U.S.C. 1 and a “person who offers” as defined by 49 CFR 171.8. “Commerce” is as defined by 49 U.S.C. 5102(1) and 49 CFR 171.8, and “transportation” or “transport” are as defined by 49 U.S.C. 5102(13) and 49 CFR 171.8. Accordingly, persons who transport or offer for transportation lithium ion batteries contained in equipment in commerce, including by air, are subject to the authority and jurisdiction of the Secretary including the authority to impose emergency restrictions, prohibitions, recalls, or out-of-service orders, without notice or an opportunity for hearing, to the extent necessary to abate the imminent hazard. 49 U.S.C. 5121(d).
An imminent hazard, as defined by 49 U.S.C. 5102(5), constitutes the existence of a condition relating to hazardous materials that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk that death, illness, injury or endangerment may occur.
A Samsung Galaxy Note 7 device may cause an ignition or a dangerous evolution of heat or become a fuel source for fire. Samsung and CPSC acknowledged this fact with the September 15, 2016 recall, Samsung's October 11, 2016 announcement that it was suspending the manufacture and sale of the Samsung Galaxy Note 7 device, and the October 13, 2016 Samsung and CPSC expanded recall covering all Samsung Galaxy Note 7 devices. Furthermore, persons have experienced incidents of dangerous evolution of heat with the recalled Samsung Galaxy Note 7 devices. Just one fire incident poses a high risk of death, serious illness, severe personal injury, and danger to property and the environment. This risk is magnified when the fire or evolution of heat occurs aboard an aircraft during flight. Therefore, each offering and transportation of a Samsung Galaxy Note 7 device constitutes an imminent hazard.
On September 15, 2016, Samsung and the CPSC recalled certain Samsung Galaxy Note 7 devices sold prior to September 15, 2016. The recall was based on a finding that the lithium ion battery in a Samsung Galaxy Note 7 device “can overheat and catch fire.” Samsung offered either a refund or replacement Samsung Galaxy Note 7 device. Subsequently, there were reported incidents of the replacement Samsung Galaxy Note 7 devices overheating and/or catching fire. In a decision announced on October 11, 2016, Samsung stopped production and sale of Samsung Galaxy Note 7 devices. On October 13, 2016, Samsung and the CPSC expanded the recall to include all Samsung Galaxy Note 7 devices because they “can overheat and catch fire.” On December 9, 2016, Samsung reported that it would release a software update starting on December 19, 2016 that would prevent U.S. Samsung Galaxy Note 7 devices from charging and eliminate their ability to work as mobile devices.
In the wake of Samsung Galaxy Note 7 device incidents, the Federal Aviation Administration (FAA) and Pipeline and Hazardous Materials Safety Administration (PHMSA) have taken a number of steps to mitigate the safety risk of Samsung Galaxy Note 7 devices in air transportation. On September 8, 2016, the FAA issued a statement strongly advising passengers not to turn on or charge a Samsung Galaxy Note 7 device aboard an aircraft, nor stow a Samsung Galaxy Note 7 device in any checked baggage. On September 15, 2016, PHMSA issued a Safety Advisory Notice to inform the public about the risks associated with transporting damaged, defective, or recalled lithium batteries or portable electronic devices, including the Samsung Galaxy Note 7 device recalled by the CPSC. The Safety Advisory Notice required that persons who wish to carry the recalled Samsung Galaxy Note 7 device aboard an aircraft must (1) turn off the device; (2) disconnect the device from charging equipment; (3) disable all applications that could inadvertently activate the phone; protect the power switch to prevent its unintentional activation; and (4) keep the device in carry-on baggage or on your person.
On September 16, 2016, the FAA issued general guidance to airlines about the rules for carrying recalled or defective lithium batteries and lithium battery-powered devices aboard an aircraft. Specifically, the FAA noted that (1) U.S. hazardous materials regulations prohibit air cargo shipments of recalled or defective lithium batteries and lithium battery-powered devices; (2) passengers may not turn on or charge the devices when they carry them aboard the aircraft; (3) passengers must protect the devices from accidental activation; and (4) passengers must not pack them in checked baggage. On September 16, 2016, the FAA issued a Safety Alert for Operators (SAFO), recommending the following action by air operators: (1) Ensure that operator personnel responsible for cargo processing know and understand that damaged or recalled lithium batteries—including those installed in equipment and devices—are forbidden on aircraft as air cargo; and (2) ensure that operator personnel responsible for passenger processing and cabin safety know and understand that damaged or recalled lithium batteries—including those installed in devices—may be restricted from carriage or use on the aircraft. On October 10, 2016, the FAA issued updated guidance on the Samsung Galaxy Note 7 device, urging passengers aboard an aircraft to power down and not use, charge, or stow in checked baggage, any Samsung Galaxy Note 7 device.
Notwithstanding the above DOT actions, and in light of continued risks identified by Samsung and CPSC associated with Samsung Galaxy Note 7 devices, on October 14, 2016, DOT issued the Order to forbid transport of Samsung Galaxy Note 7 devices by air transportation in commerce within the United States. The Order outlined remedial action required, which remains unchanged in this Amended Order except for the requirement for air carriers to alert passengers to the prohibition against air transport of the Samsung Galaxy Note 7 device, in particular, immediately prior to boarding. Since the issuance of the Order, DOT has determined that the remedial action of air carriers alerting passengers to the prohibition against air
To eliminate or abate the imminent hazard:
(1) Persons covered by this Amended Order shall not transport, nor offer for transportation, via air any Samsung Galaxy Note 7 device.
(2) Air carriers are required to handle Samsung Galaxy Note 7 devices consistently with other forbidden hazardous materials under 49 CFR parts 173 and 175, and to deny boarding to a passenger in possession of a Samsung Galaxy Note 7 device unless and until the passenger divests themselves and carry-on or checked baggage of the Samsung Galaxy Note 7 device.
(3) Persons covered by this Amended Order who inadvertently bring a prohibited Samsung Galaxy Note 7 device aboard an aircraft must immediately power off the device, leave it powered off until no longer aboard the aircraft, not use or charge the device while aboard the aircraft, protect the device from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and keep the device on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight.
(4) When a flight crew member identifies that a passenger is in possession of a Samsung Galaxy Note 7 device while the aircraft is in flight, the crew member must instruct the passenger to power off the device, not use or charge the device while aboard the aircraft, protect the device from accidental activation, including disabling any features that may turn on the device, such as alarm clocks, and keep the device on their person and not in the overhead compartment, seat back pocket, nor in any carry-on baggage, for the duration of the flight.
This Amended Order remains in effect until the Secretary determines that an imminent hazard no longer exists or a change in applicable statute or federal regulation occurs that supersedes the requirements of this Amended Order, in which case the Secretary will issue a Rescission Order.
Any person failing to comply with this Amended Order is subject to civil penalties of up to $179,933 for each violation for each day they are found to be in violation (49 U.S.C. 5123). A person violating this Order may also be subject to criminal prosecution, which may result in fines under title 18, imprisonment of up to ten years, or both (49 U.S.C. 5124).
Pursuant to 49 U.S.C. 5121(d)(3) and in accordance with section 554 of the Administrative Procedure Act (APA), 5 U.S.C. 500
If you have any questions concerning this Amended Emergency Restriction/Prohibition Order, you should call PHMSA Hazardous Materials Information Center at 1–800–467–4922 or email at
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA) is reclassifying antigen based rapid influenza virus antigen detection test systems intended to detect influenza virus directly from clinical specimens that are currently regulated as influenza virus serological reagents from class I into class II with special controls and into a new device classification regulation.
This order is effective February 13, 2017. See further discussion in section IV, “Implementation Strategy.”
Stefanie Akselrod, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5438, Silver Spring, MD 20993–0002, 301–796–6188.
The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Medical Device Amendments of 1976 (the 1976 amendments) (Pub. L. 94–295), the Safe Medical Devices Act of 1990 (Pub. L. 101–629), the Food and Drug Administration Modernization Act of 1997 (FDAMA) (Pub. L. 105–115), the Medical Device User Fee and Modernization Act of 2002 (Pub. L. 107–250), the Medical Devices Technical Corrections Act (Pub. L. 108–214), the Food and Drug Administration Amendments Act of 2007 (Pub. L. 110–85), and the Food and Drug Administration Safety and Innovation Act (FDASIA) (Pub. L. 112–144), among other amendments, established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).
Under section 513(d) of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments on May 28, 1976 (generally referred to as 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 (generally referred to as “postamendments devices”), are automatically classified by section 513(f) of the FD&C Act into class III without any FDA rulemaking process. Those 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, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval.
Under section 513(i) of the FD&C Act, a device is substantially equivalent if it has the same intended use and technological characteristics as a predicate device, or has the same intended use as the predicate device and has different technological characteristics, but data demonstrate that the new device is as safe and effective as the predicate device and does not raise different questions of safety or effectiveness than the predicate device. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification (510(k)) procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDAMA added section 510(m) to the FD&C Act. Section 510(m) of the FD&C Act provides that a class II device may be exempted from the premarket notification requirements under section 510(k) of the FD&C Act, if the Agency determines that premarket notification is not necessary to assure the safety and effectiveness of the device.
On July 9, 2012, FDASIA 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 an eligible device type. 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
Section 513(e)(1) of the FD&C Act sets forth the process for issuing a final order for reclassifying a device under that section. Specifically, prior to the issuance of a final order reclassifying a device, the following must occur: (1) Publication of a proposed order in the
On May 22, 2014, FDA published a proposed order to reclassify antigen based RIDTs intended to detect influenza virus antigen directly from clinical specimens that are currently regulated as influenza virus serological reagents under § 866.3330 (21 CFR 866.3330) from class I into class II with special controls and into a new device classification regulation (79 FR 29387).
The Agency received comments on the proposed order from several entities. Comments were received from device industry manufacturers, a consumer group, professional organizations, a health care organization, a device manufacturers association, and an individual consumer.
To make it easier to identify comments and our responses, the word “Comment” and a comment number appear in parentheses before each comment's description, and the word “Response” in parentheses precedes each response. Similar comments are grouped together under the same number. Specific issues raised by the comments and the Agency's responses follow.
(Comment 1) Commenters expressed support for the proposed order to reclassify antigen based RIDTs from class I to class II with special controls, noting that there is evidence that the currently available antigen based RIDTs, which are widely used in non-clinical laboratory settings such as physician office laboratories, are performing poorly, resulting in many misdiagnosed cases of influenza. Commenters noted that a misdiagnosis of influenza may have serious consequences, including: Inappropriate use of antibiotics and failure to use antiviral therapy, which may be critical for some patients, following false negative results; the unnecessary or inappropriate prescribing of antiviral drugs following false positive results; ineffective infection control measures; and an overall increased public health burden, such as increased rate of hospitalization and return doctor visits. Several commenters expressed a concern regarding frequent antigenic changes in the circulating strains as the influenza virus evolves and agreed with the new requirement that manufacturers conduct annual analytical testing of circulating strains in an effort to monitor the performance of these tests over time. Overall, there was a general consensus among the commenters that the proposed special controls address and mitigate the risks to health.
(Response) FDA agrees that reclassification of antigen based RIDTs into class II as outlined in this order will help to improve the overall quality of testing for influenza. The new minimum performance requirements for these tests detecting influenza virus antigens are expected to lower the number of misdiagnosed influenza infections by increasing the number of devices that can reliably detect the influenza virus. In addition, the special controls requiring annual and emergency analytical reactivity testing provide a process for continued monitoring of the performance of antigen based RIDTs. As part of that process, the Centers for Disease Control and Prevention (CDC) and FDA will collaborate in efforts to ensure that there is an influenza virus analytical reactivity test panel available to all manufacturers of antigen based RIDTs for evaluation of the analytical reactivity of their assays with circulating viruses on an annual basis.
(Comment 2) One commenter noted that under the FD&C Act, as amended by FDASIA, FDA is able to reclassify a device via an “order rather than rulemaking,” but the commenter expressed a concern that FDA seems to consider holding a panel meeting after the issuance of a proposed order as “discretionary rather than mandatory.” The commenter urged FDA to hold panel meetings after the issuance of proposed reclassification orders in order to allow the panel to discuss the proposal after it has been issued. The commenter stated that holding a panel meeting following issuance of a proposed reclassification order is a critical element of the process reforms enacted by Congress. In addition, the commenter expressed a concern that the Agency has not obtained sufficient feedback from physicians who commonly use the rapid influenza tests in their practice. Therefore, the commenter suggested that FDA should convene another panel meeting and include these physicians to provide critical expertise and perspective on the overall evaluation of FDA's proposed plans on test reclassification, including the analytical reactivity testing protocol, specifications, and qualification of specimens.
(Response) The June 13, 2013, Microbiology Advisory Panel (“Panel”) meeting considered all relevant scientific issues associated with the proposed order for the antigen based RIDTs and recommended reclassifying these devices into class II (special controls). The Panel included six physicians and seven researchers who provided input that FDA considered for purposes of the proposed order, including the proposed special controls. Each of the Panel members is considered an authority on matters of influenza infection, treatment, epidemiology, and/or biology. Representatives from CDC and the Association of Public Health Laboratories presented extensive data on the use of the currently available antigen based RIDTs and the outcomes related to patients that support the conclusion that there has been poor performance of antigen based RIDTs in the medical practice. The Panel recommended the reclassification of antigen based RIDTs. FDA is not aware of any significant changes in benefits or risks relating to the antigen based RIDTs that have been identified since the June 13, 2013, Panel meeting. Stakeholders had an opportunity to provide feedback to the proposed order in their comments, and that feedback has been largely positive. The public comments are addressed here and are also available to view by request or on
The process followed by FDA in reclassifying antigen based RIDTs is in accordance with the applicable statutory provisions, which were amended by FDASIA. Section 608 of FDASIA amended section 513(e) of the FD&C Act by changing the reclassification process from rulemaking to an administrative order process. The amendments to section 513(e) of the FD&C Act made by FDASIA require, in relevant part, that issuance of an administrative order reclassifying a device be preceded by a proposed order and a meeting of a device classification panel.
As amended, section 513(e) of the FD&C Act does not prescribe when these two events (the panel meeting and proposed order) must occur in relation to each other. Therefore, under this provision, the Agency may hold a panel meeting either before or after the issuance of a proposed reclassification order. This approach is consistent with the prior panel provision in section 513(e) of the FD&C Act, which provided for FDA, at its discretion, to secure a panel recommendation prior to the promulgation of a reclassification rule. Generally, for future reclassifications under section 513(e) of the FD&C Act for which a meeting of a device classification panel has not yet occurred, FDA expects a proposed reclassification order will be issued prior to the panel meeting required under section 513(e).
(Comment 3) While one commenter expressed agreement that the proposed 1 year timeframe should be sufficient for manufacturers to bring devices already on the market into compliance with the special controls, another commenter suggested that FDA consider providing additional transition time for the implementation of the final order. The commenter suggested that this would assist manufacturers who are working in good faith to meet the new requirements to prepare submissions in advance of the influenza season and would provide for product continuity among health care providers. The commenter did not identify why 1 year would be an insufficient period of transition time.
(Response) The Panel recommended and FDA made the determination that special controls, including the new minimum performance requirements, are needed, in addition to general controls, to provide reasonable assurance of safety and effectiveness for antigen based RIDTs. We, therefore, do not believe, given the risk that poor performance of antigen based RIDTs pose to public health, a delay in implementation of more than 1 year is appropriate. FDA also understands the need for a balanced approach that takes into account the time it will take for
(Comment 4) One comment recommended a transition to one common reference method comparator: A molecular nucleic acid-based method. The reasons cited for this recommendation included: (1) A level playing field for all manufacturers and (2) better clarity for users, industry, and the Agency. Another comment raised concerns about the unreliability of the culture results due to non-standardized culture practices. In addition, a commenter cautioned that providing two minimum performance standards, one when compared to viral culture and another when compared to a nucleic acid-based method, may have unintended consequences: (1) Users may make false assumptions and choose a method based strictly on the presented estimates of sensitivity and specificity without noting the comparator reference method that was used to derive the performance measures and (2) manufacturers may elect to conduct the method comparison using both types of reference methods and submit the results in support of a 510(k) even if only one of the comparisons meets the minimum performance bar.
(Response) FDA appreciates the concern over the potential consequences of allowing for the two performance levels based on different comparator methods. The Agency carefully considered the public feedback as well as the implications of eliminating the viral culture comparator method as an acceptable comparator method used in the evaluation of clinical performance of antigen based RIDTs. Some important considerations were: (1) A lack of standardization of viral culture methods among various laboratories, (2) an increasing difficulty in procuring the services of a laboratory that is equipped to perform viral culture procedures, (3) the wide availability of FDA-cleared nucleic acid-based comparator methods among laboratories, (4) the demonstrated high sensitivity of the nucleic acid-based methods when compared to viral culture method (when properly performed) for the detection of the influenza viruses, and (5) the reliability of the viral culture method when performed properly.
In addition, we recognize that performance evaluation based on two different comparators where each detects a different analyte (viral culture methods detect viable virus particles while nucleic acid-based methods detect the viral ribonucleic acids) requires two sets of performance criteria resulting in performance measures that may not allow for direct comparison between some devices. However, viral culture method, when performed correctly, has been shown historically to be accurate and remains a valid reference method for the detection of influenza viruses. There are many influenza detecting devices currently on the market that have been evaluated based on comparison with viral culture comparator methods and met the performance criteria set forth in § 866.3328(b)(1)(ii) (21 CFR 866.3328). FDA has also stated expressly in the special controls that a viral culture comparator method used to demonstrate that a device meets the minimum performance criteria at § 866.3328(b)(1)(ii) must be correctly performed.
At this time, the only currently appropriate and FDA accepted comparator methods are: (1) An FDA-cleared nucleic acid-based test or (2) a correctly performed viral culture method. However, FDA recognizes that a comparator method at least as accurate as FDA-cleared nucleic acid-based tests in the detection of the influenza viruses may be established in the future. Based on that recognition and the available information, the final order clarifies that other comparator methods, if currently appropriate and FDA accepted, could be used to demonstrate that the performance criteria requirements in § 866.3328(b)(1)(i) have been met. Therefore, if FDA determines at some point in the future that another comparator method at least as accurate as FDA-cleared nucleic acid-based tests has been established as a currently appropriate comparator method, sponsors of premarket submissions for antigen based RIDTs would have the option of demonstrating that their devices meet the minimum performance criteria at § 866.3328(b)(1)(i) based on a comparison to that additional currently appropriate and FDA-accepted comparator method.
(Comment 5) Another commenter cautioned that the performance estimates shown in the package inserts for these tests may be biased due to the fact that the data have been generated under closely controlled clinical trial procedures that use optimal sample types, a time of sample collection post onset of symptoms, proper sample storage, and time to testing. Because these conditions are often not maintained in daily clinical use, the true performance of these assays in “real life” settings may be different.
(Response) FDA acknowledges that the performance data in the device labeling are estimates. All assays are subject to variation under real-life circumstances when the assays are used in clinical practice. However, FDA believes that premarket studies demonstrating performance for these devices should include a variety of testing sites representative of the settings in which the device will be used and that a sufficient number of clinical specimens should be tested to arrive at reasonable measures of confidence in the calculated performance estimates (
(Comment 6) One commenter suggested that the proposed sensitivity criteria for influenza A for antigen based RIDTs, when using a molecular method as a comparator method, are less stringent than those recorded in the 2011 Influenza Guidance document. The commenter stated that it:
[I]s not clear . . . why the Special Controls for comparison to a molecular method has become less stringent (sensitivity/PPA estimate for Influenza A reduced from a point estimate of 90 percent with a 95 percent CI lower bound of 80 percent, to a point estimate of 80 percent with a 95 percent CI lower bound of 70 percent) when the intention of a Special Controls document would presumably be thought to make comparative criteria tighter overall.
The commenter made a reference to the statement in section 9.B.iii, pages 26–27 of the 2011 Influenza Guidance
(Response) The quoted statement from the 2011 Influenza Guidance document refers to the performance of nucleic acid-based devices, while the performance criteria stated in the May 22, 2014, proposed order (79 FR 29387 at 29390) (Section VIII. Special Controls: . . . If the manufacturer chooses to compare the device to an appropriate molecular comparator method: The positive percent agreement for the device when testing for Influenza A and Influenza B must be at least at the 80 percent point estimate with a lower bound of the 95 percent confidence interval that is greater than or equal to 70 percent) refer to RIDTs based on antigen detection, which are historically known to have a more limited sensitivity due to the properties of the enzyme immunoassay (EIA) technology. The relevant citation pertaining to the performance of the rapid devices detecting influenza virus antigens may be found in section 9.B.iii, pages 26–27 (1st and 2d bullet) of the 2011 Influenza Guidance document, which states:
For rapid devices detecting influenza A virus antigen, we recommend that you include a sufficient number of prospectively collected samples for each specimen type claimed to generate a sensitivity result with a lower bound of the two-sided 95% CI greater than 60%. . . . For rapid devices detecting influenza B virus antigen, we recommend that you include a sufficient number of samples for each claimed specimen type to generate a result for sensitivity with a lower bound of the two-sided 95% CI greater than 55%.
Nucleic acid-based assays that test for influenza are regulated under § 866.3980,
(Comment 7) One commenter criticized FDA for providing no specifications for how to design a clinical performance study for antigen based RIDT systems in terms of the proportion of samples that should be presented for each age group. In addition, the comment suggested that the performance estimates of different devices presented in their package inserts may be biased due to the actual proportions of age groups in the study (
(Response) FDA's current recommendations for appropriate study design can be found in the 2011 Influenza Guidance document, where section 9.B.ii mentions that there should be a representative number of positive samples (determined by the reference method) from each age group and [the data should be presented] stratified by age (
In addition, the 2011 Influenza Guidance document recommends diversifying the location of the selected clinical sites and the anticipated prevalence of influenza at the time of the study. Depending on the site selection, the age composition of the subjects will vary, but it is difficult to predict the different age groups at the outset of a study. FDA evaluates assay performance estimates stratified by age groups and determines whether the performance among different age groups is similar before making the final decision regarding 510(k) clearance. FDA encourages sponsors to use the pre-submission program to discuss the premarket submission strategy and study design for their specific devices. The pre-submission program is described in the guidance document titled “Requests for Feedback on Medical Device Submissions: The Pre-Submission Program and Meetings with Food and Drug Administration Staff” found on FDA's Web site at
(Comment 8) A commenter also suggested that the proposed special controls do not clearly state that data demonstrating that a device meets the clinical performance criteria be obtained using prospective, fresh samples and that this may be easily remedied by adding a statement in the final special controls document indicating that “clinical performance studies should be carried out on fresh, prospective samples.”
(Response) The 2011 Influenza Guidance Document, in section 9.B.iii
As the incidence of influenza varies from year to year and also from region to region, testing of archived specimens may be acceptable where fresh positive specimens are difficult to obtain. Performance data obtained from testing retrospective archived samples are generally evaluated and presented separately from data obtained with prospectively collected specimens in the final device labeling.
(Comment 9) A further recommendation was made that the proposed special controls include explicit wording to clarify that clinical performance criteria must be met for each sample type claimed in the proposed labeling submitted for clearance.
(Response) FDA agrees with this recommendation. The proposed special controls have been modified to clarify that clinical performance criteria must be met for each specimen type claimed in the intended use of the device.
(Comment 10) One commenter asserted that the proposed acceptance criteria for devices choosing to use viral culture as a comparator have been determined using certain generalizations that can confound the data. Referring to the Executive Summary document prepared for the Panel meeting (Ref. 1), the commenter states that, for example, all sample types and age ranges were included in the overall presentation of sensitivity for various devices. The commenter objected that the performance criteria, as presented in the Executive Summary document, appear to have been subjectively defined. The commenter further suggested that the purpose of tables 1 and 2 in the Executive Summary was to imply that any device cleared prior to 2008 is assumed to have variable and unacceptable performance, and that the performance criteria for antigen based RIDTs were chosen specifically with the intention of removing those devices from use. Additionally, the commenter stated that the information, as presented in the publicly available Executive Summary, did not make it clear that the data were confounded and created an unfair marketing advantage for some manufacturers.
(Response) The summary data tables presented in the Executive Summary document submitted to the Panel in June 2013 were compiled to illustrate the range in clinical performance among the antigen based RIDTs available on the market in support of the reclassification effort and were not aimed to remove devices cleared before 2008 from the market, as the commenter suggests. The data for each assay presented in table 1 in the Executive Summary document were based on the information provided to FDA in support of the 510(k) submissions for those devices and included results from all prospectively collected samples during the clinical study conducted by the manufacturer, regardless of the specimen type or the age of the patient (Ref. 1). The information in this table shows a wide range of assay performances.
The data presented in table 2 in the Executive Summary document were intended to illustrate the even broader range in sensitivity of these assays as reported in the scientific literature and derived from postmarket studies conducted in the field. The data in table 2 were also based on combined results, regardless of sample type, patient age and even influenza virus type. Although the commenter may consider the data “confounded,” they were not meant to demonstrate statistical validity but rather to illustrate that some of the currently available antigen based RIDTs have clinically poor sensitivity even under the controlled conditions of a clinical study conducted in support of a regulatory submission. More importantly, the clinical performance of these assays in the field, as reported in peer reviewed publications, is considerably worse for some of these assays than was demonstrated in the studies submitted to FDA to support their clearance. Overall, the data contained in the two tables were intended to help illustrate the sensitivity of the antigen based RIDTs available on the market, taking into consideration the limitations of the available technology. The data presented in both tables in the Executive Summary document support that improved influenza detection devices are needed to benefit public health in detection, treatment, and infection control with regard to the influenza viruses.
(Comment 11) Some commenters inquired about the process for notifying manufacturers that their assays do not meet the new performance criteria and expressed concern that manufacturers should be allowed sufficient transition time to develop new or modified influenza detection devices and to submit new 510(k)s for those products.
(Response) A manufacturer will not be individually notified that its product does not comply with the new special controls; each manufacturer of an antigen based RIDT is responsible for compliance with these special controls, including the minimum performance criteria. If an antigen based RIDT device does not meet the new performance criteria set forth in this final order, the device may be considered adulterated under section 501(f)(1)(B) of the FD&C Act (21 U.S.C. 351(f)(1)(B)), and manufacturers must cease marketing of the device. However, as outlined in section IV, “Implementation Strategy,” FDA does not intend to enforce compliance with the special controls with respect to currently legally marketed antigen based RIDT devices until 1 year after the date of publication of this final order. A manufacturer may contact the Center for Devices and Radiological Health's (CDRH) Division of Microbiology Devices in the Office of In Vitro Diagnostics and Radiological Health (OIR) with any specific questions.
(Comment 12) One commenter inquired whether there will be an appeals mechanism for manufacturers and what specific steps would be available for manufacturers.
(Response) No new appeals mechanisms will be implemented for those manufacturers whose assays do not comply with the new special controls. However, there are processes available to outside stakeholders to request additional review of decisions or actions by the CDRH. For more information, see the FDA guidance document entitled “Center for Devices and Radiological Health Appeals Processes—Guidance for Industry and Food and Drug Administration Staff” (
(Comment 13) Commenters expressed concerns about whether all manufacturers, regardless of their size or resources, will have equal access to the samples needed to conduct the annual analytical reactivity testing in compliance with the new special controls. One of the commenters noted that there may be challenges to specimen access for some manufacturers under the World Health Organization (WHO) Pandemic Influenza Preparedness (PIP) Framework as well as potential impact on accessing the influenza strains sourced by the WHO Global Influenza Surveillance and Response System (GISRS). The commenter asked if manufacturers required to perform the annual testing would need to participate in the PIP framework to access GISRS specimens. The commenter further stated that unless all companies are able to access specimens in a fair, timely and non-cost restrictive manner to comply with the new postmarket requirements, some innovators may be unable to continue to develop new influenza diagnostics.
(Response) CDC intends to make available an annual analytical reactivity test panel, which is an annual standardized seasonal influenza virus test panel, so that manufacturers can comply with the annual analytical reactivity testing requirement. If the annual strains are not available from CDC, FDA will identify an alternative source for obtaining the requisite strains. The selection of viruses in the CDC annual analytical reactivity test panels is expected to be largely based on the strains selected by WHO for the annual vaccine and will be distributed for annual analytical reactivity testing or analytical validation in support of new 510(k) submissions for antigen based RIDT devices. We expect that the panel will primarily consist of human viruses that circulated in the recent influenza seasons. FDA and CDC do not believe that manufacturers will need to enter
(Comment 14) Another commenter expressed a concern regarding whether the requisite strain(s) will be made available in sufficient time to allow manufacturers to conduct the studies and have the data available in the labeling or on the manufacturer's Web site within the timeframe specified for both annual and emergency analytical reactivity testing. The comment stated that for most manufacturers, the process of testing and making a change in labeling would take a minimum of 90 days from receipt of samples.
(Response) Under the new special controls, the results of the last 3 years of annual analytical reactivity testing conducted from the date that the device was given marketing authorization by FDA must be incorporated into the device's labeling in the manner discussed in § 866.3328(b)(3)(iii) by July 31 of each calendar year. CDC and FDA are committed to making available or designating an alternative source for the annual analytical reactivity test panel with sufficient time for all manufacturers to conduct the testing and include the results in their device's labeling within the required timeframe.
Similarly, in the case of emergency analytical reactivity testing, as described in the special controls at § 866.3328(b)(4), after CDC makes the viral samples available for testing, FDA will notify the manufacturers of the availability of the samples. The manufacturers will have 60 days to perform the testing of the viral samples and to incorporate the results into the device's labeling in the manner discussed in § 866.3328(b)(4)(ii). If a manufacturer is concerned about meeting these timelines due to time needed to amend device labeling that physically accompanies the device, the manufacturer may pursue the § 866.3328(b)(3)(iii)(B) and (b)(4)(ii)(B) alternatives, which allow manufacturers to provide the results as electronic labeling via the manufacturer's public Web site that can be reached via a hyperlink found in the device's label or in other labeling that physically accompanies the device. If a manufacturer chooses the option to post analytical reactivity testing results on its Web site, it would be subject to the requirements of section 502(f) of the FD&C Act (21 U.S.C. 352(f)) that provides that required labeling for prescription devices intended for use in health care facilities or by a health care professional and required labeling for in vitro diagnostic devices intended for use by health care professionals or in blood establishments may be made available solely by electronic means as long as the labeling complies with the law, and that the manufacturer affords users the opportunity to request the labeling in paper form, and that after a request, promptly provides the requested information without additional cost.
If a manufacturer provides the hyperlink to a public Web site at which annual analytical reactivity and emergency testing data may be viewed, generally no updates would be needed to the labeling that physically accompanies the device when meeting the annual analytical reactivity testing requirements under § 866.3328(b)(3) or the emergency analytical reactivity testing requirements under § 866.3328(b)(4). If annual or emergency analytical reactivity testing reveals that the device is unable to detect one or more strains, the manufacturer would need to include a limitation in the device labeling, as further discussed in our response to Comment 21.
(Comment 15) Commenters expressed concern about the logistics of the implementation of the new requirement for the annual analytical reactivity testing. One commenter stated that a clear mechanism was not outlined in the proposed order for activities leading to the reporting of results.
(Response) The activities leading to the reporting of results will include acquisition of the annual analytical reactivity test panel and analytical reactivity testing following the standardized protocol included with the test panel, which will be a standardized protocol considered and determined by FDA to be acceptable and appropriate. Results must be reported by updating the device's labeling in accordance with § 866.3328(b)(3)(iii). As previously stated, CDC and FDA are committed to working with the manufacturers of the influenza tests to facilitate timely and equitable access to the influenza virus annual analytical reactivity test panel. CDC has developed a Web site (
(Comment 16) Commenters expressed concern about the continued availability of the test panel from CDC due to the future potential for limited resources at CDC or FDA.
(Response) In a case where the influenza virus analytical reactivity test panel is not available from CDC due to unforeseen limitations in resources, an alternate source of influenza strains for use in conducting the annual analytical reactivity testing will be identified by FDA, in consultation with CDC. An example of an alternate source could be a commercial vendor that specializes in acquisition, authentication, production, and preservation of microorganisms.
(Comment 17) Commenters suggested that the industry should be engaged for feedback in the development of the standardized testing protocol.
(Response) A standardized protocol has been developed by CDC in consultation with FDA and will be provided to manufacturers with the annual analytical reactivity test panel. The protocol uses basic principles for working with virus stocks and is general enough to allow for use with various devices. For any questions related to the testing procedure, manufacturers can contact CDC or FDA. CDC will serve as the contact for questions pertaining to viruses, and FDA will serve as the contact for all regulatory and reporting issues.
(Comment 18) One commenter inquired whether the analytical reactivity testing could be conducted using a modified limit of detection
(Response) This approach is acceptable to use in the determination of a LoD of an antigen based RIDT assay. However, manufacturers must follow the protocol included with the influenza virus analytical reactivity test panel, which will be a standardized protocol considered and determined by FDA to be acceptable and appropriate. We believe the standardized protocol will be less burdensome than this commenter's proposal and will help ensure that the results generated allow for comparability between different devices, as all devices will have followed a common standardized testing protocol.
(Comment 19) One commenter asked whether interested manufacturers would have an option to have the testing conducted by an independent laboratory, such as a laboratory at a university.
(Response) Yes, a manufacturer may contract an outside laboratory to conduct the testing on its behalf.
(Comment 20) One commenter raised a concern that customers without access to a manufacturer's Web site may not be able to access the annual and/or emergency analytical reactivity testing information; therefore, the commenter suggested that an alternate method of contact should be provided in the product labeling.
(Response) All in vitro diagnostic devices are required by regulation to state on the label and in the product labeling the name and place of business of the manufacturer, packer, or distributor § 809.10(a)(8) and (b)(14) (21 CFR 809.10(a)(8) and (b)(14)), except where such information is not applicable, or as otherwise specified in a standard for a particular product class.
In addition, in accordance with § 866.3328(b)(3)(iii) the results of the annual analytical reactivity testing must either be in the § 809.10(b) compliant labeling that physically accompanies the device or be provided as electronic labeling via the manufacturer's public Web site that can be reached via a hyperlink prominently found in the device's label or in other labeling that physically accompanies the device. If the manufacturer chooses the Web site option, it would be subject to the requirements of section 502(f) of the FD&C Act, which provides that required labeling for prescription devices intended for use in health care facilities or by a health care professional and required labeling for in vitro diagnostic devices intended for use by health care professionals or in blood establishments may be made available solely by electronic means, as long as the labeling complies with the law, and that the manufacturer affords users the opportunity to request the labeling in paper form, and that after a request, promptly provides the requested information without additional cost. Therefore, a manufacturer is already required to provide an opportunity for a health care professional to request the annual analytical reactivity test results in paper form.
(Comment 21) One commenter raised a question about notifying the public when a test is non-reactive with any of the strains included in the influenza virus analytical reactivity test panel provided by CDC and whether the product labeling will be updated annually. In particular, the commenter questioned how labeling changes to reflect absence of reactivity would be communicated to users who have already purchased the test.
(Response) This final order requires that the results of the last 3 years of annual analytical reactivity testing conducted from the date that the device was given marketing authorization by FDA be included as part of the device's labeling by July 31 of each calendar year. Modification of the labeling solely to incorporate analytical reactivity testing results required under § 866.3328(b)(3)(iii) or (b)(4)(ii) can be made without an official submission to FDA. In a case where one or more strains are shown not to be detected by the device during annual analytical reactivity testing under § 866.3328(b)(3) or emergency analytical reactivity testing under § 866.3328(b)(4), the manufacturer will need to include a limitation in the device labeling regarding reactivity with the specific strain(s) that were not detected by the device. Without such a limitation, the device would not meet the labeling requirements of § 809.10(b).
(Comment 22) One commenter raised a question about whether there will be a guidance document issued on a yearly basis to interpret the results of the analytical reactivity testing for that year.
(Response) FDA does not intend to issue a guidance document on how to interpret the results of the analytical reactivity testing each year, as the result interpretations are stated in the CDC information sheet that will be distributed with the CDC annual analytical reactivity test panel. The annual analytical reactivity testing is intended to evaluate whether the assay detects each strain included in the annual analytical reactivity test panel; however, that testing does not provide direct information about how the assay performs when used with clinical specimens that are collected directly from patients. Any positive result obtained during analytical reactivity testing performed with the annual influenza virus analytical reactivity test panel, at any viral concentration/dilution, indicates that the assay is reactive with that virus; however, the minimal concentration of the virus that is needed for the detection (assay sensitivity) may vary. Since the difference in analytical reactivity does not necessarily translate into an appreciable difference in performance when testing clinical specimens, it is important to emphasize that the results should not be over-interpreted for clinical purposes.
(Comment 23) One commenter suggested further collaboration between the Agency and influenza test manufacturers in establishing the regulatory process for implementing the labeling change before a final “Notice to Industry” or other document is published. The commenter further recommended that FDA specify an interactive process, whereby individual manufacturers can seek guidance, particularly if they encounter issues that may impede timely publication of annual and emergency analytical reactivity testing data (
(Response) Interactive communication with manufacturers is common practice among the reviewers and the managers in CDRH. Manufacturers are encouraged to contact CDRH's OIR with questions or about issues related to the new requirements. In addition, the CDRH pre-submission program is designed to allow sponsors the opportunity to obtain targeted FDA feedback in response to specific questions related to product development, including planned non-clinical evaluations, proposed clinical study protocols, or data requirements prior to making a submission to the Agency.
(Comment 24) Similar concerns to those surrounding the annual reactivity testing requirement were raised in regard to the emergency testing of emergent strains. In addition, one comment expressed support for specifying a timeline for reporting the results after the samples become available.
(Response) Section 866.3328(b)(4)(ii) requires that, in certain emergency or potential emergency situations involving an influenza viral strain, the results of analytical reactivity testing with the emerging virus(es) must be made available within 60 days from the date that FDA notifies antigen based RIDT manufacturers that characterized viral samples are available. The results of the influenza emergency analytical reactivity testing must be disclosed in a tabular format in a similar manner as the results of the annual analytical reactivity testing (
FDA is also clarifying the special controls to be more precise regarding the situations in which emergency analytical reactivity testing is required. Under section 564(a)–(b) of the FD&C Act (21 U.S.C. 360bbb–3(a)–(b)), the Secretary of Health and Human Services (HHS) may authorize the introduction into interstate commerce of a drug, device, or biologic product intended for use in an actual or potential emergency (referred to as “emergency use”) after making a declaration, under section 564(b)(1) of the FD&C Act, that circumstances exist justifying the authorization. Such a declaration must be based on one of the following actions listed at section 564(b)(1)(A)–(D) of the FD&C Act:
• A determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a chemical, biological, radiological, or nuclear (CBRN) agent or agents;
• A determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to U.S. military forces of attack with a CBRN agent or agents;
• A determination by the Secretary of HHS that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of U.S. citizens living abroad, and that involves a CBRN agent or agents, or a disease or condition that may be attributable to such agent or agents; or
• The identification of a material threat, by the Secretary of Homeland Security under section 319F–2 of the Public Health Service (PHS) Act, that is sufficient to affect national security or the health and security of U.S. citizens living abroad.
If one of these four actions that can provide the basis for the Secretary of HHS to make a declaration under section 564(b)(1) of the FD&C Act occurs with respect to an influenza viral strain, then, after being notified that characterized viral samples are available from CDC, antigen based RIDT manufacturers must conduct analytical reactivity testing with those samples and make the results available in their device labeling within the timeframes set forth in § 866.3328(b)(4).
In addition, the Secretary of HHS may determine under section 319(a) of the PHS Act (42 U.S.C. 247d(a)) that a disease or disorder presents a public health emergency or that a public health emergency otherwise exists. In the event of such a determination under section 319(a) of the PHS Act with respect to an influenza viral strain, then, after being notified that characterized viral samples are available from CDC, antigen based RIDT manufacturers would also need to conduct analytical reactivity testing with those samples and make the results available in their device labeling within the timeframes set forth in § 866.3328(b)(4).
The final order also modifies the special controls to require that any emergency reactivity test results added to antigen based RIDT device labeling under § 866.3328(b)(4)(ii) remain in the labeling for a period of 3 years. Emerging influenza strains may still be circulating after the statutory actions described under section 564(b)(1)(A)–(D) of the FD&C Act and section 319(a) of the PHS Act have terminated. The change will align the period that emergency analytical reactivity test results must remain in device labeling with the requirement in § 866.3328(b)(3)(iii) that manufacturers provide the last 3 years of annual analytical reactivity testing in the device labeling. FDA believes that this makes the labeling requirements in the special controls more clear and consistent for industry.
As discussed previously, after reviewing the comments received along with the proposed order and the Panel's recommendations, FDA is making a few clarifications and modifications to the special controls for antigen based RIDTs. These include: (1) Clarifying that clinical performance criteria must be met for each specimen type claimed in the intended use of the device; (2) clarifying that manufacturers of future antigen based RIDT devices may use a currently appropriate and FDA accepted comparator method other than comparison to an FDA-cleared nucleic acid based-test or viral culture methods to demonstrate that those devices meet the clinical performance criteria, if such a comparator method is established; (3) clarifying that a manufacturer choosing to provide analytical reactivity testing results via its public Web site must prominently provide hyperlink to that Web site in the device's label or in other labeling that physically accompanies the device; (4) clarifying the circumstances in which emergency analytical reactivity testing is required under § 866.3328(b)(4); and (5) requiring results of such emergency analytical reactivity testing to remain in the device labeling for a period of 3 years.
Under section 513(e) of the FD&C Act, FDA is adopting its findings as published in the preamble to the proposed order, with the modifications discussed in section II of this final order. FDA is issuing this final order to reclassify antigen based rapid influenza virus antigen detection test systems intended to detect influenza virus antigen directly from clinical specimens that are currently regulated as influenza virus serological reagents under § 866.3330 from class I into class II with special controls and into a new device classification regulation for “influenza virus antigen detection test systems.” Currently, antigen based RIDTs are mostly found under product codes GNX and GNT. However, any antigen based rapid influenza virus antigen detection test system intended to detect influenza virus antigen directly from clinical specimens that is currently regulated as influenza virus serological reagents under § 866.3330 is subject to this
Section 510(m) of the FD&C Act provides that a class II device may be exempt from the premarket notification requirements under section 510(k) of the FD&C Act, if the Agency determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this device, FDA believes that premarket notification is necessary to provide reasonable assurance of safety and effectiveness. Therefore, this type of device is not exempt from premarket notification requirements.
In addition, FDA believes that special controls that: (1) Identify the minimum acceptable performance criteria; (2) require use of a currently appropriate and FDA accepted comparator method for establishing performance of new antigen based RIDTs; (3) require annual analytical reactivity testing of contemporary influenza strains; and (4) require analytical reactivity testing of newly emerging strains under certain situations involving an emergency or potential for an emergency, are necessary to provide reasonable assurance of safety and effectiveness of these devices.
The special controls identified in this final order are effective February 13, 2017.
• For antigen based RIDTs that have not been legally marketed prior to February 13, 2017, or that have been legally marketed but are required to submit a 510(k) under 21 CFR 807.81(a)(3) because the device is about to be significantly changed or modified, manufacturers must obtain 510(k) clearance, among other relevant requirements, and demonstrate compliance with the special controls included in this final order, before marketing their new or changed device. If a manufacturer markets such a device after February 13, 2017 without obtaining 510(k) clearance and demonstrating compliance with the special controls included in this final order, then FDA would consider taking action against such a manufacturer under its usual enforcement policies.
• For antigen based RIDTs that have been legally marketed prior to February 13, 2017, FDA does not intend to enforce compliance with the special controls until January 12, 2018. If a manufacturer markets such a device after January 12, 2018, and that device does not comply with the special controls, then FDA would consider taking action against such a manufacturer under its usual enforcement policies.
FDA believes that a period of 1 year from the publication date of this final order is appropriate for manufacturers to come into compliance with the special controls and for those manufacturers whose currently legally marketed devices do not meet the minimum performance criteria to prepare and submit a 510(k) for a new or significantly changed or modified device. FDA believes this approach will help ensure the efficient and effective implementation of the order.
The Agency has determined under 21 CFR 25.34(b) that this reclassification 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 administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910–0120; the collections of information in 21 CFR part 812 regarding investigational device exemptions have been approved under OMB control number 0910–0078; the collections of information in 21 CFR part 801 and § 809.10 have been approved under OMB control number 0910–0485; and the collections of information regarding pre-submissions have been approved under OMB control number 0910–0756.
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 antigen based RIDTs into class II (special controls).
The following reference is on display in the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at
Biologics, Laboratories, 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 866 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(1) The device's sensitivity and specificity performance characteristics or positive percent agreement and negative percent agreement, for each specimen type claimed in the intended use of the device, must meet one of the following two minimum clinical performance criteria:
(i) For devices evaluated as compared to an FDA-cleared nucleic acid based-test or other currently appropriate and FDA accepted comparator method other than correctly performed viral culture method:
(A) The positive percent agreement estimate for the device when testing for influenza A and influenza B must be at the point estimate of at least 80 percent with a lower bound of the 95 percent confidence interval that is greater than or equal to 70 percent.
(B) The negative percent agreement estimate for the device when testing for influenza A and influenza B must be at the point estimate of at least 95 percent with a lower bound of the 95 percent confidence interval that is greater than or equal to 90 percent.
(ii) For devices evaluated as compared to correctly performed viral culture method as the comparator method:
(A) The sensitivity estimate for the device when testing for influenza A must be at the point estimate of at least 90 percent with a lower bound of the 95 percent confidence interval that is greater than or equal to 80 percent. The sensitivity estimate for the device when testing for influenza B must be at the point estimate of at least 80 percent with a lower bound of the 95 percent confidence interval that is greater than or equal to 70 percent.
(B) The specificity estimate for the device when testing for influenza A and influenza B must be at the point estimate of at least 95 percent with a lower bound of the 95 percent confidence interval that is greater than or equal to 90 percent.
(2) When performing testing to demonstrate the device meets the requirements in paragraph (b)(1) of this section, a currently appropriate and FDA accepted comparator method must be used to establish assay performance in clinical studies.
(3) Annual analytical reactivity testing of the device must be performed with contemporary influenza strains. This annual analytical reactivity testing must meet the following criteria:
(i) The appropriate strains to be tested will be identified by FDA in consultation with the Centers for Disease Control and Prevention (CDC) and sourced from CDC or an FDA-designated source. If the annual strains are not available from CDC, FDA will identify an alternative source for obtaining the requisite strains.
(ii) The testing must be conducted according to a standardized protocol considered and determined by FDA to be acceptable and appropriate.
(iii) By July 31 of each calendar year, the results of the last 3 years of annual analytical reactivity testing must be included as part of the device's labeling. If a device has not been on the market long enough for 3 years of annual analytical reactivity testing to have been conducted since the device received marketing authorization from FDA, then the results of every annual analytical reactivity testing since the device received marketing authorization from FDA must be included. The results must be presented as part of the device's labeling in a tabular format, which includes the detailed information for each virus tested as described in the certificate of authentication, either by:
(A) Placing the results directly in the device's § 809.10(b) of this chapter compliant labeling that physically accompanies the device in a separate section of the labeling where the analytical reactivity testing data can be found; or
(B) In the device's label or in other labeling that physically accompanies the device, prominently providing a hyperlink to the manufacturer's public Web site where the analytical reactivity testing data can be found. The manufacturer's home page, as well as the primary part of the manufacturer's Web site that discusses the device, must provide a prominently placed hyperlink to the Web page containing this information and must allow unrestricted viewing access.
(4) If one of the actions listed at section 564(b)(1)(A)–(D) of the Federal Food, Drug, and Cosmetic Act occurs with respect to an influenza viral strain, or if the Secretary of Health and Human Services (HHS) determines, under section 319(a) of the Public Health Service Act, that a disease or disorder presents a public health emergency, or that a public health emergency otherwise exists, with respect to an influenza viral strain:
(i) Within 30 days from the date that FDA notifies manufacturers that characterized viral samples are available for test evaluation, the manufacturer must have testing performed on the device with those viral samples in accordance with a standardized protocol considered and determined by FDA to be acceptable and appropriate. The procedure and location of testing may depend on the nature of the emerging virus.
(ii) Within 60 days from the date that FDA notifies manufacturers that characterized viral samples are available for test evaluation and continuing until 3 years from that date, the results of the influenza emergency analytical reactivity testing, including the detailed information for the virus tested as described in the certificate of authentication, must be included as part of the device's labeling in a tabular format, either by:
(A) Placing the results directly in the device's § 809.10(b) of this chapter compliant labeling that physically accompanies the device in a separate section of the labeling where analytical reactivity testing data can be found, but separate from the annual analytical reactivity testing results; or
(B) In a section of the device's label or in other labeling that physically accompanies the device, prominently providing a hyperlink to the manufacturer's public Web site where the analytical reactivity testing data can be found. The manufacturer's home page, as well as the primary part of the manufacturer's Web site that discusses the device, must provide a prominently placed hyperlink to the Web page containing this information and must allow unrestricted viewing access.
Office of the Secretary, HUD.
Final rule.
This final rule amends HUD's Freedom of Information Act (FOIA) regulation to implement the FOIA Improvement Act of 2016. The FOIA Improvement Act enacted a range of procedural issues, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal, and codifies the foreseeable harm standard.
Helen Foster, Deputy Chief Administrative Officer, Office of Administration, Department of Housing and Urban Development, 451 7th Street SW., Room 10139, Washington, DC 20410–0500, telephone number 202–402–2671 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at telephone number 1–800–877–8339.
On June 30, 2016, the President signed into law the FOIA Improvement Act of 2016 (2016 Act) (Pub. L. 114–185, 130 Stat. 538), which contains several substantive and procedural amendments to the Freedom of Information Act (FOIA). The 2016 Act addresses a range of procedural issues, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal, and that agencies provide dispute resolution services at various times throughout the FOIA process. The 2016 Act also codifies a “foreseeable harm” standard, amends Exemption 5 to the FOIA, creates a new Chief FOIA Officer Council within the Executive Branch, and adds two new elements to agency Annual FOIA Reports. The amendments apply to any request made after the date of enactment, which was June 30, 2016.
Section 3 of the 2016 Act requires agencies to review and issue updated regulations on procedures for the disclosure of records under the FOIA, in accordance with the amendments made by the 2016 Act, within 180 days of enactment. Accordingly, HUD revises its FOIA regulation to incorporate changes enacted by the 2016 Act.
The following is an overview of the changes made in this final rule.
The 2016 Act requires agencies to “make available for public inspection in an electronic format” records that, because of their subject matter, the agency determines “have become or are likely to become the subject of subsequent requests for substantially the same records,” or that have been requested 3 or more times. In response, HUD is amending §§ 15.101(a) and 15.101(b)(7) to comply with this requirement. The revisions mirror the language from the 2016 Act.
The 2016 Act also adds agency reporting requirements for agencies' annual FOIA reports. The 2016 Act requires that a report covering the preceding fiscal year is to be submitted to the Attorney General of the United States and to the Director of the Office of Government Information Services (OGIS). The raw statistical data used in each report must be made available without charge, license, or registration requirement; in an aggregated, searchable format, and in a format that may be downloaded in bulk. Both the report and the raw statistical data used in the report must be made available for public inspection in an electronic format. In response to this requirement, HUD is adding § 15.101(b)(8) in conformance with these new reporting requirements.
When a FOIA request involves “unusual circumstances,” agencies have long been required to provide written notice to the requester, and in those instances where an extension of time of more than ten working days is specified, agencies have been required to provide the requester with an opportunity to limit the scope of the request so that it can be processed more quickly or to arrange an alternative time to respond. The 2016 Act adds an additional requirement when unusual circumstances exist. Specifically, whenever agencies extend the time limits by more than ten additional working days, in the written notice to the requester they must notify the requester of their right to seek dispute resolution services from the OGIS. To address this requirement, HUD is revising § 15.103(c) to incorporate the change enacted by the 2016 Act.
HUD is also using this final rule to update several specific provisions of § 15.103 to more accurately reflect the statutory language in 5 U.S.C. 552(a)(6)(A)(i). First, HUD is revising § 15.103(a) to state that HUD will generally “make a determination whether to comply with a FOIA request within 20 working days.” Second, HUD is revising § 15.103(c), which addresses when HUD may extend the time periods for processing a FOIA request, to remove the sentence that limited extensions to 10 working days. HUD is removing this language as inconsistent with the plain reading of the statute, the logic of the rest of the language in § 15.103(c), and Department of Justice guidance. Finally, in accordance with 5 U.S.C. 552(a)(6)(B)(ii), HUD has updated § 15.103(c) to include the provision that HUD shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and HUD.
When an agency makes a determination regarding whether to comply with a FOIA request, the 2016 Act provides that the agency is required to immediately notify the requester of such determination and the reasons therefore, and also notify the requester that they have a right to seek assistance from the agency's FOIA Public Liaison. For adverse determinations, the 2016 Act requires that agencies afford the requester no less than 90 days from the date of the adverse determination on the request to file an appeal. In addition, the 2016 Act requires that agencies notify the requester that they may seek dispute resolution services from the FOIA Public Liaison or from OGIS.
Consistent with this requirement, HUD has revised § 15.105(d) to provide that, once HUD makes a determination regarding compliance within the time line provided in § 15.103(a), HUD will immediately notify the requester of such determination, the reasons therefore, and their right to seek assistance from the FOIA Public Liaison.
For adverse determinations, HUD has added § 15.105(d)(2)(iv) to provide that HUD will notify the requester of their right to file an appeal no less than 90 days after the date of receiving the adverse determination. Finally, § 15.105(d)(2)(v) has been added to provide that HUD will notify the requester of their right to seek dispute resolution services from the FOIA Public Liaison or from OGIS.
The 2016 Act contains several new provisions regarding agencies' ability to assess search and duplication fees. First, the 2016 Act provides that an agency shall not assess any search fees, or in some cases, duplication fees, if the agency has failed to comply with any time limit described in § 15.103, with limited exceptions. Second, if an agency determines that unusual circumstances apply to the processing of a FOIA request, and the agency has provided timely written notice to the requester, then a delayed response time is excused for an additional ten days; if the agency fails to comply with the extended time limit, it may not charge search fees, or, in some cases, duplication fees, with limited exceptions. Third, the 2016 Act
In accordance with the first change, HUD is updating § 15.106(d) to provide that HUD will not assess search fees or, for requesters that are educational or noncommercial scientific institutions or representatives of the news media requesting records not sought for commercial use, duplication fees, if it fails to comply with the extended time limits as described in § 15.103. To comply with the second change, HUD is adding § 15.106(d)(5) to grant HUD an additional ten days when unusual circumstances apply and timely written notice has been provided to the requester and to terminate HUD's ability to assess search fees or duplication fees, as applicable, if HUD does not comply with the additional ten days. Regarding the third change, HUD is adding § 15.106(d)(6) to allow HUD to charge search fees when unusual circumstances apply and more than 5,000 pages are necessary to respond to the FOIA request. Regarding the fourth amendment, HUD is adding § 15.106(d)(7)(i) to excuse a failure to comply with any time limit if a court determines that exceptional circumstances exist; and § 15.106(d)(7)(ii), which provides the definition of “exceptional circumstances” as defined in 5 U.S.C. 552(a)(6)(C), has also been added for clarifying purposes.
The 2016 Act requires that agencies withhold information under FOIA “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or if disclosure is prohibited by law. The 2016 Act further directs agencies to consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible, and to take reasonable steps necessary to segregate and release nonexempt information. The 2016 Act does not require disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under Exemption 3.
Consistent with these changes, HUD is restructuring § 15.107 and adding paragraph (a) to provide that HUD shall withhold information only if it is reasonably foreseeable that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law. Paragraph (a) also emphasizes that HUD will consider whether partial disclosure of information is possible if it determines that a full disclosure of a requested record is not possible, and that HUD will take reasonable steps necessary to segregate and release nonexempt information.
In addition, the 2016 Act sunsets the deliberative process privilege, as protected from disclosure under Exemption 5 of the FOIA. Specifically, the 2016 Act amends Exemption 5 to provide that the deliberative process privilege does not apply to records created 25 years or more before the date on which the records were requested. In accordance with the 2016 Act, HUD is revising § 15.107(b)(5) to state that the deliberative process privilege “shall not apply to records created 25 years or more before the date on which the records were requested.”
In general, HUD publishes a rule for public comment before issuing a rule for effect, in accordance with HUD's regulations on rulemaking at 24 CFR part 10. Part 10, however, provides in § 10.1 for exceptions from that general rule where HUD finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when the prior public procedure is “impracticable, unnecessary or contrary to the public interest.”
HUD finds that good cause exists to publish this rule for effect without first soliciting public comment because prior public comment is unnecessary. This final rule follows the statutory directive in Section 3 of the 2016 Act, which requires agencies to review and issue updated regulations on procedures for the disclosure of records under the FOIA, in accordance with the amendments made by the 2016 Act, within 180 days of enactment. The 2016 Act codifies a number of transparency and openness principles and enacts a number of procedural requirements, including requiring that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process. This final rule reflects the changes required by the 2016 Act. Finally, the rule revises provisions § 15.103 to more accurately reflect the statutory language in 5 U.S.C. 552(a)(6)(A)(i).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if the regulation is necessary, to select the regulatory approach that maximizes net benefits. Because this final rule incorporates changes enacted by the 2016 Act, this rule was determined to not be a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and therefore was not reviewed by OMB.
This rule is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321). The revision of the FOIA-related provisions of 24 CFR part 15 falls within the exclusion provided by 24 CFR 50.19(c)(1), in that it does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This final rule does not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the Unfunded Mandates Reform Act of 1995.
Classified information, Courts, Freedom of information, Government employees, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HUD amends 24 CFR part 15 as follows:
42 U.S.C. 3535(d), 5 U.S.C. 552.
(b) * * *
(7) Copies of all records, regardless of form or format that have been released to any person under § 15.105; and
(i) Because of the nature of their subject matter, the agency determines that the records have become or are likely to become the subject of subsequent requests for substantially the same records; or
(ii) Have been requested three or more times.
(8) Report for the preceding fiscal year submitted to the U.S. Attorney General and the Director of the Office of Government Information Services (OGIS) as required by 5 U.S.C. 552(e) and the raw statistical data used in each report. This report will be made available:
(i) Without charge, license, or registration requirement;
(ii) In an aggregated, searchable format; and
(iii) In a format that may be downloaded in bulk.
(c)
Revisions and additions to read as follows:
(d)
(2) * * *
(iv) Notice of the right of the requester to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and
(v) Notice of the right of the requester to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; and
(d)
(5) If HUD determines that unusual circumstances apply and HUD provides timely written notice to the requester pursuant to requirements provided in § 15.103(c), a failure to comply with any time limit as described in § 15.103 is excused for an additional 10 days. If HUD fails to comply with the extended time limit, HUD may not assess any search fees (or for requesters that are educational or noncommercial scientific institutions or representatives of the news media requesting records not sought for commercial use, duplication fees).
(6) If unusual circumstances apply and more than 5000 pages are necessary to respond to the request, HUD may charge search fees or, for requesters that are educational or noncommercial scientific institutions or representatives of the news media requesting records not sought for commercial use, duplication fees, if timely written notice has been made to the requester pursuant to requirements provided in § 15.103(c) and HUD has discussed with the requester through written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request as stipulated in § 15.103(c).
(7)(i) If a court has determined that exceptional circumstances exist, a failure to comply with any time limit as described in § 15.103 shall be excused for the length of time provided by the court order.
(ii) For purposes of this section, the term “exceptional circumstances” does not include a delay that results from a predictable workload of requests, unless HUD demonstrates reasonable progress in reducing its backlog of pending requests. However, refusal by the requester to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) after HUD gives them an opportunity to do so shall be considered a factor in determining whether exceptional circumstances exist.
Revisions and addition to read as follows:
(a) HUD shall withhold information only if HUD reasonably foresees that disclosure would harm an interest protected by an exemption as provided in paragraph (b) of this section, or disclosure is prohibited by law. HUD will consider whether partial disclosure of information is possible whenever HUD determines that a full disclosure of a requested record is not possible, and will take reasonable steps necessary to segregate and release nonexempt information. Nothing in this section requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure as provided in paragraph (b)(3) of this section.
(b) * * *
(5)
Office of General Counsel, HUD.
Final rule; correction.
On December 20, 2016, HUD published a final rule requiring the installation of broadband infrastructure at the time of new construction or substantial rehabilitation of multifamily rental housing that is funded or supported by HUD, the point at which such installation is generally easier and less costly than when undertaken as a stand-alone effort. This document corrects incorrect paragraph designations in one section of the regulatory text. The effective date for HUD's final rule of January 19, 2017 is unchanged.
Effective January 19, 2017.
With respect to this supplementary document, contact Ariel Periera, Associate General Counsel for Legislation and Regulations, Department of Housing and Urban Development, 451 7th Street SW., Room 10238, Washington, DC 20410; telephone number 202–708–1793 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800–877–8339.
In the final rule FR Doc. 2016–30708, published in the
On page 92638, in the third column, in § 891.20, paragraphs (f)(a) through (c) are redesignated as paragraphs (f)(1) through (3).
Department of the Navy, DoD.
Final rule.
The Department of the Navy (DoN) is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law) has determined that USS OMAHA (LCS 12) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.
This rule is effective January 12, 2017 and is applicable beginning December 12, 2016.
Commander Theron R. Korsak, JAGC, U.S. Navy, Admiralty Attorney, (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374–5066, telephone number: 202–685–5040.
Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.
This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS OMAHA (LCS 12) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2 (a)(i), pertaining to the height of the forward masthead light above the hull; Annex I, paragraph 2(f)(i), pertaining to the placement of the masthead light or lights above and clear of all other lights and obstructions; Annex I, paragraph 3(a), pertaining to the location of the forward masthead light in the forward quarter of the ship, and the horizontal distance between the forward and after masthead light; Annex I, paragraph 3(c), pertaining to the task light's horizontal distance from the fore and aft centerline of the vessel in the athwartship direction. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.
Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.
Marine safety, Navigation (water), Vessels.
For the reasons set forth in the preamble, the DoN amends part 706 of title 32 of the Code of Federal Regulations as follows:
33 U.S.C. 1605.
15. * * *
16. * * *
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a security zone along the Potomac River and Anacostia River, and adjacent waters at Washington, DC, for activities associated with the 58th Presidential Inauguration. The zone will be enforced on the days leading up to and through the cessation of activities associated with the 58th Presidential Inauguration taking place on January 20, 2017. This action is necessary to protect government officials, mitigate potential terrorist acts and incidents, and enhance public and maritime safety and security immediately before, during, and after these activities. During the enforcement period, entry into or remaining within the zone is prohibited unless authorized by the Captain of the Port or his designated representative.
The regulations in 33 CFR 165.508 will be enforced from 6 a.m. on January 15, 2017, through 6 a.m. on January 24, 2017, for the zone identified in 33 CFR 165.508(a)(6).
If you have questions about this notice of enforcement, call or email Mr. Ron Houck, U.S. Coast Guard Sector Maryland-National Capital Region (Waterways Management Division); telephone 410–576–2674, email
On December 1, 2016, the Coast Guard was notified by the event organizer that the anticipated dates for the activities associated with the 58th Presidential Inauguration are scheduled from January 15, 2017, to January 24, 2017. The Coast Guard will enforce regulations in 33 CFR 165.508 for the zone identified in paragraph (a)(6). This action is being taken to protect government officials, mitigate potential terrorist acts and incidents, and enhance public and maritime safety and security immediately before, during, and after this event.
Our regulations for Security Zone; Potomac River and Anacostia River, and adjacent waters; Washington, DC, § 165.508, specifies the location for this security zone as an area that includes all navigable waters described in paragraphs (a)(1) through (a)(3). This zone includes (1) Security Zone 1; all navigable waters of the Potomac River, from shoreline to shoreline, bounded to the north by the Francis Scott Key (US–29) Bridge, at mile 113, and bounded to the south by a line drawn from the Virginia shoreline at Ronald Reagan Washington National Airport, at 38°51′21.3″ N., 077°02′00.0″ W., eastward across the Potomac River to the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N., 077°01′19.8″ W., including the waters of the Boundary Channel, Pentagon Lagoon, Georgetown Channel Tidal Basin, and Roaches Run. (2) Security Zone 2; all navigable waters of the Anacostia River, from shoreline to shoreline, bounded to the north by the John Philip Sousa (Pennsylvania Avenue) Bridge, at mile 2.9, and bounded to the south by a line drawn from the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N., 077°01′19.8″ W., southward across the Anacostia River to the District of Columbia shoreline at Giesboro Point at position 38°50′52.4″ N., 077°01′10.9″ W., including the waters of the Washington Channel. (3) Security Zone 3 all navigable waters of the Potomac River, from shoreline to shoreline, bounded to the north by a line drawn from the Virginia shoreline at Ronald Reagan Washington National Airport, at 38°51′21.3″ N., 077°02′00.0″ W., eastward across the Potomac River to the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N., 077°01′19.8″ W., thence southward across the Anacostia River to the District of Columbia shoreline at Giesboro Point at position 38°50′52.4″ N., 077°01′10.9″ W., and bounded to the south by the Woodrow Wilson Memorial (I–95/I–495) Bridge, at mile 103.8.
As specified in § 165.508 (b), during the enforcement period, entry into or remaining in the zone is prohibited
This notice of enforcement is issued under authority of 33 CFR 165.508 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the
National Park Service, Interior.
Final rule.
The National Park Service amends it regulations for National Park System units in Alaska to allow qualified subsistence users to collect nonedible fish and wildlife parts and plants for creating handicrafts for barter and customary trade. The rule also clarifies that capturing, collecting or possessing living wildlife is generally prohibited and adopts restrictions on using human-produced foods to bait bears for subsistence uses.
This rule is effective February 13, 2017.
Andee Sears, Regional Law Enforcement Specialist, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501. Phone (907) 644–3410. Email:
On January 13, 2016, the National Park Service (NPS) published the proposed rule in the
In 1980, Congress enacted the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 410hh–410hh–5; 3101–3233) to preserve various nationally significant areas in Alaska. One of the purposes of ANILCA is “to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.” 16 U.S.C. 3101(c). The subsistence take of fish and wildlife on (federal) public lands is governed by Title VIII of ANILCA (16 U.S.C. 3111–3126).
Title II of ANILCA established new National Park System units, added to existing units, and specified in which units that subsistence uses shall be allowed. 16 U.S.C. 410hh–2. Subsistence uses by local rural residents in Alaska are authorized in all national preserves and in the Alagnak Wild River (managed as a national preserve), Aniakchak National Monument, Cape Krusenstern National Monument, Gates of the Arctic National Park, Kobuk Valley National Park, Lake Clark National Park, Wrangell-Saint Elias National Park, 16 U.S.C. 410hh–(1)–(4), (6)–(10); and the additions to Denali National Park, 16 U.S.C. 410hh–1(3)(a).
ANILCA defines “subsistence uses” as:
[T]he customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade. 16 U.S.C. 3113
This definition reflects that the creation of hand-made crafts from nonedible natural materials has long been a part of the cultural, social, and economic practices of those living a subsistence way of life in Alaska. These individuals requested that the NPS allow this customary and traditional practice.
NPS regulations for subsistence uses in park units in Alaska are found in 36 CFR part 13, subpart F—Subsistence. The regulations authorize local rural residents to take fish and to hunt and trap wildlife in specific park units for subsistence uses in compliance with state and federal law. 36 CFR 13.470 and 13.480. The Federal Subsistence Board (FSB) regulations governing the subsistence take of fish and wildlife on federal lands in Alaska are found at 50 CFR part 100. These part 100 regulations are limited to fish, wildlife and non-migratory birds. NPS regulations regarding the non-commercial subsistence use of timber and plant materials are located at 36 CFR 13.485. The non-commercial cutting of standing timber for firewood and house logs is authorized under 36 CFR 13.485(a) while the non-commercial gathering of plant materials such as fruits, berries, and mushrooms for subsistence uses without a permit is authorized by 36 CFR 13.485(b).
The NPS regulation at 36 CFR 13.420 defining the term “barter” is derived from the statutory definition of “subsistence uses” in section 803 of ANILCA (16 U.S.C. 3113). Barter means the exchange of fish or wildlife or their parts for other fish or game or their parts; or for other food or for nonedible items other than money if the exchange is of a limited and noncommercial
Since the June 1981 rulemaking, two NPS units in Alaska where such customary trade was known to have occurred, Gates of the Arctic National Preserve and Kobuk Valley National Park, have promulgated special regulations that expand the definition of “customary trade” in those units to include the sale of handicrafts made from plant material taken by local rural residents of the park area. These special regulations do not require any written authorization from the superintendent. 36 CFR 13.1006 and 13.1504, respectively.
Except for these specific and limited authorizations for barter and customary trade of handicrafts in Gates of the Arctic National Preserve and Kobuk Valley National Park in Alaska, National Park System-wide regulations at 36 CFR 5.3 generally prohibit engaging in any business without authorization. This means that other forms of sale, barter, and trade that are customary and traditional uses of wild, renewable resources by rural Alaska residents are not allowed under current NPS regulations. In addition, National Park System-wide regulations at 36 CFR 2.1(a)(1) prohibit the collection of wildlife, plants, or parts thereof. There is a limited authorization for the hand-collection of fruits, berries, nuts, or unoccupied seashells for personal use or consumption, and a separate limited authorization for members of federally-recognized tribes to collect plants for traditional purposes under an agreement with the NPS, but the sale or commercial use of the products collected under these authorities is prohibited. 36 CFR 2.1(c) and (d).
The NPS prepared an Environmental Assessment (EA) to analyze the impacts of various alternatives that would address the collection of plant materials and nonedible animal parts to make handicrafts for barter and customary trade. On April 14, 2014, the Regional Director for the Alaska Region signed a Finding of No Significant Impact (FONSI) that selected a modified version of the preferred alternative (Alternative D) in the EA as the selected action. In the FONSI, the Regional Director determined that written authorization from the NPS would be required to collect both animal parts and plant materials for making handicrafts for barter and customary trade. On December 2, 2016, the NPS amended the FONSI to exempt plant materials from this requirement. The provisions in this rule about the capture, collection, or possession of live wildlife and restrictions on the types of bait that may be used to take bears for subsistence purposes were categorically excluded from further environmental analysis.
This rule implements the selected action identified in the amended FONSI and applies to all NPS units in Alaska where subsistence uses by local rural residents are authorized by ANILCA. The rule allows NPS-qualified local rural residents to collect and use the following items to make and sell handicrafts:
• Plant Materials; and
• nonedible animal parts (
While ANILCA does not expressly address making and selling of handicrafts out of plant materials, the NPS concludes it falls within this definition, and that it is not otherwise prohibited. Making and selling handicrafts out of plant materials is clearly use of a wild renewable resource for barter or customary trade. The omission of plant materials from the statute's specific provision on handicraft articles does not indicate any intent to prohibit their use. That definition provides that fish and wildlife-based handicraft articles for subsistence purposes are only made from “nonedible byproducts” to avoid the take of fish and wildlife solely for the purpose of making handicrafts out of them. Plant materials fall within the definition's more general provision of wild, renewable resources and the making and selling of plant-based handicrafts is a customary and traditional use of wild, renewable resources for barter or customary trade.
Feathers may only be collected if such collection is not prohibited by the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, or other applicable law. Collection and use of bird feathers remains subject to any applicable federal and state laws.
Eligibility to collect plants or nonedible animal parts follows the same criteria for other subsistence uses in national parks, monuments and preserves. Collection of nonedible wildlife parts is limited to NPS-qualified subsistence users who are residents of communities or areas with a federally recognized customary and traditional use determination (as listed in 50 CFR part 100) for each species in the game management unit within the affected area. Thus, if an NPS qualified subsistence user can lawfully harvest the wildlife species in a particular area for subsistence uses, then they are allowed to collect nonliving, nonedible parts of that same species they encounter in the area. Eligible persons must have written authorization from the superintendent to collect nonedible animal parts. The sale of raw unworked materials or parts remains prohibited because of concern about overuse and commercialization of the resource. The rule also allows NPS-qualified subsistence users to collect nonedible animal parts and plants on behalf of another NPS-qualified subsistence user or for cultural or educational programs that are qualified under FSB regulations at 50 CFR 100.25(g). The rule provides superintendents with authority to set conditions, limits, and other restrictions on collection activities to protect resources and values.
The rule allows the collection of nonedible animal parts and plants and their inclusion in handicrafts to be sold or exchanged through barter or customary trade. The regulatory definition of “barter” is amended to include exchange of handicrafts for fish or game or their parts; or for other food or nonedible items other than money if the exchange is of a limited and noncommercial nature. The regulatory definition of “customary trade” is amended to include exchange of handicrafts for cash to support personal or family needs, so long as these exchanges do not constitute a significant commercial enterprise.
The rule adds a definition of “handicraft” that is taken from the current federal subsistence regulations at 50 CFR 100.25(a). This definition clarifies that a handicraft must result from the alteration or manipulation of the shape and appearance of natural materials to create something of greater
In the proposed rule, the NPS stated that collecting or possessing living wildlife (including eggs and offspring) is prohibited in NPS units located in Alaska unless specifically authorized by federal statute or pursuant to (1) an NPS research specimen collection permit issued under 36 CFR 2.5; (2) federal subsistence regulations; or (3) special regulations for Glacier Bay National Park and Preserve. This proposal originated from public inquiries about the collection of live falcon chicks in national preserves that would be trained and then used for sport hunting.
The take of wildlife is generally prohibited on National Park System units. Although in Alaska hunting and trapping are allowed in national preserves in accordance with applicable federal and non-conflicting state laws and regulations, the NPS does not consider the capture or collection of live falcons to be hunting or trapping. The NPS concludes that the harvest of migratory birds (including their eggs) pursuant to the Migratory Bird Treaty Act and implementing regulations in 50 CFR part 92 is an appropriate “subsistence use” as defined in section 803 of ANILCA, 16 U.S.C. 3113. Similarly, the NPS concludes that the harvest of marine mammals in accordance with the Marine Mammal Protection Act and implementing regulations in 50 CFR part 18 by NPS-qualified subsistence users is also an appropriate “subsistence use” as defined by section 803 of ANILCA. Thus, in this final rule, the NPS clarifies the prior definition of “subsistence uses” to explicitly include harvest of migratory birds under the MBTA and the harvest of marine mammals under the MMPA by qualified individuals. Except for these subsistence uses, the final rule continues the previous prohibitions on collecting, capturing, or possessing living wildlife unless expressly authorized by federal statute or pursuant to a NPS research specimen collection permit. This rule does not affect the use of trained raptors for hunting activities where authorized by applicable federal and state law. It also does not affect the collection of gull eggs in Glacier Bay by the Huna Tlingit pursuant to Public Law 113–142, sec. 2, 128 Stat. 1749 (2014).
The NPS is adopting restrictions on the types of bait that may be used to take bears for subsistence uses under federal subsistence regulations in units of the National Park System in Alaska. Under this rule, bait is limited to (1) parts of legally taken native fish or wildlife that are not required to be salvaged; or (2) remains of native fish or wildlife that died of natural causes. The rule prohibits human-produced items such as dog food, grease, bread, and marshmallows, which are currently allowed and used to bait bears.
Baiting alters the natural behavior of bears by predictably attracting them to a specific location for harvest. The use of human-produced food as bait can result human food-conditioned bears that are more likely to be killed by agency personnel or the public in defense of life or property. Human food-conditioned bears are also more likely to cause human injury. Bait stations tend to be located in accessible areas due to the infrastructure (typically a 55 gallon drum) used for baiting, the quantity of bait used to engage in this activity, and the frequency it must be replenished. Because of the accessibility of these areas, they are typically used by multiple user groups, which contributes to the public safety concerns associated with baiting.
The NPS recognizes that hunting black bears over bait has been authorized by the State since the 1980s. Taking brown or black bears over bait, however, is not a common activity in most NPS units in Alaska. The only NPS unit where taking bears over bait has traditionally occurred is Wrangell-St. Elias National Park and Preserve.
A summary of public comments received on the proposed rule and NPS responses is provided below followed by a table that sets out changes we have made to the rule based on the analysis of the comments and other considerations.
In considering this comment, the NPS notes that a similar issue exists with respect to harvest of marine mammals by Alaska Natives under the Marine Mammal Protection Act (MMPA). The NPS concludes that ANILCA's definition of subsistence uses includes the harvest of marine mammals by Alaskan Natives who are NPS-qualified rural residents in park areas where the take of marine mammals is authorized in accordance with the Alaska Native exemption in the Marine Mammal Protection Act and the marine mammal regulations at 50 CFR 18.23 and 18.26. The NPS has modified the definition of subsistence uses to reflect that NPS-qualified subsistence users who are eligible to harvest under the MBTA and the MMPA can do so in NPS areas open to subsistence uses.
After taking the public comments into consideration and after additional review, the NPS made the following substantive changes from the proposed rule:
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 Regulatory Flexibility Act (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 the ability of U.S. based enterprises to compete with foreign-based enterprises.
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. A statement containing the information required by the Unfunded Mandates Reform Act (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, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. The proposed rule is limited in effect to federal lands managed by the NPS in Alaska and would not have a substantial direct effect on state and local government in Alaska. A Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. Specifically, 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 federally recognized Tribes through a commitment to consultation with Tribes and recognition of self-governance and Tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and Alaska Native Claims Settlement Act (ANCSA) Corporations consultation policy. Tribes were notified of the proposal regarding the subsistence collections provisions early in the process of developing the regulation. Because the provision on taking live wildlife is not a new prohibition, it will not have a substantial direct effect on federally recognized Tribes or ANCSA Corporation lands, water areas, or
This final rule does not contain any new collections of information that require approval by Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. Information collection requirements associated with the requirement for the Superintendent's written authorization to collect nonedible animal parts and for the designated gatherer permit are covered under OMB Control Number 1024–0026 (expires 12/31/2016 and in accordance with 5 CFR 1320.10, the agency may continue to conduct or sponsor this collection of information while the submission is pending at OMB). We estimate the annual burden associated with this information collection to be 2.5 hours per year. Information collection requirements associated with FSB customary and traditional use determinations have been approved under OMB Control Number 1018–0075 (expires 06/30/2019). We 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.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because we reached the FONSI. The EA and amended FONSI are available online at
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
The primary authors of this regulation are Mary McBurney and Andee Sears of the Alaska Regional Office, National Park Service; Barbara Cellarius of Wrangell-St. Elias National Park and Preserve, National Park Service; and Jay Calhoun and Russel J. Wilson of the Division of Regulations, Washington Support Office, National Park Service.
Alaska, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service amends 36 CFR part 13 as set forth below:
16 U.S.C. 3124; 54 U.S.C. 100101, 100751, 320102; Sec. 13.1204 also issued under Sec. 1035, Public Law 104–333, 110 Stat. 4240.
(j) Collecting, capturing, or possessing living wildlife is prohibited unless expressly authorized by federal statute or pursuant to § 2.5 of this chapter. A falconry permit or other permit issued by the State of Alaska does not provide the required authorization. These collecting activities are not hunting or trapping activities and therefore are not allowed in national preserves under paragraph (a) of this section. This regulation does not prohibit the use of trained raptors for hunting activities where authorized by applicable federal and state law.
The additions and revision read as follows:
The following definitions apply to this part:
(1) Are obtained from lawfully hunted or trapped fish or wildlife;
(2) Have been shed or discarded as a result of natural life-cycle events; or
(3) Remain on the landscape as a result of the natural mortality of fish or wildlife.
(1) The term also includes products made from plant materials; and
(2) The term does not include a trophy or European mount of horns or antlers.
(1) “Family” means all persons related by blood, marriage, or adoption, or any person living within the household on a permanent basis; and
(2) “Barter” means the exchange of handicrafts or fish or wildlife or their parts taken for subsistence uses—
(i) For other fish or game or their parts; or
(ii) For other food or for nonedible items other than money if the exchange is of a limited and noncommercial nature; and
(3) “Customary trade” means the exchange of handicrafts or furs for cash to support personal or family needs; and does not include trade which constitutes a significant commercial enterprise.
The addition reads as follows:
(b)(1) The following types of bait may be used to take bears for subsistence uses:
(i) Parts of legally taken native fish or wildlife that are not required to be salvaged; or
(ii) Remains of native fish or wildlife that died of natural causes.
(2) The use of any other type of bait to take bears for subsistence uses is prohibited except under the terms and conditions of a permit issued under paragraph (d) of § 13.1902.
(a) Local rural residents may collect animal parts (excluding parts of threatened or endangered species) for subsistence uses in park areas where subsistence uses are authorized, provided that:
(1) The resident's primary permanent residence is in an area or community with a federally recognized customary and traditional use determination for the species in the game management unit where the collecting occurs (50 CFR part 100); and
(2) The resident has written authorization from the superintendent issued under § 1.6 of this chapter that identifies specific areas where this activity is allowed.
(3)(i) If you are a NPS-qualified subsistence user (recipient), you may designate another NPS-qualified subsistence user to collect animal parts on your behalf in accordance with this section for the following purposes:
(A) Making handicrafts for personal use, customary trade, or barter; or
(B) Making handicrafts for qualified educational or cultural programs.
(ii) The designated collector must obtain a permit from the superintendent. The designated collector may not charge the recipient for his/her services or for the collected items.
(4) The use of paid employees to collect animal parts is prohibited. This prohibition does not apply to qualified educational or cultural programs that collect animal parts to create handicrafts, provided that the resulting handicrafts are not exchanged through barter or customary trade.
(b) The superintendent may establish conditions, limits, and other restrictions on collection activities. Areas open to collections will be identified on a map posted on the park Web site and available at the park visitor center or park headquarters. Violating a condition, limit, or restriction is prohibited.
The revision and additions read as follows:
(b) The gathering by local rural residents of fruits, berries, mushrooms, and other plant materials for subsistence uses, and the gathering of dead or downed timber for firewood for noncommercial subsistence uses, shall be allowed without a permit in park areas where subsistence uses are allowed.
(c) The gathering by local rural residents of plant materials to make handicrafts for customary trade or barter is authorized in park areas where subsistence uses are allowed in accordance with terms and conditions established by the superintendent and posted on the park Web site. The use of paid employees to collect plant materials is prohibited. This prohibition does not apply to qualified educational or cultural programs that collect plant materials to create handicrafts, provided that the resulting handicrafts are not exchanged through barter or customary trade.
(d)(1) If you are a NPS-qualified subsistence (recipient), you may designate another NPS-qualified subsistence user to collect plants on your behalf in accordance with this section for the following purposes:
(i) Making handicrafts for personal use, customary trade, or barter; or
(ii) Making handicrafts for qualified educational or cultural programs.
(2) The designated collector must obtain a permit from the superintendent. The designated collector may not charge the recipient for his/her services or for the collected items.
(e) The superintendent may establish conditions, limits, and other restrictions on gathering activities. Violating a condition, limit, or restriction is prohibited.
(d)
(i) Such use is compatible with the purposes and values for which the area was established (
(ii) The permit applicant does not have reasonable access to natural bait that may be used under § 13.480(b)(1).
(2) Permits will identify specific locations within the park area where the bait station may be established and will not include areas where the use of such materials could create a user conflict.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is promulgating this final rule to adjust the level of statutory civil monetary penalty amounts under the statutes EPA administers. This action is mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as
This final rule is effective on January 15, 2017.
David Smith-Watts, Office of Civil Enforcement, Office of Enforcement and Compliance Assurance, Mail Code 2241A, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460, telephone number: (202) 564–4083;
Since 1990, Federal agencies have been required to issue regulations adjusting for inflation the statutory civil penalties
The 2015 Act
As required by the 2015 Act, EPA issued a catch up rule on July 1, 2016, which was effective August 1, 2016 (81 FR 43091). This rule implements the annual penalty inflation adjustments mandated by the 2015 Act. Beginning in 2017, Section 4 of the 2015 Act requires each federal agency to publish annual adjustments to all civil penalties under the laws implemented by that agency. These annual adjustments are required to be published by January 15 of each year. The 2015 Act describes the method for calculating the adjustments. Each statutory maximum civil monetary penalty is multiplied by the cost-of-living adjustment, which is the percentage by which the Consumer Price Index for all Urban Consumers (CPI–U) for the month of October 2016 exceeds the CPI–U for the month of October 2015.
With this rule, the new statutory maximum (or minimum
The formula for determining the cost-of-living or inflation adjustment to statutory civil penalties consists of the following steps:
Section 4 of the 2015 Act directs federal agencies to publish annual adjustments no later than January 15, 2017. In accordance with section 553 of the Administrative Procedures Act (APA), most rules are subject to notice and comment and are effective no earlier than 30 days after publication in the
Under Executive Order 12866, OMB determined this final rule to be a “non-significant” regulatory action and, therefore, it did not undergo interagency review.
This action does not impose an information collection burden under the PRA. This rule merely increases the level of statutory civil penalties that could be imposed in the context of a Federal civil administrative enforcement action or civil judicial case for violations of EPA-administered statutes and their implementing regulations.
This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. Because the 2015 Act directs Federal agencies to publish this rule notwithstanding section 553 of the APA, this rule is not subject to notice and comment requirements or the RFA.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. This action is required by the 2015 Act, without the exercise of any policy discretion by EPA. This action also imposes no enforceable duty on any state, local or tribal governments or the private sector. Because the calculation of any increase is formula-driven pursuant to the 2015 Act, EPA has no policy discretion to vary the amount of the adjustment.
This action does not have federalism implications. It will not have a substantial direct effect on the states, or 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. This rule merely reconciles the real value of current statutory civil penalty levels to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute, and EPA has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, this rule will not have a substantial direct effect on tribal governments, 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.
The EPA interprets Executive Order 13045 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 subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
The rule does not involve technical standards.
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. Rather, this action is mandated by the 2015 Act, which prescribes a formula for adjusting statutory civil penalties on an annual basis to reflect inflation.
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency finds that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The 2015 Act directs Federal agencies to publish their annual penalty inflation adjustments “notwithstanding section 553 [of the APA].” Because OMB has instructed Federal agencies that this provision means that “notice, an opportunity for comment, and a delay in the effective date” are not required for agencies to issue regulations implementing the annual adjustment,
Environmental protection, Administrative practice and procedure, Penalties.
For the reasons set out in the preamble, EPA amends title 40, chapter I, part 19 of the Code of Federal Regulations as follows:
Pub. L. 101–410, Oct. 5, 1990, 104 Stat. 890, as amended by Pub. L. 104–134, title III, sec. 31001(s)(1), Apr. 26, 1996, 110 Stat. 1321–373; Pub. L. 105–362, title XIII, sec. 1301(a), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 114–74, title VII, sec. 701(b), Nov. 2, 2015, 129 Stat. 599.
The penalty levels in the last column of Table 1 to § 19.4 apply to all violations which occurred after December 6, 2013 through November 2, 2015, and to violations occurring after November 2, 2015, where penalties are assessed before August 1, 2016. The statutory civil penalty levels set forth in the fourth column of Table 2 to § 19.4 apply to all violations which occur after November 2, 2015, where the penalties are assessed on or after August 1, 2016 and before January 15, 2017. The statutory civil penalty levels set forth in the last column of Table 2 to § 19.4 apply to all violations which occur after November 2, 2015, where the penalties are assessed on or after January 15, 2017.
Table 1 to § 19.4 sets out the statutory civil penalty provisions of statutes administered by EPA, with the original statutory civil penalty levels, as enacted, and the operative statutory civil penalty levels, as adjusted for inflation, for violations occurring on or before
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve in part and disapprove in part portions of the April 23, 2013, State Implementation Plan (SIP) submission, submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), for inclusion into the Alabama SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO
This rule will be effective February 13, 2017.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2014–0431. All documents in the docket are listed on the
Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303–8960. Ms. Notarianni can be reached via electronic mail at
On June 2, 2010 (75 FR 35520, June 22, 2010), EPA revised the primary SO
EPA is taking final action to approve Alabama's April 23, 2013, submission that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO
In a proposed rulemaking published on July 14, 2016, EPA proposed to approve in part and disapprove in part Alabama's 2010 1-hour SO
EPA received two sets of comments, one of which was incomplete and therefore could not be addressed, on the July 14, 2016, proposed rulemaking on Alabama's 2010 1-hour SO
With the exception of interstate transport provisions pertaining to visibility protection requirements of section 110(a)(2)(D)(i)(II) (prong 4), and the state board requirements of section 110(a)(2)(E)(ii), EPA is taking final action to approve Alabama's infrastructure submission submitted on April 23, 2013, for the 2010 1-hour SO
Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a CAA Part D Plan, or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP call), starts a sanctions clock. The portion of section 110(a)(2)(E)(ii) provisions (the provisions disapproved in today's notice) were not submitted to meet requirements for Part D or a SIP call, and therefore, no sanctions will be triggered. However, that final action will trigger the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the date of this disapproval unless the State corrects the deficiency, and EPA approves the plan or plan revision before EPA promulgates such FIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian
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 13, 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.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action on portions of the State Implementation Plan (SIP) submission, submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on March 13, 2014, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 nitrogen dioxide (NO
This rule will be effective February 13, 2017.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2015–0252. All documents in the docket are listed on the
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Mr. Wong can be reached via electronic mail at wong.richard@epa.gov or via telephone at (404) 562–8726.
On February 9, 2010 (75 FR 6474), EPA published a new 1-hour primary NAAQS for NO
In a proposed rulemaking published on July 14, 2016, EPA proposed to approve Tennessee's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO
Comments on the proposed rulemaking were due on or before July 28, 2016. EPA received one comment, which is summarized below, on the proposed action.
With the exception of the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), prong 3 of (D)(i), and (J), and the interstate transport provisions pertaining to visibility of prong 4 of section 110(a)(2)(D)(i), EPA is taking final action to approve that Tennessee's March 13, 2014, SIP submission for the 2010 1-hour NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 13, 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.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is establishing reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale as described in this rule. Specifically, EPA is requiring persons that manufacture (defined by statute to include import) or process, or intend to manufacture or process these chemical substances to electronically report to EPA certain information, which includes insofar as known to or reasonably ascertainable by the person making the report, the specific chemical identity, production volume, methods of manufacture and processing, exposure
This final rule is effective May 12, 2017.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPPT–2010–0572, is available electronically at
You may be potentially affected by this action if you manufacture or process or intend to manufacture or process nanoscale forms (forms with particle sizes of 1–100 nm) of certain chemical substances as defined in section 3 of TSCA. You are not manufacturing or processing a TSCA chemical substance when you are manufacturing or processing a chemical for use as,
The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document may apply to them:
• Chemical Manufacturing or Processing (NAICS codes 325).
• Synthetic Dye and Pigment Manufacturing (NAICS code 325130).
• Other Basic Inorganic Chemical Manufacturing (NAICS code 325180).
• Rolled Steel Shape Manufacturing (NAICS code 331221).
• Semiconductor and Related Device Manufacturing (NAICS code 334413).
• Carbon and Graphite Product Manufacturing (NAICS code 335991).
• Home Furnishing Merchant Wholesalers (NAICS code 423220).
• Roofing, Sliding, and Insulation Material Merchant Wholesalers (NAICS code 423330).
• Metal Service Centers and Other Metal Merchant Wholesalers (NAICS code 423510).
On April 6, 2015 (80 FR 18330; FRL–9920–90) (Ref. 1), EPA proposed reporting and recordkeeping requirements for persons that manufacture (including import) or process certain chemical substances as described in the proposed rule. EPA received numerous public comments and conducted a public meeting on June 11, 2015 to obtain additional public input. This final rule is based on that proposal and the consideration of the public comments received.
This TSCA section 8(a) rule requires one-time reporting of certain information, including specific chemical identity, production volume, methods of manufacture and processing, use, exposure and release information, and available health and safety information; as well as keeping records of this information for 3 years. EPA is finalizing the proposed requirements with changes to the definition of a reportable chemical substance, including a definition of unique and novel properties and a numerical value to replace the proposed term of trace amounts. There are also additional exemptions to reporting for certain biological materials, while zinc oxide and nanoclays are no longer exempt from reporting. The definition of a small manufacturer or processor exempt from reporting requirements has been changed. These changes, the reasons for the changes, and other clarifications are discussed in more detail in Unit III. EPA has also prepared a detailed response to public comments document (Ref. 2) that is available in the docket. EPA's responses to some of those comments are summarized in Unit III.
These reporting and recordkeeping requirements will assist EPA in its continuing evaluation of chemical substances manufactured at the nanoscale, informed by available scientific, technical and economic evidence. As with current new chemical reviews of chemical substances manufactured at the nanoscale, each nanoscale material derived from substances on the TSCA inventory would be evaluated on a case-by-case basis without a presumption of either harm or safety. Any evaluation will be based on the specific nanoscale material's own properties and those of any structural analogs.
As indicated in the proposed rule, the requirements of the rule are not based on an assumption that nanoscale materials as a class, or specific uses of nanoscale materials, necessarily give rise to or are likely to cause harm to people or the environment. Rather, any information gathered under this rule will facilitate EPA's determination of whether further action, including additional information collection, is needed for that specific nanoscale material. Consistent with the President's memorandums for Executive Agencies regarding Principles for Regulation and Oversight of Emerging Technologies and U.S. Decision-Making Concerning Regulation and Oversight of Applications of Nanotechnology and Nanomaterials (Ref. 3), this rule will facilitate assessment of risks and risk management, examination of the benefits and costs of further measures, and making future decisions based on available scientific evidence.
In addition, EPA will not publish an inventory of chemical substances manufactured at the nanoscale based on the information that will be collected pursuant to the rule. EPA will make non-confidential information reported
As described in more detail in Unit II.A. of the proposed rule, the Toxic Substances Control Act as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (TSCA), 15 U.S.C. 2601
EPA is issuing this rule under TSCA section 8(a), 15 U.S.C. 2607(a), in compliance with the requirements of section 8(a)(5). Under TSCA section 8(a)(5)(A) EPA is to the extent feasible: (A) Not require reporting which is unnecessary or duplicative; (B) minimize the cost of compliance with this section and the rules issued thereunder on small manufacturers and processors; and (C) apply any reporting obligations to those persons likely to have information relevant to the effective implementation of TSCA. As noted in the response to comments several elements of this rule address duplicative reporting such as the exemption for chemical substances that are nanoscale materials that have already been reported under section 5 of TSCA and for the exemption for information already submitted under the Nanoscale Materials Stewardship Program. The response also explains why this rule does not duplicate chemical data reporting (CDR) under 40 CFR part 711. EPA's economic analysis demonstrated that this rule would not have a significant adverse economic impact on a substantial number of small entities. The rationale supporting this conclusion is summarized in Unit V.C. of this rule and is presented in the small entity impact analysis that EPA prepared for this action as part of the Agency's economic analysis in the public docket for this rule. This rule focuses on manufacturers and processors of chemical substances as nanoscale materials with unique and novel properties which are the persons likely to have relevant information on nanoscale materials in commerce.
EPA has evaluated the potential costs of this reporting and recordkeeping requirement for manufacturers and processors. This analysis (Ref. 4), which is available in the docket, is briefly summarized here.
Industry is conservatively estimated to incur a burden of approximately 360,000 hours in the first year and 40,100 hours in subsequent years, with costs of approximately $27.79 million and $3.09 million, respectively (see Chapter 3 in Ref. 4), while the Agency is expected to use approximately 16,300 hours in the first year and 1,800 hours in subsequent years, with costs of approximately $1.34 million and $0.15 million respectively (see Chapter 4 in Ref. 4). Discounted over a 10-year period at three and seven percent, total annualized social costs are estimated to be approximately $5.71 million and $6.26 million, respectively. (Ref. 4).
EPA is describing in this unit the reporting and recordkeeping requirements for manufacturers and processors of certain chemical substances pursuant to TSCA section 8(a). A processor is someone who prepares a chemical substance or mixture after its manufacture for distribution in commerce. Processor activities include a variety of activities. Some examples of processing of a chemical substance are developing or modifying formulations for additional processing or use in commercial applications, incorporating a chemical substance into articles, and using the chemical substance to form other chemical substances.
EPA added a definition of unique and novel properties in the definitions section of the regulatory text (See 704.20(a)). Unique and novel properties means any size-dependent properties that vary from those associated with other forms or sizes of the same chemical substance, and such properties are a reason that the chemical substance is manufactured or processed in that form or size. A reportable chemical substance is not just a substance containing particles in the size range of 1–100 nm; it must also demonstrate a size-dependent property different from properties at sizes greater than 100 nm and is a reason the chemical is manufactured or processed in that form or size. Chemical substances manufactured or processed at the nanoscale that contain incidental amounts of particles in the size range of 1–100 nm are not reportable chemical substances. EPA used “trace amounts” in the proposed rule to define this concept. However, based on the public comments to better define trace amounts including several comments to establish a numerical value, EPA is now using a numerical value of less than 1% of particles from 1–100 nm by weight to define those chemical substances that are not reportable.
For example, if the specific surface area of one discrete form was measured to be 50 m
It is the combination of the above three factors, rather than simply size, which distinguishes between different forms of a chemical substance manufactured at the nanoscale, so that unintended variation in size range between production batches does not trigger separate reporting for each batch. The rule does not rely solely on process changes because there may be process changes that are not intended to change the material produced, but rather are intended to improve the efficiency of the process or to use a less expensive reactant. EPA is focusing on the properties of
For the purposes of this rule, specific surface area is the ratio of the surface area of the nanoscale material to its mass (m
Zeta potential is the electrostatic potential near the particle surface. It can be measured using various methods. See the International Organization for Standardization (ISO) ISO/TR 13014:2012 “Guidance on Physicochemical Characterization for Manufactured Nano-objects Submitted for Toxicological Testing” (Ref. 5) and the description of zeta potential by Colloidal Dynamics (Ref. 6) for examples. It is typically measured by electrophoresis. This is also an important factor as it measures chemical reactivity at the particle surface.
Dispersion stability is the ability of a dispersion to resist changes in properties over time and can be defined in terms of the change in one or more physical properties over a given time period. See ISO/TR 13097:2013 “Guidelines for characterization of dispersion stability” (Ref. 7) as an example. Changes in dispersion stability affect physical properties that in turn can affect the environmental fate and hazard properties of a chemical substance.
Surface reactivity is the degree to which the nanoscale material will react with biological systems. The surface reactivity of the form of a chemical substance is dependent upon factors such as redox potential, which is a measure of the tendency of a chemical species to lose or acquire electrons, and photocatalytic activity, including the potential to generate free radicals. Reactive oxygen species and free radicals are important in considering toxicity for these materials.
The second way of distinguishing a discrete nanoscale form of a particular chemical substance is by morphology or shape. Examples include spheres, rods, ellipsoids, cylinders, needles, wires, fibers, cages, hollow shells, trees, flowers, rings, tori, cones, and sheets. The third way is that forms of a reportable chemical substance that are coated with different chemical substances would be considered discrete forms for each chemical coating.
EPA is excluding chemical substances which dissociate completely in water to form ions with a size of less than 1 nm. This exclusion does not apply to chemical substances manufactured at the nanoscale that release ions but do not dissociate in water to form those ions. Chemical substances that dissociate completely in water to form ions with a size of less than 1 nm do not exhibit new size-dependent properties because the same properties would manifest in the dissociated form regardless of whether the substance is at the nanoscale before dissociation. Manufacturing or processing such substances are therefore not subject to the reporting requirements of the rule.
EPA is excluding chemical substances formed at the nanoscale as part of a film on a surface. See the explanation in Unit III. for the changes from the proposed rule and the detailed response to comments in the docket for EPA's explanation and reasoning.
There is also an exemption from reporting for TSCA section 8(a) rules for small manufacturers and processors. For purposes of this rule EPA is defining and exempting any small manufacturer or processor as a company that has sales of less than $11 million per year.
Persons who manufacture or process a discrete form of a reportable chemical substance at any time during the three years prior to the final effective date of this rule must report to EPA one year after the final effective date of the rule. There is also a standing one-time reporting requirement for persons who intend to manufacture or process a discrete form of a reportable chemical substance on or after the effective date of the rule. These persons must report to EPA at least 135 days before manufacture or processing of that discrete form except where the person has not formed an intent to manufacture or process a discrete form of a reportable chemical substance 135 days before such manufacturing or processing, in which case the information must be filed within 30 days of the formation of such an intent. For example, if a person forms the intent on July 1 to manufacture a reportable chemical substance and intends to commence manufacture of the substance in less than 135 days, that person must report the required information as to the chemical substance no more than 30 days after forming the intent, which would be July 31.
This rule requires one-time reporting of certain information, including specific chemical identity, actual or anticipated production volume, methods of manufacture and processing, use, exposure and release information, and available health and safety information.
EPA developed a form (Ref. 8) for reporting information including specific chemical identity, material characterization, physical chemical properties, production volume, use, methods of manufacturing and processing, exposure and release information, and existing information concerning environmental and health effects. Any person required to report under this rule must supply the information identified in the form to the extent it is known to or reasonably ascertainable by them. EPA intends to issue guidance for the final rule within six months of issuing the rule including guidance on the reasonably ascertainable standard, consolidating submissions and generic chemical names.
The rule requires electronic reporting similar to the requirements established in 2013 for submitting other information under TSCA (see 704.20(e)). Submitters will use EPA's CDX, the Agency's electronic reporting portal, for all reporting under this rule. In 2013, EPA finalized a rule to require electronic reporting of certain information submitted to the Agency under TSCA sections 4, 5, 8(a) and 8(d). (Ref. 9) The final rule follows two previous rules requiring similar electronic reporting of information submitted to EPA for TSCA Chemical Data Reporting and for Pre-Manufacture Notices. EPA expects that electronic reporting will save time, improve data quality and increase efficiencies for both the submitters and the Agency.
EPA developed the Chemical Information Submission System (CISS) for use in submitting data for TSCA sections 4, 8(a), and 8(d) electronically to the Agency. The web reporting tool is available for use with Windows, iOS, Linux, and UNIX based computers, using “Extensible Markup Language” (XML) specifications for efficient data transmission across the Internet. CISS, a web-based reporting tool, provides user-friendly navigation, works with CDX to secure online communication, creates a completed document in Portable Document Format (PDF) for review prior to submission, and enables data, reports, and other information to be submitted easily as PDF attachments, or by other electronic standards, such as XML.
EPA is requiring submitters to follow the same submission procedures used for other TSCA submissions,
Users who have previously registered with CDX for other TSCA submissions, Chemical Data Reporting, or the Toxics Release Inventory TRI–ME web reporting flow, can add the “Submission for Chemical Safety and Pesticide Program (CSPP)” CDX flow to their current registration, and use the CISS web-based reporting tool.
All submitters must use CISS to prepare their submissions. CISS guides users through the process of creating an electronic submission. Once a user completes the relevant data fields, attaches appropriate PDF files, or other file types, such as XML files, and completes metadata information, CISS validates the submission by performing a basic error check and makes sure all the required fields and attachments are provided and complete. Further instructions on submitting and instructions for uploading PDF attachments or other file types, such as XML, and completing metadata information are available through CISS reporting guidance.
CISS allows the user to choose “Print,” “Save,” or “Transmit through CDX.” When “Transmit through CDX” is selected, the user is asked to provide the user name and password that was created during the CDX registration process. CISS then encrypts the file and submits it via CDX. The user will log in to the application and check the status of their submissions. Upon successful receipt of the submission by EPA, the status of the submissions will be flagged as “Completed.” The CDX inbox is currently used to notify the users of any correspondence related to user registration. Information on accessing the CDX user inbox is provided in the guidance document for CDX at
Any person submitting a reporting form could claim any of the information on the form as CBI. Any information which is claimed as confidential will be disclosed by EPA only to the extent and by the means of the procedures set forth in 40 CFR part 2.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act was signed into law on June 22, 2016, and became immediately effective. This final rule contains one minor change to reflect the new statutory requirements for asserting confidentiality claims. Section 14(c)(1)(B) of the law now requires a supporting statement for confidentiality claims. This statement is similar to the certification currently required in 40 CFR 704.7, which is cross-referenced in the proposed rule. In this final rule, EPA is substituting the wording of the section 14(c)(1)(B) statement for the wording of the certification in § 704.7(d) so as to eliminate any possibility of doubt that the certification meets the statutory requirements. While this change was not discussed in the proposed rule, EPA finds there is good cause to make this change without notice and comment. Notice and comment are unnecessary because the new statement is required by statute, and the new language is sufficiently similar to that in the § 704.7(d) certification that EPA anticipates no significant effect of the change on companies reporting under the rule or on the public in general.
The law also requires that a generic chemical identity be provided when companies claim a specific chemical identity as confidential. No conforming change is necessary for this rule, because companies reporting under this rule will be claiming chemical identities as confidential only when there is already a generic identity on the confidential portion of the TSCA Chemical Substances Inventory. CISS will automatically populate the submission with the generic chemical name associated with the Inventory listing. This process provides the greatest degree of structural specificity that is practicable to afford at the current time. EPA will develop guidance regarding generic names as required by TSCA, and will determine appropriate procedures regarding their use and submission.
This unit summarizes EPA's responses to comments for several general areas of comments from multiple stakeholders, and where responses are particularly relevant to the requirements of the final rule. EPA also discusses any changes to and clarifications from the proposed rule. A separate document that summarizes the comments relevant to the proposal and EPA's responses to those comments has been prepared and is available in the docket for this rulemaking (Ref. 2).
If the information provided by the supplier indicates that reporting is required, the processor is required to report information that is known or reasonably ascertainable, which may include information obtained from the supplier. This would include situations where the processor may not know the exact chemical identity or some of its physical properties.
The obligations imposed by the reasonably ascertainable standard are discussed more fully in the Chemical Data Reporting final rule, 76 FR 50816, 50829 (August 16, 2011).
For purposes of this rule, EPA is defining unique and novel properties to include an element of intent, meaning that those properties are the reason why the chemical substance is manufactured in that form or size. The rule includes a definition of unique and novel properties in the definitions section of the regulatory text (See § 704.20(a)). Unique and novel properties means any size-dependent properties that vary from those associated with other forms or sizes of the same chemical substance, and such properties are a reason that the chemical substance is manufactured or processed in that form or size. In order to be reportable it's not sufficient that a chemical substance contains particles in the size range of 1–100 nm; it must also have a size-dependent property different from properties at sizes greater than 100 nm and those properties are a reason that the chemical substance is manufactured or processed in that form or size. Intentionally manufacturing or processing nanoscale gold so that it exhibits a red or purple color instead of a yellow color would create a unique or novel optical property seen at the nanoscale. Such a change would likely result in changes of other properties, such as specific surface area which can result in different health and safety impacts. Unique and novel properties which impact performance generally cannot be isolated from concurrent changes in properties that impact biological systems. For example, see the discussion in Unit II.B. of the proposed rule of the range of biological impacts of nanoscale materials. EPA is exempting certain biological materials, in part, because they do not exhibit different size-dependent properties in the size range of 1–100 nm.
Other chemical substances, including as an example some chemicals that commenters proposed that EPA exempt from reporting, such as pigments, polymers, and polymer dispersions, could be manufactured in nanoscale forms that both exhibit unique and novel properties and in forms that do not. In the concept paper for the NMSP (Ref. 10), EPA stated that many polymers or oligomers, particularly linear or planar polymers, should not be reported even though they have dimensions in the nanoscale. Those polymers did not demonstrate size-dependent properties. The paper did note that when conditions of polymerization or post-reaction processing create free particles that fit the general description of “engineered nanoscale material” those chemical substances should be reported under the NMSP. Please also refer to the comment and response to comment 12 in the response to comments document regarding the difference between enhanced and novel properties.
Further, the comments made EPA realize that the regulatory text as written in the proposal created a result unintended by the Agency (and not commented upon): Because (1) the default period of 135 days is greater than the advance of periods required for various section 5 submissions, and (2) the reporting exemption for section 5 submissions in 704.20(c)(2) of the proposal would apply only where the company
In proposing this definition, EPA provided notice and comment on the criteria for small manufacturers and processors subject to this rule, and consulted with the Small Business Administration (SBA) in accordance with TSCA section 8(a)(3)(B). EPA's change to this definition is consistent with both public comments and the feedback we received from SBA.
EPA recognizes that recent amendments to TSCA include a new and separate obligation under amended TSCA section 8(a)(3)(C), which requires EPA, after consultation with the SBA, to review the adequacy of the standards for determining the manufacturers and processors which qualify as small manufacturers and processors for purposes of TSCA sections 8(a)(1) and 8(a)(3). TSCA furthermore requires that (after consulting with the SBA and providing public notice and an opportunity for comment) EPA make a determination as to whether revision of the standards is warranted. In the
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
1. EPA. Chemical Substances When Manufactured or Processed as Nanoscale Materials; TSCA Reporting and Recordkeeping Requirements; Proposed Rule.
2. 2016. EPA. Response to Comments to the Proposed Rule, Chemical Substances When Manufactured or Processed as Nanoscale Materials; TSCA Reporting and Recordkeeping Requirements; RIN 2070–AJ54. Docket # EPA–HQ–OPPT–2010–0572.
3. 2011. Executive Office of the President. Policy Principles for the U.S. Decision-Making Concerning Regulation and Oversight
4. 2016. EPA. Economic Analysis for the TSCA Section 8(a) Reporting Requirements for Certain Nanoscale Materials (RIN 2070–AJ54). December 2016.
5. 2012. International Organization for Standardization (ISO). Nanotechnologies—Guidance on Physicochemical Characterization for Manufactured Nano-objects Submitted for Toxicological Testing. ISO/TR (Technical Report) ISO/TR 13014:2012.
6. 1999. Colloidal Dynamics. The Zeta Potential.
7. 2013. ISO/TR. Guidelines for Characterization of Dispersion Stability. ISO/TR 13097:2013.
8. 2016. EPA. Information Submission Form. TSCA section 8(a) Information Reporting for Nanoscale Materials. EPA Form No. 7710–[tbd]; EPA ICR No. 2517.02; OMB Control No. 2070—NEW.
9. 2013. EPA. Electronic Reporting Under the Toxic Substances Control Act; Final Rule.
10. 2007. EPA. Nanoscale Materials Stewardship Program—Concept Paper.
11. OSHA. OSHA Hazard Communication Standard; 29 CFR part 1910.1200,
12. 2009. EPA. Interim Report on the Nanoscale Materials Stewardship Program.
13. 2015. EPA. Chemical-Specific Rules, Toxic Substances Control Act Section 8(a). OMB control No. 2070–0067 (EPA ICR No. 1198.10).
14. 2015. EPA. Addendum to an Existing EPA ICR Entitled: Chemical-Specific Rules, Toxic Substances Control Act Section 8(a). EPA ICR No. 2157.02; OMB Control No. 2070—[new].
Additional information about these statutes and Executive Orders can be found at
This action is a significant regulatory action that was 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), and any changes made in response to OMB recommendations are documented in the docket. EPA prepared an economic analysis for this action (Ref. 4), which is available in the docket and discussed in Unit I.E.
The information collection activities in 40 CFR part 704 related to TSCA section 8(a) reporting rules are approved by OMB under the PRA and assigned OMB control No. 2070–0067 (EPA ICR No. 1198) (Ref. 13). Because this rule revises those information collection activities and the related collection instrument, additional approval by OMB is required. As such, EPA has prepared an addendum to the currently approved ICR; the addendum is identified under EPA ICR No. 2517.02 (OMB Control No. 2070—[new]) (Ref. 14). The ICR document provides the estimated burden and costs for the information collection activities contained in this final rule. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the
I certify under section 605(b) of the RFA, 5 U.S.C. 601
This action does not contain an 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. Based on EPA's experience with proposing and finalizing rules under TSCA section 8(a), State, local and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to believe that any State, local or Tribal government will be impacted by this rulemaking. In addition, this action will not result in annual expenditures of $100 million or more for the private sector.
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 it will not have any effect on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this action.
The 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 the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health or safety risk. Nevertheless, the information obtained by the reporting required by this rule will be used to inform the Agency's decision-making process regarding chemical substances to which children may be disproportionately exposed. This information will also assist the Agency and others in determining whether the chemical substances addressed in this rule present potential risks, allowing the Agency and others to take appropriate action to investigate and mitigate those risks.
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 energy supply, distribution, or use.
This action 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 will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not affect the level of protection provided to human health or the environment. The information collected under this rule will, however, assist EPA and others in determining the potential hazards and risks associated with various chemicals manufactured processed, and used at the nanoscale. Although not directly impacting environmental justice-related concerns, this information will enable the Agency to better assess and protect human health and the environment, including in low-income and minority communities.
This action is subject to the CRA, 5 U.S.C. 801
Environmental protection, Chemicals, Hazardous materials, Recordkeeping, and Reporting requirements.
Therefore, 40 CFR chapter I is amended as follows:
15 U.S.C. 2607(a).
An
An
(A) There is a change in process to effect a change in size, a change in one or more of the properties of the reportable chemical substances identified in paragraph (i)(C) of this definition, or both;
(B) There is a size variation in the mean particle size that is greater than 7 times the standard deviation of the mean particle size (+/− 7 times the standard deviation); and
(C) There is a change in at least one of the following properties: Zeta potential, specific surface area, dispersion stability, or surface reactivity, that is greater than 7 times the standard deviation of the measured value (+/− 7 times the standard deviation).
(ii) The reportable chemical substance has a different morphology. Examples of morphologies include but are not limited to sphere, rod, ellipsoid, cylinder, needle, wire, fiber, cage, hollow shell, tree, flower, ring, torus, cone, and sheet.
(iii) A reportable chemical substance that is coated with another chemical substance or mixture at the end of manufacturing or processing has a coating that consists of a different chemical substance or mixture.
(2) Persons who can reasonably ascertain that they propose to manufacture or process a discrete form of a reportable chemical substance after the final effective date of the rule which was not reported under paragraph (b)(1) of this section must report except as provided in paragraph (c) of this section.
(i) Chemical substances formed at the nanoscale as part of a film on a surface.
(ii) DNA.
(iii) RNA.
(iv) Proteins.
(v) Enzymes.
(vi) Lipids.
(vii) Carbohydrates.
(viii) Peptides.
(ix) Liposomes.
(x) Antibodies.
(xi) Viruses.
(xii) Microorganisms.
(xiii) Chemical substances which dissociate completely in water to form ions that are smaller than 1 nanometer.
(xiv) Chemical substances that are not on the TSCA Chemical Substance Inventory at the time reporting would otherwise be required under this section.
(2) Persons who submitted a notice under 40 CFR parts 720, 721, or 723 for a reportable chemical substance on or after January 1, 2005 are not required to submit a report for the reportable chemical substance submitted except where the person manufactures or processes a discrete form of the reportable chemical substance.
(3) Section 704.5(a) through (e) apply to reporting under this section. Small manufacturers and processors as defined in paragraph (a) of this section are exempt from reporting under this section.
(4) Persons who submitted some or all of the required information for a reportable chemical substance as part of the Nanoscale Materials Stewardship Program are not required to report the information previously submitted except where the person manufactures or processes a discrete form of the reportable chemical substance.
(1) The common or trade name, the specific chemical identity including the correct Chemical Abstracts (CA) Index Name and available Chemical Abstracts Service (CAS) Registry Number, and the molecular structure of each chemical substance or mixture. Information must be reported as specified in § 720.45.
(2) Material characteristics including particle size, morphology, and surface modifications.
(3) Physical/chemical properties.
(4) The maximum weight percentage of impurities and byproducts resulting from the manufacture, processing, use, or disposal of each chemical substance.
(5)(i) Persons described in paragraph (b)(1) of this section must report the annual production volume for the previous three years before the effective date of the final rule and an estimate of the maximum production volume for any consecutive 12-month period during the next two years of production after the final effective date of this rule.
(ii) Persons described in paragraph (b)(2) of this section must report the estimated maximum 12 month production volume and the estimated maximum production volume for any consecutive 12 month period during the first three years of production.
(iii) Estimates for paragraphs (d)(5)(i) and (ii) of this section must be on 100% chemical basis of the discrete form of the solid nanoscale material.
(6) Use information describing the category of each use by function and application, estimates of the amount manufactured or processed for each category of use, and estimates of the percentage in the formulation for each use.
(7) Detailed information on methods of manufacturing or processing.
(8) Exposure information with estimates of the number of individuals exposed in their places of employment, descriptions and duration of the occupational tasks that cause such exposure, descriptions and estimates of any general population or consumer exposures.
(9) Release information with estimates of the amounts released, descriptions and duration of the activities that cause such releases, and whether releases are directly to the environment or to control technology.
(10) Risk management practices describing protective equipment for individuals, engineering controls, control technologies used, any hazard warning statement, label, safety data sheet, customer training, or other information which is provided to any person who is reasonably likely to be exposed to this substance regarding protective equipment or practices for the safe handing, transport, use, or disposal of the substance.
(11) Existing information concerning the environmental and health effects.
(1)
(2)
(i) To access the CDX portal, go to
(ii) The CISS tool is accessible in CDX.
(2) Persons specified in paragraph (b)(2) of this section must report the information specified in paragraph (d) of this section at least 135 days before commencing manufacture or processing of a discrete form of the reportable chemical substance, except where the person has not formed an intent to manufacture or process that discrete form at least 135 days before commencing such manufacture or processing, in which case the information must be filed within 30 days of the formation of such an intent.
(2) In submitting a claim of confidentiality, a person attests to the truth of the following four statements concerning all information which is claimed confidential:
(i) My company has taken measures to protect the confidentiality of the information,
(ii) I have determined that the information is not required to be disclosed or otherwise made available to the public under any other Federal law.
(iii) I have a reasonable basis to conclude that disclosure of the information is likely to cause substantial harm to the competitive position of the person.
(iv) I have a reasonable basis to believe that the information is not readily discoverable through reverse engineering.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
The National Marine Fisheries Service (NMFS) publishes its final List of Fisheries (LOF) for 2017, as required by the Marine Mammal Protection Act (MMPA). The LOF for 2017 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must classify each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of mortality and serious injury of marine mammals that occurs incidental to each fishery. The classification of a fishery on the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan (TRP) requirements.
The effective date of this final rule is February 13, 2017.
Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Lisa White, Office of Protected Resources, 301–427–8494; Allison Rosner, Greater Atlantic Region, 978–281–9328; Jessica Powell, Southeast Region, 727–824–5312; Penny Ruvelas, West Coast Region (CA), 562–980–4197; Lynne Barre, West Coast Region (WA/OR), 206–526–4745; Suzie Teerlink, Alaska Region, 907–586–7240; Dawn Golden, Pacific Islands Region, 808–725–5000. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1–800–877–8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.
Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the
The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.
The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362(20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).
Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086; August 30, 1995).
Because fisheries are classified on a per-stock basis, a fishery may qualify as one category for one marine mammal stock and another category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (
The tier analysis requires a minimum amount of data, and NMFS does not have sufficient data to perform a tier analysis on certain fisheries. Therefore, NMFS has classified certain fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995) and listed in the regulatory definition of a Category II fishery: “In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental mortality or serious injury is `frequent,' `occasional,' or `remote' by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2).
Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).
The LOF includes a list of marine mammal species and/or stocks incidentally killed or injured in each commercial fishery. The list of species and/or stocks incidentally killed or injured includes “serious” and “non-serious” documented injuries as described later in the List of Species and/or Stocks Incidentally Killed or Injured in the Pacific Ocean and the Atlantic Ocean, Gulf of Mexico, and Caribbean sections. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs and injury determination reports. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. The best available scientific information used in the SARs reviewed for the 2017 LOF generally summarizes data from 2009–2013. NMFS also reviews other sources of new information, including injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (
For fisheries with observer coverage, species or stocks are generally removed from the list of marine mammal species and/or stocks incidentally killed or injured if no interactions are documented in the five-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring (
The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. Starting with the 2005 SARs, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including the observer coverage in those fisheries. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are generally not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices and other resources referenced during the tier analysis may include: Level of observer coverage; target species; levels of fishing effort; spatial and temporal distribution of fishing effort; characteristics of fishing gear and operations; management and regulations; and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources Web site at:
This rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and
Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (
HSFCA permits are valid for five years, during which time Fishery Management Plans (FMPs) can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008). Additional information about HSFCA permits can be found at:
Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF; the basis for the fishery's initial classification; classification changes to the fishery; changes to the list of species and/or stocks incidentally killed or injured in the fishery; fishery gear and methods used; observer coverage levels; fishery management and regulation; and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site:
Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.
NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials. In the Pacific Islands, West Coast, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail or with their state or Federal license or permit at the time of issuance or renewal. In the West Coast Region, authorization certificates may be obtained from the Web site
The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal license or permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal license or permit is required must register with NMFS by contacting their appropriate Regional Office (see
In Alaska regional and Greater Atlantic regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. In Pacific Islands regional
In Southeast regional fisheries, vessel or gear owners' registrations are automatically renewed and participants will receive a letter in the mail by January 1 instructing them to contact the Southeast Regional Office to have an authorization certificate mailed to them or to visit the Southeast Regional Office Web site
In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental mortalities and injuries of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip or, in the case of non-vessel fisheries, fishing activity. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported.
Mortality/injury reporting forms and instructions for submitting forms to NMFS can be found at:
Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that the Secretary is not required to place an observer on a vessel if the facilities for quartering an observer or performing observer functions are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized; thereby authorizing the exemption of vessels too small to accommodate an observer from this requirement. However, U.S. Atlantic Ocean, Caribbean, or Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)) will not be exempted from observer requirements, regardless of their size. Observer requirements can be found in 50 CFR 229.7.
Table 4 in this rule provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at:
Information regarding the LOF and the MMAP, including: Registration procedures and forms; current and past LOFs; descriptions of each Category I and II fishery; and some Category III fisheries; observer requirements; and marine mammal mortality/injury reporting forms and submittal procedures; may be obtained at:
NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930–2298, Attn: Allison Rosner;
NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Jessica Powell;
NMFS, West Coast Region, Seattle Office, 7600 Sand Point Way NE., Seattle, WA 98115, Attn: Lynne Barre, Protected Resources Division;
NMFS, West Coast Region, Long Beach Office, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802–4213, Attn: Penny Ruvelas;
NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Suzie Teerlink; or
NMFS, Pacific Islands Regional Office, Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818, Attn: Dawn Golden.
NMFS reviewed the marine mammal incidental mortality and serious injury information presented in the SARs for all fisheries to determine whether changes in fishery classification are warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of mortality and serious injury of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.
NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports through the MMAP, reports to the SRGs, conference papers, FMPs, and ESA documents.
The LOF for 2017 was based on, among other things, stranding data; fisher self-reports; and SARs, primarily the 2015 SARs, which are based on data from 2009–2013 and the draft 2016 SARs, which cover 2010–2014. The SARs referenced in this LOF include: 2014 (80 FR 50599; August 20, 2015), 2015 (81 FR 38676; June 14, 2016), and draft 2016 (81 FR 70097; October 11, 2016). The SARs are available at:
NMFS received four comment letters on the proposed LOF for 2017 (81 FR 54019; August 15, 2016). Comments were received from the Alaska Commercial Fisheries Entry Commission (CFEC), Alaska Trollers Association (ATA), Center for Biological Diversity (CBD), and West Coast Fisheries Consultants, LLC (WCFC).
The Tier 1 analysis of the western U.S. stock of Steller sea lions indicates the annual mortality and serious injury estimate from all fisheries (31) is greater than 10 percent of the PBR (297). Therefore, fisheries that interact with this stock are subject to a Tier 2 analysis. The Tier 2 analysis for the Gulf of Alaska sablefish longline with an average annual mortality and serious injury of 1.1 western U.S. Steller sea lions (0.37 percent of PBR) results in the fishery being placed in Category III, as it is below the Category II threshold of 1 percent of PBR.
In regards to sperm whales, since the close of the proposed 2017 LOF comment period, NMFS published the draft 2016 SARs (81 FR 70097; October 11, 2016). The sperm whale SAR now includes an average annual mortality and serious injury estimate (2.2). NMFS will consider this new estimate and evaluate the fishery for the 2018 LOF when the 2016 SAR should be final.
NMFS retains AK miscellaneous finfish handline/hand troll and mechanical jig fishery as Category III and does not reclassify the fishery to Category II as proposed.
The following summarizes changes to the LOF for 2017, including the classification of fisheries, fisheries listed, the estimated number of vessels/persons in a particular fishery, and the species and/or stocks that are incidentally killed or injured in a particular fishery. NMFS re-classifies one fishery in the LOF for 2017. Additionally, NMFS adds one fishery to the LOF. NMFS is aware a new fishery, AK Gulf of Alaska sablefish pot, will be starting in 2017 and will characterize this fishery on the 2018 LOF. NMFS makes changes to the estimated number of vessels/persons and list of species and/or stocks killed or injured in certain fisheries. The classifications and definitions of U.S. commercial fisheries for 2017 are identical to those provided in the LOF for 2016 with the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), BSAI (Bering Sea and Aleutian Islands), CA (California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).
NMFS reclassifies the CA spiny lobster fishery from Category III to Category II. NMFS makes an administrative correction to list this fishery under Category II in Table 1. In the proposed rule, the fishery was mistakenly left as Category III.
NMFS updates the estimated number of vessels/persons in the Pacific Ocean (Table 1) as follows:
NMFS adds the Hawaii stock of pygmy killer whale and removes the Hawaii pelagic stock of pantropical spotted dolphin on the list of stocks incidentally killed or injured in the Category I Hawaii deep-set longline fishery.
NMFS adds the Hawaii stock of rough-toothed dolphin and removes the Hawaii stock of
NMFS adds the Northeast Pacific stock of fin whale to the list of stocks killed or injured in the AK miscellaneous finfish handline/hand troll and mechanical jig fishery.
NMFS adds the CA/OR/WA stock of short-finned pilot whale to the list of stocks incidentally killed or injured in the CA thresher shark/swordfish drift gillnet (≥14 in mesh) fishery.
NMFS adds the Northeast and Mid-Atlantic fyke net fishery to the list of Category III fisheries.
NMFS updates the estimated number of vessels/persons in the Atlantic Ocean, Gulf of Mexico, and Caribbean (Table 2) as follows:
NMFS removes the Western North Atlantic stock of harbor seal from the list of species incidentally killed or injured in the Category I Northeast/Mid-Atlantic American lobster trap/pot fishery.
NMFS removes Risso's dolphin, Western North Atlantic stock, and adds the Western North Atlantic stocks of harbor seal and gray seal to the list of species incidentally killed or injured in the Category II Mid-Atlantic Mid-water trawl fishery.
NMFS adds the Canadian East coast stock of minke whale to the list of species incidentally killed or injured in the Category II Northeast midwater trawl fishery.
NMFS removes the Canadian East coast stock of minke whale from the list of species incidentally killed or injured in the Category II Northeast bottom trawl fishery.
NMFS removes the Western North Atlantic stock of short-finned pilot whale from the list of species incidentally killed or injured in the Category II Northeast sink gillnet fishery.
NMFS removes the following stocks from the list of species incidentally killed or injured in the Category I Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery: Western North Atlantic stock of Atlantic spotted dolphin, Gulf of Mexico stock of Gervais beaked whale, Gulf of Mexico oceanic stock of killer whale, Western North Atlantic stock of Pantropical spotted dolphin, and Gulf of Mexico oceanic stock of sperm whale.
NMFS adds unknown stock (likely Northern migratory coastal or Southern migratory coastal) of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category II Chesapeake Bay inshore gillnet fishery.
NMFS adds the Mississippi Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category II Gulf of Mexico menhaden purse seine fishery.
NMFS adds the Florida Keys stock of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category III Florida spiny lobster trap/pot fishery.
NMFS adds the Barataria Bay stock and the Mississippi Sound, Lake Borgne, Bay Boudreau stock of bottlenose dolphin to the list of stocks incidentally killed or injured in the Category III Gulf of Mexico blue crab trap/pot fishery.
NMFS updates the estimated number of vessels/persons on the High Seas (Table 3) as follows:
NMFS adds the Hawaii stock of pygmy killer whale and removes the Hawaii pelagic stock of pantropical spotted dolphin on the list of stocks incidentally killed or injured in the Category I Western Pacific pelagic longline (HI deep-set component) fishery.
NMFS adds the Hawaii stock of rough-toothed dolphin and removes the Hawaii stock of
NMFS adds the CA breeding stock of northern elephant seal to the list of stocks killed or injured in the Category II Western Pacific pelagic longline (HI shallow-set component) fishery.
The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska), Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean, Table 3 lists commercial fisheries on the high seas, and Table 4 lists fisheries affected by TRPs or TRTs.
In Tables 1 and 2, the estimated number of vessels or persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels or persons in the fishery. NMFS acknowledges that, in some cases, these estimates may be inflations of actual effort. For example, the State of Hawaii does not issue fishery-specific licenses, and the number of participants reported in the LOF represents the number of commercial marine license holders who reported using a particular fishing gear type/method at least once in a given year, without considering how many times the gear was used. For these fisheries, effort by a single participant is counted the same whether the fisher used the gear only once or every day. In the Mid-Atlantic and New England fisheries, the numbers represent the potential effort for each fishery, given the multiple gear types for which several state permits may allow. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates, as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, contact the relevant regional office (contact information included above in
For high seas fisheries, Table 3 lists the number of valid HSFCA permits currently held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time. As noted previously in this rule, the number of HSFCA permits listed in Table 3 for the high seas components of fisheries that also operate within U.S. waters, does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.
Tables 1, 2, and 3 also list the marine mammal species and/or stocks incidentally killed or injured (seriously or non-seriously) in each fishery based on SARs, injury determination reports, bycatch estimation reports, observer data, logbook data, stranding data, disentanglement network data, fisher self-reports (
In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented mortalities or serious injuries of marine mammals, or fisheries that did not result in a mortality or serious injury rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063; December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (
There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the exclusive economic zone (EEZ) boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fisheries on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.
The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) at the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. No comments were received on that certification, and no new information has been discovered to change that conclusion. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.
This rule contains collection-of-information (COI) requirements subject to the Paperwork Reduction Act. The COI for the registration of individuals under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648–0293 (0.15 hours per report for new registrants). The requirement for reporting marine mammal mortalities or injuries has been approved by OMB under OMB control number 0648–0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the COI. Send comments regarding these reporting burden estimates or any other aspect of the COI, including suggestions for reducing burden, to NMFS and OMB (see
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with a COI, subject to the requirements of the Paperwork Reduction Act, unless that COI displays a currently valid OMB control number.
This rule has been determined to be not significant for the purposes of Executive Order 12866.
An environmental assessment (EA) was prepared under the NEPA in 1995 and 2005. The 1995 EA examined the effects of regulations implementing section 118 of the 1994 Amendments of the MMPA on the affected environment. The 2005 EA analyzed the environmental impacts of continuing the existing scheme (as described in the 1995 EA) for classifying fisheries on the LOF. The 1995 EA and the 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. NMFS reviewed the 2005 EA in 2009 and 2014. NMFS concluded that because there were no changes to the process used to develop the LOF and implement section 118 of the MMPA, there was no need to update the 2005 EA. This rule would not change NMFS' current process for classifying fisheries on the LOF. Therefore, this rule is not expected to change the analysis or conclusion of the 2005 EA and Finding of No Significant Impact (FONSI), and no update is needed. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an environmental document, as required under NEPA, specific to that action.
This rule would not affect species listed as threatened or endangered under the ESA or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would consult under ESA section 7 on that action.
This rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams.
This rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; area closure and inseason adjustment.
This action closes the Georges Bank Cod Trimester Total Allowable Catch Area to Northeast multispecies common pool vessels and prohibits the possession of Georges Bank cod by common pool vessels for the remainder of the fishing year, through April 30, 2017. The common pool fishery has exceeded its annual quota for Georges Bank cod. The closure and possession prohibition are intended to prevent further overage of the common pool's quota for this stock.
This action is effective January 9, 2017, through April 30, 2017.
Kyle Molton, Fishery Management Specialist, (978) 281–9236.
Federal regulations at 50 CFR 648.82(n)(2)(ii) require the Regional Administrator to close a common pool Trimester Total Allowable Catch (TAC) Area for a stock when 90 percent of the Trimester TAC is projected to be caught. The closure applies to all common pool vessels on a groundfish trip using gear capable of catching that stock for the remainder of the trimester.
As of December 26, 2016, the common pool fishery has exceeded its annual TAC for Georges Bank (GB) cod by 0.3 mt, or 2.7 percent. Additionally, any overages in Trimesters 1 and 2 must be deducted from the Trimester 3 TAC. The combined overages in Trimesters 1 and 2 (4.7 mt) exceed the Trimester 3 TAC of 4.3 mt. As a result, there is no TAC available to be harvested in Trimester 3.
Effective January 9, 2017, the GB Cod Trimester TAC Area is closed for the remainder of the fishing year, through April 30, 2017, to all common pool vessels fishing on a groundfish trip with trawl gear, sink gillnet gear, and longline/hook gear. The GB Cod Trimester TAC Area consists of statistical areas 521, 522, 525, and 561. The area reopens at the beginning of fishing year 2017 on May 1, 2017.
Data indicates that common pool vessels have caught a significant portion of the total catch from outside the statistical areas that will be affected by the closure described above. The Regional Administrator is authorized under 50 CFR 648.86(o)(1) to adjust possession and trip limits for common pool vessels to prevent exceeding the pertinent common pool quotas during the fishing year. To prevent the common pool from further exceeding its quota and discourage fishing behavior that results in bycatch of GB cod in areas not affected by the closure, the possession of GB cod by all common pool vessels is prohibited, effective January 9, 2017, through April 30, 2017.
If a vessel declared its trip through the Vessel Monitoring System (VMS) or the interactive voice response system, and crossed the VMS demarcation line prior to January 9, 2017, it may complete its trip within the Trimester TAC Area. Additionally, such vessels are not subject to the new possession prohibition for that trip. A vessel that has set gillnet gear prior to January 9, 2017, may complete its trip by hauling such gear and will not be subject to the new possession limit on that trip for fish caught with that gear.
Weekly quota monitoring reports for the common pool fishery are on our Web site at:
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.
Regulations require the Regional Administrator to close a trimester TAC area to the common pool fishery when 90 percent of the Trimester TAC for a stock has been caught. Updated catch information only recently became available indicating that the common pool fishery had exceeded its annual quota for GB cod. The time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, prevents the immediate closure of the GB Cod Trimester 3 TAC Area and prohibition of GB cod possession. Delaying the effective date of a closure and possession prohibition may increase the overage in fishing year 2016 that will need to be deducted from next year's quota. This would be to the detriment of the GB cod stock, and could undermine management objectives of the Northeast Multispecies Fishery Management Plan. Additionally, the overage of the common pool quota could cause negative economic impacts to the common pool fishery as a result of required catch limit deductions in the 2017 fishing year.
16 U.S.C. 1801
U.S. Office of Personnel Management.
Proposed rule with request for comments.
This rule proposes to amend the geographic boundaries of several nonappropriated fund (NAF) Federal Wage System (FWS) wage areas. Based on recommendations of the Federal Prevailing Rate Advisory Committee (FPRAC), the U.S. Office of Personnel Management (OPM) would define Lee County, Florida, as an area of application county to the Hillsborough, FL, NAF FWS wage area; Leon County, FL, as an area of application county to the Lowndes, Georgia, NAF FWS wage area; Fulton County, GA, as an area of application county to the Cobb, GA, NAF FWS wage area; and Lane County, Oregon, as an area of application county to the Pierce, Washington, NAF FWS wage area. These changes are necessary because there are NAF FWS employees working in these four counties, and the counties are not currently defined to NAF wage areas. In addition, OPM is proposing to remove Mississippi County, AR, from the wage area definition of the Shelby, TN, NAF FWS wage area because there are no longer NAF FWS employees working in the county.
We must receive comments on or before February 13, 2017.
You may submit comments, identified by RIN 3206–AN48, using any of the following methods:
Madeline Gonzalez, by telephone at (202) 606–2838 or by email at
OPM is issuing a proposed rule that would make changes to several NAF FWS wage area definitions. The Department of Veterans Affairs notified OPM that the Veterans Canteen Service (VCS) now employs NAF FWS employees in Lee and Leon Counties, FL; Fulton County, GA; and Lane County, OR. In addition, OPM is proposing to remove Mississippi County, AR, from the wage area definition of the Shelby, TN, NAF FWS wage area because there are no longer NAF FWS employees working in the county.
Under § 532.219 of title 5, Code of Federal Regulations (CFR), each NAF wage area “shall consist of one or more survey areas, along with nonsurvey areas, if any, having nonappropriated fund employees.” Lee, Leon, Fulton, and Lane Counties do not meet the regulatory criteria under 5 CFR 532.219 to be established as separate NAF wage areas; however, nonsurvey counties may be combined with a survey area to form a wage area. Section 532.219 lists the regulatory criteria that OPM considers when defining FWS wage area boundaries:
(i) Proximity of largest facilities activity in each county;
(ii) Transportation facilities and commuting patterns; and
(iii) Similarities of the counties in—
(A) Overall population;
(B) Private employment in major industry categories; and
(C) Kinds and sizes of private industrial establishments.
OPM recently completed reviews of the definitions of Lee, Leon, Fulton, Lane, and Mississippi Counties and is proposing the changes described below. FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended these changes by consensus. These changes would apply on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.
Lee County would be defined as an area of application county to the Hillsborough, FL, NAF FWS wage area. The proximity criterion favors the Hillsborough wage area. The transportation facilities criterion favors the Hillsborough wage area. The commuting patterns criterion does not favor one wage area more than another. The overall population, employment sizes, and kinds and sizes of private industrial establishments criterion does not favor one wage area more than another. While a standard review of regulatory criteria shows mixed results, the proximity criterion solidly favors the Hillsborough wage area.
With the definition of Lee County to the Hillsborough NAF wage area, the Hillsborough wage area would consist of one survey county, Hillsborough County, and three area of application counties: Lee, Pinellas, and Polk Counties, FL.
Leon County would be defined as an area of application county to the Lowndes, GA, NAF FWS wage area. The proximity criterion favors the Lowndes wage area. The transportation facilities and commuting patterns criterion does not favor one wage area more than another. Although the overall population, employment sizes, and kinds and sizes of private industrial establishments criterion does not favor one wage area more than another, the industrial distribution pattern for Leon County is similar to the Lowndes survey area. Based on this analysis, we recommend that Leon County be defined to the Lowndes NAF wage area.
With the definition of Leon County to the Lowndes NAF wage area, the Lowndes wage area would consist of one survey county, Lowndes County, GA, and one area of application county, Leon County, FL.
Fulton County would be defined as an area of application county to the Cobb, GA, NAF FWS wage area. The closest NAF wage area to Fulton County is the Cobb wage area. There are no other NAF wage areas in the immediate vicinity of Fulton County. The VCS No.357 is located approximately 22 miles from Dobbins Air Reserve Base, the Cobb wage area's host activity. Based on this
With the definition of Fulton County to the Cobb NAF wage area, the Cobb wage area would consist of one survey county, Cobb County, GA, and three area of application counties: Bartow, De Kalb, and Fulton Counties, GA.
Lane County would be defined as an area of application county to the Pierce, WA, NAF FWS wage area. The closest NAF wage area to Lane County is the Pierce, WA, wage area. There are no other NAF wage areas in the immediate vicinity of Lane County. While VCS No. 356 is located approximately 240 miles from Joint Base Lewis-McChord, the Pierce wage area's host activity, Lane County is adjacent to two counties currently defined to the Pierce wage area: Coos and Douglas Counties, OR. Based on this analysis, we recommend that Lane County be defined to the Pierce NAF wage area.
With the definition of Lane County to the Pierce NAF wage area, the Pierce wage area would consist of one survey county, Pierce County, WA, and eight area of application counties: Clatsop, Coos, Douglas, Lane, Multnomah, and Tillamook Counties, OR, and Clark and Grays Harbor, WA.
Mississippi County would be removed as an area of application county to the Shelby, TN, NAF FWS wage area. No NAF FWS employment has been reported in Mississippi County since the closure of Eaker Air Force Base in 1992, and NAF employers have no plans to establish an activity there in the future. Under 5 U.S.C. 5343(a)(1)(B)(i), NAF wage areas “shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed.” Therefore, Mississippi County should not be defined as part of an NAF wage area.
With the removal of Mississippi County from the Shelby NAF wage area, the Shelby wage area would consist of one survey county, Shelby County, TN, and one area of application county, Butler County, MO.
I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, OPM is proposing to amend 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would specify the qualifications needed for qualified practitioners to furnish and fabricate, and qualified suppliers to fabricate prosthetics and custom-fabricated orthotics; accreditation requirements that qualified suppliers must meet in order to bill for prosthetics and custom-fabricated orthotics; requirements that an organization must meet in order to accredit qualified suppliers to bill for prosthetics and custom-fabricated orthotics; and a timeframe by which qualified practitioners and qualified suppliers must meet the applicable licensure, certification, and accreditation requirements. In addition, this rule would remove the current exemption from accreditation and quality standards for certain practitioners and suppliers.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on March 13, 2017.
In commenting, please refer to file code CMS–6012–P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC— Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445–G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD— Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244–1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786–7195 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
John Spiegel, (410) 786–1909.
Follow the search instructions on that Web site to view public comments.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1–800–743–3951.
Medicare services are furnished by two types of entities, providers and suppliers. The term “provider of services” is defined in sections 1861(u) and 1866(e) of the Social Security Act (the Act). Based on the statute definition of “provider of services” in sections 1861(u) and 1866(e) of the Act we define and use the term “provider” in our regulations. At § 400.202, the term “provider” is defined as a hospital, a critical access hospital (CAH), a skilled nursing facility (SNF), a comprehensive outpatient rehabilitation facility (CORF), a home health agency (HHA), or a hospice that has in effect an agreement to participate in Medicare, or a clinic, a rehabilitation agency, or a public health agency that has in effect a similar agreement but only to furnish outpatient physical therapy or speech pathology services, or a community mental health center that has in effect a similar agreement but only to furnish partial hospitalization services.
The term supplier is defined in section 1861(d) of the Act. Supplier is defined as a physician or other practitioner, facility or an entity other than a provider of services that furnishes items or services under Medicare. A supplier that furnishes durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) is one category of supplier. Section 424.57(a) of our regulations defines a DMEPOS supplier as an entity or individual, including a physician or Part A provider, that sells or rents covered DMEPOS items to Medicare beneficiaries that meets the DMEPOS supplier standards. Other supplier categories may include, for example, physicians, nurse practitioners, and physical therapists. If a supplier, such as a physician, nurse practitioners, or physical therapist, also furnishes DMEPOS to a patient and bills for those items, then the supplier is also considered to be a DMEPOS supplier and must be screened and enrolled in Medicare as a DMEPOS supplier, meeting all standards and requirements applicable to DMEPOS suppliers in order to be enrolled in and bill Medicare.
Section 1861(n) of the Act defines “durable medical equipment.” See
• Can withstand repeated use;
• Effective for items classified as DME after January 1, 2002 has an expected life of at least 3 years;
• Is primarily and customarily used to serve a medical purpose;
• Generally, is not useful to an individual in the absence of an illness or injury; and
• Is for use in the home.
Prosthetics and orthotics which are defined under section 1861(s)(9) of the Act as leg, arm, back, and neck braces and artificial legs, arms, and eyes, including replacements if required because of a change in the patient's physical condition, are included under the coverage definition under section 1861(s)(9) of the Act. We are using this definition of prosthetics and orthotics for the purposes of this proposed rule. They are also described in the Medicare Benefit Policy Manual (100–02), Chapter 15, Section 130 that specifies that these appliances are covered under Part B when furnished incident to physicians' services or on a physician's order.
Section 427 of the Medicare, Medicaid and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) (Pub. L. 106–554) added section 1834(h)(1)(F) of the Act, which states that no payment shall be made for custom-fabricated orthotics or for an item of prosthetics unless furnished by a qualified practitioner and fabricated by a qualified practitioner or a qualified supplier at a facility that meets criteria the Secretary determines appropriate. Section 1834(h)(1)(F) of the Act describes custom-fabricated orthotics as individually fabricated for the patient over a positive model of the patient and also requires education, training, and experience to custom-fabricate.
A qualified practitioner is defined by BIPA as a physician or other individual who is a qualified physical therapist or a qualified occupational therapist; or is licensed in orthotics or prosthetics, in the cases where the state provides such licensing; or, in states where the state does not provide such licensing, is specifically trained and educated to provide or manage the provision of prosthetics and custom-designed or fabricated orthotics and is certified by the American Board for Certification in Orthotics, Prosthetics and Pedorthics (ABC) or the Board for Orthotist/Prosthetist Certification International, Incorporated (BOC); or is credentialed and approved by a program that the Secretary determines has training and education standards that are necessary to provide such prosthetics and orthotics.
A qualified supplier is defined by BIPA as any entity that is accredited by the ABC or the BOC or is accredited and approved by a program that the Secretary determines has accreditation and approval standards that are essentially equivalent to those of such Boards.
The Congress directed the Secretary to implement section 427 of BIPA no later than 1 year after the date of the enactment using a negotiated rulemaking process. The negotiated rulemaking committee (the Committee) on Special Payment Provisions for Prosthetics and Certain Custom-Fabricated Orthotics was established following the requirements set forth by the Federal Advisory Committee Act (FACA). The Committee held nine meetings from October 2002 to July 2003 and failed to reach a consensus on the rulemaking. Given the continued need to address payment provisions for prosthetics and certain custom-fabricated orthotics, we are proposing policies and inviting public comment on our proposals as described section II. of this proposed rule.
Section 302(a)(1) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108–173) added a new paragraph (20) to section 1834(a) of the Act requiring the Secretary to establish and implement DMEPOS quality standards that suppliers must meet in order to furnish and bill for covered items and services described in new section 1834(a)(20)(D) of the Act, which includes prosthetics and orthotics. The new paragraph (20) also required the Secretary to designate and approve one or more independent accreditation organizations to apply the quality standards. In addition, the new section 1834(a)(20) of the Act required that to obtain or retain a Medicare Part B billing number DMEPOS suppliers must be accredited by one of the approved accreditation organizations.
The DMEPOS quality standards were posted on our Web site at
All DMEPOS suppliers must meet the quality standards. The quality standards required by section 1834(a)(20) of the Act are used by the approved accrediting organizations as the basis for their accrediting decisions.
Section 154(b) of the Medicare Improvement for Patients and Providers Act of 2008 (MIPPA) (Pub. L. 110–275 amended section 1834(a)(20) of the Act by adding a new subparagraph (F) to require DMEPOS suppliers furnishing covered items and services, directly or as a subcontractor for another entity, to have submitted to the Secretary evidence of being accredited as meeting the applicable quality standards on or after October 1, 2009. Section 1834 (a)(20)(F)(ii) of the Act provided the Secretary the authority to exempt “eligible professionals” and such “other persons” from the quality standards and accreditation requirement unless the Secretary determined that the standards are designed specifically to be applied to such eligible professionals and other persons or if the Secretary determined that licensing, accreditation or other mandatory quality requirements apply to such eligible professionals and other persons. Eligible professionals are defined at section 1848(k)(3)(B) of the Act as a physician, physician assistant, nurse practitioner, clinical nurse specialist, certified registered nurse anesthetist, certified nurse-midwife, clinical social worker, clinical psychologist, physical or occupational therapist or a qualified speech-language pathologist. Section 1834(a)(20)(F)(ii) of the Act specifically refers to orthotists and prosthetists as examples of “other persons.” Since orthotists and prosthetists specifically were mentioned in the statute, we believe that the Congress intended for those persons to be exempt unless there were standards designed specifically to be applied to such eligible professionals and other persons.
To date there have not been accreditation or quality requirements designed specifically to be applied to such eligible professionals and thus as a result, all eligible professionals and other persons, including orthotists and prosthetists, that furnish, fabricate, and bill for prosthetics and certain custom-fabricated orthotic items are currently exempt from the quality standards and the accreditation requirement.
This proposed rule would implement certain provisions of section 1834(h)(1)(F) of the Act. It would establish the qualifications and requirements that must be met in order to be considered a qualified practitioner or a qualified supplier. This proposed rule would also amend the special payment rules for items furnished by DMEPOS suppliers set forth at § 424.57 and the accreditation organization requirements in § 424.58. Only qualified practitioners who furnish or fabricate prosthetics and custom-fabricated orthotics and qualified suppliers that fabricate or bill for prosthetics and custom-fabricated orthotics would be subject to these requirements.
Specifically, we are proposing the following:
• Removing the exemption from quality standards and accreditation that is currently in place in accordance with section 1834(a)(20) of the Act for certain practitioners and suppliers who furnish
• Revising § 424.57 to include a definition of custom-fabricated orthotics as an item as listed in section 1861(s)(9) of the Act that must be individually made for a specific patient, constructed using one of the positive model techniques listed in § 424.57(a).
• Revising § 424.57(a) to include a definition of positive model of the patient as a particular type of custom fabrication in which one of the following modeling techniques is used:
++ Molded to the patient model as a negative impression of the patient's body part and a positive model rectification are constructed.
++ Computer Aided Design-Computer Aided Manufacturing (CAD–CAM) system.
++ Direct formed model.
• Defining “qualified supplier” as a DMEPOS supplier that is accredited in accordance with the section 1834(a)(20) of the Act.
• Defining “qualified practitioner” as an eligible professional or other person that meets the education, training, licensure, and certification requirements of the section 1834(h)(1)(F)of the Act.
• Specifying training, licensure, and certification requirements that qualified practitioners must meet in order to furnish or fabricate prosthetics and custom-fabricated orthotics.
• Requiring that claims for prosthetics and custom-fabricated orthotics that are submitted by qualified suppliers or by beneficiaries must have been furnished by a qualified practitioner and fabricated by a qualified practitioner or a qualified supplier as defined in this proposed rule. Suppliers that do not meet these requirements are at risk of revocation of their Medicare enrollment.
• Defining the requirements that must be met by organizations that are designated and approved by CMS to accredit suppliers that bill for prosthetics and custom-fabricated orthotics.
• Define “fabrication facility” and specify the requirements that a facility must meet in order for qualified practitioners and qualified suppliers to be able to fabricate prosthetics and custom-fabricated orthotics that can be paid for by Medicare.
Separately, in this proposed rule we also—
• Describe our intent to modify the DMEPOS quality standards to reflect the provisions of this rule, including the effective date for meeting the revised quality standards; and
• Provide the list of services and supplies subject to the requirements of this rule (
We provide a link to the list of items and describe our intent to revise the quality standards as information only. We are not soliciting comments on the content of or the process for updating the quality standards, which will be addressed through the regulatory process we reference in section II.A.6.a. of this proposed rule. Nor are we soliciting comment on the content of or process for updating the list of items and supplies, which is described in section II.B. of this proposed rule. Comments on those matters will be considered outside the scope of this rule.
Consistent with the provisions of the Act, including those provisions added by BIPA, MMA, and MIPPA, we have put in place a framework for accreditation of suppliers that fabricate DMEPOS and bill for DMEPOS services. However, qualified practitioners and qualified suppliers are currently exempt from having to meet the quality standards or to be accredited as suppliers in order to be able to bill Medicare for prosthetics and custom-fabricated orthotics. We are removing the exemptions in order to implement the provisions of section 1834(a)(20) of the Act.
As noted previously, section 1834(a)(20)(F)(ii) of the Act provided the Secretary the authority to exempt “eligible professionals” (as defined in section 1848(k)(3)(B) of the Act) and such “other persons” from the quality standards and accreditation requirement unless the Secretary determined that the standards are designed specifically to be applied to such eligible professionals and other persons or if the Secretary determined that licensing, accreditation or other mandatory quality requirements apply to such eligible professionals and other persons. The Secretary did not determine that there were standards designed specifically to be applied to such eligible professionals and other persons and the Secretary did not determine that licensing, accreditation or other mandatory quality requirements apply to such eligible professionals and other persons. Therefore, we issued a fact sheet on our Web site announcing the exemption at
Through this proposed rule, we are now designing standards specifically to apply to such eligible professionals and other persons. We believe that it is imperative to have both licensure and certification requirements for all qualified practitioners (eligible professionals and other persons who furnish or fabricate prosthetics and custom-fabricated orthotics) and to have accreditation requirements for all qualified suppliers (DMEPOS suppliers that fabricate or bill for prosthetics and custom-fabricated orthotics that are subject to the requirements of this proposed rule). Moreover, we believe that the provisions in section 1834(a)(20) of the Act were enacted to achieve that objective.
Therefore, in order to ensure that only those who are qualified to do so can furnish, fabricate, and bill for the prosthetics and custom-fabricated orthotics addressed by this proposed rule, we would remove the exemption from having to meet the quality standards and the exemption from having to be accredited that currently exist for eligible professionals and other persons that furnish, fabricate or bill for prosthetics and custom-fabricated orthotics.
Consistent with the provisions in section 1834(h)(1)(F) of the Act, which require that no payment will be made unless those furnishing prosthetics and custom-fabricated orthotics are qualified to do so, we are proposing to define qualified supplier, in§ 424.57(a), as an entity that is—
• Enrolled in Medicare as a DMEPOS supplier; and
• Accredited by one of the CMS-approved accreditation organizations that meets the proposed requirements that an organization must meet to accredit qualified suppliers of prosthetics and custom-fabricated orthotics in § 424.58(c) (described in section II.A.5. of this proposed rule).
In our existing regulations at § 424.57(c)(22), we require DMEPOS suppliers to be accredited by a CMS-approved accrediting organization to receive and retain a supplier billing number. We also state that the accreditation must indicate the specific products and services for which the DMEPOS supplier is accredited in order for the supplier to receive payment. To implement the statutory requirements regarding accreditation requirements for eligible professionals and other persons who want to furnish and bill for prosthetics and custom-fabricated
• Redesignating the existing text as paragraph (c)(22)(i). We would also make clarifying, technical, and conforming changes. We note that changes would not modify the intent of this provision. We also note that this requirement would still be applicable to all DMEPOS suppliers.
• Adding a new paragraph (c)(22)(ii) to state the additional accreditation requirements for DMEPOS suppliers that would be fabricating and billing for prosthetics and custom-fabricated orthotics. In order to be a qualified supplier, the DMEPOS supplier must be accredited by a CMS-approved accreditation organization for prosthetics and custom-fabricated orthotics as described in § 424.58(c). The accreditation must indicate the specific products and services for which the DMEPOS supplier is accredited in order for the qualified supplier (as defined in § 424.57(a)) to receive payment for the specific prosthetics and custom-fabricated orthotics. We are also proposing that as part of compliance with the ongoing accreditation process, qualified suppliers must notify the AO of any change in conditions, practices, or operations that were relied upon by the AO at the time of accreditation. This would include, but not be limited to, a requirement for notifying the AO of any changes in personnel, including changes in status or qualifications of employees of the qualified supplier or of any personnel utilized by the qualified supplier via contract or other business relationship. This requirement is included to ensure that qualified suppliers, once accredited, continue to meet all of the accreditation and other supplier standards. (See section II.A.5. of this proposed rule for more detailed information regarding our proposed requirements for accrediting organizations.)
Section 1834(h)(1)(F) of the Act requires, in part, that no payment can be made for prosthetics or custom-fabricated orthotics unless the item is fabricated by a qualified practitioner or a qualified supplier at a facility that meets such criteria as the Secretary determines appropriate. Therefore, we are proposing to define and establish the criteria that such a facility must meet. We are proposing to define “fabrication facility” to distinguish this facility type from others referenced in our regulations. In § 424.57(a), we would define a fabrication facility as a physical structure that—
• Meets the requirements in § 424.57(d)(4); and
• Is utilized by a qualified practitioner or a qualified supplier to fabricate prosthetics or custom-fabricated orthotics.
In § 424.57(d)(4), based on input from other government agencies and contractors that are involved in ensuring that prosthetics and custom-fabricated orthotics are furnished, fabricated and paid for properly, we would specify that the fabrication facility at which qualified suppliers and qualified practitioners fabricate prosthetics and custom-fabricated orthotics, as defined in § 424.57(a), must meet all of the following requirements:
• Be located within the United States or one of its territories.
• Be a business that is organized, established and licensed under applicable state and federal laws.
• Have a process for maintenance and production of fabrication records including the following:
++ Job/work orders.
++ Record tracking systems.
++ Real time recordkeeping, for example, ensuring that records are updated as the fabrication takes place.
++ Secure storage of records with electronic and hard copy back-up.
• Have a quality assurance process to identify non-standard production outcomes, and improve fabrication outcomes.
• Have a periodic review and employee demonstration of fabrication/safety/communication/operations competencies with corrective action plans for staff that do not meet the minimal standards.
• Have full time appropriately credentialed staff member(s) who are (qualified practitioners or qualified suppliers) onsite to fabricate and to supervise fabrication.
• Have a laboratory area with appropriate safety equipment (for example, flammable material storage, gloves, safety glasses, and proper ventilation).
• Have a separate waiting area and chairs with armrests, as necessary.
• Have patient care and fitting rooms with appropriate levels of privacy and sanitation. Patient fitting and care areas should be separate from the fabrication area.
• Have disinfecting supplies, gloves, masks, and plastic for containing contaminated materials.
• Have a fabrication facility information system, paper or digital, that can track the production, list component part number (and serial number if available) and quantity, and that is linked to patient information and be Health Insurance Portability and Accountability Act compliant. Such a system must allow facility staff and management, including those fabricating, to identify any parts that could be recalled at a later date.
• Have parallel bars, a full-length mirror, and other appropriate assessment tools.
• Have a process that mandates following precautions to handle used patient devices that are contaminated.
• Have repair and disinfecting areas clearly labeled.
• Have the ability to handle all potentially hazardous materials in facility properly.
• Have an emergency management plan and a safety management plan.
• Have policy for detecting/reporting counterfeit supplies.
• Have the proper tools, equipment, and computers commonly used in the fabrication of particular items and typically associated with the particular technical approach (negative impression/positive model, CAD–CAM, or direct formed), as applicable. These tools and equipment would include, but are not limited to the following:
++ Computers with appropriate graphics/modeling capacity and technology.
++ Band saw.
++ Disc sander.
++ Sanding paper.
++ Flexible shaft sander.
++ Lathe.
++ Drill press.
++ Sewing machine.
++ Grinding equipment.
++ Paint-spraying equipment.
++ Welding equipment.
++ Alignment jig.
++ Ovens capable of heating plastics for molding.
++ Computer controlled milling machine.
++ Lockable storage areas for raw materials and finished devices.
++ Air compressor.
We note that these requirements would apply even if the fabrication facility is the same location as that of the DMEPOS supplier.
We intend to require that AO's cannot accredit a qualified supplier or renew the accreditation of a qualified supplier unless the qualified supplier uses a fabrication facility that meets these criteria. We are seeking comment on the definition of a fabrication facility and its requirements.
We are also proposing to define qualified practitioner in § 424.57(a). Our proposal would permit certain eligible professionals and other persons who are not enrolled as an accredited DMEPOS supplier to become a qualified
In § 424.57(a), we would identify and define the types of eligible professionals and other persons who can become qualified practitioners, and therefore, in accordance with the BIPA provisions, furnish or fabricate prosthetics and custom-fabricated orthotics. Specifically, we propose to identify and to add definitions for the following practitioners: (1) Occupational therapist; (2) ocularist; (3) orthotist; (4) pedorthist; (5) physical therapist; (6) physician; and (7) prosthetist.
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++ Be licensed by all states in which practicing, if applicable.
++ Have successfully completed a training program in orthotics that is jointly recognized by the American Council on Education and the American Board for Certification in Orthotics and Prosthetics.
++ Be eligible to take that Board's certification examination in orthotics.
We are proposing to define an orthotist as an individual who meets the personnel qualifications in § 485.70(d). We are specifically requesting comments on these proposed qualifications for an orthotist to furnish or fabricate prosthetics and custom-fabricated orthotics.
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Doctors of dental surgery or dental medicine, doctors of optometry, psychiatrists, and chiropractors do not customarily furnish or fabricate prosthetics and custom-fabricated orthotics. Therefore, we have not proposed requirements for these eligible professionals or any others who do not typically furnish or fabricate the prosthetics and custom-fabricated orthotics that are subject to the provisions of this proposed rule. However, any qualified practitioner who furnishes or fabricates prosthetics or custom-fabricated orthotics and any qualified supplier that fabricates or bills for such services must meet the applicable requirements as specified in this rule.
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++ Be licensed by all states in which they are practicing, if applicable.
++ Have successfully completed a training program in prosthetics that is jointly recognized by the American Council on Education and the American Board for Certification in Orthotics and Prosthetics.
++ Be eligible to take that Board's certification examination in prosthetics.
We are proposing to define a prosthetist as an individual who meets the personnel qualifications in § 485.70(f). We are specifically requesting comments on these proposed qualifications for a prosthetist to furnish or fabricate prosthetics and custom-fabricated orthotics.
In addition to defining the types of professionals that would be eligible to furnish and fabricate prosthetics and custom-fabricated orthotics, we are proposing certain licensure, training, and certification requirements that these practitioners must meet to be qualified practitioners who furnish or fabricate prosthetics or custom-fabricated orthotics that are billed to Medicare by qualified suppliers. Furnishing and fabricating prosthetics and custom-fabricated orthotics for Medicare beneficiaries, who need these items and services, is multifaceted and complex. We have proposed a framework of requirements designed to ensure that eligible professionals possess the skills and training to furnish and fabricate these items and services. It is important that the qualified practitioners who furnish and fabricate these items meet the requirements specified in this proposed rule.
Therefore, in proposed § 424.57(d)(3), we would specify that an eligible professional or other person who wants
++ Licensed in orthotics, pedorthics or prosthetics by the state.
++ In states that do not provide licenses for orthotics, pedorthics or prosthetics, must be both of the following:
—Specifically, trained and educated to provide and manage the provision of pedorthics, prosthetics, and orthotics.
—Certified by the one of the following:
+++ ABC.
+++ BOC.
+++ A Secretary-approved organization that has standards equivalent to the ABC or BOC.
We believe these proposed requirements would ensure that the specialized needs of Medicare beneficiaries who require prosthetics and custom-fabricated orthotics are met. We are specifically seeking comment on these requirements and, in particular, we are very interested in comments regarding standards by which we should determine that qualified practitioners are specifically trained and educated to provide and manage the provision of pedorthics, prosthetics, and orthotics. For example, we solicit feedback on any relevant metrics, data sources or methods and processes to gauge competencies. We would appreciate comments on whether a qualified practitioner who is also a qualified supplier that is enrolled in Medicare as a DMEPOS supplier should be required to obtain certification from ABC or BOC in addition to meeting the qualified suppler requirements in this proposed rule.
We also clarify that, to the extent that a qualified supplier does not fabricate a prosthetic or a custom-fabricated orthotic, such prosthetic or custom-fabricated orthotic must be fabricated by a qualified practitioner, and that it is the responsibility of the qualified supplier to verify the practitioner's qualified status.
As stated previously, we are proposing that all DMEPOS suppliers that bill for prosthetics and custom-fabricated orthotics must meet the supplier standards in § 424.57, the quality standards (discussed in section II.A.6. of this proposed rule) and be accredited by one of the CMS-approved accrediting organizations.
We have proposed in § 424.535(a)(2)(iii) that we may revoke a qualified supplier's enrollment from Medicare for billing for prosthetics and custom-fabricated orthotics that are not furnished by a qualified practitioner and fabricated by a qualified practitioner or a qualified supplier at a facility that meets such criteria as the Secretary determines appropriate. This is particularly important because for those qualified practitioners who are not eligible to be enrolled in Medicare or who are not permitted to opt out of Medicare, there will be no CMS repository of information about their licensure or certification. The qualified supplier would be responsible for ensuring that the qualified practitioners who furnish or the qualified practitioners and qualified suppliers who fabricate the items for which the qualified supplier submits a bill meet the requirements of this rule. The decision about revocation based on the authority in § 424.535(a)(2)(iii) will be made based on the facts and circumstances of the particular situation, and will not be based on a single individual billing or miscoding mistake alone on the part of a supplier. We are specifically seeking comment on the implementation of this requirement, including how DMEPOS suppliers envision that they would comply with the requirements that they can bill only for prosthetics and custom-fabricated orthotics that have been furnished by qualified practitioners and fabricated by qualified practitioners or qualified suppliers at a facility that meets such criteria as the Secretary determines appropriate.
Section 1834(a)(20)(B) of the Act requires the Secretary to designate and approve one or more independent accreditation organizations to apply the quality standards required in section 1834(a)(20)(A) of the Act. In the August 18, 2006 final rule (71 FR 48354), we implemented our regulations at § 424.58 that specified the criteria that all approved accreditation organizations must meet. In this proposed rule, we would specify requirements for any of the CMS-approved accreditation organizations that accredit suppliers fabricating prosthetics and custom-fabricated orthotics. In § 424.58, we are proposing to redesignate paragraphs (c) through (e), as paragraphs (d) through (f), and adding a new paragraph (c). In paragraph (c), we would specify that any approved accreditation organization must meet the following additional accreditation requirements to accredit suppliers that bill for prosthetics and custom-fabricated orthotics. In addition to meeting the current requirements set forth under § 424.58, the accreditation organization must be one of the following:
• The ABC.
• The BOC.
• An approved DMEPOS accreditation organization that has standards equivalent to the ABC or BOC.
We are proposing to define “a DMEPOS accreditation organization that has standards equivalent to the ABC or BOC” as one that employs or contracts with an orthotist, prosthetist, occupational therapist, or physical therapist who meets the qualified practitioner definition at § 424.57(a) and who is utilized for the purpose of surveying the supplier for compliance, and has the authority to approve or deny accreditation of qualified suppliers.
We believe that these proposed requirements are in concert with the provisions of section 1834(h) of the Act requiring that the supplier be accredited by the ABC, the BOC or accredited by a program that the Secretary determines has accreditation and approval standards that are essentially equivalent to those of such Board. We are specifically seeking comment on the proposed definition.
The quality standards required by section 1834(a)(20) of the Act are used by the accreditation organizations in order to determine whether a supplier meets statutory and regulatory requirements and therefore can be accredited. Any supplier would have to maintain these standards in order to meet the accreditation requirements and be approved as a qualified supplier to bill, continue to bill or fabricate Medicare Part B prosthetics and custom-fabricated orthotics.
After issuance of the final rule, we would update the DMEPOS quality standards to reflect the provisions contained in the final rule resulting from this proposed rule. The revised quality standards would include specifically the requirements that qualified practitioners must meet to furnish and fabricate prosthetics and custom-fabricated orthotics and that qualified suppliers must meet in order to fabricate and bill Medicare for prosthetics and custom-fabricated orthotics. We plan to solicit comments on the proposed updates to the quality standards as we have done in the past,
We are proposing in § 424.57(c)(22)(ii) that qualified suppliers who bill Medicare for prosthetics and custom-fabricated orthotics would need to meet the requirements included in the final rule no later than 1 year after the posting date of the final quality standards or at the time of the supplier's re-accreditation cycle, whichever is later. For qualified practitioners, we would expect them to meet the licensure and certification requirements proposed and subsequently finalized via rulemaking within 1 year of publication of the final rule. This takes into consideration the average length of time (5.5 months) needed by a DMEPOS supplier to complete the DMEPOS accreditation process, in addition to the time that may be needed for an eligible professional to become a qualified practitioner and become licensed or certified, as well as an extended period due to the additional numbers of suppliers or individuals that may need to meet the new requirements. We are requesting comment on the proposed implementation schedule so that we may ensure that there is no disruption in patient access to services or care.
If an ocularist, orthotist, prosthetist, physicians, pedorthist, occupational therapist, physical therapist or any other eligible professional is not furnishing or fabricating prosthetics or custom-fabricated orthotics, then they would not need to meet the specific prosthetics and custom-fabricated orthotics requirements in this proposed rule. Similarly, if an enrolled DMEPOS supplier is not billing for the prosthetics and custom-fabricated orthotics subject to the provisions of this proposed rule, then the supplier would not need to meet the specific prosthetics and custom-fabricated orthotics requirements in this proposed rule.
The requirements of section 1834(h)(1)(F) of the Act apply to all prosthetics and certain custom-fabricated orthotics described in section 1834(h)(1)(F)(ii) of the Act. Section 1834(h)(1)(F)(ii)(I) of the Act, as added by section 427 of BIPA, states that an item described in this clause is an item of custom-fabricated orthotics that requires education, training, and experience to custom-fabricate and that is included in a list established by the Secretary. Section 1834(h)(1)(F)(ii)(I) of the Act also specifies that an item of custom-fabricated orthotics does not include shoes and shoe inserts.
Section 1834(h)(1)(F)(ii)(II) of the Act as added by section 427 of BIPA states that the Secretary, in consultation with appropriate experts in orthotics (including national organizations representing manufacturers of the same), shall establish and update as appropriate a list of items to which this subparagraph applies. No orthotic may be included in such list unless the item is individually fabricated for the patient over a positive model of the patient as defined later. On August 19, 2005, we issued program instructions (Transmittal 656, CR 3959) implementing the list of HCPCS codes describing prosthetics and custom-fabricated orthotics subject to the requirements of section 1834(h)(1)(F) of the Act. The list of HCPCS codes describing items subject to the requirements of section 1834(h)(1)(F) of the Act has been updated to reflect changes in HCPCS codes that have occurred since 2005. This list of HCPCS codes describing items subject to the requirements of section 1834(h)(1)(F) of the Act would continue to be updated through program instructions, as needed. The list is available on the CMS Web site at
In keeping with the statute's intent to consult with appropriate experts in developing the list, we not only reviewed the Committee's recommendations, but also consulted with the following:
• American Physical Therapy Association.
• Medicare Pricing, Data, Analysis and Coding (PDAC) contractor(s).
• Orthotic & Prosthetic Alliance.
• The American Occupational Therapy Association.
• The American Orthotic & Prosthetic Association.
• The U.S. Department of Veterans Affairs.
To implement this statutory provision, we propose to add the following definitions in § 424.57(a):
• Positive model of the patient means a particular type of custom fabrication in which one of the following occurs:
++ Is molded to the patient model as a negative impression taken of the patient's body part and a positive model rectification are constructed.
++ A Computer Aided Design-Computer Aided Manufacturing (CAD–CAM) system, by use of digitizers, transmits surface contour data to software that the practitioner uses to rectify or modify the model on the computer screen. The data depicting the modified shape is electronically transmitted to a commercial milling machine that carves the rectified model.
++ A direct formed model is one in which the patient serves as the positive model. The device is constructed over the model of the patient and is then fabricated to the patient. The completed custom fabrication is checked and all the necessary adjustments are made.
• Custom-fabricated means an item that is individually made for a specific patient. Specifically, a custom-fabricated item is a device that is fabricated based on clinically derived and rectified castings, tracings, measurements, and other images such as x-rays of the body part. The fabrication may involve using calculation, templates and components. This process requires the use of basic materials including, but not limited to plastic, metal, leather or cloth in the form of uncut or unshaped sheets, bars or other basic forms and involves substantial work such as vacuum forming, cutting, bending, molding, sewing, drilling, laminating, and finishing prior to fitting on the patient. An item is considered custom-fabricated if it is constructed by using one of the positive model techniques described in the definition of positive model of the patient.
Lastly, we would specify in § 424.57(d)(2) that items on the list must be—(1) furnished by a qualified practitioner; (2) fabricated by a qualified practitioner or a qualified supplier at a facility that meets such criteria as the Secretary determines appropriate; and (3) billed by a qualified supplier or, submitted as a claim by a beneficiary.
The list would be updated through periodic program instructions to reflect any changes. We intend to update the list as needed on the CMS Web site at
We would continue to consult with experts in orthotics as changes in positive model techniques occur that might impact the definition and list of items subject to section 1834(h)(1)(F) of the Act. Any such changes to the list of
We would issue contractor instructions and a provider educational article detailing the list of HCPCS codes for the prosthetics and custom-fabricated orthotic items to which the requirements apply, as well as instructions to DMEPOS suppliers regarding billing, data collection, and systems operations following the publication of the final rule. Any changes to the list items would also be published in future CMS contractor instructions.
Under the Paperwork Reduction Act of 1995, we are required to provide 60-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Under § 424.57(c)(22), DMEPOS suppliers that furnish, fabricate and bill for prosthetics or custom-fabricated orthotics must meet all accreditation requirements specified in these provisions, and be licensed in orthotics, pedorthics, or prosthetics in the state in which its practice is located (if the state requires such licensure). Table 1 identifies categories and approximate numbers of individuals who, as of February 2014: (1) Are enrolled in Medicare as DMEPOS suppliers; (2) have billed Medicare for prosthetic devices; and (3) are ABC or BOC certified. This data is based on internal CMS statistics, though the figures in Table 1 are merely rough estimates for purposes of this proposed rule. These individuals have met all applicable state licensure requirements (for example, for furnishing prosthetics).
The 10,000 physicians and practitioners in Table 1 who are enrolled as DMEPOS suppliers and are accredited would meet the requirements of proposed § 424.57(c)(22); hence, the information collection requirements in this proposed rule would not affect them. However, the remaining 6,800 would need to obtain ABC or BOC accreditation in order to bill Medicare for prosthetics.
Table 2 identifies categories and approximate numbers of individuals who, as of February 2014: (1) Are enrolled in Medicare as DMEPOS suppliers; (2) have billed Medicare for custom-fabricated orthotics; and (3) are ABC or BOC certified. This data, too, is based on internal CMS statistics. All of these persons have met the applicable state licensure requirements (for example, for furnishing custom-fabricated orthotics).
The 7,100 physicians and practitioners in Table 2 who are currently enrolled as DMEPOS suppliers and are accredited would meet the requirements of proposed § 424.57(c)(22). Accordingly, the information collection requirements in this proposed rule would not affect them. However, the remaining 5,900 would need to obtain ABC or BOC accreditation in order to bill Medicare for custom-fabricated orthotics.
Although it is highly likely that some of the individuals in Tables 1 and 2 provide both prosthetics and custom-fabricated orthotics, we have chosen to assume that the tables reflect unduplicated counts of physicians and practitioners.
We cannot estimate the number of physicians and practitioners in the universe of 12,700 (6,800 + 5,900) who would either decline to obtain accreditation because of cost, other factors or inability to meet the accreditation requirements. We believe that the overwhelming majority of the 12,700 physicians and practitioners would elect to and become accredited to continue to provide, bill, or both provide and bill for these devices. We expect that a lower percentage of physicians, physical therapists, and occupational therapists would seek accreditation than would prosthetists, orthotists, pedorthists, and ocularists. This is because furnishing prosthetics and custom-fabricated orthotics traditionally constitutes a smaller portion of their practices than is the case with the latter four practitioner types. For purposes of this burden estimate only, and as outlined in Table 3, we project that—(1) all prosthetists, orthotists, ocularists, and pedorthists would pursue accreditation; and (2) 90 percent of physicians, physical therapists, and occupational therapists would seek accreditation. This results in a base figure of 12,250 physicians and practitioners that is only slightly less than the 12,700-person universe mentioned previously.
The hour and cost burdens on these physicians and practitioners of completing and submitting the paperwork associated with accreditation would vary because each physician's and practitioner's specific circumstances differ. However, we believe that an average per physician/practitioner time burden of 10 hours is reasonable, though we welcome comments on this estimate. This 10-hour period would include the time involved in completing and submitting the necessary accreditation paperwork, including obtaining any required supporting documentation.
Many of the 12,250 physicians and practitioners are part of group practices that have administrative personnel who handle various paperwork functions on behalf of the group's physicians and practitioners. It is probable that some administrative personnel would complete and submit the physicians' and practitioners' accreditation paperwork. However, we have no data that can help us predict the number of instances in which this would occur. In an effort not to underestimate the potential cost burden, we will assume for purposes of our analysis that physicians and practitioners would complete and submit their accreditation applications.
Table 4 identifies the mean hourly wages for the Bureau of Labor Statistics (BLS) categories that most appropriately apply to the physician and practitioner types mentioned previously. The data is from May 2015, the most recent month for which information is available; see
Table 5 identifies the total hour and cost burdens for enrolled physicians and practitioners seeking accreditation. The cost burdens are based on the wage estimates in Table 4.
Although this burden would be incurred in the first year of our proposed requirement, 3 years is the maximum length of an OMB approval. Therefore, we must average the totals in Table 5 over a 3-year period. This result in the following average annual figures of: (1) 4,083 affected physicians and practitioners; (2) 40,830 ICR burden hours; and (3) $4,123,930 in ICR burden costs.
Table 6 outlines the annual number of physicians and practitioners who, based on historical CMS data, would—(1) seek accreditation in accordance with § 424.57(c)(22); (2) enroll in Medicare as DMEPOS suppliers; and (3) bill Medicare for prosthetics or custom-fabricated orthotics.
Table 7 outlines the annual hour and cost burdens for newly enrolling physicians and practitioners. The table applies the 10-hour and BLS wage estimates mentioned previously.
The CMS–855S is currently approved under OMB control number 0938–1056. In order to account for the application information collection requirements contained in this notice of proposed rulemaking, we will submit a revised information collection request for OMB review and approval.
Upon becoming accredited, physicians and practitioners would need to report the accreditation to us via a CMS–855S change of information request. We estimate that it would take physicians and practitioners 30 minutes to complete and submit this change request. Table 8 outlines the total hour and cost burdens of this requirement.
Although this burden would be incurred in the first year of our proposed requirement, we must average the totals in Table 8 over a 3-year period. This results in: (1) 4,083 affected physicians and practitioners; (2) 2,042 ICR burden hours; and (3) $206,197 in ICR burden costs.
When completing the CMS–855S initial enrollment application, physicians and practitioners would have to furnish accreditation information on the form. We estimate that this would take 30 minutes per application. Table 9 outlines the total annual hour and cost burdens.
Under § 424.57(d)(3), all eligible professionals who wish to become qualified practitioners, to provide prosthetics or custom-fabricated orthotics, and who are not enrolled in Medicare as DMEPOS suppliers (and therefore do not bill Medicare for these items) must—
• Be licensed in orthotics, pedorthics, or prosthetics in the state in which his or her practice is located if the state requires such licensure; or
• If the state does not require such licensure—
• Be specifically trained and educated to provide and manage the provision of pedorthics, prosthetics, or orthotics; and
• Meet the certification requirements specified in § 424.57(d)(3)(i)(B)(2).
Specifically, this section discusses the hour and cost burdens for physicians and practitioners who are—(1) not enrolled in Medicare as DMEPOS suppliers; (2) located in a state that does not require licensure in orthotics, pedorthics, and prosthetics; and (3) must obtain certification under § 424.57(d)(3).
Approximately 15 states require licensure to furnish prosthetics and custom-fabricated orthotics. However, we do not have concrete data regarding the number of unenrolled and unlicensed individuals in the 35 other states or the territories who provide these items, for these persons do not bill Medicare for them. For purposes of this burden estimate, and solely to establish a rough figure on which commenters can submit feedback to us, we project that approximately 5,000 physicians and practitioners would seek certification within the first year following the implementation of § 424.57(d)(3). We estimate that 500 physicians and practitioners would seek certification under § 424.57(d)(3) each year thereafter.
As we lack sufficient data regarding the number of qualified practitioners, who fall within the universe of 5,000 physicians and practitioners, we will use the figures in Table 3 as a baseline estimate. To illustrate, orthotists represented 18 percent of the 12,250 suppliers referenced in Table 3 (or 2,200 out of 12,250); we project that 18 percent of the 5,000-person universe (or 900) would consist of orthotists. We also utilized the wage estimates and the 10-hour projection. This results in the following Year 1 hour and cost burdens associated with § 424.57(d)(3).
Table 11 reflects the annual hour and cost burdens in Year 2 and each year thereafter. The figures are based on the 500-individual universe.
We averaged the totals in Tables 10 and 11 over a 3-year period. This results in the following annual figures of: (1) 2,000 affected physicians and practitioners; (2) 20,000 burden hours; and (3) $2,018,926.
We estimate the following total ICR burdens associated with our proposed provisions in each of the first 3 years of this rule.
We welcome comments on all burden estimates contained in the collection of information section of this notice of proposed rulemaking.
If you comment on these information collection and recordkeeping requirements, please do either of the following:
1. Submit your comments electronically as specified in the
2. Submit your comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: CMS Desk Officer, (CMS–6012–P), Fax: (202) 395–6974; or Email:
This proposed rule would implement a statutory mandate that only individuals and suppliers qualified to do so can furnish, fabricate or bill for prosthetics and custom fabricated orthotics. The statute was enacted to ensure quality of care and eliminate care or services furnished or fabricated by individuals who were not qualified to do so. The idea inherent in the statute is not to deny necessary services but to ensure that the individuals and suppliers furnishing or fabricating these items are qualified to do so. As with all program changes, whether undertaken by us or in response to statutory imperative—as is the case with this rule—we always consider the impact of the proposed changes on access to care. In the case of the statutory provisions being implemented via this rule, we do not believe beneficiary access to care will be significantly affected. This rule involves only a very small percentage of the overall universe of physician, non-physician practitioner, and organizational suppliers. Of those affected, we believe that many either already comply with our proposed requirements or would come into compliance. We acknowledge that there may be some discontinuity of care in instances where a beneficiary seeks or has been receiving items from an individual or supplier that does not meet the requirements of the statute. However, we believe it will be minimal, and the benefit in improved quality of care outweighs the possible discontinuity. In addition, the phased in effective dates for compliance will allow reasonable time for practitioners and suppliers to meet the statutory and regulatory requirements thus minimizing any disruption in access to needed services. We welcome comment on these assumptions.
In summary, we believe that our proposed rule would, as the Congress ostensibly intended in its enactment of section 1834(h)(1)(F) of the Act, protect Medicare beneficiaries and the Medicare Trust Funds by ensuring that only qualified practitioners furnish prosthetics and custom fabricated orthotics.
We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96–354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995, Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 and 13563 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year).
As previously stated in section III. of this proposed rule, we estimate that 12,250 physicians and practitioners who are enrolled as DMEPOS suppliers and who have billed Medicare for prosthetics or custom-fabricated orthotics, but who are not accredited, would seek to obtain accreditation under § 424.57(c)(22) in order to continue billing for such items. Though accreditation figures vary by accreditation organization and by supplier type, we project (based on internal statistics and our review of the range of accreditation fees charged by various accreditation organizations) that the average annual cost for a physician or practitioner to obtain and remain accredited under § 424.57(c)(22) would be roughly $1,500; this represents the fee charged by the applicable accreditation organization. (This is predicated on a triennial accreditation cycle, with the accreditation costs being incurred incrementally over the 3-year period.) This results in an annual cost to these individuals of $18,375,000 (12,250 × $1,500). In combining this cost with the ICR costs of this proposed rule (as shown in section III. of this proposed rule), we determine that in no year would the total costs of this proposed rule exceed $100 million. Therefore, this is not a major rule.
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organization and small governmental jurisdictions. Most entities and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this proposed rule would not have a significant economic impact on a substantial number of small entities for two reasons. First, the number of affected parties represents only an extremely small percentage of the universe of over 1.5 million individual and organizational medical providers nationwide. Second, we do not believe an annual cost of $1,500 combined with the occasional submission of paperwork (as described in section III. of this proposed rule) would have a significant economic impact on these suppliers and practitioners. We believe these costs would be less than 3 percent of the supplier's or practitioner's revenue, as defined by HHS for significant impact.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this proposed rule would not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipates costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation, as the anticipated annual spending is $30 million. In 2016, that threshold is approximately $146 million. This proposed rule would have no consequential effect on state, local or tribal governments or on the private sector.
Executive Order 13132 establishes certain requirements that an agency
There were several uncertainties associated with our proposed projections. First, we could not determine precisely the number of DMEPOS suppliers who would choose not to pursue accreditation or be unable to become accredited. Second, we had no data on which to base our 5,000-person and 500-person estimates in Tables 10 and 11. As such, these estimates are merely designed to solicit comment on the number of individuals who would be affected by § 424.57(d)(3). Third, we welcome comment on our estimation of $1,500 as the annual cost for a qualified supplier to obtain and remain accredited in accordance our proposals. Fourth, as we lack sufficient data to estimate any potential burden on fabricating facilities, we request comments regarding the types of possible burden and, if there are any, the costs involved.
We note that by limiting payment to the circumstances described in this rule, our regulations would likely reduce the provision of and billing for these items to instances consistent with the statute. We believe, however, that this would enhance the quality of services and items by ensuring that unqualified entities and individuals are not furnishing such goods, while simultaneously having no real effect on how prices are set for them.
In accordance with the provisions of Executive Order 12866, this proposed rule was reviewed by the Office of Management and Budget.
Because of the large number of public comments we normally receive on
Emergency medical services, Health facilities, Health professions, Medicare.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR part 424 as set forth below:
Sections 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
The revisions and additions read as follows:
(a) * * *
(i) Is individually made for a specific patient.
(ii) Is constructed using one of the positive model techniques (as defined in this paragraph).
(iii) Is made based on clinically derived and rectified castings, tracings, measurements, and other images (such as x-rays) of the body part and may involve the use of calculations, templates, and components.
(iv) Is made using basic materials including, but not limited to the following:
(A) Plastic.
(B) Metal.
(C) Leather or cloth in the form of uncut or unshaped sheets or bars.
(D) Other basic forms and involves substantial work such as the following:
(
(
(
(
(
(
(
(1) Meets the requirements in paragraph (d)(4) of this section; and
(2) Must be used by a qualified practitioner or a qualified supplier to fabricate prosthetics or custom-fabricated orthotics that are billed to and paid for by Medicare.
(i) Molded to the patient model as a negative impression of the patient's body part and a positive model rectification are constructed.
(ii) Computer Aided Design-Computer Aided Manufacturing (CAD–CAM) system.
(iii) Direct formed model.
(i) Occupational therapist.
(ii) Ocularist.
(iii) Orthotist.
(iv) Pedorthist.
(v) Physical therapist.
(vi) Physician.
(vii) Prosthetist.
(c) * * *
(22)(i)
(ii)
(A) Meet the requirements specified in paragraph (c)(22)(i) of this section.
(B) Be accredited by a CMS-approved accreditation organization for orthotics and prosthetics as described in § 424.58(c). The accreditation must indicate the specific products and services for which the DMEPOS supplier is accredited in order for the qualified supplier (as defined in § 424.57(a)) to receive payment for the prosthetics and specific custom-fabricated orthotics.
(C) Notify the AO of any change in conditions, practices, or operations that were relied upon by the AO at the time of accreditation. This would include, but not be limited to, a requirement for notifying the AO of any changes in personnel, including changes in status or qualifications of employees of the qualified supplier or of any personnel utilized by the qualified supplier via contract or other business relationship. This requirement is included to ensure that qualified suppliers, once accredited, continue to meet all of the accreditation and other supplier standards.
(d)
(1)
(i) Furnished by a qualified practitioner.
(ii) Fabricated by a qualified practitioner or qualified supplier at a fabrication facility as defined in paragraph (a) of this section.
(iii)(A) Billed by a qualified supplier; or
(B) Submitted as a claim by a Medicare beneficiary.
(2)
(i) Updated as necessary; and
(ii) Posted on the CMS Web site.
(3)
(A) Licensed in orthotics, pedorthics or prosthetics by all States in which they practice.
(B) In States that do not provide licenses for orthotics, pedorthics or prosthetics a qualified practitioner must be—
(
(
(
(
(
(ii) Qualified practitioners must meet the licensure, training, education and certification requirements specified in this section within 1 year of publication of the final rule.
(4)
(i) Be located within the United States or one of its territories.
(ii) Be a business that is organized, established and licensed under applicable state and federal laws.
(iii) Have a process for maintenance and production of fabrication records including the following:
(A) Job/work orders.
(B) Record tracking systems.
(C) Real time recordkeeping, for example, ensuring that records are updated as the fabrication takes place.
(iv) Have a quality assurance process to identify non-standard production outcomes, and improve fabrication outcomes.
(v) Have a periodic review and employee demonstration of fabrication/safety/communication/operations competencies with corrective action plans for staff that do not meet the minimal standards.
(vi) Have full time appropriately credentialed staff member(s) who are (qualified practitioners or qualified suppliers) onsite to fabricate and to supervise fabrication.
(vii) Have a laboratory area with appropriate safety equipment (for example, flammable material storage, gloves, safety glasses, proper ventilation).
(viii) Have a separate waiting area and chairs with armrests, as necessary.
(ix) Have a patient care and fitting rooms with appropriate levels of privacy and sanitation. Patient fitting and care areas should be separate from the fabrication area.
(x) Have disinfecting supplies, gloves, masks, and plastic for containing contaminated materials.
(xi) Have a fabrication facility information system, paper or digital, that can track the production, list component part number (and serial number if available), quantity, that is linked to patient information and be Health Insurance Portability and Accountability Act compliant. Such a system must allow facility staff and management, including those fabricating, to identify any parts that could be recalled at a later date.
(xii) Have parallel bars, a full-length mirror, and other appropriate assessment tools.
(xiii) Have a process using precautions to handle used patient devices that are contaminated.
(xiv) Have repair and disinfecting areas clearly labeled.
(xv) Have the ability to handle all potentially hazardous materials in facility properly.
(xvi) Have an emergency management plan and a safety management plan.
(xvii) Have policy for detecting/reporting counterfeit supplies.
(xviii) Have the proper tools, equipment, and computers commonly used in the fabrication of particular items and typically associated with the particular technical approach (negative impression/positive model, CAD–CAM, or direct formed), as applicable: These tools and equipment would include, but are not limited to the following
(A) Computers with appropriate graphics/modeling capacity and technology.
(B) Band saw.
(C) Disc sander.
(D) Sanding paper.
(E) Flexible shaft sander.
(F) Lathe.
(G) Drill press.
(H) Sewing machine.
(I) Grinding equipment.
(J) Paint-spraying equipment.
(K) Welding equipment.
(L) Alignment jig.
(M) Ovens capable of heating plastics for molding.
(N) Computer controlled milling machine.
(O) Lockable storage areas for raw materials and finished devices.
(P) Air compressor.
The revision and addition read as follows:
(c)
(1) American Board for Certification in Orthotics and Prosthetics, Incorporated (ABC).
(2) Board for Orthotist/Prosthetist Certification International, Incorporated (BOC).
(3) An organization that—
(i) Employs or contracts with an orthotist, prosthetist, occupational therapist or physical therapist who—
(A) Meets the definition of qualified practitioner specified in § 424.57(a); and
(B) Is utilized for the purpose of surveying the supplier or practitioner for compliance; and
(ii) Has the authority granted by CMS to approve or deny the accreditation of qualified suppliers as defined in § 424.57(a) based on a determination that the organization has standards equivalent to the ABC or BOC.
The revision and addition reads as follows:
(a) * * *
(2) * * *
(iii) A qualified supplier as defined in § 424.57(a) that submitted a claim for payment for a prosthetic or custom-fabricated orthotic that was not—
(A) Furnished by a qualified practitioner; and
(B) Fabricated by a qualified practitioner or qualified supplier as defined in § 424.57(a) at a fabrication facility as defined in § 424.57(a).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; 12-month petition finding; request for comments.
We, NMFS, announce a 12-month finding on a petition to list the giant manta ray (
Comments on the proposed rule to list the giant manta ray must be received by March 13, 2017. Public hearing requests must be made by February 27, 2017.
You may submit comments on this document, identified by NOAA–NMFS–2016–0014, by either of the following methods:
•
•
You can find the petition, status review report,
Maggie Miller, NMFS, Office of Protected Resources, (301) 427–8403.
On November 10, 2015, we received a petition from Defenders of Wildlife to list the giant manta ray (
We are responsible for determining whether giant and reef manta rays are threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, in the context of the ESA, the Services interpret an “endangered species” to be one that is presently at risk of extinction. A “threatened species” is not currently at risk of extinction, but is likely to become so in the foreseeable future. The key statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either now (endangered) or in the foreseeable future (threatened).
Additionally, as the definition of “endangered species” and “threatened species” makes clear, the determination of extinction risk can be based on either assessment of the range wide status of the species, or the status of the species in a “significant portion of its range.” The Services published a final policy to clarify the interpretation of the phrase “significant portion of the range” in the ESA definitions of “threatened species” and “endangered species” (79 FR 37577; July 1, 2014) (SPR Policy). The policy consists of the following four components:
(1) If a species is found to be endangered or threatened in only an SPR, and the SPR is not a DPS, the entire species is listed as endangered or threatened, respectively, and the ESA's protections apply across the species' entire range.
(2) A portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction or likely to become so in the foreseeable future.
(3) The range of a species is considered to be the general geographical area within which that species can be found at the time USFWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly (
(4) If a species is not endangered or threatened throughout all of its range but is endangered or threatened within an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.
The statute also requires us to determine whether any species is endangered or threatened throughout all or a significant portion of its range as a result of any one or a combination of the following five factors: the present or threatened destruction, modification, or
A NMFS biologist in the Office of Protected Resources led the status review for the giant manta ray and reef manta ray (Miller and Klimovich 2016). The status review examined both species' statuses throughout their respective ranges and also evaluated if any portion of their range was significant as defined by the Services' SPR Policy (79 FR 37578; July 1, 2014).
In order to complete the status review, information was compiled on each species' biology, ecology, life history, threats, and status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public in response to our petition finding. In assessing the extinction risk of both species, we considered the demographic viability factors developed by McElhany et al. (2000). The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped, great, and smooth hammerhead sharks, and black abalone (see
The draft status review report was subjected to independent peer review as required by the Office of Management and Budget (OMB) Final Information Quality Bulletin for Peer Review (M–05–03; December 16, 2004). The draft status review report was peer reviewed by independent specialists selected from the academic and scientific community, with expertise in manta ray biology, conservation, and management. The peer reviewers were asked to evaluate the adequacy, appropriateness, and application of data used in the status review, including the extinction risk analysis. All peer reviewer comments were addressed prior to dissemination and finalization of the draft status review report and publication of this finding.
We subsequently reviewed the status review report, its cited references, and peer review comments, and believe the status review report, upon which this 12-month finding and proposed rule is based, provides the best available scientific and commercial information on the two manta ray species. Much of the information discussed below on manta ray biology, distribution, abundance, threats, and extinction risk is attributable to the status review report. However, in making the 12-month finding determination and proposed rule, we have independently applied the statutory provisions of the ESA, including evaluation of the factors set forth in section 4(a)(1)(A)–(E) and our regulations regarding listing determinations. The status review report is available on our Web site (see
Manta rays are large bodied, planktivorous rays, considered part of the Mobulidae subfamily that appears to have diverged from Rhinoptera around 30 million years ago (Poortvliet et al. 2015).
Both
Manta rays are circumglobal in range, but within this broad distribution, individual populations are scattered and highly fragmented (CITES 2013). The ranges of the two manta species sometimes overlap; however, at a finer spatial scale, the two species generally appear to be allopatric within those habitat areas (Kashiwagi et al. 2011) and exhibit different habitat use and movement patterns (inshore versus offshore reef habitat use) (Marshall and Bennett 2010b; Kashiwagi et al. 2011). Clark (2010) suggests that the larger
The giant manta ray can be found in all ocean basins. In terms of range, within the Northern Hemisphere, the species has been documented as far north as southern California and New Jersey on the United States west and east coasts, respectively, and Mutsu Bay, Aomori, Japan, the Sinai Peninsula and Arabian Sea, Egypt, and the Azores Islands (Gudger 1922; Kashiwagi et al. 2010; Moore 2012; CITES 2013). In the Southern Hemisphere, the species occurs as far south as Peru, Uruguay, South Africa, New Zealand and French Polynesia (Mourier 2012; CITES 2013). Despite this large range, sightings are often sporadic. The timing of these sightings also varies by region (for example, the majority of sightings in Brazil occur during June and September, while in New Zealand sightings mostly occur between January and March) and seems to correspond with the movement of zooplankton, current circulation and tidal patterns, seawater temperature, and possibly mating behavior (Couturier et al. 2012; De Boer et al. 2015; Armstrong et al. 2016).
Within its range,
The giant manta ray is considered to be a migratory species, with satellite tracking studies using pop-up satellite archival tags registering movements of the giant manta ray from Mozambique to South Africa (a distance of 1,100 km), from Ecuador to Peru (190 km), and from the Yucatan, Mexico, into the Gulf of Mexico (448 km) (Marshall et al. 2011a). In a tracking study of six
In terms of range of the reef manta ray,
As previously mentioned, manta feeding habits appear to be influenced by the movement and accumulation of zooplankton (Armstrong et al. 2016). Both manta species primarily feed on planktonic organisms such as euphausiids, copepods, mysids, decapod larvae and shrimp, but some studies have noted their consumption of small and moderate sized fishes as well (Bertolini 1933; Bigelow and Schroeder 1953; Carpenter and Niem 2001; The Hawaii Association for Marine Education and Research Inc. 2005). Mantas appear to be primarily nocturnal feeders, consistent with the upward migration of zooplankton at night, increasing their accessibility (Cushing 1951; Forward 1988). Known manta feeding areas that have been reported in the literature are summarized in Table 1 of Miller and Klimovich (2016); however, it is likely that additional feeding areas exist throughout both species' respective ranges.
Manta rays are viviparous (
In
In terms of mating behavior, during courting, manta rays are commonly observed engaging in “mating chains,” where multiple males will pursue a single female. The mating displays can last hours or days, with the female swimming rapidly ahead of the males and occasionally somersaulting or turning abruptly (Deakos et al. 2011). Sexual dimorphism is present in manta rays, with female
Although mantas have been reported to live to at least 40 years old (Marshall and Bennett 2010b; Marshall et al. 2011b; Kitchen-Wheeler 2013) with low rates of natural mortality (Couturier et al. 2012), the time needed to grow to maturity and the low reproductive rates mean that a female will be able to produce only 5–15 pups in her lifetime (CITES 2013). Generation time for both species (based on
Since the splitting of the
The population structure for the wider-ranging
Given their large sizes, manta rays are assumed to have fairly high survival rates after maturity (
In order to determine how changes in survival may affect populations, Smallegange et al. (2016) modeled the demographics of reef manta rays. Results showed that increases in yearling or adult annual survival rates resulted in much greater responses in population growth rates, mean lifetime reproductive success, and cohort generation time compared to similar increases in juvenile annual survival rates (Smallegange et al. 2016). Based on the elasticity analysis, population growth rate was most sensitive to changes in the survival rate of adults (Smallegange et al. 2016). In other words, in order to prevent populations from declining further, Smallegange et al. (2016) found that adult survival rates should be increased, such as through protection of adult aggregation sites or a reduction in fishing of adult manta rays (Smallegange et al. 2016). For those populations that are currently stable, like the Yaeyama Islands (Japan) population (where adult annual survival rate is estimated at 0.95; noted above), Smallegange et al. (2016) note that any changes in adult survival may significantly affect the population.
Overall, given their life history traits and productivity estimates, particularly their low reproductive output and sensitivity to changes in adult survival rates, giant and reef manta ray populations are inherently vulnerable to depletions, with low likelihood of recovery.
There are no current or historical estimates of the global abundance of
In areas where the species is not subject to fishing, populations may be stable. For example, Rohner et al. (2013) report that giant manta ray sightings remained constant off the coast of Mozambique over a period of 8 years. However, in regions where giant manta rays are (or were) actively targeted or caught as bycatch, such as the Philippines, Mexico, Sri Lanka, and Indonesia, populations appear to be decreasing (see Table 5 in Miller and Klimovich (2016)). In Indonesia, declines in manta ray landings are estimated to be on the order of 71 to 95 percent, with potential extirpations noted in certain areas (Lewis et al. 2015). Given the migratory nature of the species, population declines in waters where mantas are protected have also been observed but attributed to overfishing of the species in adjacent areas within its large home range. For example, White et al. (2015) provide evidence of a substantial decline in the
Given that all manta rays were identified as
In terms of trends, studies report that the rate of population reduction appears to be high in local areas, from 50–88 percent, with areas of potential local extirpations of
Based on the best available scientific and commercial information described above, we find that
As described above, section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR 424.11(c)) state that we must determine whether a species is endangered or threatened because of any one or a combination of the following factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; or other natural or man-made factors affecting its continued existence. We evaluated whether and the extent to which each of the foregoing factors contribute to the overall extinction risk of both manta ray species, with a “significant” contribution defined, for purposes of this evaluation, as increasing the risk to such a degree that the factor affects the species' demographics (
Due to their association with nearshore habitats, manta rays are at elevated risk for exposure to a variety of contaminants and pollutants, including brevotoxins, heavy metals, polychlorinated biphenyls, and plastics. Many pollutants in the environment have the ability to bioaccumulate in fish species; however, only a few studies have specifically examined the accumulation of heavy metals in the tissues of manta rays (Essumang 2010; Ooi et al. 2015), with findings that discuss human health risks from the consumption of manta rays. For example, Essumang (2010) found platinum levels within
Plastics within the marine environment may also be a threat to the manta ray species, as the animals may ingest microplastics (through filter-feeding) or become entangled in plastic debris, potentially contributing to increased mortality rates. Jambeck et al. (2015) found that the Western and Indo-Pacific regions are responsible for the majority of plastic waste. These areas also happen to overlap with some of the largest known aggregations for manta rays. For example, in Thailand, where recent sightings data have identified over 288 giant manta rays (MantaMatcher 2016), mismanaged plastic waste is estimated to be on the order of 1.03 million tonnes annually, with up to 40 percent of this entering the marine environment (Jambeck et al. 2015). Approximately 1.6 million tonnes of mismanaged plastic waste is being disposed of in Sri Lanka, again with up to 40 percent entering the marine environment (Jambeck et al. 2015), potentially polluting the habitat used by the nearby Maldives aggregation of manta rays. While the ingestion of plastics is likely to negatively impact the health of the species, the levels of microplastics in manta ray feeding grounds and frequency of ingestion are presently being studied to evaluate the impact on these species (Germanov 2015b; Germanov 2015a).
Because manta rays are migratory and considered ecologically flexible (
Changes in climate and oceanographic conditions, such as acidification, are also known to affect zooplankton structure (size, composition, diversity), phenology, and distribution (Guinder and Molinero 2013). As such, the migration paths and locations of both resident and seasonal aggregations of manta rays, which depend on these animals for food, may similarly be altered (Australian Government 2012; Couturier et al. 2012). It is likely that those
Manta rays are both targeted and caught as bycatch in fisheries worldwide. In fact, according to Lawson et al. (2016), manta ray catches have been recorded in at least 30 large and small-scale fisheries covering 25 countries. The majority of fisheries that target mobulids are artisanal (Croll et al. 2015) and target the rays for their meat; however, since the 1990s, a market for mobulid gill rakers has significantly expanded, increasing the demand for manta ray products, particularly in China. The gill rakers of mobulids are used in Asian medicine and are thought to have healing properties, such as curing diseases from chicken pox to cancer, boosting the immune system, purifing the body, enhancing blood circulation, remedying throat and skin ailments, curing male kidney issues, and helping with fertility problems (Heinrichs et al. 2011). The use of gill rakers as a remedy, which was widespread in Southern China many years ago, has recently gained renewed popularity over the past decade as traders have increased efforts to market its healing and immune boosting properties directly to consumers (Heinrichs et al. 2011). As a result, demand has significantly increased, incentivizing fishermen who once avoided capture of manta rays to directly target these species (Heinrichs et al. 2011; CITES 2013). According to Heinrichs et al. (2011), it is primarily the older population in Southern China as well as Macau, Singapore, and Hong Kong, that ascribes to the belief of the healing properties of the gill rakers; however, unlike products like shark fins, the gill rakers are not considered “traditional” or “prestigious” items and many consumers and sellers are not even aware that gill rakers come from manta or mobula rays. Meat, cartilage, and skin of manta rays are also utilized, but valued significantly less than the gill rakers, and usually enter local trade or are kept for domestic consumption (Heinrichs et al. 2011; CITES 2013). Indonesia, Sri Lanka, and India presently represent the largest manta ray exporting range state countries; however, Chinese gill plate vendors have also reported receiving mobulid gill plates from other countries and regions as well, including Malaysia, Vietnam, South Africa, South America, the Middle East, and the South China Sea (CMS 2014). To examine the impact of this growing demand for gill rakers on manta ray populations, information on landings and trends (identified by species where available) are evaluated for both fisheries that target mantas and those that catch mantas as bycatch.
Indonesia is reported to be one of the countries that catch the most mobulid rays (Heinrichs et al. 2011). Manta and mobula ray fisheries span the majority of the Indonesian archipelago, with most landing sites along the Indian Ocean coast of East and West Nusa Tenggara and Java (Lewis et al. 2015). Manta rays (presumably
However, given these amounts, it is perhaps unsurprising that anecdotal reports from fishermen indicate possible local population declines, with fishermen noting that they have to travel farther to fishing grounds as manta rays are no longer present closer to the village (Dewar 2002; Lewis et al. 2015). In fact, using the records from Dewar (2002) and community (local) catch records, Lewis et al. (2015) show that there has been a steady decline in manta landings at Lamakera since 2002 (despite relatively unchanged fishing effort), with estimated landings in 2013–2014 comprising only 25 percent of the estimated numbers from 2002–2006. These declines in manta landings are not just limited to Lamakera, but also appear to be the trend throughout Indonesia at the common mobulid landing sites. For example, Lewis et al. (2015) reports a 95 percent decline in manta landings in Tanjung Luar (between 2001–2005 and 2013–2014), a decrease in the average size of mantas being caught, and a 71 percent decline in manta landings in the Cilacap gillnet fishery between 2001–2005 and 2014. Areas in Indonesia where manta rays have potentially been fished to extirpation, based on anecdotal reports (
Although fishing for manta rays was banned within the Indonesian exclusive economic zone (EEZ) in February 2014
It is unlikely that fishing effort and associated utilization of the species will significantly decrease in the foreseeable future because interviews with fishermen indicate that many are excited for the new prohibition on manta rays in Indonesian waters, as it is expected to drive up the price of manta ray products and significantly increase the current income of resident fishermen (Marshall and Conradie 2014). Based on unpublished data, O'Malley et al. (2013) estimate that the total annual income from the manta ray fisheries in Indonesia is around $442,000 (with 94 percent attributed to the gill plate trade). Dharmadi et al. (2015) noted that there are still many fishermen, particularly in Raja Ampat, Bali, and Komodo, whose livelihoods depend on shark and ray fishing. Without an alternative for income, it is unlikely that these fishing villages will stop their traditional fishing practices. Additionally, enforcement of existing laws appears to be lacking in this region (Marshall and Conradie 2014). The high market prices for manta products, where a whole manta (~5 m DW) will sell for anywhere from $225–$450 (Lewis et al. 2015), drives the incentive to continue fishing the species, and evidence of continued targeted fishing despite prohibitions suggests that overutilization of the Indonesian manta ray populations (primarily
In the Philippines, fishing for manta rays mainly occurs in the Bohol Sea. According to Acebes and Tull (2016), the manta ray fishery can be divided into two distinct periods based on technology and fishing effort: (1) 1800s to 1960s, when mantas were mainly hunted in small, non-motorized boats using harpoons from March to May; and (2) 1970s to 2013 (present), when boats became bigger and motorized and the fishing technique switched to drift gillnets, with the manta hunting season extending from November to June. In the earlier period, the manta fishing grounds were fairly close to the shore (<5 km), noted along the coasts of southern Bohol, northwestern and southern coasts of Camiguin and eastern coasts of Limasawa. Boats would usually catch around one manta per day, with catches of 5–10 mantas for a fishing village considered a “good day” (Acebes and Tull 2016). As the fishery became more mechanized in the 1970s, transitioning to larger and motorized boats, and as the primary gear changed from harpoons to non-selective driftnets, fishermen were able to access previously unexplored offshore fishing grounds, stay out for longer periods of time, and catch more manta rays (Acebes and Tull 2016). Additionally, it was during this time that the international gill raker market opened up, increasing the value of gill rakers, particularly for manta species. By 1997, there were 22 active mobulid ray fishing sites in the Bohol Sea (Acebes and Tull 2016). In Pamilacan, 18 boats were fishing for mobulids in 1993, increasing to 40 by 1997, and in Jagna, at least 20 boats were engaged in mobulid hunting in the 1990s (Acebes and Tull 2016). Catches from this time period, based on the recollection of fishermen from Pamilacan and Baclayon, Bohol, were around 8 manta rays (for a single boat) in 1995 and 50 manta rays (single boat) in 1996 (Alava et al. 2002). However, it should be noted that the mobulid fishery ended in Lila and Limasawa Island in the late 1980s and in Sagay in 1997, around the time that the whale fishery closed and a local ban in manta ray fishing was imposed (Acebes and Tull 2016).
Despite increases in fishing effort, catches of manta rays began to decline in Philippine waters, likely due to a decrease in the abundance of the population, prompting fishermen to shift their fishing grounds farther east and north. Although a ban on hunting and selling giant manta rays was implemented in the Philippines in 1998 (see
Manta rays are also reportedly targeted in fisheries in India, Ghana, Peru, Thailand, Mozambique, Tonga, Micronesia, possibly the Republic of Maldives, and previously in Mexico. In India, Ghana, Peru, and Thailand, little information is available on the actual level of take of manta rays. In India, manta rays are mainly landed as bycatch in tuna gillnetting and trawl fisheries; however, a harpoon fishery at Kalpeni, off Lakshadweep Islands, is noted for “abundantly” landing mantas (likely
In southern Mozambique, reef manta rays are targeted by fishermen, with
Opportunistic hunting of manta rays (likely
In Mexico, giant manta rays and mobula rays were historically targeted for their meat in the Gulf of California. In 1981, Notarbartolo di Sciara (1988) observed a seasonally-active mobulid fishery located near La Paz, Baja California Sur. Mobulids were fished in the Gulf of California using both gillnets and harpoons, with their meat either fileted for human consumption or used as shark bait. The giant manta ray was characterized as “occasionally captured” by the fishery, and while it is unclear how abundant
Given the global distribution of manta rays, they are frequently caught as bycatch in a number of commercial and artisanal fisheries worldwide. In a study of elasmobranch bycatch patterns in commercial longline, trawl, purse seine and gillnet fisheries, Oliver et al. (2015) presented information on species-specific composition of ray bycatch in 55 fisheries worldwide. Based on the available data, Oliver et al. (2015) found that manta rays comprised the greatest proportion of ray bycatch in the purse seine fisheries operating in the Indian Ocean (specifically
In the Atlantic Ocean, bycatch of giant manta rays has been observed in purse seine, trawl, and longline fisheries; however,
In the Indian Ocean, manta rays (primarily
Manta ray landings have also become a more common occurrence in the bycatch of fishermen operating off India. Here, mobulids, including mantas, are landed as bycatch during tuna gillnetting and trawling operations and are auctioned off for their gill plates, while the meat enters the local markets. Historical reports (from 1961–1995) indicate that manta rays were only sporadically caught by fishermen along the east and west coasts of India, likely due to the fact that the species was rarely found near the shore (Pillai 1998). However, based on available information, it appears that landings
While
In the eastern Pacific, giant manta rays are frequently reported as bycatch in the purse seine fisheries; however, identification to species level is difficult, and, as such, most manta and mobula ray captures are pooled together (Hall and Roman 2013). Based on reported
Overall, given that the majority of observed declines in landings and sightings of manta rays originate from the Indo-Pacific and eastern Pacific portions of their range (see Table 5 in Miller and Klimovich 2016), additional pressure on these species through bycatch mortality may have significant negative effects on local populations throughout this area. This is particularly a risk for
No information has been found to indicate that disease or predation is a factor that is significantly and negatively affecting the status of manta rays. Manta rays are frequently observed congregating in inshore cleaning stations, often associated with coral reefs, where small cleaner fish remove parasites and dead tissue from their bodies (Marshall and Bennett 2010a; O'Shea et al. 2010; CITES 2013). They may remain at these cleaning stations for large periods of time, sometimes up to 8 hours a day, and may visit daily (Duinkerken 2010; Kitchen-Wheeler 2013; Rohner et al. 2013). While there is no information on manta ray diseases, or data to indicate that disease is contributing to population declines in either species, impacts to these cleaning stations (such as potential loss through habitat degradation) may negatively impact the fitness of the mantas by decreasing their ability to reduce their parasite load. However, at this time, the impact and potential loss of cleaning stations is highly speculative.
In terms of predation, manta rays are frequently sighted with non-fatal injuries consistent with shark attacks, although the prevalence of these sightings varies by location (Homma et al. 1999; Ebert 2003; Mourier 2012). For example, Deakos et al. (2011) reported that scars from shark predation, mostly on the posterior part of the body or the wing tip, were evident in 24 percent of
Because the damage from a shark bite usually occurs in the posterior region of the manta ray, there may be disfigurement leading to difficult clasper insertion during mating or inhibited waste excretion (Clark and Papastamatiou 2008). Given the already low reproductive ability of these species, attacks by sharks (or occasionally killer whales, see Fertl et
Protections for manta rays are increasing, yet there are still a number of areas where manta rays are targeted or allowed to be landed as bycatch. In fact, only one of the Regional Fishery Management Organizations (RFMOs) has prohibited retention of bycaught manta rays. Additionally, because both manta species were identified as
Based on the available data,
In Indonesia,
In the Philippines, legal protection for manta rays was introduced in 1998; however, similar to the situation in Indonesia, enforcement of the prohibitions is lacking and illegal fishing of the species is evident. For example, in a random sampling of 11 dried products of sharks and rays confiscated for illegal trading, Asis et al. (2016) found that four of the products could be genetically identified as belonging to
In the eastern and central Indian Ocean, very few national protections have been implemented for
In the eastern Pacific portion of the species' range, the IATTC recently implemented a prohibition on the retention, transshipment, storage, landing, and sale of all devil and manta (mobula and manta) rays taken in its large-scale fisheries (Resolution C–15–04). This regulation went into force on August 1, 2016. Cooperating members must report mobulid catch data and ensure safe release; however, developing countries were granted an exception for small-scale and artisanal fisheries that catch these species for domestic consumption. Given that
Additionally, in 2016, prohibitions on the fishing and sale of
Despite a significant overlap in range with
In Indonesia, while the majority of landings data is reported as
In the Indian Ocean,
Codes of conduct have been developed by a number of organizations and used by dive operators to promote the safe viewing of manta rays and reduce the potential negative impacts of these activities on manta rays (see
Manta rays are known to aggregate in various locations around the world, in groups usually ranging from 100–1,000 for
Tourism was identified as a potential threat to the species, given that interacting (
While manta ray tourism is far less damaging to the species than the impact of fisheries, this increasing demand to see and dive with the animals has the potential to lead to other unintended consequences that could harm the species. For example, Osada (2010) found that a popular manta dive spot in Kona, Hawaii, had fewer emergent zooplankton and less diversity compared to a less used dive spot, and attributed the difference to potential inadvertent habitat destruction by divers. Tour groups may also be engaging in inappropriate behavior, such as touching the mantas. Given the increasing demand for manta ray tourism, with instances of more than 10 tourism boats present at popular dive sites with over 100 divers in the water at once (Anderson et al. 2011b; Venables 2013), without proper tourism protocols, these activities could have serious consequences for manta ray populations.
Already, evidence of tourism activities potentially altering manta ray behavior has been observed. For example, from 2007–2008, low numbers of mantas were observed at normally popular manta dive sites in the Maldives while manta ray numbers remained stable at less visited sites (Anderson et al. 2011b). Similarly, De Rosemont (2008) noted the disappearance of a resident manta ray colony from a popular cleaning station in a Bora Bora lagoon in 2005, and attributed the absence to new hotel construction and increased tourism activities; however, by 2007, the author notes that the mantas had returned to the site. In a study of the tourism impacts on
In addition to tourism activities, another potential threat to both manta ray species is an increase in mortality from boat strikes and entanglements. Because manta ray aggregation sites are sometimes in areas of high maritime traffic (such as Port Santos in Brazil or in the Caribbean (Marshall et al. 2011a; Graham et al. 2012)), manta rays are at potential risk of being struck and killed by boats. Mooring and boat anchor line entanglement may also wound manta rays or cause them to drown (Deakos et al. 2011; Heinrichs et al. 2011). For example, in a Maui, Hawaii,
The ESA (section 3) defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” For the term “foreseeable future,” we define it as the time frame over which identified threats could be reliably predicted to impact the biological status of the species. For the assessment of extinction risk for both manta ray species, the “foreseeable future” was considered to extend out several decades (>50 years). Given both species' life history traits, with longevity estimated to be greater than 20–40 years, maturity ranges from 3 to >15 years, reproductive periodicity anywhere from an annual cycle to a 5-year cycle, with a litter of only 1 pup, and a generation time estimated to be around 25 years, it would likely take more than a few decades (
In determining the extinction risk of a species, it is important to consider both the demographic risks facing the species as well as current and potential threats that may affect the species' status. To this end, a demographic analysis was conducted for the giant manta ray and the reef manta ray. A demographic risk analysis is an assessment of the manifestation of past threats that have contributed to the species' current status and informs the consideration of the biological response of the species to present and future threats. This analysis evaluated the population viability characteristics and trends available for the manta rays, such as abundance, growth rate/productivity, spatial structure and connectivity, and diversity, to determine the potential risks these demographic factors pose to each species. The information from this demographic risk analysis was considered alongside the information previously presented on threats to these species, including those related to the factors specified by the ESA section 4(a)(1)(A)–(E) (and summarized in a separate Threats Assessment section below) and used to determine an overall risk of extinction for
Current and accurate abundance estimates are unavailable for the giant manta ray, as the species tends to be only sporadically observed. While observations of individuals in local aggregations range from around 40 individuals to over 600, estimates of subpopulation size have only been calculated for Mozambique (n = 600 individuals) and Isla de la Plata, Ecuador (n = 1,500 individuals).
If a population is critically small in size, chance variations in the annual number of births and deaths can put the population at added risk of extinction. Demographic stochasticity refers to the variability of annual population change arising from random birth and death events at the individual level. When populations are very small, chance demographic events can have a large impact on the population. The conservation biology “50/500” rule-of-thumb suggests that the effective population size (
Yet, given the reports of anecdotal declines in sightings and decreases in
The current net productivity of
Given their large sizes, manta rays are assumed to have a fairly high survival rate after maturity (
Additionally, at this time, no changes in demographic or reproductive traits or barriers to the exploitation of requisite habitats/niches/etc. have been observed in
The giant manta ray inhabits tropical, subtropical, and temperate bodies of water and is commonly found offshore, in oceanic waters, and near productive coastlines. It occurs over a broad geographic range and is found in all ocean basins. Most tagging and tracking studies indicate that the home range of individuals is likely large, with the species exhibiting migratory behavior and distances tracked of up to 1,500 km. However, a recent study of the
Rates of dispersal and gene flow are not known to have been altered in
Current and accurate abundance estimates are unavailable for the reef manta ray. Observations of individuals in local aggregations range from 35 individuals to over 2,400; however, many are on the order of 100–600 individuals. Subpopulation sizes range from 100 to 350 individuals, with the exception of the Maldives at 3,300–9,677 individuals. Meta-population estimates for southern Mozambique and Ningaloo Reef, Australia are 802–890 and 1,200–1,500 individuals, respectively.
The rather low subpopulation estimates for
Overall, based on the information above, the estimates of small and isolated subpopulations throughout most of the species' range, with the three exceptions off Mozambique, Maldives, and Western Australia, inherently place
The current net productivity of
Annual survival rate for reef manta rays is fairly high. Estimated survival rates for subpopulations range from 0.95 to 1 off Australia, Hawaii, and Japan (Deakos et al. 2011; Couturier et al. 2014; Kashiwagi 2014). In Mozambique, rates were lower, between 0.6–0.7; however shark attacks are also more common in this area (Marshall et al. 2011c). Based on modeling work, Smallegange et al. (2016) showed that population growth rate was most sensitive to changes in the survival of adults.
Additionally, no changes in demographic or reproductive traits or barriers to the exploitation of requisite habitats/niches/etc. have been observed.
The reef manta ray is commonly seen inshore near coral and rocky reefs. The species is associated with warmer waters (>21 °C) and productive nearshore habitats (such as island groups). It is considered a more resident species than
With the exception of the Yaeyama, Japan population of
Given their tendency towards site fidelity,
The most significant and certain threat to the giant manta ray is overutilization for commercial purposes. Giant manta rays are both targeted and caught as bycatch in a number of global fisheries throughout their range. Estimated take of giant manta rays, particularly in many portions of the Indo-Pacific, frequently exceeds numbers of observed individuals in those areas, and is accompanied by observed declines in sightings and landings of the species. Efforts to address overutilization of the species through regulatory measures appear inadequate, with evidence of targeted fishing of the species despite prohibitions (Indo-Pacific; Eastern Pacific) and only one regional measure to address bycatch issues, with uncertain effectiveness (Eastern Pacific). Additionally, given the migratory and pelagic behavior, national protections for the species are less likely to adequately protect the species from fisheries-related mortality. Giant manta rays are not confined by national boundaries and may, for example, lose certain protections as they conduct seasonal migrations or even as they move around to feed if they cross particular national jurisdictional boundaries (
Other threats to
Given their more inshore distribution and association with shallow coral and rocky reefs,
Climate change was identified as a potential threat contributing to the long-term extinction risk of the species. Because
Other threats that potentially contribute to long-term risk of the species include (micro) plastic ingestion rates, and potential disruption of important life history functions or destruction of habitat as a result of increased tourism; however, due to the significant data gaps, the likelihood and impact of these threats on the status of the species is highly uncertain.
Given the extremely low reproductive output and overall productivity of the giant manta ray, it is inherently vulnerable to threats that would deplete its abundance, with a low likelihood of recovery. While there is considerable uncertainty regarding the current abundance of
While we assume that declining populations within the Indo-Pacific and eastern Pacific portions of its range will likely translate to overall declines in the species throughout its entire range, there is very little information on the abundance, spatial structure, or extent of fishery-related mortality of the species within the Atlantic portion of its range. As such, we cannot conclude that the species is at a moderate risk of extinction throughout its
To identify only those portions that warrant further consideration under the SPR Policy, we must determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. With respect to the second of those determinations, as mentioned previously, the best available information indicates that the giant manta ray faces concentrated threats throughout the Indo-Pacific and eastern Pacific portion of its range. Estimated take of giant manta rays is frequently greater than the observed individuals in those areas, with observed declines in sightings and landings of the species of up to 95 percent. Efforts to address overutilization of the species through regulatory measures appear inadequate in this portion of its range, with evidence of targeted fishing of the species despite prohibitions and bycatch measures that may not significantly decrease fisheries-related mortality rates of the species. Based on the demographic risks and threats to the species in this portion, we determined that the species has a moderate risk of extinction in this portion of its range.
Next, we must evaluate whether this portion is “significant.” As defined in the SPR Policy, a portion of a species' range is “significant” “if the species is not currently endangered or threatened throughout its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range” (79 FR 37578; July 1, 2014). Without the Indo-Pacific and eastern Pacific portion of the species' range, the species would have to depend on only its members in the Atlantic for survival. While areas exhibiting source-sink dynamics, which could affect the survival of the species, are not known, the largest subpopulations and records of individuals of the species come from the Indo-Pacific and eastern Pacific portion. The only data from the Atlantic on the abundance of the species are records of >70 individuals in the Flower Garden
Under the SPR policy, we conclude that the Indo-Pacific and eastern Pacific portion of the giant manta ray's range qualifies as a significant portion of the species' range. Additionally, based on the information above and further discussed in our demographic risks analysis and threats assessment, as well as the information in the status review report, we conclude that
In accordance with the SPR policy, if a species is determined to be threatened or endangered in a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), NMFS will list the DPS rather than the entire taxonomic species or subspecies. Because the Indo-Pacific and eastern Pacific represents a significant portion of the range of the species, and this portion is at a risk of extinction that is higher than “low,” we performed a DPS analysis on the population within this portion to see if it qualifies as a valid DPS.
The Services' policy on identifying DPSs (61 FR 4722; February 7, 1996) identifies two criteria for DPS designations: (1) The population must be discrete in relation to the remainder of the taxon (species or subspecies) to which it belongs; and (2) the population must be “significant” (as that term is used in the context of the DPS policy, which is different from its usage under the SPR policy) to the remainder of the taxon to which it belongs.
In terms of discreteness, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) “It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation”; or (2) “it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D)” of the ESA (61 FR 4722; February 7, 1996).
Research on the genetics of the species, which may provide evidence of discreteness between populations, is ongoing. As discussed previously in this finding, while there may be evidence of a potential
In terms of physical, physiological, morphological, ecological, behavioral, and regulatory factors, there is no evidence that the Indo-Pacific and eastern Pacific population of
Overall, the species' life history characteristics increase its inherent vulnerability to depletion. Its tendency towards site fidelity and high residency rates suggests that there may be little gene flow between subpopulations, meaning that reestablishment after depletion is unlikely. Additionally, because these aggregations tend to be small, even light fishing may lead to population depletion. However, despite these inherent risks, the species does not appear subjected to significant threats that are causing declines, or likely to cause declines, to the point where the species would be at risk of extinction. As mentioned in the threats analysis, targeted fishing of the species has only been observed in a select few locations, and its identification in bycatch is limited. The majority of the known
As was done for the giant manta ray, we must conduct an SPR analysis to determine if the species is in danger of extinction, or likely to become so within the foreseeable future, in a significant portion of its range. In applying the policy, we first examined where threats are concentrated to evaluate whether the species is at risk of extinction within those portions. Targeted fishing and subsequent declines in populations of
The second question that needs to be addressed in the SPR analysis is whether these portions can be considered “significant.” Without these portions, would the species be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range? We find that this is unlikely to be the case. Even if these populations were gone, the species would still exist as small, isolated populations throughout the Indo-Pacific. There is no evidence of source-sink dynamics between these portions and other areas, which could affect the survival of the species. In fact, the only indication of a potential source-sink dynamic was hypothesized for the
Thus, under the SPR policy, we could not identify any portions of the species' range that meet both criteria (
There are many conservation efforts presently ongoing to collect research on manta ray life history, ecology, and biology, and to raise awareness of threats to manta rays (see Miller and Klimovich (2016) for detailed discussion). The available research and citizen science data that have resulted from these conservation efforts have already been considered in the above analysis, and future research activities will continue to provide valuable information on these manta ray species. Additionally, the efforts by these organizations to educate the public, such as through awareness campaigns, could eventually lead to decreases in the demand for manta ray products. For example, Lawson et al. (2016), citing unpublished data, noted an 18-month awareness-raising campaign conducted in 2015 in Guangzhou, China, that seemed to indicate a level of success in decreasing consumer demand for gill rakers, which, in turn, decreased the interest of traders to carry gill plates in the future. While more monitoring of trade and consumer behavior is required to evaluate the success of these efforts, it may indicate that awareness-raising campaigns could be successful tools for influencing customer behavior. With demand reduction viewed as a potential avenue to indirectly reduce fishing pressure on manta rays, these campaigns may ultimately help decrease the main threat to the species (Lawson et al. 2016).
Awareness campaigns are also being used to educate the public on appropriate tourist behavior during manta ray dives, which can help decrease potential negative impacts of tourism activities on manta rays. As mentioned previously, best practice codes of conduct have been developed by a number of organizations and are increasingly being used by dive operators at a number of popular manta ray diving sites, including Kona, Hawaii, Western Australia, Mozambique, Bora Bora, and the Maldives, to promote the safe viewing of manta rays.
While we find that these efforts will help increase the scientific knowledge and promote public awareness about manta rays, with the potential (but not certainty) to decrease the impacts of specific threats in the future, we do not find that these efforts have significantly altered the extinction risk for the giant manta ray to where it would not be at risk of extinction in the foreseeable future. However, we seek additional information on these and other conservation efforts in our public comment process (see below).
Section 4(b)(1) of the ESA requires that NMFS make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any state or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information including the petition, public comments submitted on the 90-day finding (81 FR 8874; February 23, 2016), the status review report (Miller and Klimovich 2016), and other published and unpublished information, and have consulted with species experts and individuals familiar with manta rays. We considered each of the statutory factors to determine whether it presented an extinction risk to each species on its own, now or in the foreseeable future, and also considered the combination of those factors to determine whether they collectively contributed to the extinction risk of the species, now or in the foreseeable future.
Based on our consideration of the best available scientific and commercial information, as summarized here and in Miller and Klimovich (2016), including our SPR and DPS analyses, we find that the giant manta ray (
Based on our consideration of the best available scientific and commercial information, as summarized here and in Miller and Klimovich (2016), we find that the reef manta ray (
Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); concurrent designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); and prohibitions on “taking” (16 U.S.C. 1538). Recognition of the species' plight through listing promotes conservation actions by Federal and state agencies, foreign entities, private groups, and individuals.
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing, or that result in the destruction or adverse modification of proposed critical habitat. If a proposed species is ultimately listed, Federal agencies must consult on any action they authorize, fund, or carry out if those actions may affect the listed species or its critical habitat and ensure that such actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated. Examples of Federal actions that may affect the giant manta ray include, but are not limited to: Alternative energy projects, discharge of pollution from point sources, non-point source pollution, contaminated waste and plastic disposal, dredging, pile-driving, development of water quality standards, vessel traffic, military activities, and fisheries management practices.
Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(3)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary. Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. If we determine that it is prudent and determinable, we will publish a proposed designation of critical habitat for the giant manta ray in a separate rule. Public input on features and areas in U.S. waters that may meet the definition of critical habitat for the giant manta ray is invited.
We are proposing to list the giant manta ray (
The intent of peer review is to ensure that listings are based on the best scientific and commercial data available. In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106–554), is intended to enhance the quality and credibility of the Federal government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the status review report. Independent specialists were selected from the academic and scientific community for this review. All peer reviewer comments were addressed prior to dissemination of the status review report and publication of this proposed rule.
To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we solicit comments and suggestions from the public, other governmental agencies, the scientific community, industry, environmental groups, and any other interested parties. Comments are encouraged on this proposal (See
We request information describing the quality and extent of habitats for the giant manta ray, as well as information on areas that may qualify as critical habitat for the species in U.S. waters. Specific areas that include the physical and biological features essential to the conservation of the species, where such features may require special management considerations or protection, should be identified. Areas outside the occupied geographical area should also be identified, if such areas themselves are essential to the
Section 4(b)(2) of the ESA requires the Secretary to consider the “economic impact, impact on national security, and any other relevant impact” of designating a particular area as critical habitat. Section 4(b)(2) also authorizes the Secretary to exclude from a critical habitat designation those particular areas where the Secretary finds that the benefits of exclusion outweigh the benefits of designation, unless excluding that area will result in extinction of the species. For features and areas potentially qualifying as critical habitat, we also request information describing: (1) Activities or other threats to the essential features or activities that could be affected by designating them as critical habitat; and (2) the positive and negative economic, national security and other relevant impacts, including benefits to the recovery of the species, likely to result if these areas are designated as critical habitat. We seek information regarding the conservation benefits of designating areas within waters under U.S. jurisdiction as critical habitat. In keeping with the guidance provided by OMB (2000; 2003), we seek information that would allow the monetization of these effects to the extent possible, as well as information on qualitative impacts to economic values.
Data reviewed may include, but are not limited to: (1) Scientific or commercial publications; (2) administrative reports, maps or other graphic materials; (3) information received from experts; and (4) comments from interested parties. Comments and data particularly are sought concerning: (1) Maps and specific information describing the amount, distribution, and use type (
A complete list of the references used in this proposed rule is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In accordance with E.O. 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be given to the relevant governmental agencies in the countries in which the species occurs, and they will be invited to comment. As we proceed, we intend to continue engaging in informal and formal contacts with the states, and other affected local, regional, or foreign entities, giving careful consideration to all written and oral comments received.
Endangered and threatened species.
For the reasons set out in the preamble, 50 CFR part 223 is proposed to be amended as follows:
16 U.S.C. 1531–1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361
(e) * * *
Forest Service, USDA.
Notice of meeting.
The National Urban and Community Forestry Advisory Council (Council) will meet via teleconference.
The teleconference will be held on Thursday February 9, 2017, from 10:00 a.m. to 5:00 p.m., Eastern Standard Time (EST) or until Council business is completed.
All meetings are subject to cancellation. For an updated status of the teleconference prior to attendance, please contact the person listed under
The meeting will be held via teleconference. For anyone who would like to attend the teleconference, please visit the Web site listed in the
Nancy Stremple, Executive Staff, National Urban and Community Forestry Advisory Council, by telephone at 202–205–7829, or by email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The Council is authorized under Section 9 of the Cooperative Forestry Assistance Act, as amended by Title XII, Section 1219 of Public Law 101–624 (the Act) (16 U.S.C. 2105g) and the Federal Advisory Committee Act (FACA) (5 U.S.C. App. II). Additional information concerning the Council, can be found by visiting the Council's Web site at:
The purpose of the meeting is to:
1. Review the 2017 Work Plan;
2. Update on the 2017 grant proposal review; and 2018 Call for Proposals
3. Listen to presentation on innovation in timber building construction;
4. Listen to local constituents with urban forestry concerns;
5. Discuss the National ten year action plan (2016–2026) implementation;
6. Receive Forest Service budget, administration, and program updates; and
7. Discuss the annual accomplishments/recommendations report.
The teleconference is open to the public. However, the public is strongly encouraged to RSVP prior to the teleconference to ensure all related documents are shared with public meeting participants. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing by January 31, 2017, to be scheduled on the agenda. Council discussion is limited to Forest Service staff and Council members, however anyone who would like to bring urban and community forestry matters to the attention of the Council may file written statements with the Council's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Nancy Stemple, Executive Staff, National Urban and Community Forestry Advisory Council, Sidney Yates Building, Room 3SC–01C, 201 14th Street SW., Washington, DC 20024, or by email at
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Virginia Advisory Committee to the Commission will convene by conference call at 12:00 p.m. (EDT) on Thursday, February 2, 2017. The purpose of the meeting is to discuss project planning and eventually select topic(s) for the Committee's civil rights review.
The meeting will be held on Thursday, February 2, 2017, at 12:00 p.m. EST.
Public call information: Dial: 888–601–3861, Conference ID: 417838.
Ivy L. Davis, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1–888–601–3861 and conference ID: 417838. Please be advised that before being placed into the conference call, you will be prompted to provide your name, organizational affiliation (if any), and email address (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1–800–977–8339 and providing the operator with the toll-free conference call-in number: 1–888–601–3861 and conference call ID: 417838.
Members of the public are invited to submit written comments; the comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376–7548, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
U.S. Commission on Civil Rights.
Announcement of public 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 meeting of the Nevada Advisory Committee (Committee) to the Commission will be held at 1:30 p.m. (Pacific Time) Thursday, January 19, 2017, for the purpose of discussing the logistics and agenda for the Committee's upcoming public meeting to hear testimony on the civil rights issues regarding municipal fees and policing practices in Nevada.
The meeting will be held on Thursday, January 19, 2017, at 1:30 p.m. PST
Public Call Information: Dial: 888–298–3457. Conference ID: 5007352.
Ana Victoria Fortes (DFO) at
This meeting is available to the public through the following toll-free call-in number: 888–298–3457, conference ID number: 5007352. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60603. They may be faxed to the Commission at (312) 353–8324, or emailed to David Mussatt, Regional Programs Unit at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, 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, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before March 13, 2017.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW.,
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Rebecca DeNale, U.S. Census Bureau, EID HQ–8K181, 4600 Silver Hill Road, Washington, DC 20233–6500, (301) 763–3113 (or via the Internet at
The Census Bureau plans to request a revision of the current Office of Management and Budget clearance for the surveys known as the Monthly Retail Trade Survey (MRTS) and the Advance Monthly Retail Trade Survey (MARTS). The MRTS and MARTS are related collections sharing the same initial sample frame and collect data that are published in conjunction with each other. These two surveys, currently cleared separately under control numbers 0607–0717 and 0607–0104, respectively, will therefore be combined under one control number and will be collectively called the Monthly Retail Surveys (MRS).
The Monthly Retail Trade Survey (MRTS) provides estimates of monthly retail sales, end-of-month merchandise inventories, and quarterly e-commerce sales for firms located in the United States and classified in the Retail Trade or Food Services sectors as defined by the North American Industry Classification System (NAICS).
Estimates produced from the MRTS are based on a probability sample of approximately 11,500 firms. The sample design consists of one fixed panel where all cases are requested to report sales, e-commerce sales, and/or inventories for the prior month. If reporting data for a period other than the calendar month, the survey asks for the period's length (4 or 5 weeks) and the date on which the period ended. The survey also asks for the number of establishments covered by the data provided and whether or not the sales data provided are estimates or more accurate “book” figures. The sample is drawn approximately every 5 years from the Business Register, which contains all Employer Identification Numbers (EINs) and listed establishment locations. The sample is updated quarterly to reflect employer business “births” and “deaths”; adding new employer businesses identified in the Business and Professional Classification Survey (SQ–CLASS) and deleting firms and EINs when it is determined they are no longer active. Estimates from the MRTS are released in three different reports each month. High level aggregate estimates for end of month inventories are first released as part of the Advance Economic Indicators Report approximately 27 days after the close of the reference month. The sales and inventories estimates from MRTS are released approximately 44 days after the close of the reference month as part of the Monthly Retail Trade report and the Manufacturing and Trade Inventories and Sales (MTIS) report, which are released on the same day. Additionally, once per quarter, data for quarterly e-commerce sales are released approximately 48 days after the close of the reference quarter as part of the Quarterly Retail E-Commerce Sales report.
Effective with the next MRTS sample, which begins collection in December of 2017, we will be removing the Leased Department question and all impacted forms, and will no longer provide monthly estimates for this data series moving forward. All historical series including these estimates will still be available to data users.
The Advance Monthly Retail Trade Survey (MARTS) provides an early indication of monthly sales for retail trade and food services firms located in the United States. It was developed in response to requests by government, business, and other users to provide an early indication of current retail trade activity in the United States. Retail sales are one of the primary measures of consumer demand for both durable and non-durable goods. The MARTS survey results are published approximately 14 days after the end of the reference month. MARTS provides a designated principal economic indicator and the earliest available monthly estimates of broad based retail trade activity. It also provides an estimate of monthly sales at food service establishments and drinking places. If the advance survey were not conducted, there would be a delay in the availability of these results as the results from the MRTS are not published until approximately 6 weeks after the end of the reference month.
The MARTS sample is a sub-sample of companies selected from the MRTS. The advance survey sample of about 4,900 companies are selected using a stratified design where the companies are selected by stratifying the companies in the larger MRTS sample by industry and size and selecting the desired number of cases within each size stratum using a systematic probability-proportional-to-size procedure where the size used is the MRTS sampling weight. Some 1,250 firms, because of their relatively large effect on the sales of certain industry groups, are selected with certainty. The MARTS sample is re-selected, generally at 2
Advance sales estimates for each kind of business are developed by applying a ratio of current-month to previous-month sales (derived from the advance retail and food service sample) to the preliminary estimate of sales for the previous month (from the larger monthly sample). Industry estimates are summed to derive total retail sales figures.
The MARTS survey requests sales and e-commerce sales for the month just ending. As on the MRTS survey, if firms report data for a period other than the calendar month, the survey asks for the period's length (4 or 5 weeks) and the date on which the period ended. Also similar to MRTS, the survey also asks for the number of establishments covered by the data provided and whether or not the sales data provided are estimates or more accurate “book” figures. At this time, there are no planned changes for MARTS.
The Bureau of Economic Analysis (BEA) uses the information collected on these surveys to prepare the National Income and Products Accounts, to benchmark the annual input-output tables and as critical inputs to the calculation of the Gross Domestic Product (GDP). Policymakers such as the Federal Reserve Board (FRB) need to have the timeliest estimates in order to anticipate economic trends and act accordingly. The Council of Economic Advisors (CEA) and other government agencies and businesses use the survey results to formulate and make decisions about economic policy.
We will collect this information by mail, FAX, telephone follow-up, and internet.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Notice of an Amended Privacy Act System of Records: COMMERCE/NOAA–20, Search and Rescue Satellite Aided Tracking (SARSAT) 406 MHz Emergency Beacon Registration Database.
In accordance with the Privacy Act of 1974, as amended, Title 5 of the United States Code (U.S.C.) sections 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A–130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals,” the Department of Commerce (Department) is issuing a notice of intent to establish an amended system of records entitled, “COMMERCE/NOAA–20, Search and Rescue Satellite Aided Tracking (SARSAT) 406 MHz Emergency Beacon Registration Database.” Amendments (updates) were made to the Addresses, Supplementary Information, Routine Uses and Storage sections.
SARSAT is responsible for keeping and maintaining a registration database for 406 MHz emergency beacons as directed by the Federal Communications Commission (FCC). This database contains personally identifiable information that is required to be protected by the Privacy Act, as amended. The purpose of this system of records is to provide search and rescue (SAR) authorities with information about the user of the beacon, such as the name, phone number, and emergency contact information. This information provides the Rescue Coordination Center (RCC) and Mission Control Center (MCC) with the identity of the individual(s) they are searching for, contact information so that the RCC can determine whether or not the beacon has been activated as the result of an actual emergency, and information about the vessel or aircraft. The registration information allows the RCC and MCC to resolve a distress case by telephone instead of wasting valuable resources responding to false alerts. Information may be provided to or received from international registration authorities to ensure registration information resides in the correct database based on the country code of the beacon or the mailing address of the beacon owner. This information allows SAR authorities to shorten response times, and it provides a way to cancel false alerts quickly and safely, thereby increasing safety for SAR authorities and decreasing costs to the government and the SAR system. The completed forms also contain personal identifiable information that is required to be protected by the Privacy Act. We invite public comment on the amended system in this publication.
To be considered, written comments must be submitted on or before February 13, 2017. Unless comments are received, the amended system of records will become effective as proposed on February 21, 2017. If comments are received, the Department will publish a subsequent notice in the
Comments may be mailed to: NOAA SARSAT, NSOF E/SPO53, 1315 East West Highway, Silver Spring, MD 20910.
NOAA SARSAT, NSOF E/SPO53, 1315 East West Highway, Silver Spring, MD 20910.
The National Oceanic and Atmospheric Administration's (NOAA's) National Environmental Satellite, Data, and Information Service (NESDIS) is revising its system of records for SARSAT, which is required by the FCC under 47 CFR parts 80, 87, and 95 to maintain a registration for emergency beacons that operate on the 406 MHz frequency. SARSAT has not found any probable or potential adverse effects of the proposal on the privacy of individuals. To minimize the risk of unauthorized access to the system of records, electronic data will be stored securely with access password protected, two-factor authentication for internal System Administrators, and limited to those SARSAT program employees whose official duties require access.
Search and Rescue Satellite Aided Tracking (SARSAT) 406 MHz Emergency Beacon Registration Database.
None.
U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), 4231 Suitland Road, Suitland, MD 20746–4304
Owners of 406 MHz Emergency Position Indicating Radio Beacons (EPIRBs), 406 MHz Emergency Location Transmitters (ELTs), 406 MHz Personnel Locator Beacons (PLBs), and 406 MHz Ship Security Alerting System (SSAS) Beacons.
Personal Identifiable Information: Beacon Unique Identifier Number (Beacon ID), beacon category, beacon manufacturer, beacon model; owner name, owner address, owner email address, owner telephone number by home, work, cellular, and fax; and name
a. EPIRBs and SSAS beacon registrations—vessel information including usage, type, name, color, survival and radio equipment, vessel telephone numbers with call sign, Inmarsat number, cellular and MMSI number, federal/state registration number, length, capacity, and homeport;
b. ELT registrations—aircraft information including registration (tail) number, type, manufacturer, model, color, seating capacity, radio equipment, survival equipment, principal airport; and
c. PLB registrations—general use data including usage, specific usage, and type.
This system of records is consistent with 47 CFR parts 80, 87, and 95. The system is also authorized by the U.S. Office of Management & Budget (OMB) Control Number: OMB 0648–0295.
The records are maintained and used to assist search and rescue forces in carrying out their mission of rescue assistance and false alert abatement.
These records may be disclosed as follows:
1. A record in this system of records is used when a beacon alert is received at the United States Mission Control Center (USMCC) from a registered beacon. The information kept in the database is automatically forwarded to rescue coordination centers operated by the United States Air Force, United States Coast Guard, State Police/State SAR authority, or another foreign SARSAT Mission Control Center, should it be requested for use in a SAR case in a foreign search and rescue region. The information is used by SAR controllers as a tool to coordinate and resolve the SAR event.
2. Every two years, NOAA uses the information in the database to alert beacon owners to update and renew their registration in the database.
3. In the event that a system or records maintained by the Department to carry out its functions indicates a violation or potential violation of law or contract, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute or contract, or rule, regulation, or order issued pursuant thereto, or the necessity to protect an interest of the Department, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute or contract, or rule, regulation or order issued pursuant thereto, or protecting the interest of the Department.
4. A record from this system of records may be disclosed, as a routine use, to a Federal, state or local agency maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a Department decision concerning the assignment, hiring or retention of an individual, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit.
5. A record from this system of records may be disclosed, as a routine use, to a Federal, state, local, or international agency, in response to its request, in connection with the assignment, hiring or retention of an individual, the issuance of a security clearance, the reporting of an investigation of an individual, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
6. A record from this system of records may be disclosed, as a routine use, in the course of presenting evidence to a court, magistrate or administrative tribunal, including disclosures to opposing counsel in the course of settlement negotiations.
7. A record in this system of records may be disclosed, as a routine use, to a Member of Congress submitting a request involving an individual when the individual has requested assistance from the Member with respect to the subject matter of the record.
8. A record in this system of records which contains medical information may be disclosed, as a routine use, to the medical advisor of any individual submitting a request for access to the record under the Act and 15 CFR part 4b if, in the sole judgment of the Department, disclosure could have an adverse effect upon the individual, under the provision of 5 U.S.C. 552a(f)(3) and implementing regulations at 15 CFR 4b26.
9. A record in this system of records may be disclosed, as a routine use, to the Office of Management and Budget in connection with the review of private relief legislation as set forth in OMB Circular No. A–19 at any stage of the legislative coordination and clearance process as set forth in that Circular.
10. A record in this system of records may be disclosed, as a routine use, to the Department of Justice in connection with determining whether disclosure thereof is required by the Freedom of Information Act (5 U.S.C. 552).
11. A record in this system of records may be disclosed, as a routine use, to a contractor of the Department having need for the information in the performance of the contract, but not operating a system of records within the meaning of 5 U.S.C. 552a(m).
12. A record in this system may be transferred, as a routine use, to the Office of Personnel Management: For personnel research purposes; as a data source for management information; for the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained or for related manpower studies.
13. A record from this system of records may be disclosed, as a routine use, to the Administrator, General Services Administration (GSA), or his designee, during an inspection of records conducted by GSA as part of that agency's responsibility to recommend improvements in records management practices and programs, under authority of 44 U.S.C. 2904 and 2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this purpose, and any other relevant (
14. A record in this system of records may be disclosed to appropriate agencies, entities and persons when: (1) It is suspected or determined that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
15. A record in this system of records may be disclosed to student volunteers, individuals working under a personal services contract, and other workers who technically do not have the status of Federal employees, when they are performing work for the Department and/or its agencies, as authorized by law, as needed to perform their assigned Agency functions.
None.
Computerized database stored behind several layers of firewalls configured with the firm policy of denying all and allow only by exception, electronic storage media, and paper records. All three mediums are retained in accordance with NOAA Records Disposition Handbook, Chapter 1404–02.
Records may be retrieved by unique beacon identification number, the name of beacon owner, date of submittal, vessel name, aircraft name, or aircraft tail number; however, records can be accessed by any file element or any combination thereof.
Due to the sensitive information stored in the registration database, access has been granted only to a limited number of personnel in accordance with this system of records routine uses provision. This access comes in four different categories; beacon owners, system administrators, SAR users, and vessel/aircraft inspectors.
The beacon owner is granted access to his/her own registration information through the use of a user ID and an online password. Information can be accessed and updated by the beacon owner at any time.
The system administrator consists of personnel at the USMCC who maintains and operates the registration database. Access to records is through the use of a user ID and an online password.
The SAR user is limited to rescue coordination personnel responsible for SAR operations within internationally recognized SAR regions. Each SAR controller is issued a user ID and an online password. SAR controllers are given a view-only capability.
The vessel or aircraft inspector is an approved representative of a federal agency charged with inspecting vessels or aircraft which includes verifying that the emergency beacons carried onboard the vessel or aircraft are properly registered. Each inspector is issued a user ID and an online password. Inspectors are given a view-only capability.
Exceptions to the above categories can only be approved by the SARSAT Program Steering Group. Consideration for access to the database by a requesting individual/agency will be based in light of their overall contribution to the SAR mission versus balancing the individual beacon owner's right to privacy.
NESDIS shall maintain its records in accordance with NOAA's Records Management Guide and Records Disposition Handbook, Departmental directives, and comprehensive records schedules.
NOAA/SARSAT, NSOF E/SPO53, 1315 East West Highway, Silver Spring, MD 20910.
Beacon owners are notified by letter once registration information has been put into the database. Every two years thereafter, beacon owners are contacted by email or letter to update their information or to confirm that their information is correct.
In accordance with the Department of Commerce regulations implementing the Privacy Act, at Title 15 of the Code of Federal Regulations, part 4, subpart B—Privacy Act, individuals interested in determining if the system contains their name should direct their Privacy Act request to the National Oceanic and Atmospheric Administration, Public Reference Facility, OFA56, 1315 East West Highway (SSMC3), Room 10730, Silver Spring, Maryland 20910.
Individuals with information in the database have the ability to review and update their own individual information on the internet at
Individual beacon owners have access to their database file and have the ability to update or correct information. Other issues are addressed by the system manager who can be contacted at NOAA/SARSAT, NSOF E/SPO53, 1315 East West Highway, Silver Spring, MD 20910.
The individual on whom the record is maintained provides information to NOAA by either the Web site or mail. Existing registrations can be updated according to the above processes, by a phone call from the beacon owner, or by rescue coordination center controllers when updated information is collected while processing a case.
None.
National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Notice of an Amended Privacy Act System of Records: COMMERCE/NOAA–11, Contact Information for Members of the Public Requesting or Providing Information Related to NOAA's Mission.
In accordance with the Privacy Act of 1974, as amended, and Office of Management and Budget (OMB) Circular A–130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals,” the Department of Commerce (Department) is issuing a notice of intent to establish an amended system of records entitled, “COMMERCE/NOAA–11, Contact Information for Members of the Public Requesting or Providing Information Related to NOAA's Mission.” Amendments (updates) were made to categories of individuals, categories of records, and purpose, as well as to the lists of system locations and system managers and addresses. Updates also include the addition of a new routine use for student volunteers, individuals working under a personal services contract, and other workers who technically do not have the status of Federal employees.
To be considered, written comments must be submitted on or before February 13, 2017. Unless comments are received, the amended
Comments may be mailed to Sarah Brabson, NOAA Office of the Chief Information Officer, Room 9856, 1315 East-West Highway, SSMC3, Silver Spring, MD 20910.
Sarah Brabson, NOAA Office of the Chief Information Officer, Room 9856, 1315 East-West Highway, Silver Spring, MD 20910.
The National Oceanic and Atmospheric Administraton (NOAA), pursuant to Title 5 of the United States Code (U.S.C.) sections 552a(e)(4) and (11); is amending this system of records to include development of satellite data system user agreements with government or non-government entities, and to allow further communication and information sharing with these entities. This system of records notice encompasses all NOAA systems which collect, store and/or disseminate contact information for members of the public requesting or providing information related to NOAA's mission. Information collections would be requested from individuals under the authority of 5 U.S.C. 301, Departmental Regulations and 15 U.S.C. 1512, Powers and duties of Department. The collection of information is necessary to facilitate communication with, and share mission-related information with, the public. NOAA would collect information from individuals in order to provide and acquire NOAA mission-related data. The resulting system of records, as amended, appears below.
Contact Information for Members of the Public Requesting or Providing Information Related to NOAA's Mission.
None.
1. National Environmental Satellite, Data, and Information Service (NESDIS):
a. NOAA5004, Data Collection System: (1) NSOF: 4231 Suitland Rd., Suitland, Md 20746. (2) Wallops: U.S. Department of Commerce, NOAA Wallops CDA Station, 35663 Chincoteague Road, Wallops, Virginia 23337.
b. NOAA5009, National Climatic Data Center Local Area Network: Federal Building, Room 311, 151 Patton Avenue, Asheville, NC 28801.
NOAA5010, National Oceanographic Data Center: 1315 East West Highway, Silver Spring, MD 20910.
c. NOAA5036, National Coastal Data Development Center Local Area Network: 1021 Balch Blvd., Stennis Space Center, MS 39529.
d. NOAA5036 Mirror Site: 25 Broadway, E/GC4, Boulder, CO 80305.
e. NOAA5040, Comprehensive Large Array-data Stewardship System: 2110 Pleasant Valley Road, Fairmont, WV 26554.
f. NOAA5045, NOAA Environmental Satellite Processing Center: 4231 Suitland Rd., Suitland, MD 20746.
2. National Marine Fisheries Service (NMFS):
a. NOAA4010, NMFS Headquarters Local Area Network: 1315 East West Highway, Silver Spring, MD 20910.
b. NOAA4960, Honolulu, HI Pacific Islands Fisheries Science Center Local Area Network: 2570 Dole Street, Honolulu, HI 96822.
3. National Ocean Service (NOS):
a. NOAA6001, NOS Enterprise Information System: 1305 East West Highway, Floor 13, Silver Spring, MD 20910.
b. NOAA6101, Coastal Services Center (CSC) Information Technology Support System: 2234 S. Hobson Ave., Charleston, SC 29405.
c. NOAA6301, National Centers for Coastal Ocean Science (NCCOS) Research Support System: 1305 East West Highway, 13th Floor, Silver Spring, MD 20910.
d. NOAA6501, Office of Coast Survey (OCS) Nautical Charting System: 1315 East West Highway, Floors 5, 6 & 7, Silver Spring, MD 20910.
4. National Weather Service (NWS):
a. NOAA8860, National Centers for Environmental Prediction: 5830 University Research Court, College Park, MD 20740.
b. NOAA8874, National Operations Hydrologic Remote Sensing Center, 1735 Lake Dr. West, Chanhassen, MN 55317.
c. NOAA8884, Southern Region Headquarters, 819 Taylor St., Rm. 10A05C, Fort Worth, TX 76102.
d. NOAA8885, Western Region Headquarters, 125 South State St., Salt Lake City, UT 84103.
Members of the public requesting information. Members of the public (non-NOAA researchers), who provide information to NOAA for dissemination to the public. Members of the public who are users of NOAA data or access NOAA information who provide information to NOAA in order to gain access to or use NOAA information.
This information is collected and/or maintained by all systems covered by this system of records: Name, address, email address, telephone number (business or private, by individuals' choice), organization name, address and position if applicable, as well as affected public classification (whether they are government (foreign, federal, state, local or tribal, or non-government (public or private agencies).
5 U.S.C. 301, Departmental Regulations and 15 U.S.C. 1512, Powers and duties of Department.
This information will allow NOAA to contact customers who have requested data, will participate or have participated in NOAA conferences, meetings and trainings, as well as those researchers providing data and making presentations. Maintenance of this contact information allows further communication and information sharing, as well as a mechanism for customer surveys with the goal of improving services. Maintenance and use of this contact information will also be used to improve user experience, electronic accessibility, and functionality of NOAA information.
1. In the event that a system of records maintained by the Department to carry out its functions indicates a violation or potential violation of law or contract, whether civil, criminal or regulatory in nature and whether arising by general statute or particular program statute or contract, rule, regulation, or order issued pursuant thereto, or the necessity to protect an interest of the Department, the relevant records in the system of records may be referred to the appropriate agency, whether Federal, State, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute or contract, rule, regulation, or order issued pursuant thereto, or protecting the interest of the Department.
2. A record from this system of records may be disclosed, as a routine
3. A record from this system of records may be disclosed, as a routine use, to a Federal, state, local, or international agency, in response to its request, in connection with the assignment, hiring or retention of an individual, the issuance of a security clearance, the reporting of an investigation of an individual, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
4. A record from this system of records may be disclosed in the course of presenting evidence to a court, magistrate, hearing officer or administrative tribunal, including disclosures to opposing counsel in the course of settlement negotiations, administrative appeals and hearings.
5. A record in this system of records may be disclosed to a Member of Congress submitting a request involving an individual when the individual has requested assistance from the Member with respect to the subject matter of the record.
6. A record in this system of records which contains medical information may be disclosed, as a routine use, to the medical advisor of any individual submitting a request for access to the record under the Act and 15 CFR part 4b if, in the sole judgment of the Department, disclosure could have an adverse effect upon the individual, under the provision of 5 U.S.C. 552a(f)(3) and implementing regulations at 15 CFR part 4b.26.
7. A record in this system of records may be disclosed, as a routine use, to the Office of Management and Budget in connection with the review of private relief legislation as set forth in OMB Circular No. A–19 at any stage of the legislative coordination and clearance process as set forth in that Circular.
8. A record in this system of records may be disclosed to the Department of Justice in connection with determining whether the Freedom of Information Act (5 U.S.C. 552) requires disclosure thereof.
9. A record in this system of records may be disclosed to a contractor of the Department having need for the information in the performance of the contract but not operating a system of records within the meaning of 5 U.S.C. 552a(m).
10. A record in this system may be transferred, as a routine use, to the Office of Personnel Management: For personnel research purposes; as a data source for management information; for the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained; or for related manpower studies.
11. A record from this system of records may be disclosed, as a routine use, to the Administrator, General Services Administration (GSA), or his designee, during an inspection of records conducted by GSA as part of that agency's responsibility to recommend improvements in records management practices and programs, under authority of 44 U.S.C. 2904 and 2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this purpose, and any other relevant (
12. A record in this system of records may be disclosed to appropriate agencies, entities and persons when: (1) It is suspected or determined that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or whether systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
13. A record in this system of records may be disclosed to student volunteers, individuals working under a personal services contract, and other workers who technically do not have the status of Federal employees, when they are performing work for the Department and/or its agencies, as authorized by law, as needed to perform their assigned Agency functions.
Disclosure to consumer reporting agencies pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) and the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Computerized database (in some instances, also CDs; back-up files stored on tape and/or paper records stored in file folders in locked metal cabinets and/or locked rooms).
Records are organized and retrieved by category of entity.
The system of records is stored in a building with doors that are locked during and after business hours. Visitors to the facility must register with security guards and must be accompanied by Federal personnel at all times. Paper records are stored in a locked room and/or a locked file cabinet. Electronic records containing Privacy Act information are protected by a user identification/password. The user identification/password is issued to individuals as authorized by authorized personnel.
All electronic information disseminated by NOAA adheres to the standards set out in Appendix III, Security of Automated Information Resources, OMB Circular A–130; the Computer Security Act (15 U.S.C. 278g–3 and 278g–4); and the Government Information Security Reform Act, Public Law 106–398; and follows NIST SP 800–18, Guide for Developing Security Plans for Federal Information Systems; NIST SP 800–26, Security Self-Assessment Guide for Information Technology Systems; and NIST SP 800–53, Recommended Security Controls for Federal Information Systems. NIST 800–122 recommended security controls for protecting Personally Identifiable Information are in place. The Federal Information Processing Standard (FIPS) 199, Standards for Security Categorization of Federal Information and Information Systems, security impact category for these systems is moderate or higher, except for two systems: NOAA4960 and NOAA6101. Contractors that have access to the system are subject to information
All records are retained and disposed of in accordance with National Archive and Records Administration regulations (36 CFR Chapter XII, Subchapter B—Records Management); Departmental directives and comprehensive records schedules; NOAA Administrative Order 205–01; and the NMFS Records Disposition Schedule, Chapters 1200, 1300, 1400, 1500 and 1600.
For records at location 1., NESDIS:
a. NOAA5004, Mark Hall, U.S. Department of Commerce, NOAA Wallops CDA Station, 35663 Chincoteague Road, Wallops, Virginia 23337.
b. NOAA5009, John Jensen, Federal Building, Room 311, 151 Patton Avenue, Asheville, NC 28801.
c. NOAA5010, Parmesh Dwivedi, 1315 East West Highway, Silver Spring, MD 20910.
d. NOAA5036: Juanita Sandidge, 1021 Balch Blvd., Stennis Space Center, MS 39529.
e. NOAA 5036 Mirror Site: 25 Broadway, E/GC4, Boulder, CO 80305.
f. NOAA5040: Kern Witcher, 2110 Pleasant Valley Road, Fairmont, WV 26554.
g. NOAA5045: Linda Stathoplos, 4231 Suitland Rd., Suitland, MD 20746.
For records at location 2., NMFS:
a. NOAA4010: Kevin Schulke, 1315 East West Highway, Silver Spring, MD 20910.
b. NOAA4960: Donald Tieman, 2570 Dole Street, Honolulu, HI 96822.
For records at location 3., NOS:
a. NOAA6001: Tim Morris, 1305 East West Highway, Floor 13, Silver Spring, MD 20910.
b. NOAA6101: Paul Scholz, 2234 S. Hobson Ave, Charleston, SC 29405.
c. NOAA6301: Linda Matthews, 1305 East West Highway, 13th Floor, Silver Spring, MD 20910.
d. NOAA6501: Kathryn Ries, 1315 East West Highway, Floors 5, 6 & 7, Silver Spring, MD 20910.
For records at location 4., NWS:
a. NOAA8860: David Glotfelty, 5830 University Research Court, College Park, MD 20740.
b. NOAA8874: Andy Rost, National Operations Hydrologic Remote Sensing Center, 1735 Lake Dr. West, Chanhassen, MN 55317.
c. NOAA8884: John Duxby, Southern Region Headquarters, 819 Taylor St., Rm. 10A05C, Fort Worth, TX 76102.
d. NOAA8885: Sean Wink, Western Region Headquarters, 125 South State St., Salt Lake City, UT 84103.
Individuals seeking to determine whether information about them is contained in this system should address written inquiries to the National or Line Office Privacy Act Officers:
Privacy Act Officer, NOAA, 1305 East West Highway, Room 7437, Silver Spring, MD 20910.
Privacy Act Officer, NESDIS, 1335 East West Highway, Room 8245, Silver Spring, MD 20910.
Privacy Act Officer, NMFS, 1315 East West Highway, Room 10843, Silver Spring, MD 20910.
Privacy Act Officer, NOS, 1305 East West Highway, Rm. 13236, Silver Spring, MD 20910.
Privacy Act Officer, NWS, 1325 East West Highway, Room 18426, Silver Spring, MD 20910.
Written requests must be signed by the requesting individual. Requestor must make the request in writing and provide his/her name, address, and date of the request and record sought. All such requests must comply with the inquiry provisions of the Department's Privacy Act rules which appear at 15 CFR part 4, Appendix A.
Requests for access to records maintained in this system of records should be addressed to the same address given in the Notification section above.
The Department's rules for access, for contesting contents, and appealing initial determinations by the individual concerned are provided for in 15 CFR part 4, Appendix A.
Information in this system will be collected from individuals requesting or providing NOAA mission-related information.
None.
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
Enforcement and Compliance (E&C), International Trade Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, 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.
Written comments must be submitted on or before March 13, 2017.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Charlie Michael, Enforcement and Compliance (E&C), phone number 202–482–0596, or via the internet at
The Departments of Commerce and Homeland Security (DHS) are required to determine whether nonprofit institutions established for scientific or educational purposes are entitled to duty-free entry for scientific instruments the institutions import under the Florence Agreement. Form ITA–338P enables: (1) DHS to determine whether the statutory eligibility requirements for the institution and the instrument are fulfilled, and (2) Commerce to make a comparison and finding as to the scientific equivalency of comparable instruments being manufactured in the United States. Without the collection of the information, DHS and Commerce would not have the necessary information to carry out the responsibilities of determining eligibility for duty-free entry assigned by law.
A copy of Form ITA–338P is provided on and downloadable from a Web site at
Upon acceptance by DHS as a valid application, the application is transmitted to Commerce for further processing.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
NMFS will host a meeting of the Council Coordination Committee (CCC), consisting of the Regional Fishery Management Council chairs, vice chairs, and executive directors on February 28–March 1, 2017. The intent of this meeting is to discuss issues of relevance to the Councils and NMFS, including issues related to the implementation of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act. Agenda items include discussions on budget allocations for FY2017 and budget planning for FY2018; an update on current joint science initiatives, including Ecosystem Based Fisheries Management; the FY2017 legislative outlook; updates on planning for the CCC Scientific Coordination Committee meeting, NMFS bycatch reduction strategy, the NMFS National Standard 1 guidance and implementation, Marine Recreational Information Program updates, stock assessment improvement plan; and other topics related to implementation of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act.
The meeting will begin at 8:30 a.m. on Tuesday, February 28, 2017, recess at 5:00 p.m. or when business is complete; and reconvene at 8:30 a.m. on Wednesday, March 1, 2017, and adjourn by 4:30 p.m. or when business is complete.
The meeting will be held at the Ritz-Carlton, Pentagon City, 1250 South Hayes Street; Arlington, VA 22202; Telephone: (703) 415–5000.
Brian Fredieu: telephone 301–427–8505 or email at
The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act established the CCC by amending Section 302 (16 U.S.C. 1852) of the MSA. The committee consists of the chairs, vice chairs, and executive directors of each of the eight Regional Fishery Management Councils authorized by the MSA or other Council members or staff. NMFS will host this meeting and provide reports to the CCC for its information and discussion. All sessions are open to the public. Updates to this meeting will be provided in subsequent notices and additional information will be posted on
The CCC will meet as late as necessary to complete scheduled business.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Brian Fredieu at 301–427–8505 at least five working days prior to the meeting.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, 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.
Written comments must be submitted on or before March 13, 2017.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Sally Bibb, (907) 586–7389 or
This request is for extension of a currently approved information collection.
The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands, Alaska, are managed under the Fishery Management Plan for Bering Sea and Aleutian Islands King and Tanner Crabs (FMP). The North Pacific Fishery Management Council prepared the FMP under the Magnuson-Stevens Fishery Conservation and Management Act as amended in 2006. The National Marine Fisheries Service (NMFS) manages the crab fisheries in the waters off the coast of Alaska under the FMP. Regulations implementing the FMP and all amendments to the Crab Rationalization Program (CR Program) appear at 50 CFR part 680. Program details are found at:
The CR Program balances the interests of several groups who depend on the crab fisheries. The CR Program addresses conservation and management issues associated with the previous derby fishery, reduces bycatch and associated discard mortality, and increases the safety of crab fishermen by ending the race for fish. Share allocations to harvesters and processors, together with incentives to participate in fishery cooperatives, increases efficiencies, provides economic stability, and facilitates compensated reduction of excess capacities in the harvesting and processing sectors. Community interests are protected by Western Alaska Community Development Quota allocations and regional landing and processing requirements, as well as by several community protection measures.
NMFS established the CR Program as a catch share program for nine crab fisheries in the BSAI, and assigned quota share (QS) to persons and processor quota share (PQS) to processors based on their historic participation in one or more of these nine crab fisheries during a specific period. The CR Program components include QS allocation, PQS allocation, individual fishing quota (IFQ) issuance, and individual processing quota (IPQ) issuance, quota transfers, use caps, crab harvesting cooperatives, protections for Gulf of Alaska groundfish fisheries, arbitration system, monitoring, economic data collection, and cost recovery fee collection.
Respondents have a choice of either electronic or paper forms. Methods of submittal include online, email of electronic forms, mail, and facsimile transmission of paper forms.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of applications.
Notice is hereby given that David Wiley, Ph.D., Stellwagen Bank National Marine Sanctuary, 175 Edward Foster Road, Scituate, MA 02066 and Adam Pack, Ph.D., University of Hawaii at Hilo, 200 West Kawili Street, Hilo, HI 96720, have applied in due form for permits to conduct scientific research on cetaceans.
Written, telefaxed, or email comments must be received on or before February 13, 2017.
The applications and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376.
Written comments on these applications should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713–0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on these applications would be appropriate.
Sara Young or Amy Hapeman (File No. 18059), Carrie Hubard or Shasta McClenahan (File No. 19655), (301) 427–8401.
The subject permits are requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
File No. 18059: The applicant requests a five-year scientific research permit to investigate the foraging ecology, habitat use, physiology, and acoustic and social behavior of humpback (
File No. 19655: The applicant proposes to study humpback whales and other cetacean species in the waters off the Hawaiian Islands and Alaska. Research methods include passive acoustics, photo-identification, photogrammetry, opportunistic collection of fecal and skin samples, and remote biopsy sampling. A subset of humpback whales would also receive suction cup tags. Other endangered species targeted for study include: Blue (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the Partnership for Interdisciplinary Study of Coastal Oceans (PISCO) at the University of California (UC) Santa Cruz for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to rocky intertidal monitoring surveys. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to PISCO to incidentally take, by Level B harassment only, marine mammals during the specified activity.
Comments and information must be received no later than February 13, 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. The mailbox address for providing email comments is
An electronic copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Robert Pauline, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), 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, other means of effecting the least practicable impact on the species or stock and its habitat, 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.”
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 September 23, 2016 NMFS received an application from PISCO for the taking of marine mammals incidental to rocky intertidal monitoring surveys along the Oregon and California coasts. NMFS determined that the application was adequate and complete on October 9, 2016. NMFS has previously issued four IHAs for this ongoing project (77 FR 72327, December 5, 2012; 78 FR 79403, December 30, 2013; 79 FR 73048, December 9, 2014; 81 FR 7319, February 2, 2016).
The research group at UC Santa Cruz operates in collaboration with two large-scale marine research programs: PISCO and the Multi-agency Rocky Intertidal Network (MARINe). The research group at UC Santa Cruz (PISCO) is responsible for many of the ongoing rocky intertidal monitoring programs along the Pacific coast. Monitoring occurs at rocky intertidal sites, often large bedrock benches, from the high intertidal to the water's edge. Long-term monitoring projects include Community Structure Monitoring, Intertidal Biodiversity Surveys, Marine Protected Area Baseline Monitoring, Intertidal Recruitment Monitoring, and Ocean Acidification. Research is conducted throughout the year along the California and Oregon coasts and will continue indefinitely. Most sites are sampled one to two times per year over a 4–6 hour period during a negative low tide series. This IHA, if issued, would be effective for a 12-month period. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: Presence of survey personnel near pinniped haulout sites and unintentional approach of survey personnel towards hauled out pinnipeds. Take, by Level B harassment only, of individuals of California sea lions (
PISCO proposes to continue rocky intertidal monitoring work that has been ongoing for 20 years. PISCO focuses on understanding the nearshore ecosystems of the U.S. west coast through a number of interdisciplinary collaborations. The program integrates long-term monitoring of ecological and oceanographic processes at dozens of sites with experimental work in the lab and field. A short description of project components is found below. Additional information can be found in PISCO's application (see
PISCO's research is conducted throughout the year. Most sites are sampled one to two times per year over a 1-day period (4–6 hours per site) during a negative low tide series. Due to the large number of research sites, scheduling constraints, the necessity for negative low tides and favorable weather/ocean conditions, exact survey dates are variable and difficult to predict. Some sampling may occur in all months.
Sampling sites occur along the California and Oregon coasts. Community Structure Monitoring sites range from Ecola State Park near Cannon Beach, Oregon to Government Point located northwest of Santa Barbara, California. Biodiversity Survey sites extend from Ecola State Park south to Cabrillo National Monument in San Diego County, California. Exact locations of sampling sites can be found in Tables 1 and 2 of PISCO's application.
Community Structure Monitoring involves the use of permanent photoplot quadrats which target specific algal and invertebrate assemblages (
Biodiversity Surveys are part of a long-term monitoring project and are conducted every 3–5 years across 140 established sites. Note that many, but not all, of the 47 Community Structure sites are also Biodiversity Survey sites. Thirty-eight of the Community Structure sites are utilized for Biodiversity Surveys, leaving nine sites that are only Biodiversity Survey locations. These Biodiversity Surveys involve point contact identification along permanent transects, mobile invertebrate quadrat counts, sea star band counts, and tidal height topographic measurements.
Sixteen Biodiversity Survey sites will be visited as part of this proposed IHA including Point Arena, Saunders Reef, Del Mar Landing, Gerstle Cove, Chimney Rock, Fitzgerald Marine Reserve, Ano Nuevo, Diablo, Jajolla Caves, Sea Ridge, Point Sierra Nevada, Cayucos, Hazards, Stairs, Treasure Island, and Cabrillo Zone III. Four of the Biodiversity Survey sites are also Community Structure sites, leaving 12 sites that are only Biodiversity Survey sites. As such, a total of 59 sites would be visited under the proposed IHA.
The intertidal zones where PISCO conducts intertidal monitoring are also areas where pinnipeds can be found hauled out on the shore at or adjacent to some research sites. Pinnipeds are likely to be observed at 17 out of the 59 survey sites. Accessing portions of the intertidal habitat at these locations may cause incidental Level B (behavioral) harassment of pinnipeds through some unavoidable approaches if pinnipeds are hauled out directly in the study plots or while biologists walk from one location to another. No motorized equipment is involved in conducting these surveys.
Several pinniped species can be found along the California and Oregon coasts. The three that are most likely to occur at some of the research sites are California sea lion, harbor seal, and northern elephant seal. PISCO researchers have seen very small numbers (
We refer the public to Carretta
Northern elephant seals range widely throughout the eastern Pacific for most of the year to forage. They return to haul-out locations along the west coast of the continental United States including the Channel Islands, the central California coast, and islands off of Baja California to breed and molt. Breeding occurs from December through early spring, with males returning to haul-out locations earlier than females to establish dominance hierarchies. Molting occurs from late April to August, with juveniles and adult females returning earlier than adult males (Reeves
This species was hunted by indigenous peoples for several thousand years and by commercial sealers in the 1800s. By the late 1800s the species was thought to be extinct, although several were seen on Guadalupe Island in the 1880s and a few dozen to several hundred survived off of Mexico (Stewart
According to the 2015 Pacific Marine Mammal Stock Assessment, the minimum population size of the California stock is 81,368 individuals and the estimated population size is 179,000 (Carretta
California sea lions are distributed along the west coast of North America from British Columbia to Baja California and throughout the Gulf of California. Breeding occurs on offshore islands along the west coast of Baja California and the Gulf of California as well as on the California Channel Islands. There are three recognized California sea lion stocks (U.S. stock, Western Baja stock, and the Gulf of California stock) with the U.S. stock ranging from the U.S./Mexico border into Canada. Although there is some movement between stocks, U.S. rookeries are considered to be isolated from rookeries off of Baja California (Barlow
California sea lions were hunted for several thousand years by indigenous peoples and early hunters. In the early 1900s, sea lions were killed in an effort to reduce competition with commercial fisheries. They were also hunted commercially from the 1920–1940s. Following the passage of the Marine Mammal Protection Act (MMPA) in 1972, as well as limits on killing and harassment in Mexico, the population has rapidly increased (Reeves
The number of California sea lions historically found at any one of PISCO's study sites is variable, and often no California sea lions are observed during sampling. The most recent monitoring report (2016) reported 19 takes of this species. All takes occurred at Government Point. A total of 60 takes were authorized under the IHA.
Pacific harbor seals are not listed as threatened or endangered under the ESA, nor are they categorized as depleted under the MMPA. The most recent census of the California stock of harbor seals occurred in 2012 during which 20,109 hauled-out harbor seals were counted. A 1999 census of the Oregon/Washington harbor seal stock found 16,165 individuals, of which 5,735 were in Oregon (Carretta
The animals inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. Pacific harbor seals are divided into two subspecies:
In California, over 500 harbor seal haulout sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry
At several sites, harbor seals are often observed and have the potential to be disturbed by researchers accessing or sampling the site. The most recent monitoring report (2016) described a total of 44 takes of harbor seals. A total of 183 takes had been authorized under the IHA.
Steller sea lions range throughout the north Pacific from Japan to the Kamchatka Peninsula, along the Aleutian Islands, into the Gulf of Alaska, and down the west coast of North America to central California. Based on distribution, population dynamics, and genotypic data, the species occurring in United States waters has been divided into two stocks, the eastern U.S. stock (east of Cape Suckling, AK) and the western U.S. stock (west of Cape Sucking, AK) (Loughlin 1997). Breeding of the eastern stock occurs in rookeries in Alaska, British Columbia, Oregon, and California.
This species was hunted by indigenous peoples for several thousand years throughout its range and as recently as the 1990s in the Aleutian Islands. Individuals from British Columbia to California were also killed in the early 1900s to reduce competition with commercial fisheries. The species dramatically declined from the 1970s to 1990s due to competition with commercial fishing and long-term environmental changes (Reeves
According to the 2015 Alaska Marine Mammal Stock Assessment, the minimum population size of the eastern U.S stock is 59,968 and the estimated population size is between 60,131 and 74,480 individuals (Muto
Past monitoring reports have not typically reported Steller sea lion observations. However, in 2009 five Steller sea lions were observed at the Cape Arago, OR site.
Guadalupe fur seals (
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (
The appearance of researchers may have the potential to cause Level B harassment of any pinnipeds hauled out at sampling sites. Although marine mammals are never deliberately approached by survey personnel, approach may be unavoidable if pinnipeds are hauled out in the immediate vicinity of the permanent study plots. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of researchers (
Numerous studies have shown that human activity can flush harbor seals off haulout sites (Allen
There are three ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. All three are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus. The three situations are (1) falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of elephant seal pups by large males during a stampede.
Because hauled-out animals may move towards the water when disturbed, there is the risk of injury if animals stampede towards shorelines with precipitous relief (
Furthermore, few pups are anticipated to be encountered during the proposed monitoring surveys. A small number of harbor seal, northern elephant seal and California sea lion pups, however, have been observed during past years. Though elephant seal pups are occasionally present when researchers visit survey sites, risk of pup mortalities is very low because elephant seals are far less reactive to researcher presence than the other two species. Harbor seals are very precocious with only a short period of time in which separation of a mother from a pup could occur. Pups are also typically found on sand beaches, while study sites are located in the rocky intertidal zone, meaning that there is typically a buffer between researchers and pups. Finally, the caution used by researchers in approaching sites generally precludes the possibility of behavior, such as stampeding, that could result in extended separation of mothers and dependent pups or trampling of pups.
The only habitat modification associated with the proposed activity is the placement of permanent bolts and other sampling equipment in the intertidal. Once a particular study has ended, the respective sampling equipment is removed. No trash or field gear is left at a site. Sampling activities are also not expected to result in any long-term modifications of haulout use or abandonment of haulouts since these sites are only visited 1–2 times per year, which minimizes repeated disturbances. During periods of low tide (
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable 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 (where relevant).
PISCO proposes to implement several mitigation measures to reduce potential take by Level B (behavioral disturbance) harassment. Measures include the following:
• When possible, researchers will observe a site from a distance with binoculars to detect any marine mammals prior to approaching the site. Researchers will approach a site with caution (slowly and quietly) to avoid surprising any hauled-out individuals and to reduce stampeding of individuals towards the water.
• If possible to avoid pinnipeds along access ways to sites, by locating and taking a different access way, researchers will do so. Researchers will keep a safe distance from and not approach any marine mammal while conducting research, unless it is absolutely necessary to flush a marine mammal in order to continue conducting research (
• Researches will monitor the offshore area for predators (such as killer whales and white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters. Note that PISCO has never observed an offshore predator while researchers were present at any of the survey sites.
• Intentional flushing will be avoided if pups are present and nursing pups will not be disturbed.
• To avoid take of Steller sea lions, any site where they are present will not be approached and will be sampled at a later date. Note that observation of sea lions at survey sites is extremely rare.
• Researchers will promptly vacate sites at the conclusion of sampling.
The methodologies and actions noted in this section will be utilized and included as mitigation measures in any issued IHA to ensure that impacts to marine mammals are mitigated to the lowest level practicable. The primary method of mitigating the risk of disturbance to pinnipeds, which will be in use at all times, is the selection of judicious routes of approach to study sites, avoiding close contact with pinnipeds hauled out on shore, and the use of extreme caution upon approach. Each visit to a given study site will last for approximately 4–6 hours, after which the site is vacated and can be re-occupied by any marine mammals that may have been disturbed by the presence of researchers. By arriving before low tide, worker presence will tend to encourage pinnipeds to move to other areas for the day before they haul out and settle onto rocks at low tide.
NMFS has carefully reviewed PISCO's proposed mitigation measures to ensure these measures would have 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; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable 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 ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, 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 proposed action area. PISCO has described their long-standing monitoring actions in Section 13 of the Application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period.
Monitoring measures proposed by the applicant or prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action,
2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of disturbance that we associate with specific adverse effects, such as behavioral harassment;
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);
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.
PISCO will contribute to the knowledge of pinnipeds in California and Oregon by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
Proposed monitoring requirements in relation to PISCO's rocky intertidal monitoring will include observations made by the applicant. Information recorded will include species counts (with numbers of pups/juveniles when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the monitoring surveys, including location, date, and time of the event. For consistency, any reactions by pinnipeds to researchers will be recorded according to a three point scale shown in Table 2. Note that only observations of disturbance Levels 2 and 3 should be recorded as takes.
In addition, observations regarding the number and species of any marine mammals observed, either in the water or hauled-out, at or adjacent to a site, are recorded as part of field observations during research activities. Information regarding physical and biological conditions pertaining to a site, as well as the date and time that research was conducted are also noted. This information will be incorporated into a monitoring report for NMFS.
If at any time the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, PISCO shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the Southwest Regional Stranding Coordinator, NMFS. The report must include the following information:
(1) Time and date of the incident;
(2) Description of the incident;
(3) Environmental conditions (
(4) Description of all marine mammal observations in the 24 hours preceding the incident;
(5) Species identification or description of the animal(s) involved;
(6) Fate of the animal(s); and
(7) Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with PISCO to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. PISCO may not resume the activities until notified by NMFS.
In the event that an injured or dead marine mammal is discovered and it is determined that the cause of the injury or death is unknown and the death is relatively recent (
In the event that an injured or dead marine mammal is discovered and it is determined that the injury or death is not associated with or related to the activities authorized in the IHA (
A draft final report must be submitted to NMFS Office of Protected Resources within 60 days after the conclusion of the 2016–2017 field season or 60 days prior to the start of the next field season if a new IHA will be requested. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. A final report must be submitted to the Director of the NMFS Office of Protected Resources and to the NMFS West Coast Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report.
PISCO complied with the mitigation and monitoring that were required under the IHA issued in December 2014. In compliance with the IHA, PISCO submitted a report detailing the activities and marine mammal monitoring they conducted. The IHA required PISCO to conduct counts of pinnipeds present at study sites prior to approaching the sites and to record species counts and any observed reactions to the presence of the researchers.
From December 17, 2014, through December 16, 2015, PISCO researchers conducted rocky intertidal sampling at numerous sites in California and Oregon (see Table 1 and 2 in PISCO's 2014–2015 monitoring report). During this time period, no injured, stranded, or dead pinnipeds were observed. Tables 7, 8, and 9 in PISCO's monitoring report (see
Based on the results from the monitoring report, we conclude that
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).
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. The proposed mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by injury, serious injury, or mortality is considered remote. Animals hauled out close to the actual survey sites may be disturbed by the presence of researchers and may alter their behavior or attempt to move away from the researchers.
As discussed earlier, NMFS considers an animal to have been harassed if it moved greater than two times its body length in response to the researcher's presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. Animals that became alert without such movements were not considered harassed.
For the purpose of this proposed IHA, only Oregon and California sites that are frequently sampled and have a marine mammal presence during sampling were included in calculating take estimates. Sites where only Biodiversity Surveys are conducted did not provide enough data to confidently estimate takes since they are sampled infrequently (once very 3–5 years). A small number of harbor seal, northern elephant seal and California sea lion pup takes are anticipated as pups may be present at several sites during spring and summer sampling.
Take estimates are based on marine mammal observations from each site. Marine mammal observations are done as part of PISCO site observations, which include notes on physical and biological conditions at the site. The maximum number of marine mammals, by species, seen at any given time throughout the sampling day is recorded at the conclusion of sampling. A marine mammal is counted if it is seen on access ways to the site, at the site, or immediately up-coast or down-coast of the site. Marine mammals in the water immediately offshore are also recorded. Any other relevant information, including the location of a marine mammal relevant to the site, any unusual behavior, and the presence of pups is also noted.
These observations formed the basis from which researchers with extensive knowledge and experience at each site estimated the actual number of marine mammals that may be subject to take. Take estimates for each species for which take would be authorized were based on the following equation:
Take estimate per survey site = (number of expected animals per survey site * number of survey days per survey site)
Individual species' totals for each survey site were summed to arrive at a total estimated take. In most cases the number of takes is based on the maximum number of marine mammals that have been observed at a site throughout the history of the site (1–3 observation per year for 5–10 years or more) with additional input provided by the researchers with site-specific knowledge and experience. Section 6 in PISCO's application outlines the number of visits per year for each sampling site and the potential number of pinnipeds anticipated to be encountered at each site. Tables 3, 4, 5 in PISCO's application outlines the number of potential takes per site (see
Harbor seals are expected to occur at 16 locations in numbers ranging from 5 to 30 per visit (Table 3 in PISCO's application). It is anticipated that there will be 220 takes of adult harbor seals and 13 takes of weaned pups. Therefore, NMFS proposes to authorize the take of up to 233 harbor seals.
California sea lions are expected to be present at five sites. Eighty-five adult and five pups are expected to be taken. Therefore, NMFS proposes to authorize the take of 90 California sea lions.
Northern elephant seals are only expected to occur at one site this year, Piedras Blancs, which will experience two separate visits. Up to 20 adult and 40 pup takes are anticipated. Therefore, NMFS proposes to authorize the take of up to 60 northern elephant seals.
PISCO researchers report that they have very rarely observed Stellers at any research sites and none have been observed over the last several years. Therefore, PISCO has not requested, and NMFS does not propose to authorize, take of any Steller sea lions.
NMFS proposes to authorize the take, by Level B harassment only, of 203 harbor seals, 90 California sea lions, and 60 northern elephant seals. These numbers are considered to be maximum take estimates; therefore, actual take may be less if animals decide to haul out at a different location for the day or animals are out foraging at the time of the survey activities.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analyses applies generally to the three species for which take is authorized, given that the anticipated effects of these surveys on marine mammals are expected to be relatively similar in nature. Where there are species-specific factors that have been considered, they are identified below.
No injuries or mortalities are anticipated to occur as a result of PISCO's rocky intertidal monitoring, and none are proposed to be authorized. The risk of marine mammal injury, serious injury, or mortality associated
Very few pups are anticipated to be encountered during the proposed monitoring surveys. However, a small number of harbor seal, northern elephant seal and California sea lion pups have been observed at several of the proposed monitoring sites during past years. Harbor seals are very precocious with only a short period of time in which separation of a mother from a pup could occur. Though elephant seal pups are occasionally present when researchers visit survey sites, risk of pup mortalities is very low because elephant seals are far less reactive to researcher presence than the other two species. Further, pups are typically found on sand beaches, while study sites are located in the rocky intertidal zone, meaning that there is typically a buffer between researchers and pups. Finally, the caution used by researchers in approaching sites generally precludes the possibility of behavior, such as stampeding, that could result in extended separation of mothers and dependent pups or trampling of pups. No research would occur where separation of mother and her nursing pup or crushing of pups can become a concern.
Typically, even those reactions constituting Level B harassment would result at most in temporary, short-term disturbance. In any given study season, researchers will visit sites one to two times per year for a total of 4–6 hours per visit. Therefore, disturbance of pinnipeds resulting from the presence of researchers lasts only for short periods of time and is separated by significant amounts of time in which no disturbance occurs.
Some of the pinniped species may use some of the sites during certain times of year to conduct pupping and/or breeding. However, some of these species prefer to use offshore islands for these activities. At the sites where pups may be present, PISCO has proposed to implement certain mitigation measures, such as no intentional flushing if dependent pups are present, which will avoid mother/pup separation and trampling of pups.
Of the marine mammal species anticipated to occur in the proposed activity areas, none are listed under the ESA. Taking into account the mitigation measures that are planned, effects to marine mammals are generally expected to be restricted to short-term changes in behavior or temporary abandonment of haulout sites, Pinnipeds are not expected to permanently abandon any area that is surveyed by researchers, as is evidenced by continued presence of pinnipeds at the sites during annual monitoring counts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation and monitoring measures, NMFS preliminarily finds that the total marine mammal take from PISCO's rocky intertidal monitoring program will not adversely affect annual rates of recruitment or survival and therefore will have a negligible impact on the affected species or stocks.
Table 3 presents the abundance of each species or stock, the proposed take estimates, and the percentage of the affected populations or stocks that may be taken by Level B harassment.The numbers of animals authorized to be taken would be considered small relative to the relevant stocks or populations (0.75–0.94 percent for harbor seals, and <0.01 percent for California sea lions and northern elephant seals). Because these are maximum estimates, actual take numbers are likely to be lower, as some animals may not be present on survey days.
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, we preliminarily find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No species listed under the ESA are expected to be affected by these activities. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.
In 2012, we prepared an Environmental Assessment (EA) analyzing the potential effects to the human environment from conducting
As a result of these preliminary determinations, NMFS proposes to issue an IHA to PISCO for conducting rocky intertidal monitoring research activities in California and Oregon between February 3, 2017 and February 2, 2018, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.
This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
1. This IHA is valid from February 3, 2017 through February 2, 2018.
2. This IHA is valid only for specified activities associated with rocky intertidal monitoring surveys at specific sites along the U.S. California and Oregon coasts.
3. General Conditions.
a. A copy of this IHA must be in the possession of personnel operating under the authority of this authorization.
b. The incidental taking of marine mammals, by Level B harassment only, is limited to the following species along the Oregon and California coasts:
i. 203 harbor seal (
ii. 90 California sea lion (
iii. 60 northern elephant seal (
c. The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) of the IHA or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
4. Mitigation Measures: The holder of this IHA is required to implement the following mitigation measures:
a. Researchers will observe a site from a distance with binoculars (if necessary) to detect any marine mammals prior to approaching the site. Researchers will approach a site with caution (slowly and quietly) to avoid surprising any hauled-out individuals and to reduce stampeding of individuals towards the water.
b. Researchers will avoid pinnipeds along access ways to sites, by locating and taking a different access way if possible.
c. Researchers will keep a safe distance from and not approach any marine mammal while conducting research, unless it is absolutely necessary to flush a marine mammal in order to continue conducting research (
d. Researches will monitor the offshore area for predators (such as killer whales and white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters.
e. Intentional flushing will be avoided if pups are present. Staff shall reschedule work at sites where pups are present, unless other means of accomplishing the work can be done without causing disturbance to mothers and dependent pups.
f. Any site where Steller sea lions are present will not be approached and will be sampled at a later date.
g. Personnel shall vacate the study area as soon as sampling of the site is completed.
5. Monitoring: The holder of this IHA is required to conduct monitoring of marine mammals present at study sites prior to approaching the sites.
a. Information to be recorded shall include the following:
i. Species counts (with numbers of pups/juveniles); and
ii. Numbers of disturbances, by species and age, according to a three-point scale of intensity including:
(1) seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal's body length, “alert”;
(2) movements away from the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees, “movement”; and
(3) all retreats (flushes) to the water, “flush”.
iii. Observations of disturbance Levels 2 and 3 are recorded as takes.
6. Reporting: The holder of this IHA is required to:
a. Report observations of unusual behaviors, numbers, or distributions of pinnipeds, or of tag-bearing carcasses, to NMFS Southwest Fisheries Science Center (SWFSC).
b. Submit a draft monitoring report to NMFS Office of Protected Resources within 60 days after the conclusion of the 2015–2016 field season or 60 days prior to the start of the next field season if a new IHA will be requested. A final report shall be prepared and submitted within 30 days following resolution of any comments on the draft report from NMFS. This report must contain the informational elements described above, at minimum.
c. Reporting injured or dead marine mammals:
i. In the event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, PISCO shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the Southwest Regional Stranding Coordinator, NMFS. The report must include the following information:
(1) Time and date of the incident;
(2) Description of the incident;
(3) Environmental conditions (
(4) Description of all marine mammal observations in the 24 hours preceding the incident;
(5) Species identification or description of the animal(s) involved;
(6) Fate of the animal(s); and
(7) Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with PISCO to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. PISCO may not resume the activities until notified by NMFS.
ii. In the event that an injured or dead marine mammal is discovered and it is determined that the cause of the injury or death is unknown and the death is relatively recent (
iii. In the event that an injured or dead marine mammal is discovered and it is determined that the injury or death is not associated with or related to the activities authorized in the IHA (
7. This IHA may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.
NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for PISCO's proposed rocky intertidal monitoring program. Please include with your comments any supporting data or literature citations to help inform our final decision on PISCO's request for an MMPA authorization.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will hold a four-day meeting to consider actions affecting the Gulf of Mexico fisheries in the exclusive economic zone (EEZ).
The meeting will take place on Monday, January 30 through Thursday, February 2, 2017.
The meeting will be held at the Astor Crowne Plaza hotel, located at 739 Canal Street, New Orleans, LA; telephone: (504) 962–0500.
Douglas Gregory, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630.
The Administrative/Budget Committee will conduct a review of advisory panels; and discuss the Council's future participation at Marine Resource Educational Program (MREP) Workshops. The Data Collection Management Committee will receive a presentation update on Collection Location Satellites' (CLS) America Project. The Committee will review the Final Action—Modifications to Generic Charter Vessel and Headboat Reporting Requirements in the Gulf of Mexico; and review Final Action—South Atlantic Council's modifications to Charter Vessel and Headboat Reporting Requirements. The Migratory Species Management Committee will receive an overview of the management of Highly Migratory Species (HMS); and receive a report from the International Commission for the Conservation of Atlantic Tunas (ICCAT) meeting in Portugal. The Spiny Lobster Management Committee will discuss draft options for Framework Amendment 1. The Joint Coral/Habitat Protection & Restoration Committees will receive a presentation on the Biology of Corals; and review a revised scoping draft for Coral Amendment 7. The Shrimp Management Committee will review the public hearing draft for Shrimp Amendment 17B.
The Reef Fish Management Committee will receive an update on the SEDAR Gag Assessment; receive a summary from the Joint Ad Hoc Red Snapper Charter Vessel and Ad Hoc Reef Fish Headboat Advisory Panels (AP) meeting. The committee will review public hearing drafts for Amendment 44—Minimum Stock Size Threshold (MSST) for Reef Fish Stocks, Public Hearing Draft of Amendment 36A—Modifications to Commercial Individual Fishing Quota (IFQ) programs, and Public Hearing Draft of Amendment 46—Gray Triggerfish Rebuilding Plan. The committee will review and discuss the Gulf Anglers Focus Group Report; receive a presentation and Scientific and Statistical Committee (SSC) report on the mechanism to carry over the unharvested Red Snapper Annual Catch Limit (ACL) to the following season; Preliminary 2016 Red Snapper For-Hire Landings Relative to ACL; receive a presentation on Amendment 36B—Commercial Reef Fish IFQ Modifications, and review Options Paper for Amendment 47—Modify Vermillion Snapper ACLs and Maximum Sustainable Yield (MSY) Proxy.
The Reef Fish Management Committee will review a draft Framework Action—Mutton Snapper ACL and Management Measures and Gag Commercial Size Limit and Standing and Reef Fish SSC Summary. Under Other Business the committee will discuss the 2017 recreational fishing season for greater amberjack. The Mackerel Committee will review Final Action—CMP Amendment 29—Allocation Sharing and Accountability Measures for Gulf King Mackerel; review of CMP AP meeting and public hearing comments; and review SSC discussion of updated Gulf King Mackerel.
The Full Council will convene mid-morning (approximately 10:45 a.m.) with a Call to Order, Announcements, Introductions; Adoption of Agenda and Approval of Minutes; and review of Exempt Fishing Permit (EFPs) Applications, if any. The Council will receive presentations on revisions to National Standard 1 Guidelines, Law Enforcement Report on Fiscal 2016 Maritime Boundary Line Activities, and Commercial Fishing Vessel Classification Standards. After lunch, the Council will receive a presentation from the Louisiana Law Enforcement Agency. The Council will receive public testimony from 2:30 p.m. until 5:30 p.m. on the following agenda testimony items: Final Action on Generic Amendment to Require Electronic Reporting For-Hire Vessels in the Gulf of Mexico, Final Action on Coastal Migratory Pelagics Amendment 29: King Mackerel Allocation Sharing and Recreational Accountability Measures; and on Final Action—South Atlantic
Full Council will receive committee reports from Data Collection, Shrimp, Reef Fish, Mackerel, Administrative/Budget, Spiny Lobster, Migratory Species and Joint Coral/Habitat Protection & Restoration Management Committees; and, vote on Exempted Fishing Permit (EFP) applications, if any. The Council will receive updates from the following supporting agencies: South Atlantic Fishery Management Council; Gulf States Marine Fisheries Commission; U.S. Coast Guard; U.S. Fish and Wildlife Service; and, the Department of State.
Lastly, the Council will discuss any Other Business items.
The timing and order in which agenda items are addressed may change as required to effectively address the issue. The latest version will be posted on the Council's file server, which can be accessed by going to the Council's Web site at
Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that 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 Kathy Pereira (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the Eastern Massachusetts (MA) National Wildlife Refuge (NWR) Complex, U.S. Fish and Wildlife Service (USFWS), for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment incidental to conducting seabird and shorebird monitoring and research in the Eastern MA NWR Complex (Complex). The proposed dates for this action would be April 1, 2017 through March 31, 2018. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to the USFWS to incidentally take, by Level B harassment only, marine mammals during the specified activity.
NMFS must receive comments and information on or before February 13, 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. The mailbox address for providing email comments is
An electronic copy of the application may be obtained by writing to the address specified above, telephoning the contact listed below (see
The Environmental Assessment (EA) specific to conducting seabird and shorebird monitoring and research is also available at the same internet address. Information in the EA and this notice collectively provide the environmental information related to the proposed issuance of the IHA for public review and comment. The public may also view documents cited in this notice, by appointment, during regular business hours, at the aforementioned address.
Laura McCue, NMFS, Office of Protected Resources, NMFS (301) 427–8401.
Section 101(a)(5)(D) of the MMPA of 1972, as amended (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
On March 16, 2016, NMFS received an application from the USFWS for the taking of marine mammals incidental to seabird and shorebird monitoring and research activities within the Complex. NMFS received updated applications on September 14 and December 16, 2016 with updated take numbers and mitigation measures. NMFS determined the application complete and adequate on December 29, 2016.
The USFWS proposes to conduct seabird and shorebird monitoring and research at several locations within the Complex over a varying number of days for each project. This authorization, if issued, would be valid from one year, beginning on April 1, 2017. The following specific aspects of the proposed activities would likely to result in the take of marine mammals: (1) Vessel landings; (2) research activities (
The USFWS would like to conduct biological tasks for refuge purposes at Monomoy NWR, Nantucket NWR, and Nomans Land Island NWR in MA. These three refuges are managed through the Complex as part of the NWR System of the USFWS. Complex staff census and monitor the presence and productivity of breeding and migrating shorebirds using the beaches of Monomoy, Nantucket, and Nomans Land Island NWRs for nesting from April 1–November 30, annually. Monitoring activities occur daily (on Monomoy and Nantucket) from April–August and is necessary to document the productivity (number of chicks fledged per pair) and population of protected shorebird and seabird species. Monomoy NWR also participates in several less frequent, but equally important, high priority conservation tasks to monitor for threatened and endangered species, including censusing northeastern beach tiger beetles (
The USFWS proposes to conduct the research activities at various times for each project from April 1 through November 30, 2017. Due to scheduling, time, tide constraints, and favorable weather/ocean conditions, the exact survey dates and durations are variable. The proposed IHA, if issued, would be effective from April 1, 2017 through March 31, 2018. NMFS refers the reader to the
The Complex is made up of eight refuges, including its three coastal refuges: Monomoy NWR, Nantucket NWR, and Nomans NWR. The three main activity sites are NWRs managed by the USFWS and are islands located off the coast of Cape Cod, MA. Although Monomoy NWR consists of three managed barrier islands, pinnipeds are only disturbed while carrying out biological activities on the Atlantic side of South Monomoy Island where gray seals primarily haul out. Therefore, activities mentioned at Monomoy NWR will only refer to South Monomoy Island. While biological tasks performed at these three refuges differ in some regard, all activities are necessary to carry out high priority conservation work for threatened and endangered species. Each activity location is described below.
A description of each activity, based on location, is presented below. A summary of this information can also be found in Table 1.
On January 10, 1986, the Service listed the Atlantic Coast population of piping plovers (
The piping plover recovery efforts at the Complex correspond closely to management recommendations in the Piping Plover Recovery Plan. In order to monitor the productivity (number of chicks fledged per pair) of piping plovers at Monomoy NWR, it is necessary to identify suitable nesting habitat for the species. At Monomoy, piping plovers generally select areas that are sandy with some cobble on the beach face and occasionally nest in dense vegetation or behind primary dunes. The same can be said for least terns and American oystercatcher pairs which also nest on South Monomoy Island. These nesting areas are adjacent to known gray seal haul-out sites.
Piping plovers begin returning to their Atlantic Coast nesting beaches in mid-March. The first nest is generally laid in mid-April and eggs will continue to be present on the beach until late July. During this time, nests are located by USFWS staff by looking for a number of signs; continuous presence of adult birds, courtship and territorial behavior in a certain area, large concentrations of tracks, and scrapes (nests or nest attempts). Methods for finding nests include waiting for a disturbed bird to return to its nest or covering probable nesting areas by searching the ground for signs of scrapes and zig-zagging the whole area to make sure the entire habitat is covered. Methods for finding nests can sometimes lead to seal disturbance. Nests are visited 4–5 times a week and confirmation of adult presence and incubation is confirmed at a distance when possible to prevent disturbance. Nests hatch after 28 days of incubation and chicks will remain with one or both parents until they fledge at 25–35 days of age. Depending on the date of hatching, flightless chicks may be present on refuge beaches from mid-May until late August. Chicks are monitored until they fledge and may move hundreds of yards from the nest site to feed. Feeding areas include intertidal areas along the ocean and sound sides of South Monomoy Island as well as washover areas.
Similar activities are performed when searching and monitoring American oystercatchers nests and broods. No American oystercatcher pairs nested near seal haul out sites in 2015, but have nested on the ocean side of South Monomoy Island in previous years. In 2001, the American oystercatcher was warranted special attention from the U.S. Shorebird Conservation Plan after the population severely declined to under 11,000 individuals. Monomoy NWR has the largest concentration of nesting American oystercatchers on Cape Cod and nesting success at this site is important to the survival of the species. The nesting season occurs from the end of April until mid-August. Monomoy NWR also serves as an important staging site for resting migrants, and bands are often read and reported to the American Oystercatcher Working Group. Staging American oystercatcher will sometimes roost near seal haul-out sites.
Least terns nest in small groups around South Monomoy Island. Productivity is not measured throughout the season, but nesting pairs are censused during a 2–3 day period in mid-June. Least terns are censused using the line-sweep method throughout the extent of the nesting colonies and checked by staff weekly to gauge productivity.
USFWS staff install symbolic fencing (sign posts with “area closed” and “beach closed” informational signs) around nest sites of piping plovers, American oystercatchers, and least terns to inform the public about the bird's presence and protect critical habitat from human disturbance. These areas are adjacent to known seal haul out sites and are regularly monitored throughout the season.
Similar biological activities are carried out on Nantucket NWR as Monomoy NWR. Piping plover, least tern, and American oystercatcher are known species to use Nantucket NWR and nearby lands for nesting from the end of April until mid-August. Beach nesting birds are monitored following similar methods and protocols as Monomoy NWR and areas of nesting are posted with closed signs. Signs are placed at least 150 feet from known seal haul-out areas on Nantucket NWR, which predominately occurs at the north tip of the Refuge. These posts help protect those areas from public disturbance. Nesting beach birds generally do not nest within the closed area for seals, but instead nest adjacent to the haul outs. If need be, staff will briefly enter the closed area to check nests, but otherwise stay outside of the closed area, greater than 150 feet from seal haul outs. Seabirds and shorebirds do not nest on the Complex every year; in 2015, no beach birds nested on Nantucket NWR.
Nomans NWR is closed to the public and is only visited 1–3 times a year by USFWS staff. During these visits, the presence of shorebirds and seabirds are noted for record. Shorebirds and seabirds are inventoried by scoping suitable nesting and feeding habitat on the island. The greatest potential for marine mammal disturbance occurs in safe boat landing zones, because these areas often overlap with hauled out seals. Every precautionary measure is taken to reduce disturbance to seals on Nomans Land Island NWR, but staff will land a boat or walk within 50 yards (yd) of seal haul outs if safety reasons prevail. A 25 foot Parker is used to travel to and from Nomans NWR.
On November 2, 1987, the Service listed the northeastern breeding population of the roseate terns as federally endangered. Monomoy NWR serves as an important nesting and staging site for the species. Monomoy NWR has a great responsibility to follow the guidelines provided for management in the Roseate Tern Recovery Plan for the Northeast population (USFWS 1998). The primary objective of the roseate tern recovery program is to promote an increase in breeding population size, distribution, and productivity so as to warrant reclassification to threatened status and eventual delisting. Actions needed to attain this objective include: (1) Oversee breeding roseate terns and their habitat to help increase survival and productivity including the physical maintenance, expansion, and enhancement of nesting habitat; (2) develop a management plan for monitoring wintering and migration areas; (3) secure unprotected sites through acquisition and easements; (4) develop outreach materials and implement education programs; (5) conduct scientific investigations that will facilitate recovery efforts; (6) review progress of recovery annually and revise
In August, USFWS staff traverse areas of suitable staging habitat, including sand flats and open sand beaches, and make quick estimates of the number of staging terns. The terns are counted using binoculars and spotting scopes from a distance that does not disturb the birds. Color bands, field readable bands, and any tagged or banded birds are identified for reporting purposes. Observations on behavior and disturbance are also documented. Depending on the size of the flock, these surveys can last anywhere between one to three hours.
Staging tern counts are carried out on Nantucket NWR following similar methods and protocols mentioned for Monomoy NWR.
Staging tern counts are not performed on Nomans NWR.
On December 11, 2014, the USFWS listed the rufa subspecies of the red knot as Federally threatened under the ESA. As noted in the State of the Birds 2014 report, the knot's status is representative of the steep declines represented in shorebirds that migrate long distances (NABCI 2014). Threats to shorebirds have become more diverse and widespread in recent decades, requiring coordinated conservation efforts across their vast ranges. Protection of breeding, migration, and wintering habitat is critical to this species' recovery (Niles
Southeastern MA, Monomoy NWR and surrounding beaches in Chatham, Orleans, and Eastham in particular, likely provide one of the most important areas for adult and juvenile red knots during their southward migration (Koch and Paton 2009, Harrington
The red know stop over study is not conducted on Nantucket NWR or Nomans NWR.
In August of 1990, the USFWS listed the northeastern beach tiger beetle as threatened under the ESA. Currently northeastern beach tiger beetle can be found at only two sites in MA: One on the south shore of Martha's Vineyard and one on South Monomoy Island and Nauset/South Beach in Chatham, MA (USFWS 1994, USFWS 2015). Searches on Monomoy in the 1980s failed to locate the northeastern beach tiger beetle, but the structure of the habitat seemed favorable, making Monomoy the leading candidate as an introduction site. The first beetle larvae transplant occurred in May 2000. Since 2004, tiger beetle larvae have not been transferred to Monomoy (USFWS 2015). However, through continued adult tiger beetle monitoring, the annual presence of tiger beetles has been documented on the refuge. Annual monitoring confirms successful survival and production of tiger beetles through all stages of life, and gives a firm indication of a new self-sustaining population at Monomoy NWR.
Northeastern beach tiger beetle live their entire life on the beach, and prefer medium to medium-coarse sand. Adults occur on the beach from June through September and often congregate around the water's edge on warm days (USFWS 2011). On Monomoy NWR, the population occurs in habitat on the Atlantic side of South Monomoy Island on the water's edge and in the wrack line. Several index counts of the tiger beetle population are completed by USFWS staff during July and August each year. Counts are conducted by slowly walking the water's edge at a width of 2–3 people across and tallying adults seen on the surface of the beach until the extent of suitable habitat is covered.
Northeastern beach tiger beetle surveys are not conducted on Nantucket NWR or Nomans Land Island NWR.
Since 2011, Monomoy has participated in a long-term coastal shoreline monitoring project in collaboration with Rutgers's University and the National Park Service (NPS) protocol. The annual shoreline surveys are conducted twice a year to gain a finer understanding of the rate of shoreline change and to provide baseline information for sea level rise. Two 1-day surveys are conducted at most sites, one in the spring and one in the fall. Surveys are only conducted in the fall at Monomoy NWR, typically between September and November, consequent to the large number of seals using the area in the spring. To document accurate data on shoreline change, a handheld Trimble device is used to GPS the neap high tide swash line around the ocean-facing extent of South Monomoy Island by walking the beach at a normal pace. The survey takes approximately one day to complete.
Shoreline surveys are not conducted on Nantucket NWR or Nomans NWR.
NMFS does not expect that acoustic stimuli to result from human presence, and will therefore not have the potential to harass marine mammals, incidental to the conduct of the proposed activities. One activity (cannon nets) may have an acoustic component, but we believe take from this activity can be avoided.
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this notice. Sound pressure is the sound force per unit area, and is usually measured in micropascals (μPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is the ratio of a measured sound pressure and a reference level. The commonly used reference pressure is 1 μPa for under water, and the units for SPLs are dB re: 1 μPa. The commonly used reference pressure is 20 μPa for in air, and the units for SPLs are dB re: 20 μPa.
SPL (in decibels (dB)) = 20 log (pressure/reference pressure).
SPL is an instantaneous measurement expressed as the peak, the peak-peak, or the root mean square (rms). Root mean square is the square root of the arithmetic average of the squared instantaneous pressure values. All references to SPL in this document refer to the root mean square unless otherwise noted. SPL does not take into account the duration of a sound.
Activities that may have an acoustic component (
Table 2 provides the following information: All marine mammal species with possible or confirmed occurrence in the proposed activity area; information on those species' regulatory status under the MMPA and the ESA of 1973 (16 U.S.C. 1531
There are three major populations of gray seals found in the world; eastern Canada (western North Atlantic stock), northwestern Europe and the Baltic Sea. The gray seals that occur in the project area belong to the western North Atlantic Stock, which ranges from New Jersey to Labrador. Current estimates of the total western North Atlantic gray seal population are not available, although portions of stock have been
Monomoy NWR is the largest haul-out site for gray seals on the U.S. Atlantic seaboard, and one of only two consistent sites in Massachusetts (the other being Muskeget Island, west of Nantucket) where gray seals pup (USFWS 2015). Gray seals are known to use Monomoy NWR and Nantucket NWR land and water year round, with higher numbers accumulating during the winter and spring when pupping and molting occur. While gray seal pupping grounds are historically further north on Sable Island in Nova Scotia and in the Gulf of St. Lawrence in Canada, there has been a year-round breeding population on Cape Cod and the islands since the late 1990s (NOAA 2015a, USFWS 2015).
Gray seals start to group up in fall and pupping generally occurs from mid-December to early February (USFWS 2015). Gray seal pupping on Monomoy NWR was limited in the past but has been increasing rapidly in recent years. By early spring, upwards of 19,000 gray seals can be found hauled out on Monomoy NWR (B. Josephson, NOAA, personal communication). While many of these seals use Monomoy NWR for breeding, others make their way to the refuge to molt. By late spring, gray seal abundance continues to taper until the fall.
Gray seal pupping information for Nantucket NWR and Nomans Land Island NWR is limited, but evidence suggests that a small number of pups are born on the latter. Aerial images and evidence do not show that pups are born on Nantucket NWR, although speculations persist (S. Wood, NOAA, personal communication). Similar trends in distribution at Monomoy NWR occur at Nomans and Nantucket NWRs, but in significantly less numbers. Gray seals are most abundant at the activity sites from late fall until spring, and less frequent during the summer months when most activity is occurring. Raw counts of gray seal counts from 2015 are summarized in Table 3.
Harbor seals found on the project area are included in the Western North Atlantic Stock, which ranges from the Canadian Arctic to Southern New England and New York, and occasionally to the Carolinas (Waring
Harbor seals occur seasonally in the Complex, and generally arrive in early September and remain through May (Waring
It is unclear how many harbor seals use the Complex. Harbor seals are seen infrequently and only occur seasonally. USFWS staff estimate that of all of the seals they observe in the Complex, approximately five percent are harbor seals.
This section includes a summary and discussion of the ways that components (
Acoustic and visual stimuli generated by: (1) Vessel landings; (2) research activities (
Pinnipeds have the potential to be disturbed by underwater noise generated by the engine of the vessel (Born
Researchers have demonstrated temporary threshold shift (TTS) in certain captive odontocetes and pinnipeds exposed to strong sounds (reviewed in Southall
As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 dB re: 20 μPa) non-pulse sounds often leave haulout areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
It is likely that the initial vessel approach would cause a subset, or all of the marine mammals hauled out to flush into the water. The physical presence of the vessel could also lead to non-auditory effects on marine mammals involving visual or other cues. Noise from the vessel would not be expected to cause direct physical effects but have the potential to affect behavior. The primary factor that may influence abrupt movements of animals is engine noise, specifically changes in engine noise. Responses by mammals could include hasty dives or turns, change in course, or flushing from a haul out site.
If pinnipeds are present on Nomans NWR when the vessel approaches, it is likely that the vessel would cause some number of the pinnipeds to flush; however, the USFWS staff would approach in a slow and controlled manner, as far away as possible from haul outs to prevent or minimize flushing. Staff would also avoid or proceed cautiously when operating boats in the direct path of swimming seals that may be present in the area as far from hauled out seals as possible.
The appearance of USFWS personnel may have the potential to cause Level B harassment of marine mammals hauled out on the beaches in the proposed action area. Disturbance includes a variety of effects, including subtle to conspicuous changes in behavior, movement, and displacement. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of the USFWS's staff (
Reactions to human presence, if any, depend on species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors (Richardson
Disturbances resulting from human activity can impact short- and long-term pinniped haul out behavior (Renouf
In cases where vessels actively approached marine mammals (
In 1997, Henry and Hammil (2001) conducted a study to measure the impacts of small boats (
In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the efficacy of buffer zones for watercraft around harbor seal haul out sites on Yellow Island, Washington. The authors estimated the minimum distance between the vessels and the haul-out sites; categorized the vessel types; and evaluated seal responses to the disturbances. During the course of the seven-weekend study, the authors recorded 14 human-related disturbances which were associated with stopped powerboats and kayaks. During these events, hauled out seals became noticeably active and moved into the water. The flushing occurred when stopped kayaks and powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) respectively. The authors note that the seals were unaffected by passing powerboats, even those approaching as close as 128 ft (39 m), possibly indicating that the animals had become tolerant of the brief presence of the vessels and ignored them. The authors reported that on average, the seals quickly recovered from the disturbances and returned to the haul out site in less than or equal to 60 minutes. Seal numbers did not return to pre-disturbance levels within 180 minutes of the disturbance less than one quarter of the time observed. The study concluded that the return of seal numbers to pre-disturbance levels and the relatively regular seasonal cycle in abundance throughout the area counter the idea that disturbances from powerboats may result in site abandonment (Acevedo-Gutierrez and Johnson 2007). As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 decibels re: 20 μPa) non-pulsed sounds often leave haul out areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
There are other ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. They are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus. These situations are: (1) Falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of pups by large males during a stampede. However, NMFS does not expect any of these scenarios to occur from the USFWS's research activities. There is the risk of injury if animals stampede towards shorelines with precipitous relief (
The only habitat modification associated with the proposed activity is installation of signs on beaches where haul outs are located. Thus, NMFS does not expect that the proposed activity would have any effects on marine mammal habitat and NMFS expects that there will be no long- or short-term physical impacts to pinniped habitat in the Complex.
The proposed activities are not expected to result in any permanent impact on habitats used by marine mammals, including prey species and foraging habitat. The main impact associated with the proposed activity will be direct effects on marine mammals from human presence at haul outs (
NMFS does not anticipate that the proposed restoration activities would result in any permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (
In order to issue an IHA 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 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. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat (50 CFR 216.104(a)(11)).
Researchers, USFWS staff, and volunteers will be properly informed about the MMPA take prohibitions, and will educate the public on the importance of not disturbing marine mammals, when applicable. Staff at Nantucket NWR will remain present on the beaches utilized by pinnipeds to prevent anthropogenic disturbance during times of high public use (late spring-early fall). Staff at Monomoy NWR will also be present on beaches utilized by seals during the same time of year, and will inform the public to keep a distance from haul outs if an issue is noticed. Similar to the USFWS, the NPS also takes precautionary mitigation to help prevent seal take by the public. In August and on the weekends in September, staff and volunteers are present on the National Seashore beaches to share with the public the importance of preventing disturbance to seals by keeping people at a proper viewing distance of at least 50 yd.
The presence/proximity of seal haul outs and the loud sound created by the firing of cannon nets are taken into consideration when selecting trapping sites for the Red Knot Stopover Study. Trapping sites are decided based on the presence of red knots, the number of juveniles located within roosts, and the observation of birds with attached geolocators and flags. Sites are not trapped on if there is a strong possibility of disturbing seals (
NMFS has carefully evaluated the USFWS's proposed mitigation measures in the context of ensuring that we prescribe the means of affecting the least practicable impact on the affected marine mammal species and stocks and their habitat. The 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; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on the evaluation of the USFWS's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable 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 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 IHAs 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 NMFS expects to be present in the proposed action area.
The USFWS submitted a marine mammal monitoring plan in Section 13 and Appendix A of their IHA application. NMFS or the USFWS may modify or supplement the plan based on comments or new information received from the public during the public comment period.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action, (
2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (
3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: The long-term fitness
5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (
6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.
7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.
8. An increase in the probability of detecting marine mammals (through improved technology or methodology) to better achieve the above goals.
As part of its IHA application, the USFWS proposes to conduct marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the proposed IHA. These include:
Monitoring seals as project activities are being conducted. Proposed monitoring requirements in relation to the USFWS's proposed activities would include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the research activities, including location, date, and time of the event. In addition, the USFWS would record observations regarding the number and species of any marine mammals either observed in the water or hauled out. Behavior of seals will be recorded on a three point scale (1 = alert reaction; not considered harassment, 2 = moving at least 2 body lengths, or change in direction >90 degrees, 3 = flushing) (Table 4). USFWS staff would also record and report all observations of sick, injured, or entangled marine mammals on Monomoy NWR to the International Fund for Animal Welfare (IFAW) marine mammal rescue team, and will report to NOAA if injured seals are found at Nantucket NWR and Nomans NWR. Tagged or marked marine mammals will also be recorded and reported to the appropriate research organization or federal agency, as well as any rare or unusual species of marine mammal. Photographs will be taken when possible. This information will be incorporated into a report for NMFS at the end of the season. The USFWS will also coordinate with any university, state, or federal researchers to attain additional data or observations that may be useful for monitoring marine mammal usage at the activity sites.
If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of any other marine mammal occurs, and such action may be a result of the USFWS's activities, the USFWS would suspend research activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.
The USFWS would submit a draft report to NMFS' Office of Protected Resources no later than 90 days after the expiration of the proposed IHA, if issued. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the proposed IHA. The USFWS will submit a final report to the NMFS within 30 days after receiving comments from NMFS on the draft report. If the USFWS receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.
The report will describe the operations conducted and sightings of marine mammals near the proposed project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will provide:
1. A summary and table of the dates, times, and weather during all research activities.
2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.
3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the USFWS's activities.
4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The USFWS shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the USFWS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The USFWS may not resume their activities until notified by us via letter, email, or telephone.
In the event that the USFWS discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the USFWS discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
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).
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. NMFS expects that the proposed mitigation and monitoring measures would minimize the possibility of injurious or lethal takes. NMFS considers the potential for take by injury, serious injury, or mortality as remote. NMFS expects that the presence of the USFWS personnel could disturb animals hauled out on beaches near research activities and that the animals may alter their behavior or attempt to move away from the USFWS personnel.
As discussed earlier, NMFS assumes that pinnipeds that move greater than two body lengths to longer retreats over the beach, or if already moving, a change of direction of greater than 90 degrees in response to the presence of surveyors, or pinnipeds that flush into the water, are behaviorally harassed, and thus subject to Level B taking (Table 4). NMFS estimates that 39,666 gray seals will be taken, by Level B harassment, over the course of the IHA (Table 5).
This estimate is based on the number of seals observed in past research years that have been flushed during research activities. USFWS biologists used their knowledge of the number of seals that use the haul outs near their research activities, and how many of those may be taken (Levels 2 and 3 on the disturbance scale). The majority of takes will occur on Monomoy NWR, which is one of the main haul outs for gray seals in the country. While the average number of gray seals present (in regards to Monomoy NWR) from April until August is less than what is reflected in Table 3, not every hauled-out seal on the beach is impacted from each activity and not all seals are impacted from every activity event. This is especially true for Monomoy NWR because the seal haul out stretches across over four miles of beach. For example, the gray seal counts on Monomoy NWR are very high, but the beaches are very large, and most of the work takes place on the upper berm close to the dune (farther away from seals). During April and May when seals are hauled out in very large numbers on the refuge, they may be present at beaches of varying width, between 30 m and 300 m. In narrower areas, all of the seals may be flushed; in mid-width areas, some of the younger and smaller seals may flush, but large males may remain on the beach; and in the widest area, USFWS activities may have no impact at all on the hauled out seals. Also, the amount of disturbance to seals may vary based on staff activities (
The take numbers for gray seals is thought to be conservative, and likely an overestimate. USFWS staff believe these estimates are realistic and do not expect to exceed the take numbers.
NMFS estimates that 1,983 harbor seals could be potentially affected by Level B behavioral harassment over the course of the IHA. USFWS staff estimate that of all of the seals hauled out in mixed species haul outs, approximately five percent are harbor seals. We estimated our number of level B takes of harbor seals by taking five percent of the total takes of gray seals (
Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area, NMFS does not expect any injury, serious injury, or mortality to pinnipeds to occur and NMFS has not authorized take by Level A harassment for this proposed activity.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (
Although the USFWS's survey activities may disturb a small number of marine mammals hauled out on beaches in the Complex, NMFS expects those impacts to occur to a localized group of animals. Marine mammals would likely become alert or, at most, flush into the water in reaction to the presence of the USFWS's personnel during the proposed activities. Much of the disturbance will be limited to a short duration, allowing marine mammals to reoccupy haul outs within a short amount of time. Thus, the proposed action is unlikely to result in long-term impacts such as permanent abandonment of the area because of the availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the research activities
The USFWS's activities would occur during the least sensitive time (
Moreover, the USFWS's mitigation measures regarding vessel approaches and procedures that attempt to minimize the potential to harass the seals would minimize the potential for flushing and large-scale movements. Thus, the potential for large-scale movements and flushing leading to injury, serious injury, or mortality is low.
In summary, NMFS anticipates that impacts to hauled-out pinnipeds during the USFWS's proposed research activities would be behavioral harassment of limited intensity (
As mentioned previously, NMFS estimates that the USFWS's proposed activities could potentially affect, by Level B harassment only, two species of marine mammal under our jurisdiction. For each species, these estimates are small numbers (less than three percent of the affected stock of harbor seals and less than eight percent of the stock of gray seals) relative to the population size (Table 6). As stated before, the number of individual seals taken is also assumed to be less than the take estimate (number of exposures) since we assume that the same seals may be behaviorally harassed over multiple days.
Based on the analysis contained in this notice 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 preliminarily finds that the USFWS's proposed activities would take small numbers of marine mammals relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
NMFS does not expect that the USFWS's proposed research activities would affect any species listed under the ESA. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.
To meet our NEPA requirements for the issuance of an IHA to the USFWS, NMFS has prepared an EA specific to conducting research activities in the
As a result of these preliminary determinations, NMFS proposes issuing an IHA to the USFWS for conducting research activities at the Eastern MA NWR locations, from April 1, 2017 through November 30, 2017, provided they incorporate the previously mentioned mitigation, monitoring, and reporting requirements.
This section contains the draft text for the proposed IHA. NMFS proposes to include this language in the IHA, if issued.
The United States Fish and Wildlife Service, Eastern Massachusetts National Wildlife Refuge Complex (USFWS), 73 Weir Hill Road, Sudbury, MA 01776, is hereby authorized under section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371(a)(5)(D)) and 50 CFR 216.107, to harass marine mammals incidental to conducting research activities in the Eastern Massachusetts National Wildlife Refuge Complex (Complex).
1. This Incidental Harassment Authorization (IHA) is valid from April 1, 2017 through March 31, 2018.
2. This IHA is valid only for activities associated with research activities and human presence (See items 2(a)—(d)) in the Complex.
a. The use of a small vessel to transit to Nomans NWR;
b. Research activities (
c. Human presence.
3. General Conditions.
a. A copy of this IHA must be in the possession of the USFWS, its designees, and work crew personnel operating under the authority of this IHA.
b. The species authorized for taking are the gray seal (
c. The taking, by Level B harassment only, is limited to the species listed in condition 3(b). Authorized take: gray seal (39,280); and harbor seal (1,964).
d. The taking by Level A harassment, injury or death of any of the species listed in item 3(b) of the IHA or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
4. Cooperation.
The holder of this IHA is required to cooperate with the NMFS and any other Federal, state, or local agency authorized to monitor the impacts of the activity on marine mammals.
5. Mitigation Measures.
In order to ensure the least practicable impact on the species listed in condition 3(b), the holder of this IHA is required to:
a. Conduct research activities in the Complex between April 1, 2017 and November 30, 2017.
b. Ensure that vessel approaches to Nomans NWR will be such that the techniques are least disturbing to marine mammals. To the extent possible, the vessel should conduct a slow and controlled approach to the island as far away as possible from haul outs. USFWS staff will avoid or proceed cautiously when operating boats in the direct path of swimming seals that may be present in the area.
c. Provide instructions to USFWS staff and team members, and if applicable, to tourists, on appropriate conduct when in the vicinity of hauled-out marine mammals. The USFWS research teams will maintain a quiet working atmosphere by avoiding making unnecessary noise and by using hushed voices while near hauled out seals; will remain at least 50 yd from seals when possible; and will choose pathways to study sites that will minimize disturbance to seals.
d. Ensure cannon nets will not be used closer than 100 yd from seals.
e. Ensure that the waters surrounding the haul outs are free of predators (
6. Monitoring.
The holder of this IHA is required to:
a. Monitor seals when research activities are conducted in the presence of marine mammals.
b. Record the date, time, and location (or closest point of ingress) of each of the research activities in the presence of marine mammals.
c. Collect the following information for each visit:
i. Information on the numbers (by species) of marine mammals observed during the activities, by age and sex, if possible;
ii. The estimated number of marine mammals (by species) that may have been harassed during the activities based on the 3-point disturbance scale;
iii. Any behavioral responses or modifications of behaviors that may be attributed to the specific activities (
iv. The date, location, and start and end times of the event; and
v. Information on the weather, including the tidal state and horizontal visibility.
vi. Observations of sick, injured, or entangled marine mammals, and any tagged or marked marine mammals. Photographs will be taken when possible.
7. Reporting Requirements.
Final Report: The holder of this IHA is required to submit a draft monitoring report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East West Highway, 13th Floor, Silver Spring, MD 20910 no later than 90 days after the project is completed. The report must contain the following information:
a. A summary of the dates, times, and weather during all research activities.
b. Species, number, location, and behavior of any marine mammals, observed throughout all monitoring activities.
c. An estimate of the number (by species) of marine mammals that are known to have been exposed to visual and acoustic stimuli associated with the research activities.
d. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
8. Reporting Prohibited Take.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury, or mortality (
The report must include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• 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 all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The USFWS shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the USFWS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The USFWS may not resume their activities until notified by us via letter, email, or telephone.
9. Reporting an Injured or Dead Marine Mammal with an Unknown Cause of Death.
In the event that the USFWS discovers an injured or dead marine mammal, and the observer determines that the cause of the injury or death is unknown and the death is relatively recent (
The report must include the same information identified in the paragraph above. Activities may continue while we review the circumstances of the incident. We will work with the USFWS to determine whether modifications in the activities are appropriate.
10. Reporting an Injured or Dead Marine Mammal not Related to the USFWS's Activities:
In the event that the USFWS discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
The USFWS's staff will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us.
11. This IHA may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if the authorized taking is having a more than a negligible impact on the species or stock of affected marine mammals.
NMFS requests comments on our analysis, the draft IHA, and any other aspect of this notice of proposed IHA for the proposed activities. Please include any supporting data or literature citations with your comments to help inform our final decision on the USFWS's request for an IHA.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA).
Notice; request for public comments.
In accordance with a requirement of Public Law 106–513 (16 U.S.C. 1441(b)), NOAA hereby gives public notice of and requests public comment on whether the Office of National Marine Sanctuaries should adopt two new special use permit (SUP) categories pursuant to the requirements of Section 310 of the National Marine Sanctuaries Act (16 U.S.C. 1441). The two new SUP categories would be: (1) The continued presence of a pipeline transporting seawater to or from a desalination facility; and (2) the use of sediment to filter seawater for desalination. This notice includes background information on the use of desalination in California national marine sanctuaries, ONMS regulations applicable to activities that disturb submerged lands or discharge into sanctuaries, as well as how NOAA would examine the environmental impacts of such activities. While most current desalination activity in sanctuaries is occurring in California, the SUP categories are intended to apply across the national marine sanctuary system.
Comments must be received on or before February 13, 2017.
You may submit comments, identified by docket ID NOAA–NOS–2016–0027 by one of the following methods:
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Bridget Hoover, Monterey Bay National Marine Sanctuary, 99 Pacific Street, Bldg. 455A, Monterey, CA 93940.
This
There is a growing public concern about ensuring adequate water resources to support populations along the California coast. Communities have been working together to develop strategies for addressing the long-term drought California is currently experiencing and the resulting water scarcity. In the Monterey Bay area, desalination has been identified as one of the essential components of water resource portfolios. While NOAA is currently reviewing proposals for the construction of desalination plants located in California, the management alternatives described in this notice are intended to be applied across the National Marine Sanctuary System.
Desalination is the process by which salts and other minerals are removed from seawater or brackish water to produce potable fresh water. The installation and operation of desalination facilities near a national marine sanctuary may involve access to and use of sanctuary resources and include activities prohibited by a sanctuary's regulations. One potentially applicable prohibition is for activities that cause the alteration of, or placement of structures on or in the seabed. For example, installation of certain desalination facility structures such as an intake or outfall pipeline on or beneath the ocean floor would be prohibited by sanctuary regulations and could only occur with sanctuary approval. Another prohibition potentially applicable to desalination projects is discharging or depositing any material or matter from within or into sanctuaries. The disposal of brine effluent, and in some cases other materials, into sanctuary waters would be prohibited unless approved by the sanctuary.
Multiple federal, state and local permits are typically required for any construction and operation of desalination facilities near a national marine sanctuary. In 2010, NOAA in collaboration with the California Coastal Commission, California Central Coast Regional Water Quality Control Board, published specific guidelines for new desalination plants in a report titled
The guidelines also examine which statutory and regulatory authorities would apply to desalination projects located near national marine sanctuaries. The guidelines explain that NOAA could potentially allow the construction and operation of desalination facilities through sanctuary authorization of other state and federal permits, such as the State of California's Coastal Development Permit and National Pollution Discharge Elimination System (NPDES) permit.
Depending on the type of activity or project proposed, NOAA has various regulatory mechanisms it can use to allow otherwise prohibited activities to occur within national marine sanctuaries. Two of these mechanisms are authorizations and special use permits.
Authorizations allow a person to conduct an activity prohibited by sanctuary regulations if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization issued after the effective date of sanctuary regulation (15 CFR 922.49). SUPs can only be issued for activities that are needed (1) to establish conditions of access to and use of any sanctuary resources; or (2) to promote public use and understanding of a sanctuary resource (16 U.S.C. 1441(a)). In addition, the activities must be compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources (16 U.S.C. 1441(c)). SUPs must require that activities carried out under the permit be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources. Six
When a desalination project is proposed in or near a national marine sanctuary and would involve activities prohibited by national marine sanctuary regulations, the project can only occur if NOAA has the regulatory mechanism to approve such activities. For example, a desalination project may include various activities such as: Installation, maintenance, and removal of a pipeline on or within the submerged lands of a national marine sanctuary; discharge of brine into a national marine sanctuary; presence of a pipeline transporting seawater to or from a desalination facility; and use of sediment to filter seawater for desalination. A national marine sanctuary that has regulatory authority to issue authorizations
This
In May 2013, NOAA clarified that simply being consistent with one of the categories does not guarantee approval of an SUP for any given activity. Applications are reviewed for consistency with the SUP requirements in section 310(c) of the NMSA, as well as the published description of the category. Of particular importance, SUPs may only be issued for activities NOAA determines can be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources (NMSA section 310(c)(3)). Individual SUP applications are also reviewed with respect to all other pertinent regulations and statutes, including NEPA and any required consultations, permits or authorizations. NOAA would assess whether activities associated with proposed desalination projects are appropriate for one or both of these new SUP categories on a case-by-case basis, and as part of the federal environmental review process required by the National Environmental Policy Act (NEPA). NOAA would take into consideration whether the activity can meet the findings in Section 310(c) of the NMSA (16 U.S.C. 1441(c)). Under NEPA, NOAA would analyze the environmental impacts of the entire proposed federal action (
While NOAA could conceivably propose new SUP categories for other types of pipelines, utility lines, or use of sediment associated with activities other than desalination (
Congress first granted NOAA the authority to issue SUPs for the conduct of specific activities in national marine sanctuaries in the 1988 Amendments to the National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431
1. The placement and recovery of objects associated with public or private events on non-living substrate of the submerged lands of any national marine sanctuary.
2. The placement and recovery of objects related to commercial filming.
3. The continued presence of commercial submarine cables on or within the submerged lands of any national marine sanctuary.
4. The disposal of cremated human remains within or into any national marine sanctuary.
5. Recreational diving near the USS
6. Fireworks displays.
7. The operation of aircraft below the minimum altitude in restricted zones of national marine sanctuaries.
Pursuant to NMSA section 310(d), NOAA may assess three types of fees associated with the conduct of any activity under an SUP: (1) Administrative costs, (2) implementation and monitoring costs; and (3) fair market value (FMV) of the use of the sanctuary resource (16 U.S.C. 1441(d)). On November 19, 2015, NOAA published a
NOAA proposes to use the same methods previously established in the
NOAA proposes to add two new categories of SUPs: (1) The continued presence of a pipeline transporting seawater to or from a desalination facility; and (2) the use of sediment to filter seawater for desalination.
NOAA is proposing that pipelines transporting seawater for purposes of onshore desalination, that have been laid on or drilled or bored within the submerged lands of a national marine sanctuary, may, after appropriate environmental review, application of best management practices, and compliance with
In order to avoid or minimize impacts to the marine environment due to the presence of the pipeline, the best management practices (BMP) from the
Existing pipelines installed prior to the publication of the final
Nearly all seawater intake systems carry out initial filtration of seawater to remove particulate matter and living organisms. The
Sand is a natural filter media and used in many systems to remove particulate matter from water; examples include private swimming pool systems to large aquarium filtration systems. Sand is naturally-occurring in many areas on the ocean floor and, in the right conditions, seawater will naturally infiltrate the seabed into underlying aquifers. In a 2010 study, infiltration rates at a site in Southern California, based on a 30 MGD intake, were calculated between 5.1 x 10
As described above, the subsurface seawater intake methodology greatly reduces the incidental intake and mortality of small marine organisms including larvae and young life stages of fish and invertebrates in a sanctuary's waters. A separate evaluation for a project in Southern California reported that benthic organisms typically live in the top two feet of the sediment, and most of them in the top two inches (Chambers Group 2010). The distance between the marine life in the seafloor sediments and the intake of the slant wells will most likely be greater than 50 feet. If subsurface intake systems are deep enough, there is typically very little biological activity at deeper depths in natural sand beds. Thus the impacts to living natural resources would not be considered, in general, to be substantial (Chambers Group 2010; Geoscience 2010).
Seawater contains approximately 35 grams of salt to one liter of water. To extract salt to make drinking water, desalination facilities use a process called reverse osmosis. Permeable membranes are used to filter out the salt as they allow only a certain size molecule or ion to pass through, thereby creating a freshwater stream and a dense brine stream. Most systems are less than 50% effective so the resulting effluent is approximately half brine (concentrated salt water) and half fresh water. The salt particles would be returned to the ocean in the form of brine, resulting in minimal net loss of salt from the ocean. The impacts of any ONMS-authorized brine discharge from a desalination project would be analyzed pursuant to NEPA as part of the authorization required for a discharge. They are not relevant to this notice's specific focus on the two new SUP categories, which are not meant to encompass brine discharges.
Water is a vast and vital resource as it provides habitat, recreation, sustenance, and transportation to name a few examples. Historically, we have believed that water supplies were limitless, which may be the case depending on the beneficial use that it provides. With the recent drought in California, as well as regulatory decisions that remove public water supplies such as dam removal, drinking
NOAA proposes to use the same methods previously established in the
Fair market value (FMV) fees are specific to each category of SUP. As such, NOAA is requesting public comment on the following proposed set of FMV fees:
The proposed annual fair market value would be calculated by assessing the volume of the pipeline in cubic inches multiplied by a value of $0.02 per cubic inch. The annual FMV equation would therefore be:
FMV costs would be paid as annual rent for the duration of the permit. In developing the proposed FMV calculation for this SUP category, NOAA examined: A conceptually similar SUP category for the continued presence of submarine cables; the California State Lands Commission (CSLC) lease process for pipelines, conduit, or fiber optic cables; and offset requirements established by CSLC for an open water desalination project in Southern California.
NOAA's FMV calculation for the continued presence of submarine cables in a national marine sanctuary uses the overall linear distance (length) the infrastructure occupies on or within the seafloor within the sanctuary in assessing FMV (“Fair Market Value Analysis for a Fiber Optic Cable Permit in National Marine Sanctuaries”; 67 FR 55201). The proposed FMV methodology to assess a fee for the presence of a pipeline uses the volume of the pipeline, which includes both its length (linear distance) and area, thus accounting for its total presence on or within the submerged lands.
In addition, NOAA surveyed comparable fees assessed by the State of California for the issuance of leases in submerged lands of the state for pipelines, conduits or fiber optic cables. The value of $0.02 per cubic inch of pipeline would be established because NOAA considers this to be a similar metric (
In the FMV example provided below, a special use permit for a desalination plant project includes one, 100-foot long seawater intake pipelines with a 15-inch radius to be bored into the submerged lands of a sanctuary.
This annual cost would be applicable for the length of the permit.
The proposed FMV fee value for this SUP category is based on determining the amount of sand substrate within an active filtration area surrounding the pipeline. NOAA recognizes there are many factors that influence filtration rates, such as grain size and pumping distance. For transparency and clarity, NOAA proposes to calculate the volume of sand used for in-situ filtration as the area of a trapezoid determined by the depth of the pipeline and horizontal length into the sanctuary multiplied by a length along the shoreline. This geometric form is based on the area within the sanctuary jurisdiction beginning at mean high water and extending seaward along the sea floor twice the distance of the pipe. As documented in the Geosciences report (2010), as the distance increases from the well, the infiltration rate becomes slower through the seabed. We used a distance for the base of the trapezoid, equaling the average distance from mean high water to the terminus of the slant well pipes, and doubled it for the seafloor distance to represent the slower infiltration rate the farther you get from the well. Because every situation will be different, and there may not always be groundwater modeling available, we selected a conservative estimate of total volume of sediment that would provide the in-situ filtration. The proposed FMV would be calculated by assessing the volume of sand substrate within the sanctuary used for filtration for a desalination facility multiplied by a value of $0.003 per cubic foot of sand. NOAA researched the cost of commercial sand and learned that cost is primarily driven by processing, packaging and especially shipping, due to the weight. The proposed value is based on available information and the deduction of these estimated added costs. Total FMV costs would be paid on an annual basis for the duration of the permit. To calculate the cross section area of sediment used for in-situ filtration, NOAA proposes that the shoreward boundary would be the mean high water (MWH) mark. The formula to calculate the area of a trapezoid is: A = h[
The height of the trapezoid would be equal to the depth of the pipeline below the seafloor within the sanctuary at MHW. The first base (b
A special use permit for a desalination project that includes calculations for one pipeline. The calculation is for one pipeline that extends 100 feet horizontally into the sanctuary (b
This annual cost would be applicable for the length of the permit.
Using the above example, a configuration for ten pipelines would have annual FMV of $292,500/yr (10 × $29,250/yr). This arrangement could be used for a desalination facility that would produce approximately 10 MGD or 3.65 billion gallons of water per year. Thus, the example of the FMV for in-situ sand filtration for 10 pipelines within a national marine sanctuary would add a cost of $0.00008/gallons/yr or 1 cent for every 150 gallons of freshwater produced. This figure is obtained by dividing the FMV for in-situ sand filtration by 10 million and multiplying it by 365, since the examples assume a 10 million gallon per day capacity. The calculation is: ($292,500/year)/(10,000,000 million gallons/day)/(365 days/year) = $0.00008/gallons/year.
While both SUP categories may or may not be applied to one project, the average FMV for a project which does includes both SUP categories mentioned above, would be obtained by adding the cost of both examples, dividing it by 10 million and multiplying it by 365, since the examples assume a 10 million gallon per day capacity. The calculation is: ($292,500/year + $169,646/yr)/(10,000,000 million gallons/day)/(365 days/year) = $0.00013/gallons/year.
As mentioned above, NOAA surveyed fees assessed by other federal, state, and
Pretreatment is considered the portion of the filtration where water is cleared of impurities in preparation for reverse osmosis. For the purpose of finding a comparative FMV with NOAA's in-situ sediment filtration, we determined that it would be reasonable to compare the FMV of pretreatment at a land-based facility producing 25 MGD with the FMV of pretreatment in-situ for a hypothetical 10 MGD facility similar to one currently proposed on California's Central Coast. The pretreatment cost for the land-based facility is based on annual operating and maintenance costs.
In the land-based example from the USBR study, using the microfiltration method with ultraviolet disinfection, the cost of annual operations and maintenance for land-based pretreatment for a 25 MGD facility would be $3.3M as described in the study (estimating a cost variation for reverse osmosis of +30% to −15% to reflect the confidence interval related to $3.3M). NOAA estimated that this would be equal to a cost of $0.0003616/gal/year.
For the purpose of comparison, NOAA compared the cost of the USBR study site to a hypothetical coastal project that produced 10 MGD, which seems to be a reasonable scale for a future proposed project on the West Coast. The result of this comparison shows that the fees NOAA is proposing for FMV for in-situ sand filtration would be 35% of the costs of pretreatment for a land based facility ($0.0003616 gals/yr) (give or take confidence interval of +30% to −15%), which is the next best alternative.
In addition to the comparison method described above for charging for the volume of the pipeline in cubic inches, NOAA also looked at a similar open water pipeline project in Southern California that uses desalination to provide drinking water in order to estimate the magnitude of costs of regulatory compliance (not fair market value) associated with the permitting of desalination facilities in a real-world setting. This open water pipeline project was proposed by Cabrillo, LLC and Poseidon, LLC and received a permit by the California Coastal Commission in 2008. The California State Lands Commission required the project to invest in various offset and restoration efforts to mitigate the impacts of the facility, such as obtaining 25,000 tons of carbon offsets for the construction and operational impacts. In that project, the average offset price from 2011 to 2016 was $14.87 per ton of carbon offset, for a total of $371,750. In addition, the facility was required to restore a minimum of 37 acres of wetlands (up to 55.4 acres) with a non-cancelable deposit of $3.7 million and to provide a deposit of $25,000 to the CSLC to reimburse staff expenses incurred to monitor compliance with the terms of the lease. While these costs associated with environmental compliance are not directly comparable with the FMV proposed for these two SUP categories, they provide context for the scale of costs required by various agencies to permit or authorize large coastal projects such as a desalination plant.
NOAA's application of the alternative methods in this analysis ensures fair market value fee proposals do not make the desalination method using in-situ sand filtration cost-prohibitive relative to other methods. Based on the comparison analysis, the fees that NOAA proposes to charge are comparative, not prohibitively expensive, and less than the existing reasonable alternatives for sand filtration. For a proposed project that would require both SUP category types, NOAA considered the annual costs of the proposed fees based on the examples presented in this notice, and converted them to a dollar per gallon figure that can be applied to future proposed projects of varying size and scale. NOAA determined that the total cost of the fair market value using both SUP category types would amount to approximately $0.00013/gal for a facility of a scale similar to the example used in this notice (
NOAA is requesting public comments on whether the addition of two new categories to the requirements of special use permits pursuant to the requirements of Section 310 of the National Marine Sanctuaries Act (16 U.S.C. 1441), which would apply to all coastal national marine sanctuaries with authorization authority, is the appropriate mechanism to allow activities associated with a desalination project. The two new SUP categories would be: (1) The continued presence of a pipeline transporting seawater to or from a desalination facility; and (2) the use of sediment to filter seawater for desalination. NOAA is also requesting comments on the proposed methods to calculate the FMV costs of the use of sanctuary resources.
NOAA has concluded that this action will not have a significant effect, individually or cumulatively, on the human environment. This action is categorically excluded from the requirement to prepare an Environmental Assessment or Environmental Impact Statement in accordance with Section 6.03c3(i) of NOAA Administrative Order 216–6. Specifically, this action is a notice of an administrative and legal nature. This action would only establish the two new special use permit categories and the methods for calculating fair market value for applicable projects. It does not commit the outcome of any particular federal action taken by NOAA. Furthermore, individual permit actions taken by ONMS will be subject to additional case-by-case analysis, as required under NEPA, which will be completed as new permit applications are submitted for specific projects and activities. In addition, NOAA may, in certain circumstances, combine its special use permit authority with other regulatory authorities to allow activities not described above that may result in environmental impacts and thus require the preparation of an environmental assessment or environmental impact statement. In these situations, NOAA will ensure that the appropriate NEPA documentation is prepared prior to taking final action on a permit or making any irretrievable or irreversible commitment of agency resources. The NEPA analysis would describe the impacts of the full project (
Notwithstanding any other provisions 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
16 U.S.C. 1431
United States Patent and Trademark Office, Commerce.
Request for comments.
The United States Patent and Trademark Office (USPTO) is requesting comments from its stakeholders on whether the accelerated examination program should be retained. In an August 16, 2016 notice updating the program to reflect changes in the law and examination practice, the USPTO indicated that the number of accelerated examination requests has been quite low. In particular, in each of the fiscal years 2012–2015, fewer than 250 applications were accepted into the accelerated examination program. Accordingly, the USPTO seeks feedback from its stakeholders on whether the accelerated examination program provides a sufficient benefit to the public to justify the cost of implementation.
The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the USPTO Internet Web site at
Pinchus M. Laufer, Senior Legal Advisor ((571) 272–7726) or Matthew Sked, Legal Advisor ((571) 272–7627), Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy.
In August 2006, the USPTO implemented the accelerated examination program under which an application will be advanced out of turn for examination if the applicant files a petition to make special with the appropriate showing.
On September 26, 2011, the USPTO implemented the prioritized examination program (referred to as “Track One”), provided for in the Leahy-Smith America Invents Act (AIA).
Additionally, over this period, the overall first action pendency for newly filed applications has dropped incrementally each year. In particular, the overall first action pendency in fiscal year 2015 was approximately 17 months. A lower first action pendency and lower accelerated examination numbers seem to indicate that applicants have less need for as many programs that expedite patent examination.
Due to the low usage of the accelerated examination program, the reduction in overall first action pendency, the popularity of the Track One program, and the inconvenience to practitioners and the USPTO of retaining a seemingly redundant program with its own special handling procedures (See MPEP 708.02(a)), it is unclear whether the accelerated examination program still provides a sufficient benefit to the public to justify the cost of implementation. Accordingly, the USPTO seeks comments from the public on whether the accelerated examination program should be retained or discontinued.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled “Independent Living Performance Measures Aggregation Tool” for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Jill Sears, at 202–606–7577 or email to
Comments may be submitted, identified by the title of the information collection activity, by February 13, 2017.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Department of Defense (DoD).
Notice.
DoD announces an early engagement opportunity regarding implementation of the National Defense Authorization Act for Fiscal Year 2017 within the acquisition regulations.
Early inputs should be submitted in writing to the address shown below on or before February 13, 2017.
Submit early inputs via the Defense Acquisition Regulations System (DARS) Web site at
Send inquiries via email to Ms. Jennifer Hawes at
DoD is providing an opportunity for the public to provide early inputs on implementation of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 within the acquisition regulations. The public is invited to submit early inputs on sections of the NDAA for FY 2017 via the DARS Web
Department of Defense; Uniformed Services University of the Health Sciences (“the University”).
Quarterly meeting notice.
The Department of Defense is publishing this notice to announce the following meeting of the Board of Regents, Uniformed Services University of the Health Sciences (“the Board”).
Thursday, February 2, 2017, from 2:00 p.m. to 4:05 p.m. (Open Session) and 4:10 p.m. to 4:40 p.m. (Closed Session).
The Emily Morgan Hotel, 705 East Houston Street, San Antonio, Texas 78205.
Jennifer Nuetzi James, Designated Federal Officer, 4301 Jones Bridge Road, A1020, Bethesda, Maryland 20814; telephone 301–295–3066; email
This meeting notice is being published under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150.
Pursuant to 5 U.S.C. 552b(c)(2, 5–7), the Department of Defense has determined that the portion of the meeting from 4:10 p.m. to 4:40 p.m. shall be closed to the public. The Under Secretary of Defense (Personnel and Readiness), in consultation with the Office of the Department of Defense General Counsel, has determined in writing that this portion of the Board's meeting will be closed as the discussion will disclose sensitive personnel information, will include matters that relate solely to the internal personnel rules and practices of the agency, will involve allegations of a person having committed a crime or censuring an individual, and may disclose investigatory records compiled for law enforcement purposes.
Office of Fossil Energy, DOE.
Notice of application.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application (Application), filed on September 28, 2016, by Driftwood LNG, LLC (Driftwood LNG), requesting long-term, multi-contract authorization to export domestically produced liquefied natural gas (LNG) in a volume equivalent to 1,496.5 billion cubic feet per year (Bcf/yr) of natural gas (4.1 Bcf per day). Driftwood LNG seeks authorization to export the LNG by vessel from the proposed Driftwood LNG Facility to be located in Calcasieu Parish, Louisiana, approximately five miles south of the town of Carlyss, Louisiana. Driftwood LNG requests authorization to export LNG to any nation with which the United States does not have a free trade
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, March 13, 2017.
Hand Delivery or Private Delivery Services (
In the Application, Driftwood LNG also requests authorization to export the same cumulative volume of LNG to any country that currently has, or in the future may enter into, a FTA requiring national treatment for trade in natural gas, and with which trade is not prohibited by U.S. law or policy (FTA countries) for a term of 30 years. DOE/FE will review that request separately pursuant to section 3(c) of the Natural Gas Act, 15 U.S.C. 717b(c). The requested volumes in the FTA portion and NFTA portion of the Application are not additive.
The Application will be reviewed pursuant to section 3(a) of the NGA, 15 U.S.C. 717b(a), and DOE will consider any issues required by law or policy. To the extent determined to be relevant, these issues will include the domestic need for the natural gas proposed to be exported, the adequacy of domestic natural gas supply, and U.S. energy security. DOE may also consider other factors bearing on the public interest, including the impact of the proposed exports on the U.S. economy and international considerations, and whether the authorization is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. As part of this analysis, DOE will consider the following two studies examining the cumulative impacts of exporting domestically produced LNG:
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Additionally, DOE will consider the following environmental documents:
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Parties that may oppose this Application should address these issues in their comments and/or protests, as well as other issues deemed relevant to the Application.
The National Environmental Policy Act (NEPA), 42 U.S.C. 4321
In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Due to the complexity of the issues raised by the Applicant, interested persons will be provided 60 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention.
Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) Emailing the filing to
A decisional record on the Application will be developed through responses to this notice by parties,
The Application is available for inspection and copying in the Office of Regulation and International Engagement docket room, Room 3E–042, 1000 Independence Avenue SW., Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address:
Office of Fossil Energy, Department of Energy.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during November 2016, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), and vacating authority. These orders are summarized in the attached appendix and may be found on the FE Web site at
They are also available for inspection and copying in the U.S. Department of Energy (FE–34), Division of Natural Gas Regulation, Office of Regulation and International Engagement, Office of Fossil Energy, Docket Room 3E–033,
U.S. Energy Information Administration (EIA), Department of Energy
Notice of Revision of Confidentiality Pledges under the Confidential Information Protection and Statistical Efficiency Act
EIA is announcing revisions to the confidentiality pledge(s) it provides to its respondents under the Confidential Information Protection and Statistical Efficiency Act. These revisions are required by the passage and implementation of provisions of the Federal Cybersecurity Enhancement Act of 2015 which permit and require the Secretary of the Department of Homeland Security (DHS) to provide Federal civilian agencies' information technology systems with cybersecurity protection for their Internet traffic.
These revisions become effective upon publication of this notice in the
Questions about this notice should be addressed to Jacob Bournazian, U.S. Energy Information Administration, 1000 Independence Avenue SW., Washington, DC 20585 or by fax at 202–586–3045 or by email at
Jacob Bournazian, U.S. Energy Information Administration, 1000 Independence Avenue SW., Washington, DC 20585, phone: 202–586–5562 (this is not a toll-free number), email:
Under 44 U.S.C. 3506(e), and 44 U.S.C. 3501 (note), EIA is revising the confidentiality pledge(s) it provides to its respondents under the Confidential Information Protection and Statistical Efficiency Act (44 U.S.C. 3501 (note)) (CIPSEA). These revisions are required by provisions of the Federal Cybersecurity Enhancement Act of 2015 (Pub. L. 114–11, Division N, Title II, Subtitle B, Sec. 223), which permit and require the Secretary of the Department of Homeland Security (DHS) to provide Federal civilian agencies' information technology systems with cybersecurity protection for their Internet traffic. Federal statistics provide key information that the Nation uses to measure its performance and make informed choices about budgets, employment, health, investments, taxes, and a host of other significant topics. The overwhelming majority of Federal surveys are conducted on a voluntary basis. Respondents, ranging from businesses to households to institutions, may choose whether or not to provide the requested information. Many of the most valuable Federal statistics come from surveys that ask for highly sensitive information such as proprietary business data from companies or particularly personal information or practices from individuals. Strong and trusted confidentiality and exclusively statistical use pledges under the Confidential Information Protection and Statistical Efficiency Act (CIPSEA) and similar statistical confidentiality pledges are effective and necessary in honoring the trust that businesses, individuals, and institutions, by their responses, place in statistical agencies.
Under CIPSEA and similar statistical confidentiality protection statutes, many Federal statistical agencies make statutory pledges that the information respondents provide will be seen only by statistical agency personnel or their sworn agents, and will be used only for statistical purposes. CIPSEA and similar statutes protect the confidentiality of information that agencies collect solely for statistical purposes and under a pledge of confidentiality. These acts protect such statistical information from administrative, law enforcement, taxation, regulatory, or any other non-statistical use and immunize the information submitted to statistical agencies from legal process. Moreover, many of these statutes carry criminal penalties of a Class E felony (fines up to $250,000, or up to five years in prison, or both) for conviction of a knowing and willful unauthorized disclosure of covered information.
As part of the Consolidated Appropriations Act for Fiscal Year 2016 signed on December 17, 2015, the Congress included the Federal Cybersecurity Enhancement Act of 2015 (Pub. L. 114–11, Division N, Title II,
When such a signature is found, the Internet packets that contain the malware signature are moved to a secured area for further inspection by DHS personnel. Because it is possible that such packets entering or leaving a statistical agency's information technology system may contain a small portion of confidential statistical data, statistical agencies can no longer promise their respondents that their responses will be seen only by statistical agency personnel or their sworn agents. However, they can promise, in accordance with provisions of the Federal Cybersecurity Enhancement Act of 2015, that such monitoring can be used only to protect information and information systems from cybersecurity risks, thereby, in effect, providing stronger protection to the integrity of the respondents' submissions.
The DHS cybersecurity program's objective is to protect Federal civilian information systems from malicious malware attacks. The Federal statistical system's objective is to ensure that the DHS Secretary performs those essential duties in a manner that honors the Government's statutory promises to the public to protect their confidential data. Given that the Department of Homeland Security is not a Federal statistical agency, both DHS and the Federal statistical system worked to balance both objectives and achieve these mutually reinforcing objectives.
Accordingly, DHS and Federal statistical agencies, in cooperation with their parent departments, developed a Memorandum of Agreement for the installation of Einstein 3A cybersecurity protection technology to monitor their Internet traffic. However, EIA's current CIPSEA statistical confidentiality pledge promises that respondents' data will be seen only by statistical agency personnel or their sworn agents. Since it is possible that DHS personnel could see some portion of those confidential data in the course of examining the suspicious Internet packets identified by Einstein 3A sensors, EIA needs to revise its confidentiality pledge to reflect this process change.
Therefore, EIA is providing this notice to alert the public of this revision in its confidentiality pledge in an efficient and coordinated fashion. Below is a listing of EIA's current Paperwork Reduction Act OMB numbers and information collection titles and their associated revised confidentiality pledge(s) for the Information Collections whose confidentiality pledges will change to reflect the statutory implementation of DHS' Einstein 3A monitoring for cybersecurity protection purposes.
The following EIA statistical confidentiality pledge will now apply to the Information Collections whose Paperwork Reduction Act Office of Management and Budget numbers and titles are listed below.
The information you provide on Form EIA–XXX will be used for statistical purposes only and is confidential by law. In accordance with the Confidential Information Protection and Statistical Efficiency Act of 2002 and other applicable Federal laws, your responses will not be disclosed in identifiable form without your consent. Per the Federal Cybersecurity Enhancement Act of 2015, Federal information systems are protected from malicious activities through cybersecurity screening of transmitted data. Every EIA employee, as well as every agent, is subject to a jail term, a fine, or both if he or she makes public ANY identifiable information you reported.
The information you provide on Form EIA–xxx will be used for statistical purposes only. Your responses will be kept confidential and will not be disclosed in identifiable form. Per the Federal Cybersecurity Enhancement Act of 2015, Federal information systems are protected from malicious activities through cybersecurity screening of transmitted data. By law, every EIA employee, as well as every agent, is subject to a jail term, a fine, or both if he or she makes public ANY identifiable information you reported.
Take notice that on January 5, 2017, pursuant to Rule 204 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.204, QEP Field Services, LLC (Petitioner) filed a petition for temporary waiver of the tariff filing and reporting requirements of sections 6 and 20 of the Interstate Commerce Act and parts 341 and 357 of the Commission's regulations for the Belfield Gathering System, as more fully explained in the petition.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric rate filings:
Description: § 205(d) Rate Filing: Amendment to NCEMC NITSA SA 210 to be effective 1/1/2017.
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:
a.
b.
c.
d.
e. A summary of the meeting will be prepared and filed in the Commission's public file for the project.
f. All local, state, and federal agencies, Indian tribes, and other interested parties are invited to participate by phone. Please call Adam Peer at (202) 502–8449 by January 17, 2017, to RSVP and to receive specific instructions on how to participate.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory
Staff prepared a draft environmental assessment (EA) for the application which analyzes the potential environmental effects of approving the requested permanent change to the Article 401 rule curve and concludes that such an approval, with specified environmental protection measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the draft EA is available for review at the Commission's Public Reference Room or may it be viewed on the Commission's Web site at
You may register online at
Any comments on the draft EA should be filed by February 6, 2017. Comments may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
For further information, contact B. Peter Yarrington at (202) 502–6129 or
Grand River Dam Authority (GRDA), licensee for the Pensacola Hydroelectric Project, requests a permanent amendment of the reservoir operating rule curve stipulated in Article 401 of the project license.
The Commission issued a license for the Pensacola Project to GRDA on April 24, 1992.
Grand Lake is used for multiple purposes including power generation, recreation, wildlife enhancement, and flood control. Dedicated flood storage (the flood pool) is provided between elevations 745 and 755 feet. When reservoir elevations are within the limits of the flood pool, the Tulsa District of the U.S. Army Corps of Engineers (Corps) directs water releases from the dam under the terms of a 1992 Letter of Understanding and Water Control Agreement between the Corps and GRDA that addresses flooding both upstream and downstream of Grand Lake.
When reservoir elevations are below the limits of the flood pool, GRDA operates the project pursuant to Article 401 of the project license, as amended in an order issued December 3, 1996.
Since issuance of the 1996 order, GRDA has filed eight requests for either temporary variances from, or permanent amendments of, the elevations specified in the Article 401 rule curve. Six of those applications were withdrawn by GRDA, denied, or dismissed by the Commission.
GRDA requests a permanent amendment of the Pensacola Project's Article 401 rule curve that would be followed each year through the remainder of the current license period.
Under GRDA's proposal, the Pensacola Project's Article 401 rule curve would be permanently amended for the remainder of the current license period. The elevations along the rule curve would only be changed for the period of August 16 through October 31. Between August 16 and September 15 each year, the project would be operated to target an elevation of 743 feet, which is up to two feet higher than the current rule curve. Between September 16 and September 30, the elevation target would be lowered from 743 to 742 feet. Between October 1 and October 31, operation would target an elevation of 742 feet, which is up to one foot higher than the current rule curve. After October 31, reservoir elevations would follow the project's existing rule curve. GRDA would operate the project to target the elevations along the rule curve at all times, except as provided by the Storm Plan or the Drought Plan, or as necessary for the Corps to provide flood protection. GRDA's proposed rule curve change is shown in Figure 2.
As part of its permanent amendment request, GRDA proposes to implement a Storm Plan that would be used year-round in anticipation of and during major precipitation events within the Grand/Neosho River basin that might result in high water conditions upstream or downstream of Grand Lake. A Storm Plan was in place during the 2015 and 2016 temporary variance periods. During the 2015 temporary variance period, weekly conference calls between all participants took place to keep all participants informed of potential flood conditions in the river basin. Based on the success of the weekly calls in 2015 and discussions during the December 2015 technical conference,
According to the Storm Plan, GRDA would review, at a minimum, on a daily basis the following information: (1) Weather forecasts in the watershed; (2) Grand Lake surface elevation data; (3) data from the USGS gages upstream and downstream of the project; (4) surface elevations at the Corps' upstream John Redmond flood control reservoir and downstream Lake Hudson (part of GRDA's Markham Ferry Project); and (5) other relevant information affecting surface elevations at Grand Lake during the potential flood period.
If GRDA's daily review of the information indicates a probability of high water conditions in the Grand/Neosho River basin in the vicinity of the project, GRDA would immediately provide the information to federal and state resource agencies, local government officials, Commission staff, Tribes, and other interested stakeholders.
GRDA notes that, although the protocols contained in the Storm Plan are separate and distinct from the protocols in its Emergency Action Plan (EAP) for the project, the Storm Plan complements the EAP and involves many of the same entities. According to the Storm Plan, if the EAP is triggered, the communication protocols in the EAP would supersede those included in the Storm Plan until the emergency is resolved.
The Storm Plan also includes provisions regarding historic properties in the project area that could be adversely affected by high water levels. As discussed in Section 6.9
As part of its permanent amendment request, GRDA would institute its proposed Drought Plan during any period in which the National Drought Mitigation Center's (NDMC) U.S. Drought Monitor identifies a severe to exceptional drought within the Grand/Neosho River basin. The plan would help guide project operations and flow releases during drought conditions. It's the same plan used in 2016 and is similar to the plan used in 2015. As noted earlier, GRDA must maintain DO concentrations below the Pensacola Project and below its downstream Markham Ferry Project. GRDA states that, during periods of drought, adherence to the Article 401 rule curve could prevent it from releasing water necessary to maintain DO concentrations in these areas. Adherence to the rule curve could also prevent it from maintaining reservoir elevations in the Markham Ferry Project's Lake Hudson, which are necessary to operate GRDA's Salina Pumped Storage Project (No. 2524) as well as meeting other water supply needs.
Under the plan, GRDA would monitor information from the NDMC's U.S. Drought Monitor and information from other generally accepted sources of drought information applicable to the basin. Based on this information, if GRDA determines that drought conditions appear imminent, GRDA would begin weekly teleconferences with, in general, the same federal and state resource agencies, local government officials, Commission staff, Indian Tribes, and other interested stakeholders GRDA intends to consult with under the Storm Plan.
Under the plan, if the NMDC U.S. Drought Monitor declares a severe to exceptional drought for the Grand/Neosho River basin, GRDA may, at its discretion and based on input received during the weekly teleconferences, commence additional releases from Pensacola Dam, regardless of the prevailing levels at Grand Lake and Article 401 rule curve target elevations. Such releases would not exceed a rate equal to 0.06 feet of reservoir elevation per day, which is equivalent to approximately 837 cubic feet per second (cfs) per hour over a 24-hour period.
During the drought, GRDA would conduct weekly teleconferences to discuss project operations and would address the following issues in each teleconference: (1) Current and forecasted drought conditions and planned project operation; (2) maintenance of water levels and flows sufficient to maintain downstream DO concentrations for water quality and to prevent fish kills; (3) maintenance of reservoir elevations at the Markham Ferry Project's Lake Hudson sufficient to operate its Salina Pumped Storage Project for system reliability; and (4) based on available information, when the severe to exceptional drought period is expected to end. When severe to exceptional drought conditions are over, GRDA would cease releases under the plan, return to operating the project to target Article 401 rule curve elevations, and notify federal and state resource agencies and other stakeholders involved in the teleconference.
No reasonable action alternatives to GRDA's proposal have been presented by GRDA, identified by Commission staff, or suggested by entities commenting in this proceeding.
Under the no-action alternative, GRDA's request to permanently amend the Pensacola Project's Article 401 rule curve would be denied. GRDA would therefore continue to operate the project to target elevations along the current rule curve, except as directed by the Corps for flood control, for the remainder of the current license period. Also, GRDA's Storm and Drought Plans would not be approved by the Commission. Environmental resources in the project area would remain the same as they are initially described in
GRDA's pre-filing consultation included both its application for a permanent amendment to the Article 401 rule curve and its request for a temporary variance for 2016. GRDA distributed a draft of its application to federal and state resource agencies, Indian Tribes, local governmental authorities, and interested members of the public on March 15, 2016. On that same day, GRDA filed a request to shorten the normal 60-day pre-filing comment period to 30 days to help expedite processing. The Commission approved a reduced pre-filing comment period on April 5, 2016.
GRDA received comments on the draft application from the Delaware County Floodplain Administration, the Oklahoma Water Resources Board (Oklahoma WRB), the Oklahoma Department of Wildlife Conservation (Oklahoma DWC), the Modoc Tribe of Oklahoma, the City of Miami, Oklahoma (City of Miami), plaintiffs in two civil cases,
Substantive issues raised in pre-filing consultation included: (1) The extent and frequency of flooding of upstream areas and interpretation of recent flood studies; (2) progress in recent
GRDA also included in its application a summary report on a hydraulic modeling technical conference held December 16, 2015, at the University of Oklahoma, and copies of letters from the University of Oklahoma and the Corps regarding recent flood studies relative to the amendment request.
On May 18, 2016, Commission staff issued a letter asking GRDA to provide additional information regarding fisheries and aquatic resources and the results of flooding studies on property and structures. GRDA filed additional information on these issues on June 2 and 30, 2016, respectively.
The Commission issued public notice of GRDA's application for a permanent amendment of the Article 401 rule curve on September 22, 2016, which was published in the
Al Newkirk states that his house and commercial pecan grove are located across the Neosho River from the City of Miami. Mr. Newkirk indicates that the frequency and duration of flooding of his property have increased over the years, with flooding in the pecan grove already occurring three times this year, and with floods previously lasting a day or two but now extending to a week to 10 days. Mr. Newkirk indicates that approximately 20 acres of his land cannot be accessed when the lake is at an elevation of 744 feet and there are flows of 5,000 to 6,000 cfs in the river. Mr. Newkirk writes that flooding results in financial harm to him and other people in the area. Regarding the timing of the annual lake drawdown in the fall, Mr. Newkirk indicates that boat traffic on the lake drops off significantly by September 15, and higher levels are not needed for safety past that time.
Interior reviewed the role of its Bureau of Indian Affairs (BIA) in working with federally recognized American Indian Tribes stating that it is clear that higher water elevations would affect Tribal lands and resources. Interior indicated that the Inter-Tribal Council
Interior indicated that, as currently defined, the project boundary does not occupy Indian lands, but that BIA is in the process of establishing the boundaries and legal definitions of all affected Indian lands in the project area, with a number of Tribes having documented impacts to Tribally-owned lands and resources. Interior stated that it intends to more fully evaluate the project boundary issue during relicensing.
Interior indicated that the relicensing process is the appropriate forum to discuss these and all other issues associated with continued project operation. Interior and BIA object to the amendment until project impacts and mitigation can be evaluated and negotiated during the re-licensing
The Tribes, which comprise six of the nine sovereign, federally-recognized Tribal governments whose respective seats of government are located in and around Ottawa County, Oklahoma, state that operation of the project has adversely affected their lands, facilities, and resources. In their comments, and during Government-to-Government Consultation with the Commission (discussed below), the Tribes assert that flooding due to project operation has increased in elevation, frequency, and duration, resulting in extensive property damage, closure of Tribal business enterprises and facilities, and impairment to essential services. The Tribes write that the proposed amendment would increase risks to health and human safety. The Tribes state that the Commission cannot determine what constitutes an “incremental” increase in flood effects and evaluate the impacts of such an increase, where the Commission has not yet evaluated the impacts of current operations.
The Tribes indicate that they oppose GRDA's proposal and urge the Commission to deny it based on unauthorized project-related flooding of federal trust lands. The Tribes believe that the Commission should defer any action pertaining to the rule curve until project relicensing and indicate that, alternatively, the Commission should condition any approval on GRDA's prior fulfillment of a series of requirements, including: (1) completing comprehensive upstream and downstream flood routing studies; (2) acquiring all necessary property rights within 12 months of completing studies; (3) investigating and reporting the extent of its use and occupancy of Tribal trust lands and filing an amendment application for authorization for any such occupancy as required under sections 4(e), 10(a), and 10(e) of the FPA; (4) identifying, in consultation with the Tribes and the Oklahoma SHPO, any archaeological sites, historic properties, or Tribal cultural properties that could be adversely impacted by the project, including those outside the current project boundary and above existing flowage easements; (5) conducting surveys of any such sites to determine eligibility for inclusion on the National Register of Historic Places (National Register); and (6) developing, in consultation with the Tribes and the Oklahoma SHPO, a plan for protection of, or mitigation of damage to, such sites, and submitting it to the Commission after approval by the Tribes.
N. Larry Bork, in comments on behalf of 493 citizens and businesses in Ottawa County, asks the Commission to deny the amendment application. Mr. Bork asserts that the Commission is allowing GRDA to violate its license when unauthorized flooding occurs, and asks the Commission to ensure that GRDA purchases necessary easements before approving any amendment to the rule curve. Mr. Bork references recent studies finding a decrease in the flood storage capacity of Grand Lake caused by accumulation of sediments over time, and gives examples of times Grand Lake was below an elevation of 743 feet and high flows still flooded the City of Miami. Mr. Bork also provides a list of legal actions related to flooding upstream of the project.
Additionally, Mr. Bork asserts that past increases in the rule curve have led to flooding and economic decline of the City of Miami. Also, he indicates that backwater flooding can increase exposure to contaminants from the closed Tar Creek Superfund Site and Spring River. Lastly, Mr. Bork expressed concern that higher water levels would cause more pressure on Pensacola Dam, when 907 earthquakes occurred in Oklahoma last year.
The City of Miami asks the Commission to deny the permanent amendment to the rule curve, or in the alternative, condition any approval by requiring a comprehensive upstream and downstream flood routing study followed by the acquisition of all necessary property rights. Citing recently-completed flood studies, the City states that project operations have resulted in increased flooding in the City and surrounding region. The City believes that GRDA's failure to acquire necessary flowage easements makes unauthorized flooding illegal under the project license and state and local laws, and that it puts the health and safety of people and property at risk. The City indicates that the proposed rule curve amendment would only make this situation worse.
The City of Miami does not believe that analyzing only the incremental effects of the proposal is appropriate and that the Commission cannot and should not ignore existing conditions in rendering a decision on the amendment. The City says the Commission has a responsibility to ensure that GRDA operates the project in the public interest and references prior cases in support of the Commission not ignoring existing conditions. The city also references the Commission's authority under the license and under the FPA related to the protection of life, health, and property.
Finally, the City of Miami believes that the Commission must evaluate flooding in its EA, including impacts and the adverse socioeconomic impacts from unauthorized project-related flooding, and impacts to Tribal lands and resources that have been identified through consultations with the Inter-Tribal Council. The City also requests that the Commission consider the Inter-Tribal Council's concerns prior to issuing a decision on the rule curve proposal.
The Oklahoma AS states that, although the Commission did not require GRDA to develop a project-wide Historic Properties Management Plan (HPMP) for the temporary variance, as recommended by the Oklahoma SHPO, the Commission should require a HPMP for the permanent amendment. The Oklahoma AS is concerned that changes in reservoir elevations have the potential to substantially impact historic properties, including archaeological sites, that are located along and near the shore of Grand Lake, by eroding the sites and by exposing them to looting and vandalism. Further, the Oklahoma AS does not accept the premise that GRDA's HPMP for the Markham Ferry Project is an adequate framework for the Pensacola Project since Markham Ferry has its own project setting and cultural resources. Therefore, the Oklahoma AS requests that a HPMP be developed specifically for the Pensacola Project's proposed rule curve amendment.
On November 8, 2016, GRDA filed an answer to the comments filed by Interior, the Tribes, Mr. Bork, and the City of Miami regarding flood effects, indicating that these entities' comments are without merit and outside the scope of the Commission's statutory responsibilities. GRDA argues that it and the Commission are not authorized to address flood control and flowage rights at Pensacola Dam because flood control is not a project purpose under the FPA, and Congress has tasked the Corps with these responsibilities. GRDA next states that during the temporary variances in 2015 and 2016, its Storm Plan successfully reduced the risk of flooding at the project. Lastly, GRDA states that the Tribe's allegation that the
The majority of the comments filed in response to the Commission's public notice concern flooding in the upper reaches of Grand Lake. These comments, summarized above, primarily focus on the degree to which the presence of the project and GRDA's operation of the project has contributed to the frequency, duration, and magnitude of flooding. In addition, comments were filed on the effects of the proposed rule curve change on flooding, the accuracy of the project boundary, and the adequacy of GRDA's property easements in relation to flooding. Commenters also address the adequacy of input data and the methodology of several flood routing studies presented by GRDA, the City of Miami, Commission staff, and others in this and earlier proceedings. Further, commenters questioned the accuracy and interpretation of the results of those studies.
These same issues were raised in the Commission's 2015 and 2016 proceedings for GRDA's temporary variances. In those proceedings, staff carefully examined hydraulic modeling studies and the results of those studies and summarized its findings which were then addressed in the Commission's orders issued August 14, 2015 and August 12, 2016. In the
In their comments, Interior, the Tribes, Mr. Bork, and the City of Miami raise the issue of flooding and adverse socioeconomic effects to property in the City of Miami and Tribal trust lands and resources. The extent to which the proposed amendment would aggravate flooding and affect property is discussed in the
Commission staff met with the Inter-Tribal Council on August 3, 2016, in Miami, Oklahoma to hear the Council's concerns and gather any additional information the Council or its member Tribes wish to present for Commission consideration. In summary, the Inter-Tribal Council reiterated its concerns that the project already floods Tribal trust lands and other areas in the Miami region. The Inter-Tribal Council provided more detailed information concerning the whereabouts of individual Tribal lands and facilities affected by flooding, their desire to be compensated for flooding effects, and their concerns about the project in general. Commission staff's August 3rd meeting with the Inter-Tribal Council and its member Tribes was transcribed and the transcripts were filed with the Commission's Secretary. All comments presented at the August 3, 2016 meeting have been made a part of this proceeding and are publicly available. Further information concerning cultural and historic resources and the Commission's consultation with the Tribes is discussed in Section 6.9
The Clean Water Act (CWA) gives authority to each state to issue a section 401 Water Quality Certification (401 certification) for any FERC-licensed project that requires a permit pursuant to section 404 of the CWA. Additionally, an applicant must obtain a 401 certification for any activity that may result in a new discharge into navigable waters. The 401 certification is a verification by the state that a proposed project would not violate water quality standards.
On June 30, 2016, the Oklahoma Department of Environmental Quality (Oklahoma DEQ) issued a 401 certification for GRDA's permanent amendment request, subject to four conditions: (1) The certification does not authorize any discharge or dredging; (2) the reservoir will be maintained between elevations 742 and 744 feet as requested by GRDA; (3) emergency and routine maintenance will be as permitted by the Corps; and (4) the results of ongoing testing of DO mitigation measures under the project license shall be submitted annually to Oklahoma DEQ. These conditions are included in our analysis of effects to water quality in Section 6.4
Section 7 of the Endangered Species Act (ESA) requires federal agencies to ensure their actions are not likely to jeopardize the continued existence of federally listed threatened or endangered species, or result in the destruction or adverse modification of the critical habitat of such species. Several federally listed species are known to use the Pensacola Project area. The gray bat (
In its April 21, 2016 comments on GRDA's application, FWS states that GRDA's proposal would not adversely affect any listed species. Information on listed species is discussed further in Section 6.8,
Under section 106 of the NHPA,
The geographic scope of this analysis is Grand Lake, its shoreline areas, and flows immediately upstream and downstream. As appropriate, discussions of cumulative environmental effects are incorporated into the resource sections in this document.
The temporal scope of this environmental analysis focuses on the period from now until when the current project license expires in April 2022. The environmental effects of any proposed rule curve changes made during the relicensing period will be evaluated as part of the relicensing docket.
The Pensacola Project and its reservoir, Grand Lake, are located on the Neosho River in the northeast corner of Oklahoma, in Craig, Delaware, Mayes, and Ottawa counties. Downstream of the project, the Neosho River is locally known as the Grand River. Much of the land surrounding Grand Lake is privately owned and many areas along its shorelines have become highly developed with commercial resorts, private homes and condominiums, municipal and state parks, marinas, and private docks.
Limestone bluffs and steep rocky beaches characterize much of the southern and eastern shorelines at Grand Lake. Soils in these areas are mostly cherty material that is not highly erodible. In contrast, the northern and western areas of the lake are surrounded mostly by rolling plains with occasional hills and ridges with gentle slopes. These shorelines generally feature more erodible loamy soils with mud substrates, silt deposits, and wetlands at inlets and coves associated with numerous small tributaries. These mud substrates and silt deposits provide good conditions for the growth of certain wetland vegetation (FERC 1996; FERC 2009 (SMP EA)).
Under the proposed rule curve, water levels would not be lowered three feet from elevation 744 to 741 feet in August, as is currently done. Instead, the draw down would stop after one foot at elevation 743 feet until September 15, then drop an additional foot to elevation 742 feet, and remain at that level until October 31 (see Figure 2). This stepped reduction in water levels, combined with eliminating the last foot of drawdown from September 15 to October 31, would likely result in only minor changes in erosion patterns that occur under the current rule curve. These changes would likely include minor decreases in shoreline erosion, although erosion from wind and waves at the waterline would be expected to continue regardless of water levels. Reductions in erosion rates over sequential years could enhance revegetation of some shallow water, near-shore areas over time, leading to increases in substrate and soil stabilization that could be beneficial.
Grand Lake is impounded by Pensacola Dam on the Neosho River, which has a basin covering 12,110 square miles in Kansas, Oklahoma, Missouri, and Arkansas. The Neosho River originates in the Flint Hills of east central Kansas, then flows southeasterly and easterly until it enters the 66-mile-long Grand Lake. Below Pensacola Dam, the Neosho flows approximately 77 miles to its confluence with the Arkansas River. Significant tributaries of the lake include Spring River, Elk River, Tar Creek, and Duck Creek.
Flows in the Neosho River downstream of Pensacola Dam to the head of Lake Hudson are controlled by operation of the Pensacola Dam. USGS gage 07190500, Neosho River Near Langley, OK, is located approximately 3.6 miles below the dam, and has been in operation 1939. According to records collected at that gage for water years 1940 through 2015, the historic highest daily mean flow was 287,000 cfs, recorded May 20, 1943. The lowest daily mean flow for that period was 9 cfs, recorded March 25, 1940, four days after initial filling of Grand Lake began. The historic annual mean flow was 7,601 cfs. In water year 2015, the highest daily mean flow of 86,900 cfs was recorded at the gage on May 30, and the lowest daily mean flow of 84 cfs was recorded November 20, with an annual mean flow of 9,169 cfs (USGS, 2016).
Grand Lake is one of the largest lakes in Oklahoma with approximately 522 miles of shoreline. At the time of project was relicensed in 1992, Grand Lake was recorded as having a surface area of approximately 46,500 acres at elevation 745 feet. At elevation 745.1 feet, the mean depth of the reservoir is about 36 feet while the maximum depth is 164 feet (FERC, 2007; FERC 2009). As shown in Table 2, results of recent surveys have updated the calculation of the surface area of Grand Lake at an elevation of 745 feet, as well as the surface area at other elevations relevant in this EA.
Except during flood events, when releases are directed by the Corps for flood control, GRDA operates the Pensacola Project to target seasonal water elevations at Grand Lake varying from elevation 741 to 744 feet in accordance with the Article 401 rule curve. As shown in Figure 2, a lake elevation of 742 feet is maintained November 1 through April 30. In May, the lake is raised to a summer elevation of 744 feet. In August, the level is then reduced to a low point of 741 feet and then held there for six weeks from September 1 through October 15. It is then returned to an elevation of 742 feet by November 1. While targeting the elevations on the rule curve, GRDA also manages releases to provide water to operate GRDA's downstream Markham Ferry Project and its Salina Pumped Storage Project. In addition, during summer and fall, calculated releases are made to help maintain DO concentrations in the tailrace and downstream river, as discussed further under
Grand Lake is also a significant local water supply. GRDA indicates in its application that approximately 25 wholesale customers currently withdraw water from Grand Lake and that the lake is used by approximately 21,000 residential households and 500 commercial customers. GRDA issues yearly permits for domestic water use.
Project operation using the proposed rule curve would increase the elevation, volume, and surface area of Grand Lake in late summer and early fall. It would therefore, allow GRDA to store more water each year during that period for the duration of the current license term. As shown in Figure 2, water levels would no longer be lowered all the way from elevation 744 to 741 feet in August, but instead would be reduced to 743 feet and held at that elevation from August 16 through September 15. The elevation would then be lowered to 742 feet, eliminating the deepest part of the drawdown, and held at that elevation until the following spring. Also, as shown in Figure 2, the overall length of the drawdown period between summer and winter elevations would be reduced from 12 to 8 weeks. GRDA would continue to target the rule curve at all times, except as necessary for the Corps to provide flood protection, or during any periods in which the proposed Storm or Drought Plans might be utilized.
The increase in lake elevations under the proposed rule curve would primarily benefit boating on Grand Lake in late summer and early fall each year, as described in
The reduction in the total drawdown depth and the stepped reduction to winter elevations should also provide some benefits to other resources, primarily near-shore and shoreline habitat for fish and wildlife, as described in sections below.
There have been several hydraulic studies prepared that assess the affects the proposed rule curve amendment would have on flooding. Key studies, as well as submitted reviews of those studies, were evaluated for this environmental analysis, they include:
• A 2014 study performed by Alan C. Dennis (2014 Dennis Study);
• an independent modeling analysis performed by Commission staff as part of its review of GRDA's 2015 temporary variance request (2015 Staff Analysis);
• a hydraulic modeling study conducted by Tetra Tech dated February 3, 2016 (2016 Tetra Tech Study);
• a May 2016 review by Mead & Hunt of the 2016 hydraulic modeling study conducted by Tetra Tech;
• letters dated July 23, 2015 and May 2, 2016 from the University of Oklahoma regarding the 2014 Dennis Study and the differences between the 2014 Dennis, 2015 Staff, and 2016 Tetra Tech studies;
• a letter dated February 20, 2015 from the Corps regarding the 2014 Dennis Study; and
• a summary report on a hydraulic modeling technical conference held December 16, 2016 in Tulsa, Oklahoma.
In support of its permanent amendment request, GRDA relies primarily on the 2014 Dennis Study which analyzed the upstream flooding impacts, particularly in the area of Miami, which would occur as a result of the proposed rule curve modification. The study determined that the proposed rule curve modification would have a minimal impact on upstream flooding; concluding that the incremental
In review of the GRDA 2015 temporary variance request, Commission staff performed an independent analysis on the potential flooding impacts of the rule curve change. Commission staff gathered available pertinent data, including but not limited to, stream flows, reservoir elevations, spillway gate operations, and other data from historic storms to build the input files for the independent verification model which also extended downstream to assess potential flooding impacts from Pensacola Dam to the USGS Gage No. 07190500, Neosho River near Langley, Oklahoma (Langley gage).
While the 2014 Dennis Study only considered storm events from August 15 to September 15, Commission staff reviewed historic storms during the August 16 to October 31 time period for its independent analysis. Staff selected the October 1986, September 1993, and October 2009 storms for use in the hydraulic model because they are large historic storms from the time of year corresponding to the proposed change in the rule curve. Staff concluded that historic large spring or early summer storms were not appropriate for this analysis since they occur outside of the proposed rule curve amendment period.
The maximum incremental increase in water surface elevation downstream of Pensacola Dam, at the Langley gage, also occurs during the October 2009 storm event and is approximately 0.3 foot if the reservoir starting elevation is raised from 741 to742 feet and approximately 0.7 foot if the reservoir starting elevation is raised from 741 to 743 feet.
The City of Miami filed comments on July 22, 2016, which included a new study performed by Tetra Tech dated April 26, 2016, that evaluated the effects of the proposed rule curve change on structure inundation (2016 Tetra Tech Study). The 2016 Tetra Tech Study evaluated the effects of the proposed rule curve on flooding upstream of Grand Lake, specifically in the vicinity of Miami, that would occur during the October 1986, September 1993, and October 2009 historic storm events. The study was performed using a HEC–RAS hydraulic model and incorporated new bathymetric survey data to account for sedimentation that has occurred in the Neosho River channel upstream of the reservoir. The 2016 Tetra Tech Study indicates that the water surface elevations at Miami during the modeled historic flood events are higher than determined in the 2015 Staff Analysis for both the 741 and 743 feet Grand Lake elevations. The study confirmed that during the three modeled storm events, the maximum incremental increase in water surface elevation at Miami, which occurs during the October 2009 storm, is less than 0.2 foot if the Grand Lake reservoir elevation is raised from 741 to 743 feet. The 2016 Tetra Tech Inundation Study concluded that the 2015 Staff Analysis underestimated the number of structures inundated under the current rule curve, due to the staff's lower computed water surface elevations, but that no additional structures would be impacted by the proposed rule curve change.
On June 30, 2016, GRDA filed a response to Commission staff's May 18, 2016 request for additional information. The response included a review, prepared by GRDA's consultant Mead & Hunt, of the 2016 Tetra Tech Study and an evaluation of the effects to property, structures, and human life as a result of the higher water surface elevations indicated in the 2016 Tetra Tech Study. Mead & Hunt found that all three of the most recent hydraulic model studies of the Neosho River upstream of Pensacola Dam conducted by Tetra Tech, FERC, and Dennis agree that the incremental change in water surface elevations due to the requested variance is 0.2 feet (2.4 inches) or less at the Miami gage. The difference in water surface elevations at the Miami gage between the latest Tetra Tech model and the FERC model are primarily due to a difference in the downstream boundary conditions/starting water surface elevations, and the bathymetry data gathered in April 2015 that results in higher predicted channel elevations. Mead & Hunt concluded that the Tetra Tech modeling cannot be relied upon for future studies until it has been verified that the model configuration, parameters, calibration results, and overall results are accurate and recommended that further investigation be completed before relying on the higher water surface elevations determined in the study.
In order to determine the effects to property and structures that could result from the higher water surface elevations indicated in the 2016 Tetra Tech Study, Commission staff also requested that GRDA evaluate the impact to structures that would occur with and without the proposed rule curve change for the three historic storm events (October 1986, September 1993, and October 2009) modeled in the 2016 Tetra Tech Study and 2015 Staff Analysis. Even though Mead & Hunt recommended further investigation before relying on the 2016 Tetra Tech Study results, it prepared inundation mapping for the three historic storm events based on the elevations in the 2016 Tetra Tech Study. The results of the inundation mapping, which used the 2016 Tetra Tech Study water surface elevations, show no additional structures would be impacted by the proposed rule curve change.
To quantify any increased physical danger to residents due to the incremental increase in inundation as a result of higher water surface elevations computed by Tetra Tech's model, Mead & Hunt conducted a hazard analysis for the three historic storm events using the ACER 11 procedure.
In addition to Mead & Hunt, others reviewed and commented on the three separate hydraulic analyses. University of Oklahoma professors, who were on Mr. Dennis' thesis committee, issued a letter on July 23, 2015, that responded to comments directly related to his Master's thesis work. The professors commented on the modeling protocols, the boundary conditions, and the time frame of modeling for the 2014 Dennis Study. In addition, the professors stated that the 2014 Dennis Study used the
The Corps, Tulsa District reviewed the 2014 Dennis Study and found the study to be of high quality and consistent with previous studies that were completed by the Tulsa District (1998) and Dr. Forrest Holly (2004). The Corps said that although a more diverse set of calibration storms would have been preferable, the results of this study are consistent with previous efforts, and the Corps concurred with the findings that were presented. In a July 24, 2015 letter, the Corps states that it had performed an analysis of the 2015 temporary variance request and determined that the variance would have negligible impacts on downstream flooding. Furthermore, the Corps states that its model results showed a discharge of around 100,000 cfs while adverse impacts (
The City of Miami's July 22, 2016 comments argue that the 2015 Staff Analysis underestimates the number of structures impacted during the historic storm events. Although both the 2016 Tetra Tech Study and the inundation mapping conducted by Mead & Hunt show a greater number of structures impacted, both studies also determined that no additional structures would be impacted by increased flooding due to the proposed rule curve change. Further, as discussed above, the Mead & Hunt hazard analysis using the 2016 Tetra Tech Study found no additional risk to human life.
Finally, Mr. Bork commented regarding the capability of GRDA to timely open spill gates in advance of a predicted storm event. According to the Supporting Technical Information Document for the project that is filed with the Commission, the time required to position a gate hoist above a spillway gate and then raise or lower that gate is typically in the range of 15 to 20 minutes, which is adequate to respond to storm events. Mr. Bork also expressed concern regarding the number of earthquakes in Oklahoma and the additional pressure that higher water levels would place on Pensacola Dam. Because the proposed rule curve change does not include any water levels higher than those on the current rule curve, and because there is no reason to expect that the rule curve change would significantly affect high-water events, we do not anticipate any dam safety concerns regarding GRDA's proposed amendment.
The designated beneficial uses for Grand Lake include public and private water supply, fish and wildlife propagation as a warm water aquatic community, Class 1 irrigation, and primary body contact recreation (GRDA, 2008b). Oklahoma state water quality standards require the following in order to protect the warm water aquatic community designation: Dissolved oxygen (DO) concentrations maintained at or above 6.0 milligrams per liter (mg/l) at 25 degrees Celsius (°C) from April 1 to June 15 (for fish early life stages); at or above 5.0 mg/l at 32 °C from June 16 to October 15 (summer conditions); and at or above 5.0 mg/l at 18 °C from October 16 to March 31 (winter conditions) (GRDA 2008b).
Grand Lake was recently listed on Oklahoma's 303(d) list for organic enrichment/low DO levels and color.
Generally, surface water temperatures in Grand Lake range from between 4 and 28 °C annually. The reservoir typically begins to exhibit thermal stratification in May, with anoxic conditions forming in the deep waters of the hypolimnion several weeks later. Across Grand Lake, the extent of stratification varies, with downstream portions of the reservoir exhibiting stronger stratification than the upstream sections of the reservoir. Sampling conducted in 2003 and 2004 found that stratification was strongest during the summer, with approximately 38 percent of the water column having DO concentrations below 2.0 mg/l in the lower portion of the reservoir (GRDA, 2008a).
GRDA currently works to mitigate water quality issues through lake-wide sanitation regulations, shoreline use classifications and management of shoreline development, water quality monitoring, and other measures included in its approved Shoreline Management Plan.
The Oklahoma WRB has designated the Neosho River below the project as a warm-water aquatic community, with minimum DO standards of 6.0 mg/l from October 16 through June 15, and 5.0 mg/l from June 16 through October 15. A 1.0 mg/l DO deficit is allowed for not more than 8 hours in a 24-hour period April 1 through October 15.
Water quality in the project tailrace and the river downstream is dependent on releases through generation. The powerhouse draws water from relatively deep in the reservoir where water can have very low DO concentrations when the lake stratifies in summer and into the fall. In the past, release of this DO-deficient water, combined with the hot and dry conditions that regularly occur in late summer and fall, has led to violations of Oklahoma water quality standards and fish kills. GRDA now manages downstream releases during this period to maintain water quality criteria for DO pursuant to plans approved under license Article 403.
Normal project operation under the proposed rule curve would not have any significant negative effects on water quality in Grand Lake and may provide some minor benefits to water quality by reducing the magnitude of water level changes that may contribute to exposure
The additional water that would be stored in Grand Lake under the proposed rule curve would help ensure water is available for making releases to maintain downstream DO concentrations during late summer and fall. Additionally, the proposed Drought Plan would help GRDA to maintain downstream DO concentrations in the event that a severe to exceptional drought is declared for the river basin and reservoir elevations fall below the elevations on the rule curve.
GRDA indicates that releasing water pursuant to the Drought Plan should also help ensure that it has sufficient water for DO maintenance in the river below its downstream Markham Ferry Project, while maintaining lake elevations at that project's Lake Hudson necessary for operation of its Salina Pumped Storage Project, which is important to local electric system reliability.
Water quality downstream of the project could be negatively affected if the higher water levels on the proposed rule curve lead to any increase in upstream flood conditions and therefore more flood flow releases. Increases in flood flow releases could increase rates of downstream river bank erosion, resulting in increases in water turbidity. However, based on studies to date, it is unlikely any such effects to downstream flows and erosion would be significant, or predictable in frequency or severity.
Oklahoma DEQ's 401 certification for GRDA's permanent amendment request includes a condition requiring GRDA to provide it with annual reports of the results of ongoing testing of downstream DO mitigation measures performed under plans that have been approved under license Article 403. The Commission included this requirement as a condition of its approval of GRDA's temporary variance for 2016. The Commission added a requirement that GRDA notify Oklahoma DEQ at the same time it notifies other agencies pursuant to the plan of any significant DO deficiencies or DO mitigation, so that Oklahoma DEQ can track GRDA's progress in maintaining state water quality standards. Inclusion of the same requirement in any approval of a permanent amendment would allow Oklahoma DEQ to continue to track GRDA's progress in maintaining state water quality standards through the remainder of the current license period, and help ensure water quality below the project is protected.
Based on our review, operation using the proposed rule curve modification would not result in any material adverse impacts to water quality.
Grand Lake supports a robust warm water fishery for largemouth and smallmouth bass, white bass, striped bass and hybrid striped bass, crappie, several species of sunfish and catfish, and paddlefish. It also supports populations of a number of species of suckers, minnows, and darters. Gizzard and threadfin shad are important forage species that help sustain the sport fishery in Grand Lake. Grand Lake is one of the top bass fishing destinations in the nation, consistently attracting national fishing tournaments (FERC, 1996; GRDA 2016).
Largemouth bass and many other fishes present in Grand Lake spawn in springtime in relatively shallow waters. Through the summer and fall, the young of these fishes then use shallow areas with aquatic and emergent vegetation or other structure as primary nursery habitat and for cover and feeding as they mature (FERC, 1991; FERC, 1996).
Water level fluctuations that occur under the current rule curve, which was approved in the order issued December 3, 1996, do not allow the establishment of significant areas of shallow-water emergent and submergent aquatic plants. Juvenile fishes that would use such areas for cover and feeding in summer and fall therefore utilize other types of cover, including woody debris and other natural features, and man-made structure such as docks, and artificial reefs. Current work on artificial reefs is described below.
A significant amount of effort has been expended to mitigate the effects of water level fluctuations under the rule curve on shallow-water fish habitat at Grand Lake. The Article 401 rule curve in the 1992 license included a stepped 15-week drawdown and partial refill in late summer and fall, with a low-elevation of 741 feet that was maintained for a period of 8 weeks. The drawdown over that period was intended, in part, to enhance fish habitat by exposing mudflats for natural revegetation, and revegetation through annual millet seeding. When the rule curve was amended to its current form in a Commission order issued December 3, 1996, the drawdown was reduced to 12 weeks, and the period of lowest drawdown was reduced to 6 weeks. The Commission acknowledged that the shortened drawdown period would reduce the effectiveness of annual millet seeding and negatively affect fish and waterfowl. Therefore, Article 411 was added to the license to require a Fish and Waterfowl Habitat Management Plan, to include establishment of a mitigation fund and formation of a technical committee to administer the fund to design, implement, and evaluate work to enhance fish and wildlife habitat. GRDA's Article 411 plan was approved, and the requirement to seed millet every year was deleted, in an order issued May 22, 2003.
Since approval of the mitigation plan in 2003, the primary shallow-water fish habitat work completed has been the deployment of approximately 14,000 “spider block” artificial reef structures. These structures attract adult gamefish for the purpose of improved sport fishing. They may also provide rearing and feeding habitat for fry and fingerlings and cover from predators.
The tailrace area below the Pensacola Project and the reach of river
On an annual basis, maintaining higher water surface elevations in Grand Lake from August 15 and October 31 using the proposed rule curve would result in less fluctuation during late summer and early fall, providing young fishes, and other aquatic organisms, with more stable shallow-water habitat and cover. The decrease in fluctuation should allow better colonization of emergent and submerged vegetation in these areas, further improving habitat for young fishes. Over the remainder of the license term, this should allow aquatic vegetation to more successfully colonize and return to suitable areas, increasing shallow-water habitat and benefitting young fishes and the macroinvertebrates they prey upon.
The proposed rule curve change should not affect any fish habitat mitigation work under the Article 411 mitigation plan over the remaining term of the project license. As described above, annual millet seeding is no longer performed under the plan and GRDA is pursuing other mitigation options (
It is not possible to predict the effects to fisheries and aquatic resources from any changes to frequency or intensity of periods of high water, or periods of low water resulting from drought, that may occur under the proposed rule curve, or any mitigative effects of the proposed Storm and Drought Plans. However, there is no reason to expect that there would be any significant effects on these resources in Grand Lake.
Based on the above, the proposed rule curve change should have minor positive effects on fisheries and aquatic resources in Grand Lake.
As described above under
Based on the above, the proposed rule curve change would have positive effects to fisheries downstream of the project during late summer and fall by helping to ensure maintenance of DO concentrations, and use of the Drought Plan would help to avoid fish kills in the event of significant drought conditions.
Grand Lake is located in a transitional zone between the Ozark Highlands and Central Irregular Plain eco-regions of northeast Oklahoma. In the Ozark Highlands eco-region, which characterizes most of the project area, oak-hickory and oak-hickory-pine are the primary forest types. Typical canopy species on dry uplands and ridgetops include black oak, white oak, blackjack oak, post oak, winged elm, and numerous hickories. Shortleaf pine also occurs in oak-hickory-pine stands. Mesic forests containing sugar maple, white oak, and northern red oak are typical of north-facing slopes and ravines of more rugged, deeply dissected sites. Willows, bottomland oaks, maples, hickories, birch, American elm, and sycamore are typical on floodplains and low terraces. Most level sites in the region have been converted to haylands or pasturelands.
In the extreme northern portion of project, primarily the Neosho River arm of Grand Lake, the oak hickory forests of the Ozark Highlands give way to the tall grass prairies of the Central Irregular Plains. Typical dominants of tall grass prairie sites include big bluestem, little bluestem, switchgrass, and indiangrass. Dry upland forests, similar to the oak-hickory forests of the Ozark Highlands to the south and east, are common on the low rocky hills of the region. Most of this habitat, approximately 61,462 acres, occurs above 755 feet. Riparian corridors typically are forested, with canopy dominants that include American elm, oaks, hackberry, black walnut, sycamore, and pecan. Much of this region has been converted for agriculture, with rangeland occupying steeper slopes and croplands on nearly level plains. Common crops include sorghum, alfalfa hay, wheat, and soybeans.
Raptors, such as barred owl, red-tailed hawk, and red-shouldered hawk occur in both upland and bottomland forests. Song birds of the wooded lots include tanagers, nuthatches, warblers, and woodpeckers typical of the eastern deciduous forests. Grassland birds present in the prairie habitat include horned lark, grasshopper sparrow, meadowlark, dickcissel, and bobolink. Predatory birds in the grasslands consist of short-eared owl, northern harrier, and rough-legged hawk. Bald eagles over-winter at Grand Lake. Game birds found at Grand Lake include bobwhite quail, wild turkey, mourning dove, and waterfowl.
Grand Lake is also important as an over-wintering and migratory stop for shorebirds and waterfowl; however, the over-wintering habitat is limited by the lack of submerged aquatic vegetation. Cormorants, pelicans, egrets, and herons are among the non-game birds that seasonally inhabit the Grand Lake area. A diverse array of game waterfowl such as geese and dabbling, diving, perching, sea, and stiff-tailed ducks also occur on Grand Lake during migration. Mallards are the only dabbling duck that over-winter on Grand Lake. Mallards are the most abundant duck seen on the reservoir with numbers peaking in December. Canada geese and wood ducks live on the reservoir throughout the year.
Common mammals in the project area include white-tailed deer, striped skunk, raccoon, fox squirrel, Virginia opossum, eastern cottontail, armadillo, and red fox. These species inhabit the upland deciduous forest surrounding the project. The bottomland forests contain all of these species, plus muskrat and beaver. Common species associated with the grassland/savannah are the least shrew, deer mouse, black-tailed jack rabbit, and badger. Bats are of ecological concern in the area and the endangered gray bat is particularly notable (discussed under Threatened and Endangered Species).
A variety of frogs, toads, salamanders, lizards, turtles, and snakes comprise the
Grand Lake is an important wintering area for bald eagles. Most of the wintering eagles use a large communal roost located on a small island near Twin Bridges State Park at the north end of the reservoir. Blackbirds represent a large part of the diet for eagles wintering on Grand Lake due to presence of a large blackbird roost near Twin Bridges State Park. The bald eagle can be expected to forage throughout the project area.
The proposed permanent amendment of rule curve would not impact vegetation or wildlife resources located above normal reservoir rule curve elevations. The change would not likely cause any negative impacts to vegetation and wildlife resources located at and below normal reservoir rule curve elevations, because water levels would remain within the range of the current rule curve.
In its letter dated March 29, 2016, the Oklahoma DWC states that it supports the amendment request and agrees that no additional mitigation for fish and wildlife resources be required through the remainder of this license. The Oklahoma DWC indicated that its support is based on a recently-finalized Interagency Agreement between Oklahoma DWC and GRDA in which mitigation for wildlife resources would be addressed through adjacent-site restoration and management.
Grand Lake and the surrounding areas contain numerous wetlands. Wetlands are most abundant along the upper, shallow reaches of the reservoir. In the reservoir's lower reaches, shoreline areas consist primarily of limestone bluffs, with wetlands restricted to coves and backwaters of inundated tributaries. The project supports about 18,318 acres of wetland habitats, primarily at elevations of 735 to 745 feet. Wetland habitat areas have been broken down by type, resulting in the following approximations: Palustrine forested, 11,649 acres; mudflats, 5,662 acres; scrub/shrub, 526 acres; ponded water, 247 acres; and emergent, 234 acres (GRDA 2008a).
As described under Fisheries and Aquatic Resources above, GRDA may, in some years, seed millet on mudflat areas in Grand Lake to benefit shallow-water waterfowl and fish habitat in accordance with its approved Article 411 Fish and Waterfowl Habitat Management Plan. This is performed in the late summer and fall when lake elevations are at their lowest point along the current rule curve. However, because millet seeding under the plan is seldom attempted or successful, it is not a significant factor in the natural resources of Grand Lake.
Implementation of the proposed rule curve would not likely cause any negative impacts to existing wetland resources at Grand Lake because water levels would remain within the range of the current rule curve. The change may provide minor benefits by reducing the water level fluctuations that occur under the current rule curve, allowing some degree of increased growth and establishment of riparian and shallow-water vegetation, which could benefit both fish and wildlife that utilize these areas. The change would eliminate the deepest part of the annual drawdown, a six-week period from September 1 through October 15 when elevations are held at 741 feet, reducing or eliminating exposure of mudflat areas previously used for millet seeding in some years. However, as noted, millet seeding is not currently a significant factor in Grand Lake's natural resources.
In its letter dated March 29, 2016, the Oklahoma DWC states that it approves of GRDA's request to amend its rule curve for the remainder of its license. The Oklahoma DWC granted its support because of a recently-finalized Interagency Agreement between Oklahoma DWC and GRDA in which mitigation for wildlife resources would be addressed through adjacent-site restoration and management, thereby negating the need to lower the lake level to seed mudflats for millet.
Several species listed under the ESA have been identified in the Pensacola Project area. The gray bat (
Gray bats use two caves that are located in the Grand Lake project area: Beaver Dam Cave and Twin Cave. The Beaver Dam Cave is located adjacent to Drowning Creek, a tributary of Grand Lake and the Twin Cave is located more than a mile from Grand Lake and at an elevation of 840 feet. Of these, only the Beaver Dam Cave is affected by Grand Lake levels. Inundation of the cave begins when Grand Lake reaches 746 feet and the cave entrance is completely blocked when Grand Lake reaches 751 feet. Between elevations 756 and 757 feet Grand Lake levels cause water to reach the ceiling of the cave, drowning any bats inside. Bats in the cave can only survive one or two days without food due to the high energy demands of raising young from May through August. Further, if adults are trapped out of the cave then the young will die. The stress of being trapped may also result in aberrant behavior, causing bats to fall into the water. However, this concern has been addressed in that the Nature Conservancy and GRDA enlarged two high passage areas near the entrance of Beaver Dam Cave in 2008 and 2013. This work allows bats to access Beaver Dam Cave during periods of high water although the exact elevation of complete inundation is not in any records filed with the Commission.
Annual surveys of the gray bat population have been conducted at caves within the project area including Beaver Dam Cave since 2007. Based on these surveys, most bats vacate the cave by mid-August. Only in one survey conducted in 2007 have bats remained in the cave through August and into September.
The Neosho mucket is a freshwater mussel native to streams and rivers, which lives in nearshore habitat and does not occur in inundated areas,
The Ozark cavefish is a small fish with no eyes or pigmentation and lives strictly in subterranean waters. Cave ecosystems depend on bats (especially gray bats) as a source of energy and nutrients. The Ozark cavefish is found in Jailhouse Cave and Twin Cave near Grand Lake.
The Neosho madtom is a small catfish that feeds at night on the bottom of rivers and streams. The madtom only occurs within a 14-mile reach of the Neosho River well upstream of Grand Lake near the Oklahoma/Kansas state line. Neosho madtom habitat is periodically affected by the operation of several Corp's flood control structures on the Neosho River.
None of the threatened and endangered species identified at the project would be affected by the rule curve change. In its April 21, 2016 comments on GRDA's application, FWS states that GRDA's proposal would not adversely affect any listed species. FWS further explained that the increased risk of flooding at Beaver Dam Cave is not a concern because listed bats are not using the cave at that time. Therefore, no further consultation is needed pursuant to the ESA.
Native Americans in the historic period and Euro-American settlers in the modern period leading up to Oklahoma's statehood have made extensive use of the Grand River Valley as a place of settlement and transportation. This pattern of use creates a high probability within the project area for intact cultural resources dating from prehistoric eras, periods of early European contact, the nineteenth century, and the Civil War. In addition to historical evidence supporting the likelihood of intact archeological deposits, the topography of the region lends itself to the preservation of archaeological resources. While much of the land in the downstream portion of the project near the dam rises in steep bluffs from the shoreline, the upriver portions of Grand Lake feature a shallow, more riverine topography that has the potential to contain intact archaeological resources. In addition, there are a number of tributaries that feed into Grand Lake that have a high potential for intact resources (GRDA, 2008).
GRDA maintains data supplied by the Oklahoma SHPO and the Oklahoma Historical Society that has identified potential and significant cultural resource sites in the project area. Approximately 50 cultural sites are known to exist within the project area (GRDA, 2008).
Currently there is risk of exposure of archaeological resources and potential historic properties during drawdown and drought. In addition to the discovery provisions in the Storm Plan and Drought Plans discussed in Section 5.5.3, Article 409 of the project license requires GRDA to immediately cease work and to develop a cultural resource management plan in consultation with the Oklahoma SHPO if GRDA discovers previously unidentified archeological or historic properties during the course of constructing or developing project works or other facilities. The plan must include a description of each discovered property indicating whether it is listed on or eligible to be listed on the National Register, a description of the potential effect on each discovered property, proposed measures for avoiding or mitigating effects, documentation of the nature and extent of consultation, and a schedule for mitigating effects and for conducting any needed additional studies.
Operation under the proposed amendment would maintain Grand Lake from August 16 through October 31 at levels that are neither higher nor lower than maximum and minimum levels currently experienced throughout the year. GRDA is not proposing to change maximum water surface levels and therefore, no new lands would be affected by the amendment.
On March 15, 2016, GRDA provided the Oklahoma SHPO a draft copy of its application containing its draft Storm Plan and draft Drought Plan. In an April 22, 2016 letter to GRDA, the Oklahoma SHPO recommended GRDA develop an HPMP to address potential impacts to archeological sites located along and near shorelines and recommended GRDA add the Oklahoma SHPO to the list of consulting parties for the Storm Plan and Drought Plan. GRDA added the Oklahoma SHPO to the consulting party lists for both plans and, rather than developing an HPMP, added provisions in each plan for consulting with the Oklahoma SHPO about potential impacts to cultural resources when the plans are in effect. On April 29, 2016, GRDA provided updated versions of both plans to the Oklahoma SHPO for review and comment.
In an email to GRDA dated May 2, 2016, the Oklahoma SHPO reiterated its recommendation for a project-wide HPMP saying GRDA's proposal to develop an HPMP during a storm or drought event, as described in the revised plans, would be difficult. The Oklahoma SHPO also recommended adding the Oklahoma AS to the consulting party lists for both plans and recommended GRDA include a provision for addressing any unanticipated discoveries of human remains or burials in accordance with state law. GRDA incorporated these additional recommendations into its two plans and stated that it would be able to handle potential difficulties arising from an emergency situation by using the Commission-approved HPMP for its Markham Ferry Project as a framework to address any effects to historic properties.
Furthermore, GRDA agreed that if Oklahoma SHPO or Oklahoma AS determines that reservoir conditions during the rule curve amendment period adversely affect historic properties, GRDA would develop a site-specific plan to address these agencies' concerns. This provision for a site-specific plan, along with the consultation and unanticipated discovery provisions added to the Storm and Drought Plans, provides additional protection.
Because GRDA's amendment would keep Grand Lake within existing fluctuation limits and given the additional consultation and site-specific provisions added to the Storm Plan and Drought Plan, we do not recommend developing a project-wide HPMP at this time. Both the Oklahoma SHPO and Oklahoma AS raised concerns that it would be difficult to develop site-specific plans during a storm or drought event. GRDA responded that it would use the approved HPMP for the Markham Ferry project as a framework for the agencies and GRDA to jointly address any effects to historic properties during such an event for the proposed amendment period. The Oklahoma AS also pointed out that the Pensacola project has a different project setting and different cultural resources than the Markham Ferry project. However the Markham Ferry HPMP does contain provisions for inadvertent discovery of cultural resources and human remains that could be equally applied in an appropriate timeframe during a storm or drought event that would help avoid or minimize effects to cultural resources.
At the Commission's August 3, 2016 Tribal consultation meeting and in their filings with the Commission, the Tribes asserted that any rule curve change, whether temporary or permanent, would increase flooding and adversely affect Tribal lands, including cultural properties. The Tribes stated that backwater flooding from the project, which they said occurs throughout the year, would be exacerbated by the proposed rule curve change. The Tribes also stated that flooding has impaired access to important Tribal facilities, including ceremonial grounds, educational and assistance services, recreational facilities, Tribal
As stated above, GRDA's proposed changes are within Grand Lake's normal maximum and minimum fluctuation limits, therefore, no new lands would likely be affected and we do not recommend an HPMP. If anything, the proposed changes would reduce fluctuating water levels within Grand Lake and cultural and historic properties located on or near the shoreline would be less affected and would not be subject to additional exposure, looting, or vandalism, as asserted by the Oklahoma AS. Moreover, sites are vulnerable to erosion at any level, but approval of this amendment does not exacerbate those effects since the difference in water elevations would be smaller during this period.
Concerning flooding of Tribal lands, the Pensacola project boundary, as currently defined, does not occupy federal Tribal lands held in trust. Moreover, the proposed amendment would not change the overall range of water surface elevations currently approved for project operations. However, regardless of the current boundary or range of operations, the socio-economic impacts identified by the Tribes at the consultation meeting and in their filings are an important consideration in the Commission's comprehensive review of the project. We believe the upcoming relicensing proceeding is the appropriate forum to review any flood effects cause by current operations and to evaluate any new information that shows there are Tribal lands held in trust within the project boundary.
Grand Lake is a major recreation resource in northeastern Oklahoma, providing over a million recreation user days during 2014. Boating, fishing, and waterfowl hunting are popular recreation activities conducted on the lake. Recreational access to Grand Lake is provided through public, commercial, and private facilities such as boat ramps, marinas, and boat docks. Grand Lake has 5 state parks and approximately 14 municipal parks, which collectively provide approximately 22 public boat ramps. In addition, there are approximately 439 private boat ramps, 53 commercial boat ramps, 4,021 commercial boat slips for rent, and 7,761 permitted private boat slips on the lake (GRDA, 2015).
Boating on Grand Lake occurs year-round, although the primary recreation season extends from April 1 until October 1. Fishing is a year-round activity on Grand Lake and an average of 117 fishing tournaments were held on the lake each year between 2009 and 2014. Waterfowl hunting occurs from September through January primarily in the riverine (
GRDA indicated in its application that hazards that lead to boats running aground exist more often at lower lake levels. For example, nearly 80 percent of all boat groundings during the high recreation season (May 1 until September 30) in 2013–2014 occurred while the lake was being drawn down pursuant to the rule curve or maintained at elevation 741 feet. GRDA reports that, in contrast, despite more boats using the lake in 2015 than in 2014,
Operation under the proposed rule curve would increase water elevations at Grand Lake by one to two feet from August 15 to October 31 each year over the remainder of the current license period. These higher elevations would greatly improve public and private access at numerous boat ramps and docks around Grand Lake, and increase the total water surface area available for boating, significantly enhancing recreation opportunities during the popular late summer/early fall recreation season.
Grand Lake has approximately 522 miles of irregular shoreline, which is characterized by narrow channels and many coves. The shoreline of Grand Lake ranges from forested areas with a mixture of vegetative cover types to contiguous manicured lawns, residential housing, and commercial development. The lands adjacent to the northern and western shores of the project consist primarily of rolling plains with occasional hills and ridges and gently sloping shoreline. The lands adjacent to the southern and eastern shores are characterized by deep ravines and narrow valleys separated by broad, gently rolling uplands, with shorelines consisting primarily of steep rocky beaches and bluffs. The upper section of Grand Lake is primarily undeveloped with a more natural aesthetic, while the majority of the shoreline of the lower section of Grand Lake is primarily highly developed.
About 50 percent of land within the project boundary comprises deciduous forest, followed by cropland and pasture lands comprising about 35 percent of the project lands. Residential, commercial, and other development accounts for about 11 percent of total land area within the project boundary. The Grand Lake area is popular for recreation and residential development, particularly summer homes. GRDA manages the reservoir's shorelines via a permitting system and operates a lake patrol to monitor and inspect permitted shoreline uses and enforce its boating regulations (FERC, 2009).
Operation under the proposed rule curve would allow GRDA to maintain higher reservoir elevations from August 15 to October 31, which would increase the amount of project lands under water by up to approximately 2,000 acres during this timeframe compared to current project operations.
In addition, the higher water levels under the proposed rule curve would likely improve the scenic quality of the areas of reservoir shoreline that would have otherwise been dewatered and devoid of vegetation during this timeframe. Such beneficial effects on aesthetics of the project would be minor.
Sections 4(e) and 10(a)(1) of the FPA require the Commission to give equal consideration to all uses of the waterway on which a project is located. Therefore, when we review a hydropower application, we consider power and non-power development, to include the protection of, mitigation of damage to, and enhancement of fish and wildlife; the protection of recreational opportunities; and other aspects of environmental quality. In deciding whether, and under what conditions, to approve hydropower applications, we must determine that the project would be best adapted to a comprehensive plan for improving or developing the waterway. This section summarizes our findings in this EA and reviews our recommendations for conditions to be included in any approval of the proposed permanent amendment.
Based on our independent review of the licensee's proposed amendment, agency and public comments filed on the licensee's proposal, and our review of environmental effects, we believe approval of GRDA's proposal, with Oklahoma DEQ's mandatory WQC conditions, is the preferred alternative. We recommend this alternative because, based on the information reviewed and analysis performed in this EA, it would provide several significant benefits with few measurable negative impacts.
Operation of the Pensacola Project using the proposed rule curve would allow more water to be stored in Grand Lake, with less fluctuation in water levels, from August 15 through October 31 each year for the remainder of the current license term. Operation under the proposed rule curve would likely result in minor reductions in shoreline erosion rates and could promote revegetation of some shallow shoreline areas that could further reduce erosion over time. This change would not result in any material adverse impacts to water quality. In hot dry years, higher water levels in late summer and early fall would make more water available for releases to maintain downstream DO and avoid fish kills. During any periods of declared severe to exceptional drought, GRDA's proposed Drought Plan would provide additional protection for downstream water quality. A reduction in water level fluctuations in Grand Lake should have positive effects on fisheries and other aquatic resources by providing more stable shallow-water habitat and cover, especially for juvenile fishes, and through increased plant growth and establishment in wetland areas, including emergent and submerged vegetation. Fish occupying the project tailwater and river downstream would likely benefit from water quality improvements in hot, dry years and during any declared severe to exceptional drought as discussed above.
Higher elevations at Grand Lake in late summer and early fall would provide a significant benefit to recreation by increasing the water surface area available for boating, improving access at public and private launching facilities, and likely decreasing shallow-water boating hazards. Higher seasonal water elevations would likely provide minor aesthetic improvements in some areas that were dewatered and devoid of vegetation in the past.
While we have not identified any definitive significant short-term or long-term negative effects to resources that would likely occur with operation under the proposed rule curve, commenters have expressed concern regarding flooding effects and affects to cultural and historic resources.
Along with its proposed changes to the rule curve, GRDA proposes a Storm Plan that would provide for assessment of risks of upstream and downstream flooding during high precipitation events and a process to proactively and collaboratively manage these events. A Storm Plan was in place during the 2015 and 2016 temporary variance periods, and was successful in aiding communication related to high precipitation events within the basin and managing project facilities during those events. Under the current proposal, the Storm Plan would be in effect each year for the remainder of the license period. We recommend that any approval of GRDA's proposed amendment incorporate the Storm Plan.
GRDA also proposes a Drought Plan that would help protect downstream water quality and fisheries, as well as generation at its downstream Markham Ferry Project and Salina Pumped Storage Project if a severe to exceptional drought is declared and reservoir elevations fall below the rule curve. The Drought Plan would be in effect each year for the remainder of the license period. We recommend that any approval of GRDA's proposal incorporate the Drought Plan.
We recommend that any approval of GRDA's proposal incorporate the annual reporting requirement that is a condition of Oklahoma DEQ's June 30, 2016 401 certification. The requirement should mirror paragraph (E) of the Commission's August 12, 2016 order approving the temporary rule curve variance for 2016, which required GRDA to notify Oklahoma DEQ, at the same time it notifies other agencies pursuant to DO mitigation plans approved under Article 403, of any significant DO deficiencies or DO mitigation, so that Oklahoma DEQ can track GRDA's progress in maintaining state water quality standards. In addition to Oklahoma DEQ's ongoing annual reporting requirement, Oklahoma DEQ also included three other mandatory WQC conditions: (1) that the certification does not authorize any discharge or dredging; (2) that the reservoir be maintained between elevations 742 and 744 feet as requested by GRDA; and (3) that emergency and routine maintenance will be as permitted by the Corps. We have no objections to these conditions being added to the license in any order approving the proposed amendment.
Section 10(a)(2) of the FPA, 16 U.S.C. 803(a)(2)(A), requires the Commission to consider the extent to which a project is consistent with federal or state comprehensive plans for improving, developing, or conserving a waterway or waterways affected by the project. We reviewed 6 qualifying comprehensive plans that are applicable to the proposed action at the Pensacola Project No. 1494, located in Oklahoma. The proposed action is consistent with all of the reviewed comprehensive plans.
Based on information, analysis, and evaluations contained in this EA, we find that approval of the proposed rule curve amendment, to include the mandatory conditions stipulated by Oklahoma DEQ in its 401 certification, would not constitute a major federal action significantly affecting the quality of the human environment.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. This application is not ready for environmental analysis at this time.
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PacifiCorp also proposes to increase the project's minimum flow releases and ramping rates limits, as well as extending the project boundary to include the inverted siphon and access roads.
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m. You may also register online at
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The application will be processed according to the following preliminary Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that on January 5, 2017, pursuant to sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824e and 825e and Rules 206 and 212 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 and 385.212, Advanced Energy Management Alliance (AEMA or Complainant) filed a formal complaint against PJM Interconnection, L.L.C. (PJM or Respondent) alleging that certain provisions of PJM's Open Access Transmission Tariff and its Reliability Assurance Agreement are unjust, unreasonable and unduly discriminatory, all as more fully explained in the complaint.
The AEMA certifies that a copies of the complaint were served on the contacts for PJM as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency.
Notice of meeting.
Pursuant to the provisions of the Federal Advisory Committee Act, Public Law 92–463, notice is hereby given that the next meeting of the Children's Health Protection Advisory Committee (CHPAC) will be held February 1 and 2, 2017, at Georgetown University Hotel and Conference Center, 3800 Reservoir Road NW., Washington, DC 20057.
The CHPAC advises the Environmental Protection Agency on science, regulations, and other issues relating to children's environmental health.
February 1, 2017, from 1:00 p.m. to 5:30 p.m. and February 2, 2017, from 9:00 a.m. to 4:00 p.m.
3800 Reservoir Road NW., Washington, DC 20057.
Martha Berger, Office of Children's Health Protection, USEPA, MC 1107T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 564–2191 or
The meetings of the CHPAC are open to the public. An agenda will be posted to
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before February 13, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Kimberly R. Keravuori, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418–2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page <
In general, an applicant's submission is as follows: (a) FCC Form 731 includes approximately two pages covering the demographic and equipment identification information; and (b) applicants must supply additional documentation and other information, as described above, demonstrating conformance with FCC Rules, which may range from 100–1,000 pages. The supplemental information is essential to control potential interference to radio communications, which the FCC may use, as is necessary, to investigate complaints of harmful interference. In response to new technologies and in allocating spectrum, the Commission may establish new technical operating standards: (a) RF equipment manufacturers must meet the new standards to receive an equipment authorization, and (b) RF equipment manufacturers must still comply with the Commission's requirements in FCC Form 731 and demonstrate compliance as required by 47 CFR part 2 of FCC Rules. Thus, this information collection applies to a variety of RF equipment: (a) That is currently manufactured, (b) that may be manufactured in the future, and (c) that operates under varying technical standards. On July 8, 2004, the Commission adopted a Report and Order,
On October 26, 2014, the Federal Communications Commission released a
On August, 22, 2016, the Federal Communications Commission released an
Before equipment operating under part 90 of this chapter and capable of operating on the 700 MHz interoperability channels (See § 90.531(b)(1) of this chapter) may be marketed or sold, the manufacturer thereof shall have a Compliance Assessment Program Supplier's Declaration of Conformity and Summary Test Report or, alternatively, a document detailing how the manufacturer determined that its equipment complies with § 90.548 of this chapter and that the equipment is interoperable across vendors. Submission of a 700 MHz narrowband radio for certification will constitute a representation by the manufacturer that the radio will be shown, by testing, to be interoperable across vendors before it is marketed or sold.
The Commission also modified Section 90.548(c) of the Commission's rules to provide:
Transceivers capable of operating on the interoperability channels listed in § 90.531(b)(1) shall not be marketed or sold unless the transceiver has previously been certified for interoperability by the Compliance Assessment Program (CAP) administered by the U.S. Department of Homeland Security; provided, however, that this requirement is suspended if the CAP is discontinued. Submission of a 700 MHz narrowband radio for certification will constitute a representation by the manufacturer that the radio will be shown, by testing, to be interoperable across vendors before it is marketed or sold. In the alternative, manufacturers may employ their own protocol for verifying compliance with Project 25 standards and determining that their product is interoperable among vendors. In the event that field experience reveals that a transceiver is not interoperable, the Commission may require the manufacturer thereof to provide evidence of compliance with this § 90.548.
To effectively implement the provisions of the new Rules, no modifications to the existing FCC Form 731 Application for Equipment Authorization are required. The changes are intended to simplify the filing process, ensure equipment complies with Project 25 standards and is interoperable across vendors. The following specific methods are proposed to ensure compliance with Section 90.548 and simplify filing processes for equipment manufacturers:
(1) The
(2) In the event that field experience reveals that a transceiver is not interoperable, the Commission may require the manufacturer thereof to provide evidence of compliance with § 90.548.
The modified rules provide a benefit to public safety licensees by ensuring that only equipment that has been tested for interoperability in a vendor-neutral environment before equipment can be marketed or sold to public safety. This will provide the additional benefit of engendering competition in the public safety equipment marketplace by eliminating system compatibility as a gating factor when evaluating equipment purchases. The
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 8, 2017.
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The Technology Transformation Service, General Services Administration (GSA).
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request for comments regarding an existing OMB clearance concerning
Submit comments on or before February 13, 2017.
Submit comments identified by Information Collection 3090–0304;
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John Yuda, Federal Citizen Information Center, GSA, telephone 202–306–9046 or via email at
The information in the system is contributed voluntarily by the user and cannot be accessed by the Government without explicit consent of the user; information is not shared between government agencies, except when the user gives explicit consent to share his or her information, and as detailed in the
The information collected is basic profile information, and may include: Name, email address, home address, phone number, date of birth, gender, marital status and basic demographic information such as whether the individual is married, a veteran, a small business owner, a parent or a student. Use of the system, and contribution of personal information, is completely voluntary.
Please cite OMB Control No. 3090–0304,
Federal Acquisition Service (FAS), General Services Administration (GSA).
Notice of request for comments regarding a new request for an OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve a new information collection requirement regarding OMB Control No: 3090–00XX; Alliant2 Greenhouse Gas Disclosure. A notice was published in the
Submit comments on or before February 13, 2017.
Submit comments identified by Information Collection 3090–00xx; Alliant2 Greenhouse Gas Disclosure by any of the following methods:
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Dana Arnold, Director, Federal Acquisition Service Office of Acquisition Management, Special Programs Branch, at telephone 703–605–0534, or via email to
President Obama has made Greenhouse Gas (GHG) Emissions reduction nationwide and in the Federal community a priority. The President's Executive Order 13693,
GSA has selected the Alliant2 Government-wide Acquisition Contract (GWAC) acquisition for inclusion of contractor GHG emissions disclosure requirements. Alliant, GSA's premier enterprise GWAC, provides flexible access to customized IT solutions from a large, diverse pool of industry partners. Alliant2 will offer both large and small contractors. It is GSA's intent to require the large (unrestricted) Alliant2 contractors to inventory and publicly disclose their operational GHG emissions, set targets for reducing those emissions, and disclose progress toward meeting their targets. Of the current Alliant contractors, approximately 40 percent already publicly disclose their GHG emissions in response to requests from their non-government customers, investors, insurers, and corporate sustainability policies.
Public disclosure of GHG emissions and GHG reduction goals or targets has become standard practice in many industries, and companies are increasingly asking their own suppliers about their GHG management practices. More than 4,000 companies provided public disclosure through third-party organization CDP (formerly the Carbon Disclosure Project) in 2015. Performing a GHG inventory provides insight into operations and opportunities for energy and operational savings that can result in both environmental and financial benefits.
The Allliant2 GHG disclosure requirement will require the unrestricted (large and medium-sized) Alliant2 contractors to inventory, and publicly disclose their operational GHG emissions, set targets for reducing those emissions, and report progress toward meeting their targets. This will be an annual requirement.
GSA received three comments from one individual and one industry association.
Please cite OMB Control No. 3090–00XX, Alliant2 Greenhouse Gas Disclosure, in all correspondence.
U.S. Government Accountability Office (GAO).
Request for letters of nomination and resumes.
The Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) established the Medicaid and CHIP Payment and Access Commission (MACPAC) to review Medicaid and CHIP access and payment policies and to advise Congress on issues affecting Medicaid and CHIP. CHIPRA gave the Comptroller General of the United States responsibility for appointing MACPAC's members. GAO is now accepting nominations to MACPAC that will be effective May 1, 2017. Letters of nomination and resumes should be submitted no later than February 24, 2017 to ensure adequate opportunity for review and consideration of nominees prior to appointment of new members. Nominations should be sent to the email or mailing address listed below. Acknowledgement of submissions will be provided within a week of submission. Please contact Will Black at (202) 512–6482 if you do not receive an acknowledgement.
Request for Information—Learning Healthcare Systems
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for Information.
The Agency for Healthcare Research and Quality (AHRQ) is seeking information from healthcare delivery organizations about current challenges they are facing and solutions they are implementing as they seek to become learning healthcare systems. AHRQ is also seeking to identify opportunities such organizations see for the Agency to assist them in this work—for example by summarizing best practices, creating training materials, developing standardized metrics, and/or convening learning networks.
Submission deadline on or before February 28, 2017.
Email submissions:
Mailing Address: Learning Healthcare Systems, Office of the Director, Agency for Healthcare Research and Quality, 5600 Fishers Lane, Rockville, MD 20857.
Brigid Russell, Office of the Director,
The mission of the Agency for Healthcare Research and Quality (AHRQ) is to produce evidence to make health care safer, higher quality, more accessible, equitable, and affordable, and to work within the U.S. Department of Health and Human Services and with other public and private partners to make sure that the evidence is understood and used. The Agency strives to meet this mission by investing in research and generating needed evidence that supports disseminating tested practices, creating materials to teach and train health care systems and professionals to catalyze improvements in care, and developing measures and data used to track and improve performance. To learn more about the Agency, visit
The National Academy of Medicine (formerly the Institute of Medicine or IOM) has described a learning healthcare system as an organization that “is designed to generate and apply the best evidence for the collaborative healthcare choices of each patient and provider; to drive the process of discovery as a natural outgrowth of patient care; and to ensure innovation, quality, safety, and value in health care.”
Several trends within healthcare delivery are increasing the potential for the development of learning healthcare systems including the consolidation of ambulatory, in-patient, and post-acute care settings of care into integrated delivery systems, the evolution of health information systems, and increased attention to population health management. AHRQ is interested in understanding how healthcare professionals and organizations in the United States are currently working to become learning healthcare systems and in identifying high-leverage opportunities for the Agency to support this transformation.
Healthcare delivery organizations, both small and large, can function as learning healthcare systems, systematically gathering and creating evidence and applying the most promising evidence-based practices to improve their care delivery. AHRQ wants to better understand the process by which organizations and professionals select evidence to implement and the strategies used to move evidence into everyday practice. AHRQ is interested in hearing from the full range of healthcare delivery organizations including individual ambulatory practices, community health center networks, hospitals, individual components (such as departments) within larger organizations, networks of practices, accountable care organizations, and integrated delivery systems.
Specific questions of interest to the Agency include, but are not limited to:
• How are learning healthcare systems utilizing their own data to inform clinical and organizational improvements in healthcare delivery, design, and efficiency?
• Are learning healthcare systems using their own data to inform strategies to address population health and healthcare disparities?
• What methodological and/or data quality issues have been encountered by the health care delivery organizations in generating evidence utilizing their own data?
• How do learning healthcare systems ensure that evidence either generated from their own data and/or adopted from external research is applied in a
• What metrics are learning healthcare systems utilizing to:
• Understand the degree to which they are functioning as a system?
• Monitor progress on their rate of moving clinical evidence into practice?
• Evaluate the consistency of application of evidence across the organization?
• How do these metrics relate to health care delivery organization goal setting, individual employee performance review and internal compensation linked to performance?
• How are learning healthcare systems involving patients and families in their efforts?
• What evidence, tools, training, methods, data, or measures could AHRQ develop or provide that would have a significant impact on the ability of health care delivery organizations to utilize their own data, use externally produced data and evidence, and meet their own quality and safety goals?
AHRQ will use the information it receives to assist in developing future initiatives. These initiatives may include but are not limited to developing research grant opportunities to advance this field, investing in the creation of tools and training materials for health professionals and healthcare delivery organizations, the development of quality improvement measures, and/or convening learning collaboratives focused on accelerating the development of learning healthcare system capabilities within healthcare delivery organizations.
This RFI is for planning purposes only and should not be construed as a policy, solicitation for applications, or as an obligation on the part of the Government to provide support for any ideas identified in response to it. AHRQ will use the information submitted in response to this RFI at its discretion and will not provide comments to any responder's submission. However, responses to the RFI may be reflected in future solicitation(s). The information provided will be analyzed and may appear in reports. Respondents will not be identified in any published reports. Respondents are advised that the Government is under no obligation to acknowledge receipt of the information received or provide feedback to respondents with respect to any information submitted. No proprietary, classified, confidential, or sensitive information should be included in your response. The Government reserves the right to use any non-proprietary technical information in any resultant solicitation(s).
HPOG-Impact is one project within the broader portfolio of research that the ACF Office of Planning, Research, and Evaluation (OPRE) is utilizing to assess the success of career pathways programs and models. This strategy includes a multi-pronged research and evaluation approach for the HPOG program to better understand and assess the activities and their results as well as the Pathways for Advancing Careers and Education (PACE) project. In order to maximize learning across the portfolio, survey development for the HPOG and PACE baseline and follow-up surveys has been coordinated, and the majority of the data elements collected in these surveys are similar. (See OMB Control #0970–0397 for PACE data collection.)
Four data collection efforts have been approved for HPOG research: One for approval of a Performance Reporting System (PRS) (approved September 2011); a second for collection of baseline data (approved October 2012); a third for a follow-up survey of participants administered approximately 15 months after random assignment and for implementation study data collection (approved August 2013); and a fourth for a second follow-up survey of participants administered 36 months after random assignment (approved December 2014).
This
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research, and Evaluation, 330 C Street SW., Washington, DC 20201, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments 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) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Ophthalmic Devices Panel of the Medical Devices Advisory Committee and the Risk Communication Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will be held on March 17, 2017, from 7:30 a.m. to 4 p.m.
Hilton Washington, DC North/Gaithersburg, Salons A, B, C, and D, 620 Perry Pkwy., Gaithersburg, MD 20877. The hotel's phone number is 301–977–8900. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
Aden S. Asefa, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G642, Silver Spring, MD 20993–0002,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact AnnMarie Williams at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Vaccines and Related Biological Products Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will be held on March 9, 2017, from 8:30 a.m. to 3 p.m.
National Institutes of Health (NIH), Fishers Lane Conference Center, 5635 Fishers Lane, Rockville, MD 20852. Enter through the main front entrance on Fishers Lane. Take the elevators down to the T-Terrace Level. Follow the short hallway towards the elevators and the Conference Center glass doors are straight ahead near the elevators.
For those unable to attend in person, the meeting will also be Web cast and will be available at the following link:
Prabhakara Atreya or Rosanna Harvey, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 6306, Silver Spring, MD 20993–0002, at 240–402–8006,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Prabhakara Atreya at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to Public Law 92–463, notice is hereby given of a meeting of the Substance Abuse and Mental Health Services Administration's (SAMHSA) Advisory Committee for Women's Services (ACWS) on February 1, 2017.
The meeting will include discussions on the National Institutes of Health (NIH) women and girls research agendas; a Legislative update and an overview of the Cures Act; an overview of the Surgeon General's Report; a presentation on physical health/behavioral health integration activities; and a conversation with the Deputy Assistant Secretary for Mental Health and Substance Use.
The meeting is open to the public and will be held at SAMHSA, 5600 Fishers Lane, Rockville, MD 20857, in Conference Room 5N76. Attendance by the public will be limited to space available. Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions should be forwarded to the contact person (below) by January 18, 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 18, 2017. Five minutes will be allotted for each presentation.
The meeting may be accesed 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
Substantive meeting information and a roster of Committee members may be obtained either by accessing the SAMHSA Committees' Web
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of a draft comprehensive conservation plan (CCP) and environmental assessment (EA) for Plum Tree Island National Wildlife Refuge (NWR) for public review and comment. Plum Tree Island NWR is located in Poquoson, Virginia, and is administered by staff at Eastern Virginia Rivers NWR Complex based in Warsaw, Virginia. The draft CCP and EA describes two alternatives for managing Plum Tree Island NWR for the next 15 years. Alternative B is identified as the Service-preferred alternative. Also available for public review and comment are the draft compatibility determinations, which are included as appendix B in the draft CCP and EA.
To ensure consideration of your written comments, please send them by March 13, 2017. We will also hold public meetings. We will announce those meetings and other opportunities for public input in local news media, via our project mailing list, and on the refuge planning Web site:
You may submit comments or requests for copies or more information by any of the following methods. You may request hard copies or a CD–ROM of the documents.
Meghan Powell, Natural Resource
With this notice, we continue the CCP process for Plum Tree Island NWR. We published our original notice of intent to prepare a CCP in the
The 3,502-acre Plum Tree Island NWR is located in the City of Poquoson, Virginia. The refuge is approximately 7 miles north of Hampton, Virginia. It was established in 1972 primarily to conserve and protect migratory birds. It is one of many important migratory bird stopover sites along the Atlantic Flyway and provides protected breeding habitat for Federal- and State-listed threatened and endangered species, as well as many neotropical migrant bird species. The refuge is comprised of a variety of wildlife habitats, including salt marsh, maritime shrubland and dune, sandy beaches and mudflats, and estuarine habitats.
Prior to refuge establishment in 1972, the U.S. Air Force used approximately 3,276 acres of the present-day refuge as a bombing and gunnery range. Known as the Plum Tree Island Range, it was actively used from 1917 until June 1971. The nature and extent of unexploded ordnance and munitions constituents occurring within and adjacent to the refuge have been characterized by the U.S. Army Corps of Engineers' (USACE) Formerly Used Defense Site Program. A remedial action plan to address human health and ecological risks of the Plum Tree Island Range is currently being developed by the USACE.
The only public use that is currently allowed on the refuge is a 30-day waterfowl hunt on the refuge's 211-acre Cow Island tract, which lies outside the former gunnery and bombing range.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years, in accordance with the Refuge Administration Act.
In September 2012, we distributed a planning newsletter to over 410 parties on our project mailing list. The newsletter informed people about the planning process and asked recipients to contact us about issues or concerns they would like us to address. We also posted the newsletter on our Web site for people to access electronically. In addition, we notified the general public of our planning project, and our interest in hearing about issues and concerns, by publishing news releases in local newspapers. We also held an evening public scoping meeting on September 13, 2012, in Poquoson, Virginia, and an afternoon public scoping meeting on September 14, 2012, in Poquoson, Virginia. The purpose of the two meetings was to share information on the planning process and to solicit management issues and concerns. Throughout the process, refuge staff has conducted additional outreach via participation in community meetings, events, and other public forums. We have considered and evaluated all of the comments we received and addressed them in various ways in the alternatives presented in the draft CCP and EA.
Several issues were raised by us, other governmental partners, and the public during the public scoping process. To address these issues, we developed and evaluated two management alternatives in the draft CCP and EA. A full description of each alternative is in the draft CCP and EA. Both alternatives include measures to continue to share staff across the Eastern Virginia Rivers NWR Complex, control invasive species, protect cultural resources, distribute refuge revenue sharing payments, support research on the refuge, and participate in conservation and education partnerships.
There are other actions that differ among the alternatives. The draft CCP and EA provides a full description of both alternatives and relates each to the issues and concerns that arose during the planning process. Below, we provide summaries for the two alternatives.
This alternative is the “no action” alternative required by the National Environmental Policy Act. Alternative A defines our current management activities, including those planned, funded, or underway, and serves as the baseline against which to compare alternative B. Under alternative A, we would continue to protect the refuge's wildlife habitats by allowing natural processes to occur unimpeded. Our refuge management efforts would continue to focus on minimizing human-caused disturbance of refuge habitats and wildlife, conducting annual northeastern beach tiger beetle surveys (a federally threatened species), performing visual surveys of shoreline changes, and administering the waterfowl hunt while on the refuge. While off the refuge, our staff would continue to focus on interagency coordination to assess and evaluate hazards posed by the former bombing range. Refuge staff has also participated in community programs and events to promote understanding and appreciation for the purpose of the refuge and the mission of the Service. The refuge's limited waterfowl hunt on Cow Island would continue to be the only public use permitted on the refuge.
Alternative B is the Service-preferred alternative. It combines the actions we believe would best achieve the refuge's purposes, vision, and goals and respond to public issues. Under alternative B, we would continue to protect the refuge's wildlife habitats by allowing natural processes to occur unimpeded. Our refuge management efforts would continue to focus on minimizing human-caused disturbance of refuge habitats and wildlife, while working with a greater diversity of partners to conduct biological research, inventory, and monitoring efforts. We are primarily interested in learning more about the presence and sustainability of priority wildlife species through inventories and the monitoring of climate change impacts and changes in habitat conditions over the life of the plan. Collecting this information would serve as the basis for future refuge management actions in the next CCP.
Under alternative B, we would evaluate opportunities to enhance and expand the waterfowl hunt program on Cow Island, with an emphasis on increasing adult and youth
After this comment period ends, we will analyze the comments and address them in the form of a final CCP and, if appropriate, finding of no significant impact.
In addition to any methods in
We consider comments substantive if they:
• Question, with reasonable basis, the accuracy of the information in the document.
• Question, with reasonable basis, the adequacy of the EA.
• Present reasonable alternatives other than those presented in the EA.
• Provide new or additional information relevant to the EA.
Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
The International Boundary & Water Commission, U.S. Section, and the Texas Archeological Research Laboratory (TARL) have completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and have determined that there is no cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Texas Archeological Research Laboratory (TARL) and the International Boundary & Water Commission. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Texas Archeological Research Laboratory (TARL) and the International Boundary & Water Commission at the address in this notice by February 13, 2017.
Marybeth Tomka, Head of Collections, Texas Archaeological Research Laboratory, 10100 Burnet Road, PRC Building 5, Austin, TX 78758, telephone (512) 475–6853, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the International Boundary and Water Commission—U.S. Section, and in the possession of the Texas Archaeological Research Laboratory. The human remains and associated funerary objects were removed from Zapata County, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by TARL professional staff in consultation with representatives of the Comanche Nation, Oklahoma, the Kiowa Indian Tribe of Oklahoma, the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico, and the Tonkawa Tribe of Indians of Oklahoma.
In 1952, human remains representing, at minimum, one individual were removed from site 41ZP2, also referenced as the “Castillo Site” in Zapata County, TX. The burial was discovered east of the Rio Grande River, and the human remains were likely partially or completely excavated by a “Mr. Garcia” prior to the arrival of professional archeologists. The human remains are identified by two TARL Human Osteology (HO) numbers: #2428 and #3404. The cranial material (TARL HO #2428) represents a young adult female (approximately 20–35 years old at the time of death). The age-at-death could not be determined for the postcranial material (TARL HO #3404). While packaged under separate HO numbers, TARL has determined that these human remains likely belong to the same individual. No known individuals were identified. The 190 associated funerary objects are six pieces of chert debitage, two bifaces, one Tortugas dart point, one bone awl (possibly animal), 95 bone beads (strung necklace), 70 fragmentary bone beads, one bone tube (a modified right human ulna), 13 ochre pebbles and fragments, and one ochre pebble. Based on the presence of the Tortugas point associated with these human remains, this individual is estimated to date to
In the 1983, during a period of low water levels at Falcon Lake, human remains representing, at minimum, one individual were recovered from site 41ZP8 in Zapata County, TX. The context of these human remains (TARL HO #4024) is unknown, but they were originally packaged with two other sets of remains (TARL HO #4023 and #4025). This individual is represented by one left innominate and is a middle to older adult female, aged 42–55. No known individuals were identified. No associated funerary objects are present.
In the 1983, human remains representing, at minimum, five individuals were uncovered during low-water levels at Falcon Lake, somewhere near site 41ZP8 in Zapata County, TX (TARL HO #4025). The sex of these individuals could not be determined and their ages are unclear. Two of the individuals might be juveniles. No known individuals were identified. No associated funerary objects are present.
In 1950, human remains representing, at minimum, one adult individual were recorded by J.T. Hughes at site 41ZP10 in Zapata County, TX. The individual (TARL HO #2113) is represented by only the bottom half of the skeleton. The individual is a middle-adult (30 years old or older). The individual's sex could not be determined, although the original report suggests the individual may have been female. No known individuals were identified. The 21 associated funerary objects are four Tortugas Points, three Kinney Points, one Abasolo Point, one scraper/biface, one end scraper, seven knives/bifaces, and four Matamoros Points. One grooved sandstone abrader was noted on a 1950 map, but cannot be located in TARL's collections. Based on the presence of the projectile point artifacts associated with these human remains, this burial is estimated to date to the Middle to Late/Transitional Archaic Periods (approximately 1000 B.C. to A.D. 1000).
In 1952, human remains representing, at minimum, three individuals were identified at the Gaspar Garcia Site, 41ZP61, near the Castillo Site (41ZP7) within the Falcon Reservoir of Zapata County, TX. The first of the three individuals (TARL HO #2182) is represented by only a few fragmentary remains, so the age and sex could not be determined. Six bone bead fragments were comingled with these human remains. The second individual (TARL HO #2356) is a young to middle adult male, approximately 25–44 years old at the time of death. The third individual (TARL HO #3405) is represented by a single fragment—the distal epiphysis of the right femur. The sex and age of this individual could not be determined. No known individuals were identified. Associated funerary objects were identified for this site, but it is unclear whether the objects were placed with only one or more of the individuals listed for this site (TARL HO #2182, #2356, or #3405). The 146 associated funerary objects are one Desmuke Point, one Tortugas Point, one Matamoros Point, one triangular biface, one chert debitage, one chert biface, one polished pebble, 128 bone beads (possibly bird), five ochre pebbles, and the six bone bead fragments that were found commingled with the human remains of TARL HO #2182. Based on the presence of the projectile points associated with these human remains, these burials are estimated to date to the Middle to Late/Transitional Archaic Periods (approximately 1000 B.C. to A.D. 1000).
In 1952, human remains representing, at minimum, one individual were exposed at site 41ZP67 during low-water levels at Falcon Reservoir in Zapata County, TX. This individual (TARL HO #2055) is represented by only cranial remains and is estimated to be an adult female, at least 23 years old at the time of death. No known individuals were identified. The single associated funerary object is one Tortugas dart point. Based on the presence of the Tortugas dart point associated with these human remains, this burial is estimated to date to the Late Middle Archaic Period (approximately 1000 B.C.).
During the 1980s, human remains representing, at minimum, three individuals were excavated from various sites within Falcon Reservoir in Zapata County, TX. Information on the excavation of these human remains is lacking, and the skeletal remains associated with these individuals (TARL HO #4018A, #4018B, and #4018C) are fragmentary. The individuals are all estimated to be adults, but their sex cannot be determined. One individual (TARL HO #4018B) is 30+ years old at the time of death. No known individuals were identified. There are no associated funerary objects present, but a small bag of non-human faunal remains is included with the individuals.
At an unknown date, human remains representing, at minimum, one individual were recovered from an unrecorded site “several hundred meters north of . . . 41ZP86” (in Zapata County, TX). While the human remains (TARL HO #4022) were located near a historic cemetery and 41ZP86, they are likely not associated with either of the aforementioned sites. Although past analysis records indicate the individual is female, the individual is more likely a middle-adult male, approximately 35–50 years old at the time of death. No known individuals were identified. The 1996 osteological analysis notes that “stone artifacts” were included with these remains, but no count or description was provided and those artifacts cannot be located in TARL's collections. Therefore, no associated funerary objects are present.
Due to the archeological context of the human remains described above, TARL has determined these human remains to be Native American.
TARL, on behalf of the International Boundary and Water Commission, consulted with the Comanche Nation, Oklahoma, the Kiowa Indian Tribe of Oklahoma, the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico, and the Tonkawa Tribe of Indians of Oklahoma based on the Indian tribes' interest in human remains found in Zapata County. However, TARL was unable to determine the cultural affiliation of these human remains with any present-day Indian tribe.
Officials of International Boundary and Water Commission have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on their archeological context.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 16 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 358 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Comanche Nation, Oklahoma, and the Kiowa Indian Tribe of Oklahoma.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to the Comanche Nation, Oklahoma, and the Kiowa Indian Tribe of Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Marybeth Tomka, Head of Collections, Texas Archaeological Research Laboratory, 10100 Burnet Road, PRC Building 5, Austin, TX 78758, telephone (512) 475–6853, email
TARL is responsible for notifying the Comanche Nation, Oklahoma, the Kiowa Indian Tribe of Oklahoma, the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico, and the Tonkawa Tribe of Indians of Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of Defense, Defense Health Agency, National Museum of Health and Medicine has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the National Museum of Health and Medicine. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the National Museum of Health and Medicine at the address in this notice by February 13, 2017.
Mr. Brian F. Spatola, Curator of Anatomical Division, National Museum of Health and Medicine, U.S. Army Garrison Forest Glen, 2500 Linden Lane, Silver Spring, MD 20910, telephone (301) 319–3353, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the National Museum of Health and Medicine, Silver Spring, MD. The human remains were removed from Marion County, TN, and Limestone County, AL.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the National Museum of Health and Medicine professional staff in consultation with representatives of the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma.
In 1914, human remains representing, at minimum, one individual were removed from Bennett Place (site 40M17) in Marion County, TN. Age and sex could not be identified. Artifacts were present at the time of excavation, but were not retained with the human remains. The human remains were donated to the Army Medical Museum (today the National Museum of Health and Medicine) by Clarence B. Moore in December of 1914. No known individuals were identified. No associated funerary objects are present.
On an unknown date, human remains representing, at minimum, one individual were removed from a site at the confluence of the Sequatchie and Tennessee Rivers in Marion County, TN. The human remains consist of the cranium and mandible of an adult female. The human remains were purchased by the Army Medical Museum (National Museum of Health and Medicine) from C.H. Ward Company, Rochester, NY, in 1915. No known individuals were identified. No associated funerary objects are present.
In 1915, human remains representing, at minimum, one individual were removed from the Dwelling site at the mouth of the Sequatchie Creek (40M12) in Marion County, TN. The human remains consist of an adult left humerus. The human remains were donated to the Army Medical Museum (National Museum of Health and Medicine) by Clarence B. Moore in May of 1915. No known individuals were identified. No associated funerary objects are present.
In 1915, human remains representing, at minimum, one individual were removed from the Dwelling site on Mason Island (1La92) in Limestone County, AL. The human remains consist of the left femur and right tibia of an adult male. The human remains were donated to the Army Medical Museum (National Museum of Health and Medicine) by Clarence B. Moore in May of 1915. No known individuals were identified. No associated funerary objects are present.
Officials of the National Museum of Health and Medicine have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on: Osteological evidence, collection history, artifacts, and association with prehistoric archeological sites.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Mr. Brian F. Spatola, Curator of Anatomical Division, National Museum of Health and Medicine, U.S. Army Garrison Forest Glen, 2500 Linden Lane, Silver Spring, MD 20910, telephone (301) 319–3353, email
The National Museum of Health and Medicine is responsible for notifying the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and United Keetoowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Texas Archeological Research Laboratory (TARL) is rescinding a Notice of Inventory Completion published in the
Marybeth Tomka, Head of Collections, Texas Archaeological Research Laboratory, 10100 Burnet Road, PRC Building 5, Austin, TX 78758, telephone (512) 475–6853, email
Notice was previously given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Texas Archaeological Research Laboratory. The human remains and associated funerary objects were removed from Zapata County, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
The Texas Archeological Research Laboratory (TARL) is rescinding a Notice of Inventory Completion published in the
In the
The Texas Archeological Research Laboratory (TARL) is responsible for notifying the Comanche Nation, Oklahoma, the Kiowa Indian Tribe of Oklahoma, the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico, and the Tonkawa Tribe of Indians of Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Arizona State Museum, University of Arizona, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of objects of cultural patrimony. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Arizona State Museum, University of Arizona. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Arizona State Museum, University of Arizona at the address in this notice by February 13, 2017.
John McClelland, NAGPRA Coordinator, P.O. Box 210026, Arizona State Museum, University of Arizona, Tucson, AZ 85721, telephone (520) 626–2950.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Arizona State Museum, University of Arizona, Tucson, AZ, that meet the definition of objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25
In April 1939, one cultural item was removed from the Tohono O'odham Reservation in the village of Sil Nakya, AZ. The one object of cultural patrimony is a calendar stick. Mr. and Mrs. Wetmore Hodges purchased the calendar stick (E–151) from José Maria, the keeper of the stick and subsequently donated it to the Arizona State Museum.
In the 1960s, one cultural item was removed from the Tohono O'odham Reservation near the village of Santa Rosa, AZ. The one object of cultural patrimony is a calendar stick. Mr. Donald Bahr was given the calendar stick (E–7310) by an unknown Tohono O'odham man, at an abandoned village near Santa Rosa on the Tohono O'odham Reservation. In 1967, Mr. Bahr donated the calendar stick to the Arizona State Museum.
Calendar sticks carried a record of social and natural events, which were read only by the carver. These sticks were mnemonic devices with carved notches to represent a year, and dots and other symbols to represent events during the year, as reported by ethnographers. The distances between each notch represent a year, which is from summer to summer or saguaro harvest to saguaro harvest. The notches and cuts represent various happenings but only the keepers of the sticks can read the symbols. The stick is worthless unless the keeper can translate it or has given information to someone. Mr. Maria translated the events recorded on the Sil Nakya calendar stick, which cover the years 1841–1939.
While some ethnographic accounts suggested that calendar sticks were considered to be private property, a newspaper account of the sale of the Sil Nakya stick reported that there was considerable community opposition to the sale. Based on interviews with a Tohono O'odham Elder from Sil Nakya who participated in calendar stick activities as a young boy in the late 1930s, it seems clear that Tohono O'odham in Sil Nakya regarded the calendar stick as an item that could not be alienated. While they were taken care of by an individual, the stick belonged to the community. The Elder described the time of year when people in the community would gather for a large social event, attended by members of surrounding villages. Men of the communities would gather to meet with the calendar stick keeper and discuss what entry would be carved onto the calendar stick for the year. This event was attended only by men; women were excluded. Some debate would take place before a consensus decision was made as to what event of the past year would be carved on the calendar stick for the year. From conversations with this Elder, it seems clear that the calendar stick belonged to the major village community where the keeper lived, but also retained importance for the surrounding villages. A preponderance of the evidence indicates that at the time of the purchase, this item was considered to be a community resource rather than an object owned by an individual. Because the calendar stick records significant events in the history of the Tohono O'odham Nation and the community determined by consensus what was to be recorded, the item has historical and traditional cultural importance central to the tribe.
Officials of the Arizona State Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(D), the 2 cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the objects of cultural patrimony and the Tohono O'odham Nation of Arizona.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to John McClelland, NAGPRA Coordinator, P.O. Box 210026, Arizona State Museum, University of Arizona, Tucson, AZ 85721, telephone (520) 626–2950, by February 13, 2017. After that date, if no additional claimants have come forward, transfer of control of the objects of cultural patrimony to Tohono O'odham Nation of Arizona may proceed.
The Arizona State Museum is responsible for notifying the Tohono O'odham Nation of Arizona that this notice has been published.
National Park Service, Interior.
Notice.
The Denver Museum of Nature & Science, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects and/or sacred objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Denver Museum of Nature & Science. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Denver Museum of Nature & Science at the address in this notice by February 13, 2017.
Chip Colwell, Senior Curator of Anthropology and NAGPRA Officer, Denver Museum of Nature & Science, 2001 Colorado Boulevard, Denver, CO 80205, telephone (303) 370–6378, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Denver Museum of Nature & Science, Denver, CO, that meet the definition of unassociated funerary objects and/or sacred objects, under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25
In 1964, seven cultural items were removed from Ojibwe communities in unknown counties, MN. In the 1950s, Karen Petersen and her husband Sydney Petersen spent their summers visiting Ojibwe communities, buying crafts from tribal members. These items belonged to John Mink, a fourth-degree Midewiwin priest at the Mille Lacs Indian Reservation in central Minnesota. Soon after Mink's death in 1962 or 1963, museum records affirm the items were dug up to be offered for sale. Petersen sold the cache to Mary and Francis Crane on February 2, 1976, with the exception of one scroll (A943.1), which was donated to the Denver Museum of Natural History (now the Denver Museum of Nature & Science or DMNS) directly in November 1976. The Cranes in turn donated the other six unassociated funerary objects to the DMNS in December 1976. The seven unassociated funerary objects are 2 birch bark scrolls (A943.1 and AC.11525), 2 ceremonial invitation sets (AC.11528 and AC.11529), 2 medicine bags (AC.11535B and AC.11535J), and 1 vessel containing ceremonial stain (AC.11530).
Between 1950 and 1964, six cultural items were removed from Ojibwe communities in unknown counties, MN. Karen Petersen purchased four cultural items (AC.11533, AC.11536A, AC.11536B, and AC.11538) from Ole Sam who had inherited these objects in 1960 from the estate of his father, Mike Sam, a Midewiwin priest. Petersen sold the cultural items to Mary and Francis Crane on February 5, 1976, who donated them to THE DMNS in December 1976. Petersen purchased one cultural item (ac.11526) from Annie Sam, a rare fourth-degree Midewiwin female priest. On February 2, 1976, the Cranes purchased the cultural item and donated it to the DMNS in December 1976. Petersen purchased one cultural item (AC.115351) from Maggie Skinaway in 1961. On February 19, 1976, Petersen sold the cultural item to the Cranes who donated it to the DMNS in December 1976. The six sacred objects are 1 ceremonial post (AC.11533), 1 large cowrie shell (AC.11536A), 1 collection of 19 shells (AC.11536B), 1 ceremonial drumstick (AC.115381), 1 birch bark scroll (AC.11526), and 1 medicine bag (AC.11535I).
Museum accession, catalogue, and documentary records, as well as consultation with representatives of the Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota, indicate that the 13 cultural objects are Ojibwe and are from the Mille Lacs Indian Reservation, Minnesota. The 13 cultural items, A943.1, AC.11525, AC.11528, AC.11529, AC.11530, AC.11535B, AC.11535J, AC.11533, AC.11536A, AC.11536B, AC 11538, AC.11526, and AC.11535I, relate to the Grand Medicine Society or Midewiwin, a ritual society.
Officials of the Denver Museum of Nature & Science have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 7 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(3)(C), the 6 cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred objects and the Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Chip Colwell, Senior Curator of Anthropology and NAGPRA Officer, Denver Museum of Nature & Science, 2001 Colorado Boulevard., Denver, CO 80205, telephone (303) 370–6378, email
The Denver Museum of Nature & Science is responsible for notifying the Mille Lacs Band of the Minnesota Chippewa Tribe, Minnesota, that this notice has been published.
National Park Service, Interior.
Notice.
The Metroparks of the Toledo Area (Metroparks Toledo) has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to Metroparks Toledo. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Metroparks Toledo at the address in this notice by February 13, 2017.
Joseph Fausnaugh, Metroparks of the Toledo Area, 5100 West Central Avenue, Toledo, OH 43615, telephone (419) 407–9700, email
Notice is here given in accordance with the Native American Graves Protection and
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
On behalf of Metroparks Toledo, a detailed assessment of the human remains was made by professional staff of the Ohio History Connection, Columbus, OH, in consultation with representatives of the Eastern Shawnee Tribe of Oklahoma, the Miami Tribe of Oklahoma, the Ottawa Tribe of Oklahoma, the Shawnee Tribe, and the Wyandotte Nation.
In April and October 2014, human remains representing, at minimum, one individual were removed from 33LU0805 in Lucas County, OH. At the request of the landowner (Metroparks Toledo), on April 10, 2014, Ohio History Connection (OHC) staff recovered human remains and funerary items that were exposed and eroding out of Audubon/Ewing Island in the Maumee River. Members of the Miami and Shawnee nations were present during this excavation. Only the right side of a single individual (approximately 40% of the individual), likely a male between the ages of 17–20 years, was recovered at that time, as the remainder of the burial was stable. Associated funerary items were also recovered. All human remains and associated funerary objects were temporarily transferred to the OHC's laboratory facilities in Columbus for cleaning, cataloging and analysis. Non-artifact remains of water screened soil (rocks and shell) from burial context were retained. Following consultation with the Indian tribes listed above, OHC staff returned to the site on October 1 and 2, 2014, to excavate the remainder of the burial. This follow-up excavation was similarly overseen by representatives of the consulted Indian tribes, and all excavated human remains and associated funerary items were again temporarily transferred to the OHC's laboratory facilities in Columbus, where they were cleaned, cataloged, analyzed, and rejoined with the human remains and associated funerary items that were excavated in April 2014. All human remains and associated funerary items recovered from 33LU0805 are currently being temporarily held at the OHC's Columbus facility on behalf of the Toledo Metroparks.
In total, one individual was identified. No known individuals were identified. The 3,049 associated funerary objects include the following: 1 pan; 2 kettles; 2 arm bands; 1 brooch; 1 glass mirror; 2 musket balls; 1 strike-light; 2 flints; 19 copper coils; 14 tinkler cones; 1 tubular long bead; 517 tubular small beads; 2,130 seed beads; 10 pieces of possible fabric; 2 pieces of charcoal; 37 seeds; 3 stones; 4 rock and shell; 2 light fractions; 1 non-human bone fragment; 11 ceramic sherds; 21 flint flakes; 11 buckshot; 1 rose head nail; 7 brass flakes; 4 clay fragments with vermillion; 1 lot of an unspecified number of corroded iron fragments; 1 otolith; 1 cone; 2 finial-like bone objects; 1 musket ball fragment; 83 wampum beads; 2 unknown material fragments; 1 fixed blade knife with half tang; 1 bone tube; 1 pair of scissors; 1 wooden object; 1 disc-shaped button; 15 perforated triangular brass fragments; 1 iron ring; 1 brass ring; 1 ferrule; 1 silver ring; 6 ferrule fragments; 1 leather bag; 1 sample of a granular substance; 1 sample of vermillion powder; 1 textile and cordage; 1 fixed blade knife with full tang; 7 samples of textile fragments; 3 pieces of textile, leather, and organic material; 3 samples of textile and leather fragments; 1 knife blade with rust fragments; 1 sample of knife handle fragments; 1 rivet; 24 kettle fragments; 4 unperforated brass triangles; 1 silver clipping; 1 sample of cordage fragments; 1 sample of cordage; 28 hawk bell fragments; 1 bell clapper; 6 solder fragments; 1 shaped sheet of brass; 1 iron awl with bone handle and coat button attached; 1 button; 1 butt cone; 1 non-human, possibly modified bone fragment; 15 brass fragments; 1 sample of iron fragments; 1 wire; and 12 samples of water screened residual portion of soil.
A nearby 18th century Ottawa grave demonstrates that this part of the island may have been occupied and used as a burial area by the Ottawa until around the time of the 1795 Treaty of Greenville. Audubon Island is located in the lower Maumee Valley in northern Ohio. Some Ottawa bands had taken up residence in the lower Maumee Valley by A.D. 1740–1750. Following Pontiac's siege of Detroit in the summer of 1763, some of the Ottawa bands from that area also resettled to the lower Maumee Valley. In 1764, Captain Thomas Morris met an Ottawa delegation at the foot of the Maumee Rapids, adjacent to Audubon Island. Between 1783 and 1794, Audubon Island was known as Col. McKee's Island, and was farmed as part of Alexander McKee's Department of Indian Affairs post at the foot of the Maumee Rapids. Several other Euro-Canadian traders occupied lands in the area, presumably with the consent of the local Ottawa.
In 1795, many of the Great Lakes-Ohio Valley tribes signed the Treaty of Greenville, which produced several land cession, including a 12-square-mile reserve surrounding the foot of the Maumee Rapids and Audubon Island. Occupation of Audubon Island by the Ohio Ottawa appears to have ceased at that time, at which point some of them moved to Walpole Island, Canada. Between 1807 and 1817, the United States established four small reservations for the Ottawa along the lower Maumee River. Audubon Island lies between two of these reservations. In 1831 to 1833, the four reservations were finally ceded to the United States in return for lands in present-day Franklin County, KS. In 1867, the Kansas reservation organization was dissolved and the Ottawa sold their individual allotments and moved to Oklahoma. Descendants of the Ottawa that occupied Audubon Island are members of the Ottawa Tribe of Oklahoma.
Officials of Metroparks Toledo have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 3,049 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Ottawa Tribe of Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written
Metroparks Toledo is responsible for notifying the Eastern Shawnee Tribe of Oklahoma, the Miami Tribe of Oklahoma, the Ottawa Tribe of Oklahoma, the Shawnee Tribe, and the Wyandotte Nation that this notice has been published.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Patricia M. Hall, Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616–6975.
On January 6, 2017, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Maine in the lawsuit entitled
In this action, the United States, on behalf of the U.S. Environmental Protection Agency (“EPA”), sought injunctive relief for remedial cleanup and recovery of response costs against Smith Cove Preservation Trust (“Settling Defendant”), the current owner of the approximately 120-acre former Callahan Mine property at the Callahan Mine Superfund Site in Brooksville, Maine (“Site”). The complaint seeks relief under to Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9606 and 9607. The State of Maine (“Maine”) has asserted parallel claims under CERCLA and related State provisions and is a co-plaintiff to the proposed Consent Decree.
Under the proposed Consent Decree, Settling Defendant will provide in-kind services (permission for EPA and the Maine Department of Environmental Protection to use “Borrow Material” located within Settling Defendant's property for use in implementing response actions at the Site), access, and institutional controls, all of which would be valuable for the environmental response at the Site, based on an analysis of Settling Defendant's ability to pay. In exchange, Settling Defendant will receive a covenant not to sue under Sections 106 and 107 of CERCLA for remedial cleanup and response costs relating to the Site, subject to certain reservations of rights.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $14.75 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits, the cost is $9.00.
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 December 7, 2016 the National Science Foundation published a notice in the
The National Coordination Office (NCO) for Networking and Information Technology Research and Development (NITRD), National Science Foundation.
Request for public comment.
Ernest Lucier at (703) 292–4873 or
January 9, 2017.
With this notice, the National Coordination Office for Networking and Information Technology Research and Development (NITRD) requests comments from the public regarding the draft Smart Cities and Communities Federal Strategic Plan: Exploring Innovation Together. The draft Strategic Plan is posted at:
You may submit comments by any of the following methods:
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The deadline for submission under this RFC is February 28, 2017. Submissions must not exceed 3 pages in 12 point or larger font, with a page number provided on each page. Responders should include the name of the person(s) or organization(s) filing the comment.
Responses to this RFC may be posted online at
In accordance with FAR 15.202(3), responses to this notice are not offers and cannot be accepted by the Government to form a binding contract. Responders are solely responsible for all expenses associated with responding to this RFC.
Motivated by a vision of ubiquitous, smart infrastructure, systems, and services, many cities and communities view advances in networking and information technology as a way to increase efficiency, reduce costs, and improve quality of life for their residents. They seek to become “smart cities” and “smart communities” by embedding new digital technologies into their infrastructure, systems, and services to enhance existing, and develop new, city/community resources. Smart city/community solutions are intended to enable new capabilities and opportunities—all in the face of limited budgets. The possible applications are numerous: Citizen services, smart grids, intelligent transportation systems, and remote healthcare, to name a few.
Although information technology promises enormous public benefits, it also introduces new challenges. These challenges range from technical to ethical, legal, and social, including cybersecurity, data sharing and analysis, privacy, public health and well-being, workforce and education needs, and cultural and socioeconomic considerations. Addressing these challenges requires new forms of cross-sector and cross-government collaboration, experimentation, knowledge sharing, and alignment.
This strategic plan offers a high-level framework to guide and coordinate smart city/community-related Federal initiatives, with an emphasis on local government and stakeholder engagement. Coordinating efforts across Federal agencies should help accelerate the development of smart city/community solutions that maximize the value of investments and optimize benefits to residents.
The Central Goals that motivate this strategy are to:
• Understand local needs and local goals;
• Accelerate smart city/community innovation and infrastructure development;
• Facilitate cross-sector collaboration and bridge existing silos;
• Boost exports and promote U.S. global leadership; and
• Focus on people-centered solutions that support job growth and economic competitiveness.
A key objective of this plan is to identify priorities for federally funded research and development (R&D) as well as capacity-building to help transform our cities and communities and improve our standards of living. To do so, the Strategic Priorities identified herein are to:
• Accelerate fundamental R&D for smart cities/communities;
• Facilitate secure and resilient infrastructure, systems, and services for smart cities/communities;
• Foster smart cities/communities through data and knowledge sharing, best practices, and collaboration; and
• Enable evaluation of progress and long-term growth of smart cities/communities.
This plan envisions Federal agencies working together and engaging with local leaders, academia, industry, civil society, and other key stakeholders. The aim is to accelerate the development and implementation of new discoveries and innovations that in turn enable cities and communities to achieve local goals and address their most important challenges. Therefore, the Next Steps recommended in this strategic plan include, through the Smart Cities and Communities Task Force, promoting interagency coordination and collaboration; engaging cities/communities to collect feedback on and enable continued refinement of this strategic plan and future efforts; and developing a roadmap for specific Federal actions to execute the Strategic Priorities presented here.
The Smart Cities and Communities Task Force invites comments on the draft strategic plan. In particular, commenters should consider the following questions as they develop their responses:
• Are the central goals appropriate and/or are there other goals that should be considered?
• Are the strategic priorities appropriate and/or are there other priorities that should be considered?
• Are the next steps identified in the draft plan appropriate and/or are there others that should be considered?
Submitted by the National Science Foundation for the National Coordination Office (NCO) for Networking and Information
Nuclear Regulatory Commission.
License renewal; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued a renewal of Facility Operating License No. R–95, held by the Rhode Island Atomic Energy Commission (RINSC or the licensee) for the continued operation of its Rhode Island Nuclear Science Center reactor for an additional 20 years from the date of issuance. The facility is located on the Narragansett Bay Campus of the University of Rhode Island in Narragansett, Rhode Island.
The renewed facility operating license No. R–95 is effective on January 5, 2017.
Please refer to Docket ID NRC–2016–0213 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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•
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Patrick G. Boyle, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–3936; email:
The NRC has issued renewed Facility Operating License No. R–95, held by the licensee, which authorizes continued operation of the RINSC reactor, located on the Narragansett Bay Campus of the University of Rhode Island in Narragansett, Rhode Island. The RINSC reactor is a heterogeneous open pool-type, natural and forced convection, light-water cooled and shielded reactor. The renewed license authorizes the licensee to operate the RINSC reactor up to a steady-state power level of 2 megawatts thermal. The renewed Facility Operating License No. R–95 will expire 20 years from its date of issuance, January 5, 2017.
The renewed facility operating license complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's regulations in chapter I of title 10 of the
The NRC staff prepared a safety evaluation report (SER)—Renewal of the Facility Operating License for the Rhode Island Nuclear Science Center Reactor related to the renewal of Facility Operating License No. R–95 and concluded, based on that evaluation, that the licensee can continue to operate the facility without endangering the health and safety of the public. The NRC staff also prepared an environmental assessment and finding of no significant impact regarding the renewal of the facility operating license, noticed in the
The documents identified in the following table are available to interested persons through ADAMS accession numbers, as indicated. The SER, prepared by the NRC staff for the license renewal, is available in ADAMS under Accession No. ML16337A325.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Early site permit application; acceptance for docketing.
On May 12, 2016, the Tennessee Valley Authority (TVA) submitted an application to the U.S. Nuclear Regulatory Commission (NRC) for an early site permit (ESP) for the Clinch River Nuclear Site located in Oak Ridge, Tennessee. A notice of receipt and availability of this application was published in the
The NRC received the ESP application on May 12, 2016, and docketed it on December 30, 2016.
Please refer to Docket ID NRC–2016–0119 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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Allen Fetter, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–8556, email:
Pursuant to Section 103 of the Atomic Energy Act of 1954, as amended (AEA), and part 52 of title 10 of the
The NRC staff has determined that TVA has submitted information in accordance with 10 CFR part 2, “Agency Rules of Practice and Procedure” and 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants,” that is sufficiently complete and acceptable for docketing. The docket number for this application is “52–047.”
The NRC staff will perform a detailed technical review of the application, and docketing of the ESP application does not preclude the NRC from requesting additional information from the applicant as the review proceeds, nor does it predict whether the Commission will grant or deny the application. The Commission will receive a report on the application from the Advisory Committee on Reactor Safeguards in accordance with 10 CFR 52.23. An Atomic Safety and Licensing Board Panel will conduct a hearing in accordance with 10 CFR 52.21 and will make an initial decision on the issuance of the permit for the Commission. If the Commission then finds that the application meets the applicable standards of the AEA and the Commission's regulations, and that required notifications to other agencies and bodies have been made, the Commission will issue an ESP, in the form and containing conditions and limitations that the Commission finds appropriate and necessary.
In accordance with 10 CFR part 51, the Commission will also prepare an environmental impact statement for the proposed action. Pursuant to 10 CFR 51.26, and as part of the environmental scoping process, the staff intends to hold a public scoping meeting. Detailed information regarding this meeting will be included in a future
Finally, the Commission will announce, in a
The following table indicates the ADAMS accession numbers or Web site links where application documents and supplemental information are available to interested persons.
The NRC will post other publically available materials related to this application in ADAMS and on the NRC's public Web site at
For The Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License renewal; issuance.
The U.S. Nuclear Regulatory Commission (NRC) issued a renewal of Facility Operating License No. R–103, held by the Curators of the University of Missouri—Columbia (the licensee), for the continued operation of its University of Missouri—Columbia Research Reactor (MURR or the reactor) at a maximum steady-state power level of 10 megawatts thermal (MWt) for an additional 20 years from the date of issuance. The MURR facility is located in the University Research Park, adjacent to the main campus of the University of Missouri-Columbia, in Boone County, Columbia, Missouri.
The renewed facility operating license No. R–103 is effective on January 4, 2017.
Please refer to Docket ID NRC–2013–0090 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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Geoffrey A. Wertz, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–0893; email:
The NRC has issued renewed Facility Operating License No. R–103, held by the licensee, which authorizes continued operation of the MURR, located in the University Research Park, adjacent to the main campus of the University of Missouri—Columbia, in Columbia, Missouri. The MURR is an open pool-type reactor which is light-water moderated and cooled. It is licensed to operate at a maximum steady state power level of 10 MWt. The renewed Facility Operating License No. R–103 will expire 20 years from its date of issuance.
The renewed facility operating license complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's regulations in chapter I of title 10 of the
The NRC staff prepared a safety evaluation report (SER) for the renewal of Facility Operating License No. R–103 and concluded, based on that evaluation, that the licensee can continue to operate the facility without
The documents identified in the following table are available to interested persons through ADAMS accession numbers, as indicated. The SER, prepared by the NRC staff for the license renewal, is available under ADAMS Accession No. ML16124A887.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance to license amendment of SUB–348, issued on July 13, 1961 and held by the Department of the Army, U.S. Army Research, Development and Engineering Command (RDEC), Armament Research, Development and Engineering Center (ARDEC or the licensee), for its facilities located at the Picatinny Arsenal in Morris County, New Jersey.
The Environmental assessment and finding of no significant impact referenced in this document is available on January 12, 2017.
Please refer to Docket ID NRC–2014–0041 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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Laurie A. Kauffman, Division of Nuclear Materials Safety, Region I, U.S. Nuclear Regulatory Commission, King of Prussia, PA 19406; telephone: 610–337–5323; email:
The NRC is considering the issuance of a license amendment to NRC's Source Materials License No. SUB–348 (License No. SUB–348). The license is held by the Department of the Army, U.S. Army Research, Development and Engineering Command (RDEC), Armament Research, Development and Engineering Center (ARDEC or the licensee), for its facilities located at the Picatinny Arsenal in Morris County, New Jersey. The ARDEC submitted to the NRC a license amendment request and proposed decommissioning plan for Area 1222. The ARDEC requested authorization to decontaminate the small remaining amounts of depleted uranium and radium in Area 1222, and proposed a decommissioning plan that included information describing how Area 1222 would meet the criteria described in part 20 of title 10 of the
The NRC has prepared an environmental assessment (EA) in support of its review of the proposed actions in accordance with the requirements of 10 CFR part 51 “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” which implements the NRC's environmental protection program under the National Environmental Policy Act (NEPA) of 1969, as amended. Based on this EA, the NRC has concluded that a finding of no significant impact (FONSI) is appropriate. The NRC will make a decision to amend the license following completion of a safety evaluation report.
The proposed action is to amend NRC License No. SUB–348 to authorize the decontamination of Area 1222 so that residual radioactivity above background can be reduced to a level that meets the criteria in 10 CFR part 20, subpart E, “License Termination Criteria,” specifically, 10 CFR 20.1402, “Radiological Criteria for Unrestricted Use.” This criteria allows unrestricted use of a site if the maximum total effective dose equivalent to an average member of the critical group is 25 millirem per year (0.25 millisievert (mSv) per year) and the residual radioactivity above background has been reduced to levels that are as low as is reasonably achievable.
The NRC License No. SUB–348 was issued on July 13, 1961, pursuant to 10 CFR part 40, and has been amended periodically since that time. This license authorizes ARDEC to use uranium and thorium in any form for purposes of conducting research and development activities. The ARDEC conducts authorized activities under this license at numerous other locations on the arsenal, and is not requesting license termination.
The Picatinny Arsenal is situated on 6,500 acres of land and consists of office space, laboratories, and specialized facilities. The Picatinny Arsenal is located in a mixed residential and commercial area. Area 1222, which includes an open detonation pit area and the adjacent hillside areas, is located on the arsenal property in the valley toward the northern end of the arsenal and lies at the base of the Copperas Mountain. In the 1970's, the ARDEC used Area 1222 for open detonation of munitions and as a demilitarization area. NRC-licensed activities performed in Area 1222 were restricted to the detonation of a limited number of mines containing small
In the late 1990's, ARDEC determined that Area 1222 was no longer required for licensed activities and initiated a survey and decontamination program. In 2011, ARDEC submitted an amendment application to renew their NRC Source Material License (SUB–348). The request noted that Area 1222 was considered potentially radiologically contaminated with depleted uranium, and possibly with fragments of luminescent gauges or dials containing radium from past limited research and development testing operations at the site. The request also included provisions for conducting minor surficial soil remediation if soil contamination is identified above the criteria identified for cleanup. In a letter dated July 23, 2013 (ADAMS Accession No. ML14078A564), ARDEC submitted a license amendment request and proposed decommissioning plan for Area 1222. In the proposed decommissioning plan, the ARDEC provided information regarding the previous characterization and remediation surveys, and a plan for the radiological survey and subsequent excavation, decontamination, and proper disposal of licensed radioactive material identified within Area 1222. The ARDEC also provided information to the NRC stating that after decommissioning, Area 1222 would meet the criteria for release for unrestricted use as described in 10 CFR part 20, subpart E, “License Termination Criteria.”
The current ARDEC license does not authorize decontamination activities to be conducted. The NRC regulations in 10 CFR 40.42, in part, require a decommissioning plan to be submitted and approved prior to the initiation of decommissioning if the procedures and activities necessary to carry out decontamination of an area could increase potential health and safety impacts to workers or the public. The proposed action would allow the ARDEC to remove any remaining radioactive material in Area 1222 to ultimately meet the criteria for release for unrestricted use as described in 10 CFR part 20, subpart E, “License Termination Criteria” following decommissioning.
A historical review of licensed activities conducted in Area 1222 shows that such activities involved use of depleted uranium and radium. The ARDEC proposes to conduct radiological surveys and subsequent excavation, decontamination, and disposal of licensed radioactive material identified within Area 1222. Following completion of these activities, the ARDEC would conduct a final status survey of the area. The ARDEC proposes to undertake this effort in accordance with the guidance contained in the “Multi-Agency Radiation Survey and Site Investigation Manual (MARSSIM),” NUREG–1575, Rev. 1 (ADAMS Accession No. ML082470583). The final determination that the site area meets the radiological criteria for release for unrestricted use would be contingent upon the NRC staff's approval of the licensee's final status survey report.
The NRC staff has reviewed the decommissioning plan for ARDEC's Area 1222 site and examined the impacts of decontamination activities. Based on its review, the staff has determined that the affected environment and the environmental impacts associated with this decommissioning action are bounded by information contained in the “Generic Environmental Impact Statement (GEIS) in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities,” NUREG–1496, Vols. 1, 2 and 3 (ADAMS Accession Nos. ML042310492, ML042320379, and ML042330385, respectively).
The NRC staff determined that the contaminants, the potential dose scenarios or pathways, the physical size of the area, and the volumes of waste expected to be generated are similar to those in the GEIS reference facilities, and do not change conclusions regarding environmental impacts. No additional non-radiological impacts were identified. A beneficial environmental impact of the proposed action is that there will no longer be depleted uranium contamination to the soil in Area 1222 because the depleted uranium contamination would be removed.
In the Decommissioning Plan, the ARDEC states that they would implement controls and perform radiological sampling and analysis to limit the potential release of radioactive material. Contamination controls, such as the use of covers for loaded containers or vehicles, or water sprays for dust control, will be implemented during decommissioning activities to prevent airborne contamination from escaping the remediation work areas; therefore, no significant release of airborne contamination is anticipated. Air sampling and analysis will be conducted to ensure regulatory criteria are met for air effluents. No liquid effluents are expected to be generated during decommissioning. Controls, such as silt fences and water diversion berms will be put in place to control water inflow or runoff due to precipitation. Any radioactive waste generated will be placed in suitable transport containers that will be covered and staged within the property pending shipment to a licensed radioactive waste treatment or disposal facility.
The ARDEC intends to use a contractor to perform remediation activities at Area 1222. The contractor will perform these activities under the authority of its NRC license. The ARDEC will oversee the activities and will maintain primary responsibility for the decommissioning project. As noted, the ARDEC has prepared a decommissioning plan describing the work to be performed, and, work activities are not anticipated to result in a dose to workers or the public in excess of the limits in 10 CFR part 20, “Standards for Protection Against Radiation,” consistent with decommissioning activities at similar sites.
The only alternative the NRC staff considered is the no-action alternative, under which the staff would deny the amendment request to initiate remediation activities at Area 1222. Denying the amendment request would result in no decontamination at the site, leaving residual contamination. The environmental impacts of the no-action alternative are greater than the proposed action, therefore no-action alternative is accordingly not further considered.
The NRC staff prepared this EA with input from the Department of the Army, Installation Management Command, Environmental Affairs Division; the U.S. Fish and Wildlife Service New Jersey Field office; and the State of New Jersey Department of Environmental Protection (NJDEP).
In accordance with Section 106 of the National Historic Preservation Act, the NRC staff contacted the Environmental Affairs Division of the Department of the Army, Installation Management Command. In a response letter dated February 1, 2016 (ADAMS Accession No. ML16060A404), the Environmental Affairs Division, on the basis of current information, indicated that surrounding, above ground, structures of age for historic assessment have been determined to not be eligible for listing on the National Register of Historic Places (NRHP) and that the likelihood of encountering and impacting below ground cultural resources, such as archaeological materials and property, is low. The above ground structures are considered equipment and are used as blast and exhaust deflectors and/or explosive barriers and therefore are not real property under NRHP assessments. Archaeological artifacts are not likely to be identified because Area 1222 is previously disturbed due to the munitions testing. However, the Environmental Affairs Division also indicated that cultural resources potentially eligible for the NRHP could be encountered and impacted because the depth of the excavations, as described in the decommissioning plan, will go below four feet, which is the depth to which munitions were buried. Because of the potential impact on cultural resources, ARDEC will stop the project if cultural/archaeological resources are discovered in Area 1222 so the Environmental Affairs Division can determine the significance of the identified resources.
In accordance with Section 7 of the Endangered Species Act, the NRC staff contacted the Environmental Affairs Division of the Department of the Army, Installation Management Command. (U.S. NRC email to Department of the Army dated December 2, 2014 (ADAMS Accession No. ML14357A609)). In a response letter dated February 1, 2016 (ADAMS Accession No. ML16060A404), the Environmental Affairs Division indicated, on the basis of current information, that three federally-listed endangered species, two state-listed endangered species, and one additional state species may have potential habitats within the project boundary. The three federally-listed endangered species identified are: the Indiana Bat (IBAT—Myotis sodalist); Northern Long-eared Bat (NLEB—Myotis septentrionalis); and the Bog Turtle (Gyptemys muhlenbergii). Since there will be no impacts to any vegetation (such as trees), there will be no impacts to the two federally-listed bat species. The Bog Turtle could be potentially impacted because the reptile could be in or around Area 1222 during the summer months. The two state-listed endangered species identified are: the Timber Rattlesnake (Crotalus horridus) and the Wood Turtle (Glyptemys insculpta). Both reptiles could be in the project area during the summer months; the rattlesnake lives near rocks and the turtle lives along Gorge Road and along the banks of Green Pond Brook. The last State species, which is not listed as endangered or threatened, is the Eastern Small-footed Bat (Myotis leibii). Although, this species is not listed as either endangered or threatened, there is a remote chance that this bat could be using the rip-rap hillside above the open detonation pit as a diurnal roost site and could be encountered in Area 1222. If any of the above species are encountered or observed in Area 1222, ARDEC stated it will stop the project so the Environmental Affairs Division can determine significance of the presence of the identified species.
Based upon the above, the NRC staff also contacted the U.S. Fish & Wildlife Service, New Jersey Field office, for consultation and concurrence on the rare, threatened or endangered species that were identified by the Army's Environmental Affairs Division and could be present in the vicinity of the site (U.S. NRC email to U.S. Fish & Wildlife dated August 10, 2016 (ADAMS Accession No. ML16246A209)). In an email dated September 1, 2016 (ADAMS Accession No. ML16244A708), a representative of the U.S. Fish & Wildlife Service New Jersey Field office agreed with the conclusions of this EA that the proposed action would not result in impacts to endangered and threatened species and to cultural/archaeological resources.
On August 23, 2016, the NRC staff provided a draft of this EA to the NJDEP for comment. In an email dated September 6, 2016 (ADAMS Accession No. ML16250A386), a representative of the NJDEP agreed with the conclusions of this EA.
The NRC staff has prepared this EA as part of its review of the requested license amendment for decommissioning the ARDEC's Area 1222 on the Picatinny Arsenal site, Picatinny, New Jersey to reduce residual radioactivity to levels consistent with the release criteria for unrestricted use. On the basis of this EA, the NRC staff finds that there are no significant environmental impacts from the proposed amendment action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC staff has determined that a FONSI is appropriate.
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
For the Nuclear Regulatory Commission.
1 p.m., Wednesday, March 8, 2017.
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue NW., Washington, DC.
Hearing OPEN to the Public at 1 p.m.
Annual Public Hearing to afford an opportunity for any person to present views regarding the activities of the Corporation.
Individuals wishing to address the hearing orally must provide advance notice to OPIC's Corporate Secretary no later than 5 p.m. Friday, February 24, 2017. The notice must include the individual's name, title, organization, address, email, telephone number, and a concise summary of the subject matter to be presented.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m. Friday, February 24, 2017. Such statement must be typewritten, double-spaced, and may not exceed twenty-five (25) pages.
Upon receipt of the required notice, OPIC will prepare an agenda for the hearing identifying speakers, setting forth the subject on which each participant will speak, and the time allotted for each presentation. The agenda will be available at the hearing.
A written summary of the hearing will be compiled, and such summary will be made available, upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Information on the hearing may be obtained from Catherine F. I. Andrade at (202) 336–8768, or via email at
OPIC is a U.S. Government agency that provides, on a commercial basis, political risk insurance and financing in friendly developing countries and emerging democracies for environmentally sound projects that confer positive developmental benefits upon the project country while creating employment in the U.S. OPIC is required by section 231A(c) of the Foreign Assistance Act of 1961, as amended (the “Act”) to hold at least one public hearing each year.
U.S. Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from July 1, 2016 to July 31, 2016.
Senior Executive Resources Services, Senior Executive Service and Performance Management, Employee Services, 202–606–2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No schedule A authorities to report during July 2016.
No schedule B authorities to report during July 2016.
The following Schedule C appointing authorities were approved during July 2016.
The following Schedule C appointing authorities were revoked during July 2016.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218. U.S. Office of Personnel Management.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to extend the expiration date of FINRA Rule 0180 (Application of Rules to Security-Based Swaps) to February 12, 2018. FINRA Rule 0180 temporarily limits, with certain exceptions, the application of FINRA rules with respect to security-based swaps.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On July 1, 2011, the SEC issued an Order granting temporary exemptive relief (the “Temporary Exemptions”) from compliance with certain provisions of the Exchange Act in connection with the revision, pursuant to Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”),
The Commission, noting the need to avoid a potential unnecessary disruption to the security-based swap market in the absence of an extension of the Temporary Exemptions, and the need for additional time to consider the potential impact of the revision of the Exchange Act definition of “security” in light of ongoing Commission rulemaking efforts under Title VII of the Dodd-Frank Act, issued an Order which extended and refined the applicable expiration dates for the previously granted Temporary Exemptions.
The Commission's rulemaking and development of guidance in relation to security-based swap activities is ongoing. As such, FINRA believes it is appropriate and in the public interest, in light of the Commission's goals as set forth in the Exemptive Release and the Temporary Exemptions Extension Release, to extend FINRA Rule 0180 for a limited period, to February 12, 2018, so as to avoid undue market disruptions resulting from the change to the definition of “security” under the Act.
FINRA has filed the proposed rule change for immediate effectiveness. FINRA is proposing that the implementation date of the proposed rule change will be February 11, 2017.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA believes that the proposed rule change would prevent undue market disruption that would otherwise result if security-based swaps were, by virtue of the expansion of the Act's definition of “security” to encompass security-based swaps, subject to the application of all FINRA rules before the implementation of any SEC rules and guidance that would provide greater regulatory clarity in relation to security-based swap activities. FINRA believes that, by extending the expiration of FINRA Rule 0180, the proposed rule change will serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to make adjustments to its Options Regulatory Fee (“ORF”) by amending Section IV, Part D, of the Pricing Schedule.
While changes to the Pricing Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on February 1, 2017.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to increase the ORF from $0.0034 to $0.0045 as of February 1, 2017 to recoup regulatory expenses while also ensuring that the ORF will not exceed costs.
The ORF is assessed to each member for all options transactions executed or cleared by the member that are cleared at The Options Clearing Corporation (“OCC”) in the Customer range (
The ORF is designed to recover a portion of the costs to the Exchange of the supervision and regulation of its members, including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities. The Exchange believes that revenue generated from the ORF, when combined with all of the Exchange's other regulatory fees, will cover a material portion, but not all, of the Exchange's regulatory costs. The Exchange will continue to monitor the amount of revenue collected from the ORF to ensure that it, in combination with its other regulatory fees and fines, does not exceed regulatory costs. If the Exchange determines regulatory revenues exceed regulatory costs, the Exchange will adjust the ORF by submitting a fee change filing to the Commission.
The Exchange is proposing to increase the ORF from $0.0034 to $0.0045 as of February 1, 2017 to recoup regulatory expenses while also ensuring that the ORF will not exceed costs. The Exchange lowered its ORF previously because it had collected certain fines associated with disciplinary actions taken by the Exchange.
The Exchange notified members of this ORF adjustment thirty (30) calendar days prior to the proposed operative date.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The additional ORF offsets regulatory expenses, but does not exceed regulatory costs. Further, the Exchange's collection of ORF needs to be balanced against the amount of regulatory revenue collected by the Exchange. The Exchange believes that the proposed adjustments noted herein will serve to balance the Exchange's regulatory revenue against the anticipated regulatory costs.
The Exchange believes that increasing its ORF from $0.0034 to $0.0045 as of February 1, 2017 is equitable and not unfairly discriminatory because this adjustment would be applicable to all members on all of their transactions that clear as Customer at OCC. In addition, the ORF seeks to recover the costs of supervising and regulating members, including performing routine surveillances, investigations, examinations, financial monitoring, and policy, rulemaking, interpretive, and enforcement activities.
The ORF is not charged for member proprietary options transactions because members incur the costs of owning memberships and through their memberships are charged transaction fees, dues and other fees that are not applicable to non-members. Moreover, the Exchange believes the ORF ensures fairness by assessing higher fees to those members that require more Exchange regulatory services based on the amount of Customer options business they conduct.
Regulating Customer trading activity is more labor intensive and requires greater expenditure of human and technical resources than regulating non-Customer trading activity. Surveillance, regulation and examination of non-Customer trading activity generally tends to be more automated and less labor intensive. As a result, the costs associated with administering the Customer component of the Exchange's overall regulatory program are anticipated to be higher than the costs associated with administering the non-Customer component of its regulatory program. The Exchange proposes assessing higher fees to those members that will require more Exchange regulatory services based on the amount of Customer options business they conduct.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The Exchange does not believe that increasing its ORF creates an undue burden on intra-market competition because the adjustment will apply to all members on all of their transactions that clear as Customer at OCC. The Exchange is obligated to ensure that the amount of regulatory revenue collected from the ORF, in combination with its other regulatory fees and fines, does not exceed regulatory costs. Additionally, the dues and fees paid by members go into the general funds of the Exchange, a portion of which is used to help pay the costs of regulation. The Exchange's members are subject to ORF on other options markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Price List to: (1) Revise the quoting, quoted size, and adding liquidity requirements for Designated Market Makers (“DMM”) to qualify for certain rebates for providing liquidity on the Exchange; (2) introduce new rebates for DMMs for providing liquidity on the Exchange; and (3) change the monthly fees for the use of certain ports by DMMs. The Exchange proposes to implement these changes to its Price List effective January 3, 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 its Price List to: (1) Revise the quoting, quoted size, and adding liquidity requirements for DMMs to qualify for certain rebates for providing liquidity on the Exchange; (2) introduce new rebates for DMMs for providing liquidity on the Exchange; and (3) change the monthly fees for the use of certain ports by DMMs.
The Exchange proposes to implement these changes effective January 3, 2017.
Currently, DMMs earn a rebate of $0.0027 per share when adding liquidity with orders, other than Mid-Point Liquidity Orders (“MPL Order”), in More Active Securities
In order to qualify for the $0.0027 rebate per share, the Exchange proposes to require that DMMs also have a DMM Quoted Size for an applicable month that is at least 5% of the NYSE Quoted Size.
Currently, DMMs earn a rebate of $0.0031 per share when adding liquidity with orders, other than MPL Orders, in More Active Securities if the More Active Security has a stock price of $1.00 or more and the DMM meets (1) the More Active Securities Quoting Requirement, and (2) has a DMM Quoted Size for an applicable month that is at least 10% of the NYSE Quoted Size.
In order to qualify for the $0.0031 rebate per share, the Exchange proposes to require that DMMs also quote at the NBBO in the applicable security at least 20% of the time in the applicable month and for providing liquidity that is more than 5% of the NYSE's total intraday adding liquidity in each such security for that month.
Similarly, DMMs currently earn a rebate of $0.0034 per share when adding liquidity with orders, other than MPL Orders, in More Active Securities if the More Active Security has a stock price of $1.00 or more and the DMM meets (1) the More Active Securities Quoting Requirement and (2) has a DMM Quoted Size for an applicable month that is at least 15% of the NYSE Quoted Size, for providing liquidity that is more than 15% of the NYSE's total intraday adding liquidity in each such security for that month.
In order to qualify for this $0.0034 per share rebate, the Exchange proposes to require that DMMs also quote at the NBBO in the applicable security at least
The Exchange also proposes to provide two additional rebates for DMMs adding liquidity to the Exchange.
First, the Exchange proposes a rebate of $0.0035 per share when adding liquidity with orders, other than MPL Orders, in More Active Securities if the More Active Security has a stock price of $1.00 or more and the DMM meets the More Active Securities Quoting Requirement and has a DMM Quoted Size for an applicable month that is at least 25% of the NYSE Quoted Size, for providing liquidity that is more than 15% of the NYSE's total intraday adding liquidity in each such security for that month and the DMM quotes at the NBBO in the applicable security at least 50% of the time in the applicable month. The NYSE total intraday adding liquidity would be totaled monthly and would include all NYSE adding liquidity, excluding NYSE open and NYSE close volume, by all NYSE participants, including Supplemental Liquidity Providers, customers, Floor brokers, and DMMs.
Second, the Exchange proposes a rebate of $0.0045 per share when adding liquidity with orders, other than MPL orders, in Less Active Securities if the Less Active Security has a stock price of $1.00 or more and the DMM quotes at the NBBO in the applicable security at least 30% of the time in the applicable month.
As with existing DMM rebates, the proposed rebates would be applied when (1) posting displayed and non-displayed orders on Display Book, including s-quote and s-quote reserve orders; (2) providing liquidity on non-displayed interest using the Capital Commitment Schedule; or, prior to the implementation of the Capital Commitment Schedule, using the following message activities: price improvement, size improvement (PRIN FILL), matching away market quotes; and (3) executing trades in the crowd and at Liquidity Replenishment Points. The proposed rebates would not apply to executions at the open.
The Exchange proposes to amend its Price List to change the monthly fees for the use of certain ports by DMMs.
The Exchange currently makes ports available that provide connectivity to the Exchange's trading systems (
The Exchange proposes to not charge DMMs for the first twelve ports that connect to the Exchange via the DMM Gateway and then charge DMMs $550 per port per month for additional ports above the first 12 ports. The DMMs would continue not to incur fees for ports that connect to the Exchange via the DMM Gateway for drop copies. DMMs would also, like other market participants, continue to be charged for order/entry ports that connect to the Exchange via the CCG.
The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed additional quoting, quoted size and adding liquidity requirements in order for DMMs to qualify for the $0.0027, $0.0031 and $0.0034 rebates per share when adding liquidity on the Exchange is reasonable because the higher proposed requirement would improve quoting and increase adding liquidity across securities where there may be fewer liquidity providers. The Exchange believes that higher quoting obligations provide higher volumes of liquidity, which contributes to price discovery and benefits all market participants. Moreover, the Exchange believes that the proposed increase in the credits is equitable and not unfairly discriminatory because, as is currently the case under the existing rates, the credits are available to all DMM firms.
The Exchange believes that the proposed new rebates are equitably allocated and not unfairly discriminatory because they will apply equally to all DMMs. The Exchange believes that the proposed rebate of $0.0035 for intraday adding liquidity that exceeds 25% share of NYSE Quoted Size for providing liquidity that is more than 15% of the NYSE's total intraday adding liquidity in each such security for that month and the DMM quotes at the NBBO in the applicable security at least 50% of the time in the applicable month is reasonable as it would encourage greater quoting and liquidity. Similarly, the proposed rebate of $0.0045 for DMMs adding liquidity with orders, other than MPL orders, in Less Active Securities if the Less Active Security has a stock price of $1.00 or more and the DMM quotes at the NBBO in the applicable security at least 30% of the time in the applicable month is reasonable given the higher proposed quoting requirement and corresponding rebate. Moreover, the proposed requirements are equitable and not unfairly discriminatory because they would apply equally to all DMM firms.
The Exchange believes that the proposal to amend the port fees constitutes an equitable allocation of fees because all similarly situated DMMs and other market participants would be charged the same port rates. The Exchange believes that the proposed change is reasonable even though DMMs are required to use the DMM Gateway for certain DMM-specific
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 the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees and rebates to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. As a result of all of these considerations, the Exchange does not believe that the proposed changes will impair the ability of member organizations or competing order execution venues to maintain their competitive standing in the financial markets.
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.
On November 4, 2016, ICE Clear Credit LLC (“ICC” or “clearing house”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ICC has proposed changes to the ICC Rules, as modified by Amendment No. 1, relating to clearing house default management, recovery, and wind-down to address uncovered losses from a clearing participant (“Participant”) default or series of Participant defaults. The proposed changes consist of three aspects. First, ICC proposes to revise its auction procedures and tools for returning to a matched-book after a Participant default or series of Participant defaults and to implement a different approach to allocating uncovered losses stemming from such Participant default(s) that provides more certainty to Participants by limiting their exposure to ICC. Second, ICC proposes to collect additional initial margin to ensure that it maintains minimum pre-funded financial resources in compliance with applicable regulatory requirements. Third, ICC proposes to clarify the governance requirements relating to the use of ICC's proposed default management tools, including matched-book tools and loss allocation tools, as well as clarify the Rules to enhance transparency and specificity.
ICC proposes substantial changes in the way it returns to a matched-book following a Participant default or series of defaults. Specifically, ICC proposes to maintain its existing default management practices,
Under the proposed changes, ICC will use an auction to dispose of a defaulting Participant's portfolio.
In the initial auction, ICC management will divide the defaulting Participant's portfolio into one or more lots, and each non-defaulting Participant will be subject to a minimum bid requirement for each lot. In addition, ICC proposes to permit customers of Participants to participate in the initial auction either by bidding indirectly through a Participant or by bidding directly in the auction, provided that such customers (1) agree to the terms of the auction, (2) accept the same confidentiality agreements concerning the auction as a Participant; and (3) make a minimum deposit to be applied by ICC in the same manner as Participants' guaranty fund contributions. ICC will use all available default resources to cover the costs associated with the initial default
As part of this proposed rule change, ICC proposes to move its contribution to the guaranty fund higher in the default waterfall such that ICC's contribution will be used prior to the application of guaranty fund contributions of non-defaulting Participants.
In the event an initial auction does not fully dispose of a defaulting Participant's portfolio, ICC may conduct one or more secondary auctions. At the secondary auction stage, ICC will endeavor to auction off the remaining portfolio in a single lot, though ICC retains the discretion to break the portfolio into separate lots if certain non-defaulting Participants are not able to bid on particular positions or ICC otherwise determines that doing so would facilitate the auction process. Moreover, customers of Participants are permitted to bid in secondary auctions directly without the need for a minimum deposit, so long as a Participant has confirmed that it would clear any resulting transactions of the customer. (Customers of Participants continue to retain the option of bidding indirectly through a Participant as well.) As with initial auctions, ICC will apply all remaining default resources to fund the secondary auction(s), and it will continue to juniorize guaranty fund contributions that remain, if any. A secondary auction for any lot is deemed successful if it results in a price that is within ICC's remaining default resources. If a secondary auction is unsuccessful for any lot, ICC may run another secondary auction for that lot on a subsequent business day, unless ICC has invoked reduced gains distributions, in which case secondary auctions may not extend beyond the five business-day reduced gains distributions period.
ICC further proposes to eliminate its rules regarding forced allocation, in which all positions not successfully auctioned through the default auction process are allocated to non-defaulting Participants, and instead, implement pro rata partial tear-up to return to a matched book. Partial tear-up entails terminating the positions of non-defaulting Participants (and their customers) that exactly offset those in the defaulting Participant's remaining portfolio (
ICC may invoke partial tear-up as a matched-book tool only after a number of prerequisites have been satisfied. First, ICC may not resort to partial tear-up until it has attempted one or more initial or secondary auctions. In addition, ICC must consult with its Risk Committee, which is comprised of a supermajority of Participants, if practicable, before it may proceed to partial tear-up. If consultation with the Risk Committee is impracticable prior to taking action, ICC must use its reasonable best efforts to consult with the Risk Committee as soon as practicable thereafter regarding any further relevant actions. Moreover, only ICC's Board, which is comprised of a majority of directors independent of ICC and includes directors chosen by Participants and may also include Participant representatives, may invoke partial-tear up.
ICC's current rules permit the clearing house to seek unlimited guaranty fund assessments from its Participants, but the proposed rule change would eliminate the clearing house's unlimited power of assessment. Instead, ICC proposes to implement a “cooling-off period,” during which its ability to call for additional Participant contributions to the guaranty fund is limited. During a cooling-off period, non-defaulting Participants will not be required to pay more than one time their required guaranty fund contribution per default. And during the cooling-off period, non-defaulting Participants' liability for mutualized guaranty fund contributions is capped at three times the required guaranty fund contribution, based on the last guaranty fund calculation before the cooling-off period was triggered, regardless of the number of defaults that occur during this period. Similarly, ICC's contributions to the guaranty fund are subject to limits of one times its contribution per default and three times its contribution during the cooling-off period. Participants may terminate their membership during a cooling-off period by providing ICC with an irrecoverable notice of withdrawal and closing out all positions by a specified deadline. Participants who withdraw during a cooling-off termination period must continue to meet their obligations to ICC, including guaranty fund assessments with respect to defaults and potential defaults that occur before such Participants' withdrawal becomes effective, subject to the limits described above.
ICC further proposes to use reduced gains distributions as a tool to allocate losses stemming from the defaulting Participant's variation margin obligations while ICC attempts a secondary auction or conducts a partial tear-up during default management and recovery. Currently, holders of positions opposite those of a defaulting Participant are entitled to receive variation margin each day such positions appreciate in value. Under the proposed rule change, ICC may reduce variation margin that would be otherwise owed to both Participants and their customers. ICC proposes to use reduced gains distributions for no more than five business days. On each day when reduced gains distributions are invoked, ICC will calculate a haircut that is applied pro rata to house and customer origin accounts and applied pro rata to each customer portfolio such that each customer portfolio receives the same haircut.
Under the proposed rule change, the use of reduced gains distributions is subject to certain conditions. ICC may not resort to reduced gains distributions unless it has exhausted all available financial resources and expects that there will be favorable conditions for completing a successful secondary auction, subject to the limitation that reduced gains distributions may not extend for more than five business days. In the event ICC conducts a successful secondary auction, reduced gains distributions will end on that day. If ICC has been unable to conduct a successful secondary auction by the end of the five
ICC further proposes to levy additional initial margin, if necessary, during a cooling-off period when Participants' obligations to replenish the guaranty fund and to make required guaranty fund contributions (
ICC further proposes enhanced governance requirements for the use of certain default management tools as part of the proposed rule change. Under the proposed rule change, ICC is required to consult with the Risk Committee (which consists of a supermajority of Participant representatives) on whether to conduct a secondary auction, employ reduced gains distributions, implement partial tear-up, or proceed to wind-down the service. If such consultation is impracticable, ICC must use its reasonable best efforts to consult with the Risk Committee as soon as practicable thereafter regarding any further relevant actions. In addition, ICC's management is not permitted to invoke partial tear-up or reduced gains distributions on its own authority. Those decisions may only be undertaken after majority vote of the ICC Board, which itself is composed of a majority of directors independent of ICC.
To complement its governance provisions, ICC has also proposed several clarifications to enhance the transparency of its Rules. With respect to clearing service termination, ICC proposes to establish more specific procedures governing a number of matters, such as the notice of and timing of clearing service termination, the calculation of termination prices, and the determination of the net amount owed to or by each Participant. In addition, ICC has made a number of additional changes to the existing rules to clarify that its emergency authority does not override the limitations on Participant obligations to make guaranty fund contributions during a cooling-off period or permit resort to partial tear-up, unless otherwise permitted under the Rules, as well as a number of more minor drafting enhancements.
In Amendment No. 1, ICC proposes to clarify certain aspects of the proposed rule change. In particular, as noted above, ICC explains that reduced gains distributions will not be used to provide additional funds for a secondary auction, and that expected auction costs will not be factored into the determination of the haircut used for reduced gains distributions. In addition, ICC clarifies that additional initial margin called after the cap on guaranty fund replenishments and assessments in a cooling-off period is reached will be calculated not only for the house account, but also customer accounts (on a net basis across customers). Any margin amounts charged, however, will be charged to the house account of the Participant, with no charge against any customer accounts. Finally, ICC notes that the ability to call for the additional initial margin after the cap on guaranty fund replenishments and assessments has been reached may have a procyclical impact on Participants and their customers. However, ICC believes that any additional initial margin called will likely not exceed the amount of initial margin otherwise on deposit, and will be commensurate with the range of initial margin variation experienced in the ordinary course.
The Commission received one comment letter in response to the proposed rule change.
Pursuant to section 19(b)(2)(C)
Specifically, Section 17A(b)(3)(F) of the Act requires,
The Commission discusses each aspect of ICC's proposed rule change and its findings below.
The Commission finds the revised auction procedures, as proposed by ICC, consistent with Section 17A(b)(3)(F) and Exchange Act Rule 17Ad–22(d)(11). As described above, under the proposed rule change, in the event of a Participant default, ICC will ordinarily conduct an initial auction as part of its Standard Default Management Actions.
If the initial auction fails, as described above, ICC may conduct a secondary auction to maximize the opportunities of disposing of the defaulting Participant's portfolio and returning to a matched-book. Similar to the initial auction, ICC would juniorize the guaranty fund and assessment contributions that remain, if any, of non-defaulting Participants with less competitive bids in order to incentivize competitive bidding by such Participants. In addition, at the secondary auction stage, ICC will apply all remaining clearing house default resources and endeavor to auction off the remaining portfolio in a single lot, although it may break the portfolio into separate lots if certain Participants are not able to bid on particular contracts or it otherwise determines that doing so would facilitate the auction process. A secondary auction for a lot will be deemed successful if it results in a price for the lot that is within ICC's remaining default resources. The secondary auction procedures would make it even easier for customers to bid directly by eliminating the need for a minimum deposit, so long as a Participant has confirmed that it would clear any resulting transactions of the customer. (As with initial auctions, customers retain the option of bidding through a Participant.) If a secondary auction is unsuccessful for any lot, ICC may repeat this process and run another secondary auction for that lot on a subsequent business day, unless ICC has invoked reduced gains distributions, in which case, the secondary auctions may not extend beyond the five-business-day reduced gains distributions period.
Taken together, the Commission believes that the revised default auction procedures, including the assignment of minimum bid requirements to Participants during the initial auction, broadening participation in both the initial auction and the secondary auctions by permitting customers of Participants to bid directly or indirectly, and juniorization of the guaranty fund and assessment contributions of non-defaulting Participants and the minimum deposit of customers, provide Participants and applicable customers of Participants who elect to participate in the auction a strong incentive to bid competitively. The revised auction procedures should significantly increase the likelihood of reaching an efficient auction clearing price that permits ICC successfully to dispose of the defaulting Participant's portfolio within the resources of the clearing house. Therefore, Commission believes that the revised auction procedures are reasonably designed to establish default procedures that ensure that the clearing agency can take timely action to contain losses and to continue meeting its obligations in the event of a participant default, as well as promoting safeguarding securities and funds, consistent with the requirements in Section 17A(b)(3)(F) of the Act and Exchange Act Rule 17Ad–22(d)(11).
In addition, the Commission finds the proposal to move ICC's contribution to the guaranty fund to the beginning of the waterfall is consistent with the Act. Subordination of ICC's guaranty fund contribution reinforces its incentives to manage risk appropriately and safeguard the securities and funds with which it has been entrusted, and therefore, is consistent with the requirements in Section 17A(b)(3)(F) of the Act.
The Commission further finds that the removal of forced allocation and addition of partial tear-up, as proposed by ICC, are consistent with the Exchange Act. As described above, if any positions are not successfully auctioned through the default auction process, ICC proposes pro-rata partial tear-up in lieu of the existing forced allocation.
The Commission recognizes that the replacement of forced allocation with partial tear-up as a matched-book tool would result in termination of positions of non-defaulting Participants across both the house and customer origin accounts that exactly offset those in the defaulting Participant's portfolio that are not successfully auctioned off during the initial and/or secondary auctions. However, the Commission also recognizes that the forced allocation of positions in a defaulting Participant's remaining portfolio that cannot be successfully disposed of with the clearing house's financial resources would potentially result in non-defaulting Participants taking unmeasurable and unlimited losses beyond their risk tolerance or risk management capability. Because ICC will only be permitted to use partial tear-up to return to a matched book after it has attempted initial and/or secondary auctions, as appropriate, and the proposed auction procedures would significantly improve the likelihood of successful auctions, the use of the
The Commission believes that these provisions regarding the use of partial tear-up and the removal of forced allocation are designed to provide greater certainty to Participants in the estimation of their potential risks and losses in their use of the clearing agency, while enabling ICC to promptly return to a matched book. The Commission believes that returning to a matched book pursuant to these provisions in the context of ICC's default management and recovery, facilitates the timely containment of default losses and liquidity pressures and is consistent with the safeguarding of assets and funds and, to the extent of limiting contagion to the broader financial system, is consistent with the protection of investors and the public interest as well—consistent with Section 17A(b)(3)(F) and Exchange Act Rule 17Ad–22(d)(11).
With respect to financial resources available during default management and clearing house recovery, ICC also proposes to impose a cooling-off period, to permit Participants to withdraw from ICC during the cooling-off period, and to use reduced gains distributions when all the other default resources have been exhausted. The Commission believes that these changes, subject to the conditions and the governance arrangements proposed by ICC in conjunction therewith, are consistent with the requirements of prompt and accurate clearance and settlement, safeguarding securities and funds and promoting public interest and investor protection in the Act, and the rules and regulations thereunder.
As described above, during the proposed cooling-off period, Participants' obligations for assessments would be capped at “1x” the required guaranty fund contribution per default, and each Participant's total amount of replenishments and assessment contributions would be capped at three times the required guaranty fund contribution, regardless of the number of defaults during the period. In addition, Participants who seek to withdraw from ICC during a cooling-off period must generally provide ICC with an irrecoverable notice of withdrawal and close out all positions by a specified deadline. The Commission recognizes that these provisions would effectively limit the amount of financial resources available to ICC for covering default losses, even though a withdrawing Participant will continue to meet its obligations, including guaranty fund assessments, with respect to defaults and potential defaults before such withdrawal becomes effective, subject to the cap described above. However, these provisions also provide certainty regarding Participants' ultimate exposure to the clearing house in connection with their use of clearing services and provide clarity with respect to the distinction between additional guaranty fund contributions (
Because the proposed rule change would not subject Participants to unlimited assessment calls, ICC further proposes reduced gains distributions as a tool to manage the limitation the proposed rule change places on its financial resources while the clearing house attempts a secondary auction or conducts a partial tear-up during default management and recovery.
It should also be noted that under the proposed rule change, as clarified by Amendment No. 1, the use of reduced gains distributions is not intended to pay for the auction costs; rather, it is designed to provide additional time and liquidity needed (no more than five business days) to enable completion of a successful secondary auction or partial tear-up that would not otherwise be possible because all other default resources have been exhausted. Thus, reduced gains distributions will not be used as a source of funds for a secondary auction, and projected auction costs will not be factored into the amount of any reduced gains distributions.
The proposed rule change also limits the use of reduced gains distributions to no more than five business days, and even during this limited period, ICC may not continue to invoke reduced gains distributions to keep the clearing house going if there is no reasonable
The Commission further finds the aspect of the proposed rule change that would require Participants to provide additional initial margin during the cooling-off period is consistent with applicable rules. Exchange Act Rule 17Ad–22(b)(3) provides, in part, that a registered clearing agency that performs central counterparty services for security-based swaps must establish, implement, maintain, and enforce written policies and procedures reasonably designed to maintain sufficient financial resources to meet the cover two standard.
As described above, the proposed rule change will require Participants to provide additional initial margin in the event the cap on Participant guaranty fund assessments and replenishment during a cooling-off period described above is reached. The amount of such initial margin would be determined by ICC based on the applicable regulatory financial resources requirements during the remainder of the cooling-off period. The Commission finds that the additional initial margin requirement is reasonably designed to ensure that ICC would maintain sufficient financial resources meeting the cover two standard and therefore, consistent with the requirement of Exchange Act Rule 17Ad–22(b)(3).
The Commission also finds the aspects of proposed rule change concerning amendments to ICC's governance provisions with respect to default management, use of recovery tools and clearing service termination are consistent with the Act. As described above, key decisions by the clearing house in connection with recovery or wind-down, including the use of partial tear-up and reduced gains distributions, or clearing service termination, are subject to specific governance requirements. These governance requirements include consultation with the Risk Committee, when practicable, and the requirement that certain enumerated decisions on the deployment of end-of-waterfall recovery tools, such as reduced gains distributions, partial tear-up, or clearing service termination, must be made by the Board and cannot be delegated to ICC management. In addition to the governance requirements regarding key decision-making, the proposed rule change also specifies the conditions to the invocation and continuation of reduced gains distributions. Moreover, the proposed rule change further clarifies that ICC's emergency authority does not permit overriding the limitations on Participant obligations during the cooling-off period, or permit ICC's management to invoke partial tear-up of positions without going through the required governance processes as described above. With respect to clearing service termination, as described above, ICC also proposes to establish more specific procedures, such as the timing of termination and calculation of termination prices.
Accordingly, the Commission believes that these governance changes and related clarifications provide greater specificity, transparency, fair representation of Participants, and a sound process for Participants' input with respect to ICC's default management, recovery, and wind-down, as applicable, and are reasonably designed to establish governance arrangements that are clear and transparent to fulfill the public interest and support the objectives of owners and participants, and promote the effectiveness of the clearing agency's risk management procedures, consistent with the requirements in Section 17A of the Act and Exchange Act Rule 17Ad–22(d)(8).
The Commission notes that a commenter urged that ICC implement greater governance requirements with regard to the invocation of certain loss allocation methods. In particular, the commenter suggested that ICC be required to consult not only with its Risk Committee, but also with all Participants when “invoking tools that impact loss distributions after the exhaustion of funded and unfunded resources.”
The Commission also notes that this proposed rule change has been developed over the course of several years, and throughout that time ICC has regularly consulted at length with Participants (individually and as a group) on both the overall design and drafting of this proposed rule change. In particular, the introduction of partial tear-up and reduced gains distributions as recovery tools have been discussed in detail with Participants, and have been
Based on the extensive ex ante consultation with Participants at the proposal development stage and the enhanced governance provisions surrounding ICC's invoking tools that impact loss distributions after the exhaustion of funded and unfunded resources, the Commission does not believe that the proposed rule change is inconsistent with the Act because it does not require ICC to consult with all Participants when it invokes loss distribution tools. As discussed above, the Commission finds that the governance provisions and related clarification changes as part of the proposed rule change are reasonably designed to establish governance arrangements that are clear and transparent to fulfill the public interest and support the objectives of owners and participants, and promote the effectiveness of the clearing agency's risk management procedures, consistent with the requirements in Section 17A of the Act and Exchange Act Rule 17Ad–22(d)(8).
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as modified by Amendment No. 1, 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.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–ICC–2016–013 and should be submitted on or before February 2, 2017.
The Commission finds good cause, pursuant to section 19(b)(2) of the Act,
Accordingly, on its own motion, the Commission finds good cause for approving the proposed rule changes, as modified by Amendment No. 1, on an accelerated basis, pursuant to section 19(b)(2) of the Act.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 8c–1 generally prohibits a broker-dealer from using its customers' securities as collateral to finance its own trading, speculating, or underwriting transactions. More specifically, Rule 8c–1 states three main principles: (1) A broker-dealer is prohibited from commingling the securities of different customers as collateral for a loan without the consent of each customer; (2) a broker-dealer cannot commingle customers' securities with its own securities under the same pledge; and (3) a broker-dealer can only pledge its customers' securities to the extent that customers are in debt to the broker-dealer.
The information required by Rule 8c–1 is necessary for the execution of the Commission's mandate under the Exchange Act to prevent broker-dealers from hypothecating or arranging for the hypothecation of any securities carried for the account of any customer under certain circumstances. In addition, the information required by Rule 8c–1 provides important investor protections.
There are approximately 60 respondents as of year-end 2015 (
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549, or send an email to:
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than March 13, 2017. Individuals can obtain copies of the collection instruments by writing to the above email address.
• Average annual cost per respondent (based on SSA data): $3,500.
• Total estimated annual cost burden: $87,500.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than February 13, 2017. Individuals can obtain copies of the OMB clearance package by writing to
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the person known as Mustafa Mughniyeh, also known as Mustafa Mughniyah, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the person known as Alexanda Amon Kotey, also known as Alexanda Kotey, also known as Allexanda Kotey, also known as Alexander Kotey, also known as Alexe Kotey, also known as Alex Kotey, also known as Abu Salih, also known as Abu-Salih al-Baritani, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously, I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Federal Aviation Administration (FAA), Department of Transportation (DOT), lead Federal agency. National Aeronautics and Space Administration, cooperating agency.
Notice of availability, notice of public comment period, and request for comment.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA; 42 United States Code 4321
The public comment period for the Draft EA begins with the issuance of this Notice of Availability and lasts 30 days. The FAA encourages all interested parties to provide comments concerning the scope and content of the Draft EA by February 13, 2017, or 30 days from the date of publication of this Notice of Availability, whichever is later.
Before including your address, phone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask the FAA in your comment to withhold from public review your personal identifying information, the FAA cannot guarantee that we will be able to do so.
Please submit comments or questions regarding the Draft EA to Daniel Czelusniak, Environmental Specialist, Federal Aviation Administration, 800 Independence Ave. SW., Suite 325, Washington, DC 20591; email
Daniel Czelusniak, Environmental Specialist, Federal Aviation Administration, 800 Independence Avenue SW., Suite 325, Washington, DC 20591; email
The FAA is evaluating LauncherOne LLC's (L1's) proposal to launch the LauncherOne at the Mojave Air and Space Port in Kern County, California, for purposes of transporting small satellites into a variety of Low Earth Orbits. The launch system consists of the rocket (LauncherOne) and a carrier aircraft (Boeing 747). To operate LauncherOne at the Mojave Air and Space Port, L1 must obtain a launch license from the FAA. Issuing a license is considered a major Federal action subject to environmental review under NEPA. Under the Proposed Action, the FAA would issue a launch license to L1 that would allow L1 to operate LauncherOne from the Mojave Air and Space Port. L1 is proposing a maximum of 115 launches over the course of the 5-year launch license (expected 2017–2021). The maximum number of annual launches during this time period would be 40.
Alternatives under consideration include the Proposed Action and the No Action Alternative. Under the No Action Alternative, the FAA would not issue a launch license for the operation of LauncherOne from the Mojave Air and Space Port. Also, the FAA would not modify Mojave Air and Space Port's launch site operator license to include “orbital” reusable launch vehicle missions. The Mojave Air and Space Port would continue its existing operations.
The Draft EA evaluates the potential environmental impacts from the Proposed Action and No Action Alternative on air quality; biological resources (including fish, wildlife, and plants); climate; Department of Transportation Act, Section 4(f); hazardous materials, solid waste, and pollution prevention; historical, architectural, archaeological, and cultural resources; land use; noise and noise-compatible land use;
The FAA has posted the Draft EA on the FAA Office of Commercial Space Transportation Web site:
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions of 10 individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions was effective on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before February 13, 2017.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202–366–4001,
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2013–0109; FMCSA–2013–0444 using any of the following methods:
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Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for two years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
The 10 individuals listed in this notice have requested renewal of their exemptions from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 10 applicants has satisfied the conditions for obtaining an exemption from the Epilepsy and Seizure Disorder requirements and was published in the
The 10 drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring, and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. In accordance with 49 U.S.C. 31136(e) and 31315, each driver has received a renewed exemption.
As of June 9, 2016, David Crowe (VA) has satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) from driving CMVs in interstate commerce (79 FR 23054). This driver was included in FMCSA–2013–0109. The exemption was effective on June 9, 2016, and will expire on June 9, 2018.
As of June 24, 2016, the following 9 individuals have satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) from driving CMVs in interstate commerce (79 FR 73400):
Travis Arend (VA)
Heath Crowe (LA)
Richard Degnan (AZ)
Peter DellaRocco (PA)
Domenick Panfie (NJ)
Scott Reaves (TX)
Milton Tatham (NV)
Thomas Tincher (VA)
Duane Troff (MN)
These drivers were included in FMCSA–2013–0444. The exemptions were effective on June 24, 2016, and will expire on June 24, 2018.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the exemption when driving for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 10 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41(b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions of 116 individuals from its prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals with ITDM to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions was effective on the dates stated in the discussions below and will expire on the dates stated in the discussions below.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202–366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On November 15, 2016, FMCSA published a notice announcing its decision to renew exemptions for 116 individuals from the insulin-treated diabetes mellitus prohibition in 49 CFR 391.41(b)(3) to operate a CMV in interstate commerce and requested comments from the public (81 FR 80164). The public comment period ended on December 15, 2016 and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of
The physical qualification standard for drivers regarding diabetes found in 49 CFR 391.41(b)(3) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.
FMCSA received no comments in this preceding.
Based upon its evaluation of the 116 renewal exemption applications and that no comments were received, FMCSA confirms its' decision to exempt the following drivers from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce in 49 CFR 391.64(3):
As of October 8, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following individual, Gary B. Bland (GA) has satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce. (75 FR 52813; 75 FR 64394):
The driver was included in Docket No. FMCSA–2010–0247. The exemption is effective as of October 8, 2016, and will expire on October 8, 2018.
As of October 10, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 8 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (77 FR 48587; 77 FR 61655):
The drivers were included in Docket No. FMCSA–2012–0217. Their exemptions are effective as of October 10, 2016, and will expire on October 10, 2018.
As of October 19, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 14 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (75 FR 52813; 75 FR 64394):
The drivers were included in Docket No. FMCSA–2010–0247. Their exemptions are effective as of October 19, 2016, and will expire on October 19, 2018.
As of October 21, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 70 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (79 FR 56107; 79 FR 73946):
The drivers were included in Docket No. FMCSA–2014–0021. Their exemptions are effective as of October 21, 2016, and will expire on October 21, 2018.
As of October 22, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 16 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (77 FR 52384; 77 FR 64585):
The drivers were included in Docket No. FMCSA–2012–0128. Their exemptions are effective as of October 22, 2016, and will expire on October 22, 2018.
As of October 31, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 7 individuals have satisfied the renewal conditions for obtaining an exemption from the rule
The drivers were included in Docket No. FMCSA–2012–0219. Their exemptions are effective as of October 31, 2016, and will expire on October 31, 2018.
Each of the 116 drivers in the aforementioned groups qualifies for a renewal of the exemption. They have maintained their required medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous 2-year exemption period.
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each of the 116 drivers for a period of two years is likely to achieve a level of safety equal to that existing without the exemption. The drivers were included in docket numbers FMCSA–2010–0247; FMCSA–2012–0128; FMCSA–2012–0217; FMCSA–2012–0219; FMCSA–2014–0021.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
Federal Motor Carrier Safety Administration (FMCSA).
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 47 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before February 13, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2016–0382 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 47 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Abreu, 61, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Abreu understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Abreu meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from New Jersey.
Mr. Alonzo, 45, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no
Mr. Botcher, 52, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Botcher understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Botcher meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Breskey, 51, has had ITDM since 1990. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Breskey understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Breskey meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Brooks, 54, has had ITDM since 2106. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Brooks understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brooks meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Arkansas.
Mr. Brown, 59, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Brown understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brown meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative and stable proliferative diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Camacho Nunez, 56, has had ITDM since 2005. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Camacho Nunez understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Camacho Nunez meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Coutu, 61, has had ITDM since 2011. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Coutu understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Coutu meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Rhode Island.
Mr. Crance, 46, has had ITDM since 2011. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Crance understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Crance meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from New York.
Mr. Croce, 63, has had ITDM since 2004. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Croce understands diabetes management and monitoring,
Mr. Cuberson, 56, has had ITDM since 2007. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cuberson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cuberson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from North Carolina.
Mr. DeGarmo, 40, has had ITDM since 2010. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. DeGarmo understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. DeGarmo meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Oregon.
Mr. Dionne, 57, has had ITDM since 2001. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dionne understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dionne meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Hampshire.
Mr. Dionne, 66, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dionne understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dionne meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Hampshire.
Mr. Doutt, 51, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Doutt understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Doutt meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Dunn, 59, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dunn understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dunn meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Massachusetts.
Mr. Earlywine, 42, has had ITDM since 1976. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Earlywine understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Earlywine meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class D CDL from Kentucky.
Mr. Evans, 67, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Evans understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Evans meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Virginia.
Mr. Fonstad, 21, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the
Mr. Garron, 36, has had ITDM since 1990. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Garron understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Garron meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from South Carolina.
Ms. Hall, 41, has had ITDM since 2016. Her endocrinologist examined her in 2016 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Hall understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Hall meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2016 and certified that she does not have diabetic retinopathy. She holds a Class A CDL from Maine.
Mr. Hamilton, 48, has had ITDM since 1979. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hamilton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hamilton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable proliferative diabetic retinopathy. He holds a Class A CDL from North Carolina.
Mr. Hanna, 60, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hanna understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hanna meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Hart, 69, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hart understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hart meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class E CDL from Michigan.
Mr. Hecht, 26, has had ITDM since 2001. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hecht understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hecht meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Indiana.
Mr. Hopper, 57, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hopper understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hopper meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Hough, 64, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hough understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hough meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy.
Mr. Jones, 27, has had ITDM since 1995. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Jones understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Jones meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Arizona.
Mr. Koski, 23, has had ITDM since 2000. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Koski understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Koski meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Michigan.
Mr. Land, 24, has had ITDM since 1997. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Land understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Land meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Mr. Lewis, 56, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lewis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lewis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Maine.
Mr. Little, 22, has had ITDM since 2014. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Little understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Little meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from New York.
Mr. Lopez, 25, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lopez understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lopez meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Texas.
Mr. Ludowese, 35, has had ITDM since 2009. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Ludowese understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Ludowese meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Lynch, 35, has had ITDM since 2008. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lynch understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lynch meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Connecticut.
Mr. Matuszewski, 67, has had ITDM since 2014. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Matuszewski understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV
Mr. Mitchell, 29, has had ITDM since 2002. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Mitchell understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mitchell meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Ohio.
Mr. Molnar, 55, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Molnar understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Molnar meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Monaghan, 34, has had ITDM since 1996. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Monaghan understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Monaghan meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds an operator's license from New York.
Mr. Negron, 41, has had ITDM since 1982. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Negron understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Negron meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable proliferative diabetic retinopathy. He holds an operator's license from New Jersey.
Mr. Perfect, 51, has had ITDM since 2013. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Perfect understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Perfect meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Reigel, 53, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Reigel understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Reigel meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class D CDL from Kentucky.
Ms. Schroeder, 42, has had ITDM since 1991. Her endocrinologist examined her in 2016 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Schroeder understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Schroeder meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2016 and certified that she does not have diabetic retinopathy. She holds an operator's license from Wisconsin.
Mr. Seguin, 53, has had ITDM since 2016. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Seguin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Seguin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Hampshire.
Mr. Vaughan, 51, has had ITDM since 1982. His endocrinologist examined him
Mr. Welton, 80, has had ITDM since 2010. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Welton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Welton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2016 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Williams, 65, has had ITDM since 2015. His endocrinologist examined him in 2016 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Williams understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Williams meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2016 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Alabama.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136 (e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
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 that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period. FMCSA may issue a final determination at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before February 13, 2017 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
Notice is hereby given, pursuant to 5 U.S.C. App. 2, 10(a)(2), that a meeting will be held at the Hay-Adams Hotel, 16th Street and Pennsylvania Avenue NW., Washington, DC, on January 31, 2017 at 10:00 a.m. of the following debt management advisory committee:
Treasury Borrowing Advisory Committee of The Securities Industry and Financial Markets Association.
The agenda for the meeting provides for a charge by the Secretary of the Treasury or his designate that the Committee discuss particular issues and conduct a working session. Following the working session, the Committee will present a written report of its recommendations. The meeting will be closed to the public, pursuant to 5 U.S.C. App. 2, 10(d) and Public Law 103–202, 202(c)(1)(B) (31 U.S.C. 3121 note).
This notice shall constitute my determination, pursuant to the authority placed in heads of agencies by 5 U.S.C. App. 2, 10(d) and vested in me by Treasury Department Order No. 101–05, that the meeting will consist of discussions and debates of the issues presented to the Committee by the Secretary of the Treasury and the making of recommendations of the Committee to the Secretary, pursuant to Public Law 103–202, 202(c)(1)(B). Thus, this information is exempt from disclosure under that provision and 5 U.S.C. 552b(c)(3)(B). In addition, the meeting is concerned with information that is exempt from disclosure under 5 U.S.C. 552b(c)(9)(A). The public interest requires that such meetings be closed to the public because the Treasury Department requires frank and full advice from representatives of the financial community prior to making its final decisions on major financing operations. Historically, this advice has been offered by debt management advisory committees established by the several major segments of the financial community. When so utilized, such a committee is recognized to be an advisory committee under 5 U.S.C. App. 2, 3.
Although the Treasury's final announcement of financing plans may not reflect the recommendations provided in reports of the Committee, premature disclosure of the Committee's deliberations and reports would be likely to lead to significant financial speculation in the securities market. Thus, this meeting falls within the exemption covered by 5 U.S.C. 552b(c)(9)(A).
Treasury staff will provide a technical briefing to the press on the day before the Committee meeting, following the release of a statement of economic conditions and financing estimates. This briefing will give the press an opportunity to ask questions about financing projections. The day after the Committee meeting, Treasury will release the minutes of the meeting, any charts that were discussed at the meeting, and the Committee's report to the Secretary.
The Office of Debt Management is responsible for maintaining records of debt management advisory committee meetings and for providing annual reports setting forth a summary of Committee activities and such other matters as may be informative to the public consistent with the policy of 5 U.S.C. 552(b). The Designated Federal Officer or other responsible agency official who may be contacted for additional information is Fred Pietrangeli, Director for Office of Debt Management (202) 622–1876.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of Proposed Rulemaking (NPRM).
This document proposes to establish a new Federal Motor Vehicle Safety Standard (FMVSS), No. 150, to mandate vehicle-to-vehicle (V2V) communications for new light vehicles and to standardize the message and format of V2V transmissions. This will create an information environment in which vehicle and device manufacturers can create and implement applications to improve safety, mobility, and the environment. Without a mandate to require and standardize V2V communications, the agency believes that manufacturers will not be able to move forward in an efficient way and that a critical mass of equipped vehicles would take many years to develop, if ever. Implementation of the new standard will enable vehicle manufacturers to develop safety applications that employ V2V communications as an input, two of which are estimated to prevent hundreds of thousands of crashes and prevent over one thousand fatalities annually.
Comments must be received on or before April 12, 2017.
You may submit comments to the docket number identified in the heading of this document by any of the following methods:
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Regardless of how you submit your comments, you should mention the docket number of this document. You may call the Docket Management Facility at 202–366–9826.
For technical issues, Mr. Gregory Powell, Office of Rulemaking, NHTSA, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366–5206; Fax: (202) 493–2990; email:
The National Highway Traffic Safety Administration (NHTSA) is proposing to issue a new Federal Motor Vehicle Safety Standard (FMVSS) No. 150, to require all new light vehicles to be capable of Vehicle-to-Vehicle (“V2V”) communications, such that they will send and receive Basic Safety Messages to and from other vehicles. The proposal contains V2V communication performance requirements predicated on the use of on-board dedicated short-range radio communication (DSRC) devices to transmit Basic Safety Messages (BSM) about a vehicle's speed, heading, brake status, and other vehicle information to surrounding vehicles, and receive the same information from them. When received in a timely manner, this information would help vehicle systems identify potential crash situations with other vehicles and warn their drivers. The proposal also provides a path for vehicles to comply by deploying other technologies that meet certain performance and interoperability requirements, including interoperability with DSRC.
The agency believes that V2V has the potential to revolutionize motor vehicle safety. By providing drivers with timely warnings of impending crash situations, V2V-based safety applications could potentially reduce the number and severity of motor vehicle crashes, thereby reducing the losses and costs to society that would have resulted from these crashes.
More specifically, the agency believes that V2V will be able to address crashes that cannot be prevented by current in-vehicle camera and sensor-based technologies (“vehicle-resident” technologies). This is because V2V would employ omnidirectional radio signals that provide 360 degree coverage along with offering the ability to “see” around corners and “see” through other vehicles. V2V is not restricted by the same line-of-sight limitations as crash avoidance technologies that rely on vehicle-resident sensors. Additionally, V2V communications (BSMs) contain additional information, such as path predictions and driver actions (braking, steering) not available from traditional sensors. This information can be used by receiving vehicles to more reliably predict potential collision events as well as reduce false warnings. This ability to communicate certain information that cannot be acquired by vehicle-resident onboard sensors makes V2V particularly good at preventing impending intersection crashes, such as when a vehicle is attempting to make a left turn from one road to another. V2V also offers an operational range of 300 meters or farther between vehicles, nearly double the detection distance afforded by some current and near-term vehicle-resident systems. These unique characteristics allow V2V-equipped vehicles to perceive and warn drivers of some threats sooner than vehicle-resident sensors can. Furthermore, while the operational status or accuracy of vehicle-resident sensors may be affected by weather, sunlight, shadows, or cleanliness, V2V technology does not share these same system limitations.
As another source of information about the driving environment, moreover, the agency also believes that V2V can be fused with existing radar- and camera-based systems to provide even greater crash avoidance capability than either approach alone. For vehicles equipped with current on-board sensors, the fundamentally different, but complementary, information stream provided by V2V has the potential to significantly enhance the reliability and accuracy of the sensor-based information available. Instead of relying on each vehicle to sense its surroundings on its own, V2V enables surrounding vehicles to help each other by conveying safety information about themselves to other vehicles. V2V communication can thus detect threat vehicles that are not in the sensors' field of view, and can use V2V information to validate a return signal from a vehicle-based sensor. Further, V2V can provide information on the operational status (
In the longer-term, the agency believes that this fusion of V2V and vehicle-resident technologies will advance the further development of vehicle automation systems, including the potential for truly self-driving vehicles. Although most existing automated systems currently rely on data obtained from vehicle-resident technologies, we believe that data acquired from GPS and telecommunications like V2V could significantly augment such systems. Communication-based technology that connects vehicles with each other could not only improve the performance of automated onboard crash warning systems, but also be a developmental stage toward achieving widespread deployment of safe and reliable automated vehicles.
Despite these potential benefits, V2V offers challenges that are not present in vehicle-resident systems. Without government action, these challenges could prevent this promising safety technology from achieving sufficiently widespread use throughout the vehicle fleet to achieve these benefits. Most prominently, vehicles need to communicate a standard set of information to each other, using interoperable communications that all vehicles can understand. The ability of vehicles to both transmit and receive V2V communications from all other vehicles equipped with a V2V communications technology is referred to in this document as “interoperability,” and it is vital to V2V's success. Without interoperability, manufacturers attempting to implement V2V will find that their vehicles are not necessarily able to communicate with other manufacturers' vehicles and equipment, defeating the objective of the mandate and stifling the potential for innovation that the new information environment can create. In addition, there is the issue of achieving critical mass: That V2V can only begin to provide significant safety benefits when a significant fraction of vehicles comprising the fleet can transmit and receive the same information in an interoperable fashion.
The improvement in safety that results from enabling vehicles to communicate with one another depends directly on the fraction of the vehicle fleet that is equipped with the necessary technology, and on its ability to perform reliably. In turn, the effectiveness of any V2V communications technology depends on its ability to reliably transmit and receive recognizable and verifiable standardized information. Because the value to potential buyers of purchasing a vehicle that is equipped with V2V communications technology depends upon how many other vehicle owners have also purchased comparably-equipped models, V2V communications has many of the same characteristics as more familiar network communications technologies.
Viewed another way, an important consequence of any improvement in fleet-wide vehicle safety that results from an individual buyer's decision to purchase a V2V-capable model is the resulting increase in the safety of occupants of other V2V-equipped vehicles. Thus the society-wide benefits of individual vehicle buyers' decisions to purchase V2V-capable models extend well beyond the direct increase in their own safety; in economic parlance, their decisions can confer external benefits on other travelers. Thus a significant “network externality” arises from a new vehicle buyer's decision to purchase a vehicle equipped to connect to the existing V2V communications network.
Conversely, however, the benefits that any individual consumer would receive from voluntary adoption of V2V depend directly on the voluntary adoption of this technology by other consumers. Unless individual buyers believe that a significant number of other buyers will obtain V2V systems, they may conclude that the potential benefits they would receive from this system are unlikely to materialize. As a consequence, they are less likely to invest in V2V communications capabilities that would be would be justified by the resulting improvement in fleet-wide safety. The proposed requirement that all new vehicles be V2V-capable is thus likely to improve transportation safety more rapidly, effectively, and ultimately more extensively than would result from relying on the private decisions of individual vehicle buyers.
Another important consideration in achieving safety benefits from V2V is the long product lifespan of motor vehicles and the resulting slow fleet turnover. This places inherent constraints on the rate at which diffusion of new technologies throughout the entire vehicle fleet can occur. Thus in order to reach the critical mass of participants, a significant portion of the existing vehicle fleet will need replacement and a sustained, coordinated commitment on the part of manufacturers. Due to the inherent characteristics of the automobile market, manufacturers will inevitably face changing economic conditions and perhaps imperfect signals from vehicle buyers and owners, and these signals may not be based on complete information about the effectiveness of V2V technology, or incorporate the necessary foresight to value the potential life-saving benefits of V2V technology during the crucial phase of its diffusion. Without government intervention, the resulting uncertainty could undermine manufacturer plans or weaken manufacturers' incentive to develop V2V technology to its full potential.
We are, therefore, confident that creating the information environment through this mandate would lead to considerable advances in safety, and that those advances might not reach fruition if V2V communications were left to develop on their own.
The agency believes the market will not achieve sufficient coverage absent a mandate V2V capability for all new light vehicles. A V2V system as currently envisioned would be a combination of many elements. This includes a radio technology for the transmission and reception of messages, the structure and contents of “basic safety messages” (BSMs), the authentication of incoming messages by receivers, and, depending on a vehicle's behavior, the triggering of one or more safety warnings to drivers.
The agency is also proposing to require that vehicles be capable of receiving over-the-air (OTA) security and software updates (and to seek consumer consent for such updates where appropriate). In addition, NHTSA is also proposing that vehicles contain “firewalls” between V2V modules and other vehicle modules connected to the data bus to help isolate V2V modules
The NPRM presents a comprehensive proposal for mandating DSRC-based V2V communications. That proposal includes a pathway for vehicles to comply using non-DSRC technologies that meet certain performance and interoperability standards. A key component of interoperability is a “common language” regardless of the communication technology used. Therefore, the agency's proposal includes a common specification for basic safety message (BSM) content regardless of the potential communication technology. The proposal also provides potential performance-based approaches for two security functions in an effort to obtain reaction and comment from industry and the public. Following is a more comprehensive discussion of the proposal and potential alternatives for different aspects of V2V security:
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• NHTSA proposes to standardize the content, initialization time, and transmission characteristics of the Basic Safety Message (BSM) regardless of the V2V communication technology potentially used. The agency's proposed content requirements for BSMs are largely consistent with voluntary consensus standards SAE 2735 and SAE 2945 which contains data elements such as speed, heading, trajectory, and other information, although NHTSA purposely does not require some elements to alleviate potential privacy concerns. Standardizing the message will facilitate V2V devices “speaking the same language,” to ensure interoperability. Vehicles will not be able to “understand” the basic safety message content hindering the ability to inform drivers of potential crashes.
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NHTSA proposes that V2V equipment be “hardened” against intrusion (FIPS–140 Level 3) by entities attempting to steal its security credentials.
The agency is proposing that the effective date for manufacturers to begin implementing these new requirements would be two model years after the final rule is adopted, with a three year phase-in period to accommodate vehicle manufacturers' product cycles. Assuming a final rule is issued in 2019, this would mean that the phase-in period would begin in 2021, and all vehicles subject to that final rule would be required to comply in 2023.
The agency is not proposing to require specific V2V safety applications at this time. We believe the V2V communications we are proposing will create the standardized information environment that will, in turn, allow innovation and market competition to develop improved safety and other applications. Additionally, at this time, the agency believes that more research is likely needed in order to create regulations for safety applications. In support of this, we are seeking comment on information that could inform a future decision to mandate any specific safety applications.
Under the Vehicle Safety Act, 49 U.S.C. 30101
V2V systems would be required to be designed from the outset to minimize risks to consumer privacy. The NPRM proposes to exclude from V2V transmitting information that directly identifies a specific vehicle or individual regularly associated with a vehicle, such as owner's or driver's name, address, or vehicle identification numbers, as well as data “reasonably linkable”
The Draft Privacy Impact Assessment that accompanies this proposal contains detailed information on the potential privacy risks posed by the V2V communications system, as well as the controls designed into that system to minimize risks to consumer privacy.
In this NPRM, the agency proposes that all light vehicles be equipped with technology that allows for V2V communications, but has decided not to propose to mandate any specific safety applications at this time, instead allowing them to be developed and adopted as determined by the market. This market-based approach to application development and deployment makes estimating the potential costs and benefits of V2V quite difficult, because the V2V communication technology being mandated by the agency would improve safety only indirectly, by facilitating the deployment of previously developed OEM safety application. However, the agency is confident that these technologies will be developed and deployed once V2V communications are mandated and interoperable. Considerable research has already been done on various different potential applications, and the agency believes that functioning systems are likely to become available within a few years if their manufacturers can be confident that V2V will be mandated and interoperable.
In order to provide estimates of the rule's costs and benefits, the agency has considered a scenario where two V2V-enabled safety applications, IMA and LTA, are voluntarily adopted on hypothetical schedules similar to those observed in the actual deployment of other advanced communications technologies. The agency believes that IMA and LTA will reduce the frequency of crashes that cannot be avoided by vehicle-resident systems, and will thus generate significant safety benefits that would not be realized in the absence of universal V2V communications capabilities. In addition, the marginal costs of including the IMA and LTA applications are extremely low once the V2V system is in place, which the agency believes will speed their adoption.
The agency has not quantified any benefits attributable to the wide range of
We estimate that the total annual costs to comply with this proposed mandate in the 30th year after it takes effect would range from $2.2 billion to $5.0 billion, corresponding to a cost per new vehicle of roughly $135–$300. This estimate includes costs for equipment installed on vehicles as well as the annualized equivalent value of initial investments necessary to establish the overarching security manager and the communications system, among other things, but, due to uncertainty, does not include opportunity costs associated with spectrum, which will be included in the final cost benefit analysis. The primary source of the wide range between the lower and upper cost estimates is based our assumption that manufacturers could comply with the rule using either one or two DSRC radios.
As discussed above, our benefit calculation examines a case where manufacturers would voluntarily include the IMA and LTA applications on a schedule that reflects adoption rates the agency has observed for other advanced, vehicle-resident safety technologies. Together, these applications could potentially prevent 424,901–594,569 crashes, and save 955–1,321 lives when fully deployed throughout the light-duty vehicle fleet. Converting these and the accompanying reductions in injuries and property damage to monetary values, we estimate that in 2051 the proposed rule could reduce the costs resulting from motor vehicle crashes by $53 to $71 billion (expressed in today's dollars).
The agency conducted two accompanying analyses to identify meaningful milestones in the future growth of benefits resulting from this proposed rule. These analyses highlight the effect that the passage of time has on the accumulated benefits from this proposed rule. Benefits in the first several calendar years after it takes effect will be quite low, because only a limited number of vehicles on the road will be equipped with V2V, but growth in these benefits will accelerate as time goes on.
First, NHTSA used a “breakeven” analysis to identify the calendar year during which the cumulative economic value of safety benefits from the use of V2V communications first exceeds the cumulative costs to vehicle manufacturers and buyers for providing V2V capability. The breakeven analysis indicated that this important threshold would be reached between 2029 and 2032, depending primarily on the effectiveness of the application technologies.
Next, NHTSA projected future growth in the proposed rule's benefits and costs over successive model years after it would take effect. This analysis identified the first model year for which the safety benefits from requiring vehicles to be equipped with V2V communications over their lifetime in the fleet would outweigh the higher initial costs for manufacturing them. It showed that this would occur in model year 2024 to 2026 if the proposed rule first took effect in model year 2021. This occurs sooner than the breakeven year, because focusing only on costs and benefits over the lifetimes of individual model years avoids including the burden of costs for installing V2V communications on vehicles produced during earlier model years.
In order to account for the inherent uncertainty in the assumptions underlying this cost-benefit analysis, the agency also conducted extensive uncertainty analysis to illustrate the variation in the rule's benefits and costs associated with different assumptions about the future number of accidents that could be prevented, the assumed adoption rates and estimated effectiveness of the two safety applications, and our assumptions about the costs of providing V2V communications capability. Aside from opportunity costs, this analysis showed that the proposed rule would reach its breakeven year between 2030 and 2032 with 90 percent certainty, with even the most conservative scenario showing that the breakeven year would be five to six years later than the previously estimated years (2029–2032). Considering these same sources of uncertainty in the cost-effectiveness and net benefits analyses showed that the proposed rule would become cost-effective and would accrue positive net benefits between MY 2024 and MY 2027 with 90 percent certainty. This indicates that it is very likely to become cost-effectiveness at most one MY later than estimated in the primary analysis, and that even under the most conservative scenario, this would occur two to three model years later than the initial estimate of 2024–2026.
The agency considered two regulatory alternatives to today's proposal. First, the agency considered an “if-equipped” standard, which would entail simply setting a conditional standard stating that “
Second, we considered a regulatory alternative of requiring that V2V-capable vehicles also be equipped with the two safety applications analyzed in this proposed rule—Intersection Movement Assist (IMA) and Left Turn Assist (LTA)—in addition to V2V capability. This alternative would speed the introduction and increase the certainty of safety benefits. However, because performance requirements and test procedures for these safety applications are still nascent, we are not proposing this alternative at this time. However, the agency requests comment on whether sufficient information exists that could assist it in developing FMVSS-quality test procedures and performance standards for these applications.
We seek comment on all aspects of this proposed rule, as well as the Preliminary Regulatory Impact Assessment (PRIA) and Draft Privacy Impact Assessment (PIA) that accompany it. Although a number of specific questions and requests for comment appear in various locations throughout the text, we encourage comments broadly, particularly those that are supported by relevant documentation, information, or analysis. Instructions for submitting comments are located below in the “Public Participation,” Section IX.
Safety technology has developed rapidly since NHTSA began regulating the auto industry
NHTSA believes the greatest gains in highway safety in coming years will result from broad-scale application of crash
This proposed rule would require vehicles to transmit messages about their speed, heading, brake status, and other vehicle information to surrounding vehicles, and to be able to receive the same information from them. V2V range and “field-of-view” capabilities exceed current and near-term radar- and camera-based systems—in some cases, providing nearly twice the range. That longer range and 360 degree field of “view”, currently supported by DSRC, provides a platform enabling vehicles to perceive some threats that sensors, cameras, or radar cannot.
By providing drivers with timely warnings of impending crash situations, V2V-based safety applications could potentially reduce the number and severity of motor vehicle crashes, minimizing the losses and costs to society that would have resulted from these crashes. V2V message data can also be fused with existing radar- and camera-based systems to provide even greater crash-risk detection capability (and thus, driver confidence levels) than either approach alone.
The first step in understanding how V2V could help drivers avoid crashes is determining how many crashes could potentially be addressed by V2V-based technologies. We estimate crash harm based on fatalities, injuries (described by MAIS),
Overall, these crashes directly cost $195 billion to society in terms of lost productivity, medical costs, legal and court costs, emergency service costs (EMS), insurance administration costs, congestion costs, property damage, and workplace losses. When you add the cost for less-tangible consequences like physical pain or lost quality-of-life, we estimate the
Because V2V is a communications-based technology, it is relevant to crashes where more than one vehicle is involved: if a single vehicle crashes by itself, like by losing control and leaving the roadway and hitting a tree, V2V would not have been able to help the driver avoid losing control because there would have been no other vehicle to communicate with. Of the 5.5 million crashes described above, 3.8 million (69 percent of all crashes) were multi-vehicle crashes that V2V-based warning technologies could help address, which would translate to approximately 13,329 fatalities, 2.1 million MAIS1–5 injuries, and 5.2 million PDOVs.
However, some multi-vehicle crashes involve vehicles that would not be covered by this rule, and therefore could not yet be assumed to have V2V capability. As this proposal is currently limited only to light vehicles,
In a separate analysis that has been updated using an average of 2010 through 2013 General Estimate System data (which does not include FARS data), the agency started with the initial 37 pre-crash scenarios that have been defined based on police-reported crashes from previous analyses for all crashes.
The 10 priority
The six applications listed in Table II–2 were developed and tested in the Connected Vehicle Safety Pilot Model Deployment.
(1) Forward Collision Warning (FCW): Warns drivers of stopped, slowing, or slower vehicles ahead. FCW addresses rear-end crashes that are separated into three key scenarios based on the movement of lead vehicles: Lead-vehicle stopped (LVS), lead-vehicle moving at slower constant speed (LVM), and lead-vehicle decelerating (LVD).
(2) Emergency Electronic Brake Light (EEBL): Warns drivers of heavy braking ahead in the traffic queue. EEBL would enable vehicles to broadcast its emergency brake and allow the surrounding vehicles' applications to determine the relevance of the emergency brake event and alert the drivers. EEBL is expected to be particularly useful when the driver's visibility is limited or obstructed.
(3) Intersection Movement Assist (IMA): Warns drivers of vehicles approaching from a lateral direction at an intersection. IMA is designed to avoid intersection crossing crashes, the most severe crashes based on the fatality counts. Intersection crashes include intersection, intersection-related, driveway/alley, and driveway access related crashes. IMA crashes are categorized into two major scenarios: Turn-into path into same direction or opposite direction and straight crossing paths. IMA could potentially address five of the pre-crash scenarios identified in Table II–2.
(4) Left Turn Assist (LTA): Warns drivers to the presence of oncoming, opposite-direction traffic when attempting a left turn. LTA addresses crashes where one involved vehicle was making a left turn at the intersection and the other vehicle was traveling straight from the opposite direction.
(5) Do Not Pass Warning (DNPW): Warns a driver of an oncoming, opposite-direction vehicle when attempting to pass a slower vehicle on an undivided two-lane roadway. DNPW would assist drives to avoid opposite-direction crashes that result from passing maneuvers. These crashes include head-on, forward impact, and angle sideswipe crashes.
(6) Blind Spot/Lane Change Warning (BS/LCW): Alerts drivers to the presence of vehicles approaching or in their blind spot in the adjacent lane. BS/LCW addresses crashes where a vehicle made a lane changing/merging maneuver prior to the crashes.
The final table, Table II–3, merges the estimated target crash population for LV2LV crashes detailed in Table II–2 with the separate analysis that provided the breakdown of V2V pre-crash scenarios and relationships to prototype V2V safety applications. The 3.4 million LV2LV are distributed among the pre-crash scenarios that are associated with V2V safety applications and the economic and comprehensive costs. More specifically, Table II–3 provides a breakdown of crashes associated with FCW, IMA, LTA, and LCW scenarios that are used later when discussing potential benefits in Section VII. Crash scenarios associated with DNPW and EEBL are grouped with all remaining crashes under the “other” category due to the fact they are not used when discussing benefits. The agency grouped these two potential applications into the “other” category because of EEBL's advisory nature that cannot be directly attributed to avoiding a specific crash and the agency's current understanding of DNPW indicates it only addresses a limited amount of crashes per a specific situation and where there are three equipped vehicles present, limiting the amount of information available to develop comprehensive effectiveness estimates.
Overall the agency estimates that, together, these four potential safety applications that could be enabled by this proposal could potentially address nearly 89 percent of LV2LV crashes and 85 percent of their associated economic costs.
The most effective way to reduce or eliminate the property damage, injuries, and fatalities that occur annually from motor vehicle crashes is to lessen the severity of those crashes, or prevent those crashes from ever occurring. In recent years, vehicle manufacturers have begun to offer, or have announced plans to offer, various types of crash avoidance technologies that are
Many of the advanced crash avoidance technologies currently available in the marketplace employ on-board sensor technologies such as cameras, RADAR, or LIDAR, to monitor the vehicles' surroundings.
Vehicle-resident systems can be highly effective in mitigating certain crash types, although their performance varies by sensor type, and is limited in certain situations. Perception range varies from 10 meters to 200 meters for LIDAR and 77 GHz radar, respectively, while field-of-view ranges from 18 degrees to 56 degrees for 77 GHz radar and 24 GHz radar,
Devices enabling vehicles to communicate with one another or with road-side equipment and/or infrastructure have been prototyped and tested in field operational tests like the Safety Pilot Model Deployment. These devices, when eventually developed for mass production, could be fully integrated into a vehicle when manufactured, or could be standalone aftermarket units not restricted to a single vehicle. These devices offer varying degrees of functionality, but all are designed to communicate safety information to help mitigate crashes.
Safety information that can help mitigate crashes includes data elements like vehicle position, heading, speed, and so forth—data elements that could help a computer-based safety application on a vehicle calculate whether it and another vehicle were in danger of crashing without driver intervention. These pieces of information are collected into what is known as a “Basic Safety Message,” or “BSM.” In a fully-integrated vehicle communication system, the system is built into the vehicle during production, and consists of a general purpose processor and associated memory, a radio transmitter and transceiver, antennas, interfaces to the vehicle's sensors, and a GPS receiver. It generates the BSM using in-vehicle information obtained from the vehicle's on board sensors. An integrated system can both transmit and receive BSMs, and can process the content of received messages to provide advisories and/or warnings to the driver of the vehicle in which it is installed. Since the vehicle data bus provides a rich data set, integrated systems have the potential to obtain information that could indicate driver intent, which can help inform safety applications such as Left Turn Assist (LTA),
Aftermarket devices, which are added to a vehicle after its assembly, can vary significantly from both fully-integrated vehicle communication systems, and from one another. The simplest designs may only transmit (and not also receive) a BSM, may only connect to a power source and otherwise operate independently from the systems in the vehicle, and may not run safety applications or provide advisories/warnings to a driver.
Regardless of whether they are integrated or aftermarket, all communication-based systems are designed to, at a minimum; transmit BSM information such as vehicle position and heading to nearby vehicles. That information may be transmitted using various communication methods—like cellular, Wi-Fi, satellite radio, or dedicated short-range communication (DSRC)—each of which has its own advantages and disadvantages. At this time, DSRC is the only mature communication option that meets the latency requirements to support vehicle communication based crash avoidance, although future V2V standards may also meet the latency requirements.
Cellular networks currently offer fairly widespread coverage throughout the nation and are continuing to expand; however, there are still areas (dead spots) where cellular service is
Wi-Fi technology offers generally higher data rates than the other options, but because of its intrinsic design for stationary terminals, and the need for a vehicle to provide its MAC (media access control) address, and obtain the MAC address of all other vehicles in a Wi-Fi hotspot before it can send communications, transmission rates are significantly reduced if a user is moving. Cost concerns and potential security risks for Wi-Fi are similar to those for cellular communication.
Satellite radio, or Satellite Digital Audio Radio Service (SDARS), uses satellites to provide digital data broadcast service nearly nationwide (across approximately 98% of the U.S. land mass—fundamentally not covering Alaska and Hawaii and covering the southern parts of Canada and northern parts of Mexico. Data download time for satellite communication, however, is slow compared to the other communication options which limits its capability to “back office” type communications versus actual vehicle to vehicle safety communications, and the costs and security risks associated with cellular and Wi-Fi communication also apply to satellite.
DSRC is a two-way short-range wireless technology that provides local, nearly instantaneous network connectivity and message transmission. It has a designated licensed bandwidth to permit secure, reliable communication, and provides very high data transmission rates in high-speed vehicle mobility conditions which are critical characteristics for detecting potential and imminent crash scenarios.
In this NPRM, the proposal would require V2V communication to use DSRC devices to transmit messages about a vehicle's speed, heading, braking status, etc. to surrounding vehicles, as well as to receive comparable information from surrounding vehicles. As DSRC is based on radio signals, which are omnidirectional (
V2V is subject to the current limitations of GPS technology. This includes accuracy levels that are perceived to be only sufficient for warning applications vs. control applications such as automatic braking. The GPS dependency also poses challenges where sky visibility is limited (
Both vehicle-resident and communication-based safety systems have certain strengths and limitations, and as such, NHTSA and many commenters to the ANPRM, like the Automotive Safety Council, Hyundai Motor Group, IIHS, Motor & Equipment Manufacturers Association, and Volvo Cars, believe that combining (“fusing”) communication-based systems with vehicle-resident crash avoidance systems to exploit the functionality of both system types presents a significant opportunity. Given the proposed V2V system, we are confident that the technology could be easily combined with other vehicle-resident crash avoidance systems to enhance the functionality of both types of systems. Together, the two systems can provide even greater benefits than either system alone.
For vehicles equipped with current on-board sensors, V2V can offer a fundamentally different, but complementary, source of information that can significantly enhance the reliability and accuracy of the information available. Instead of relying on each vehicle to sense its surroundings on its own, V2V enables surrounding vehicles to help each other by reporting safety information to each other. V2V communication can also detect threat vehicles that are not in the sensors' field of view, and can validate a return from a vehicle-based sensor. This added capability can potentially lead to improved warning timing and a reduction in the number of false warnings, thereby adding confidence to the overall safety system, and increasing consumer satisfaction and acceptance. Similarly, vehicle-resident systems can augment V2V systems by providing the information necessary to address other crash scenarios not covered by V2V communications, such as lane and road departure. These systems can work collectively to advance motor vehicle safety, as was further evidenced in the comments submitted by the Automotive Safety Council and IIHS.
The Automotive Safety Council commented that, in addition to the safety advantages from increased sensing range and the environment use cases, V2V also offers advantages with respect to operation status (
IIHS contended, however, that onboard sensing systems may evolve during the time it will take V2V to penetrate the fleet, potentially to the
The agency appreciates the commenters' views on the co-existence of the technologies with varying capability and expressing support for the agency's approach in this proposal. We do disagree, however, with the comments indicating that V2V should not be pursued because onboard sensing systems exist in the marketplace. The agency views these technologies as complementary and not competing. Providing a data rich information environment should, most likely, enable more capability to enhance vehicle safety.
The agency requests comments its views concerning the potential of fusing connected and vehicle-resident technologies. In particular, the agency requests comment on what specific applications could use both technologies to enhance safety. The agency also seeks comment on whether an if-equipped option for V2V would be preferable, given the development of vehicle-resident technologies.
Automated systems perform at least some aspects of a safety-critical control function (
Although many automated systems currently rely on data obtained from on-board sensors and cameras to judge safety-critical situations and respond with an appropriate level of control, data acquired from GPS and telecommunications like V2V could significantly augment such systems, since, as mentioned previously, vehicle communication-based systems, like V2V, are capable of providing warnings in several scenarios where vehicle-based sensors and cameras cannot (
Systems Research Associates, Inc. stated that “it is irrefutable that V2V, V2I, and V2P communications will be absolutely critical to the successful development of self-driving vehicles that can avoid collisions, navigate responsibly, and achieve a transport objective efficiently and in a timely manner.” Similarly, IEEE USA commented that V2V can provide the trusted map data and situation awareness messages necessary for innovative safety functions, and support the flow of traffic with self-driving cars.
Other commenters, including Robert Bosch LLC and Motor & Equipment Manufacturers Association expressed that V2V data should serve as a supplemental input in developing automated vehicles, but cautioned the agency that vehicles should not have an external, V2V exclusive infrastructure and communication medium dependency. This approach may unnecessarily limit the adoption or implementation of automated systems. Furthermore, the Automotive Safety Council commented that “V2V should be considered as one of the supporting sensor sets for automated vehicle applications, where it can augment the information available to the vehicle about the surrounding environment” by increasing the range and/or reliability of data from sensors, but it is “. . . not sufficient alone as a sensor to support automated vehicles nor a technology that will inhibit the development of automated applications. In order to ensure robust decisions for autonomous functions, sensing redundancy at the vehicle level may still be required to meet functional safety requirements, and/or for functions where the V2V technology is not capable of providing the necessary data or inputs to the vehicle.”
Competitive Enterprise Institute expressed concerns that a V2V mandate may harm vehicle automation efforts. The company cited Google and Bosch's ability to develop vehicle automation systems that use onboard sensors and computers to map vehicle surroundings in real-time and make direction decisions without widespread vehicle-to-vehicle connectivity as reason to suggest that V2V is unnecessary for full-scale automation. The company also commented that if automated systems were required to interact with V2V under a new Standard, this would generate “large and as yet uncontemplated cybersecurity, crash, and products liability risks.” Similarly, the Automotive Safety Council commented that the security system described in the V2V Readiness report “does not provide sufficient protection against all abuse of the V2V system” in the event that active safety applications which leverage the V2V infrastructure, are considered in the future. The group suggested that because “the data fed into the DSRC device from the vehicle sensors is not cryptographically protected,” an attacker “could simply feed a DSRC device bad data, which is subsequently cryptographically signed using the proposed PKI system and transmitted to nearby vehicles.” The Automotive Safety Council suggested that this could allow an attacker to “cause a vehicle to rapidly swerve off the road to avoid a collision with a car that does not exist in reality but was interpreted to exist” because the vehicle received false, but cryptographically signed and thus trusted, data from a nearby malicious vehicle.
QUALCOMM Incorporated maintained an opposing position to Competitive Enterprise Institute and the Automotive Safety Council. The company commented that, “while it is possible to implement a certain level of vehicle automation . . . without V2V, V2V can enhance the overall reliability and coverage of autonomous vehicle technology.” Consequently, the company contended that there is no conflict between the deployment of DSRC and automated vehicles, and further suggested that the two technological advances should be pursued simultaneously so that the additional safety benefits offered by DSRC can penetrate the fleet and be realized in both autonomous and non-autonomous vehicles. Overall, this approach is aligned with the agency's view that V2V is complementary, and not competing, with automated vehicle deployment.
The agency requests comment on the interplay between V2V and autonomous technologies.
The U.S. Department of Transportation, along with other research partners in State DOTs, academia, and industry, has been evaluating how to incorporate communication technology into transportation infrastructure since the mid-1980s, in order to improve transportation (particularly on-road vehicle) safety, mobility, and emissions. That broad research topic is generally referred to as “intelligent transportation systems” or “ITS.” V2V research developed out of ITS research in the mid-2000s, when NHTSA and CAMP began to look at the potential for DSRC as a vehicle communication technology, for the purpose of warning drivers of imminent crash risks in time to avoid them. NHTSA's decision to begin the rulemaking process to require V2V communications capability on new light vehicles thus represented the culmination of several decades of research by government and industry to develop this communications technology for vehicles from the ground up. In the interest of brevity, NHTSA refers readers to the V2V Readiness Report for a summary of the history of ITS research and NHTSA's work with CAMP and other partners prior to 2014.
One element of the V2V research that took place prior to 2014 is the Safety Pilot Model Deployment. The Model Deployment was the culmination of the V2V research that had taken place in prior years. Using the Model Deployment, DOT deployed prototype V2V DSRC devices on real roads with real drivers that interacted for over a year and provided the data that allowed DOT to evaluate the functional feasibility of V2V under real world conditions.
The Model Deployment was conducted in Ann Arbor, Michigan, and ran from August 2012 to February 2014. Sponsored by DOT and conducted by the University of Michigan Transportation Research Institute, the experiment was designed to support evaluation of the functionality of V2V technology. Approximately 2,800 vehicles—a mix of cars, trucks, and transit vehicles operating on public streets within a highly concentrated area—were equipped with integrated in-vehicle safety systems, aftermarket safety devices, or vehicle awareness devices, all using DSRC to emit wireless signals of vehicle position and heading information. Vehicles equipped with integrated in-vehicle or aftermarket safety devices have the additional design functionality of being able to warn drivers of an impending crash situation involving another equipped vehicle.
Data collected during the Model Deployment was used to support an evaluation of functionality of the V2V safety applications used in the Model Deployment—in effect,
The Model Deployment was the first and largest test of V2V technology in a real-world environment. The Model Deployment was a key step in understanding whether the technology worked, the potential of this technology to help avoid crashes, and increase the vehicle safety.
Besides explaining the history of the research that led to NHTSA's decision to initiate rulemaking to require V2V communications capability, the Readiness Report also described NHTSA's understanding of the current state of the research in mid-2014, and identified a number of areas where additional research could be necessary either to develop mandatory requirements for new vehicles equipped with DSRC, or to further develop information needed to inform potential future requirements for DSRC-based safety applications. The following sections summarize the agency's research-based findings in the Readiness Report; list the areas where the agency identified additional research as necessary; and explain the status of research conducted since the Readiness Report in response to those identified research needs.
Based on the agency's research and thinking at the time of issuance, the V2V Readiness Report comprehensively covered several key topic areas:
• What the safety need is that V2V can address, and how V2V addresses it;
• The legal and policy issues associated with requiring V2V for light vehicles, the secure operation of the technology, and the implications of these issues for privacy;
• A description of the technology required for V2V capability, the different types of devices, and the security needed for trusted communications; and
• Based on preliminary data, how much the technology may be expected to cost (both for purchasers of new vehicles, and for the entities who develop and build out the security and communications networks, in terms of initial capital investments), and the potential effectiveness (and thus, benefits) of certain V2V-based safety applications at helping drivers avoid crashes.
The Readiness Report listed the key findings of the research up to that point, as follows:
• V2V (specifically, DSRC) devices installed in light vehicles as part of the Safety Pilot Model Deployment were able to transmit and receive messages from one another, with a security management system providing secure communications among the vehicles during the Model Deployment. This was accomplished with relatively few problems given the magnitude of this first-of-its-kind demonstration project.
• The V2V devices tested in the Model Deployment were originally developed based on existing communication protocols found in voluntary consensus standards from SAE and IEEE. NHTSA and its research partners participating in the Model Deployment (
• As tested in the Model Deployment, safety applications enabled by V2V, examples of which include IMA, FCW, and LTA, have proven effective in mitigating or preventing potential crashes, but the agency recognized that additional refinement to the prototype safety applications used in the Model Deployment would be needed before minimum performance standards could
• The agency has the legal authority to mandate V2V (specifically, DSRC) devices in new light vehicles, and could also require them to be installed in commercial vehicles already in use on the road if we also required them for new medium and heavy duty vehicles. The agency also has the authority to mandate safety applications that are V2V-based, and to work with an outside entity to develop the security and communications infrastructures needed to support deployment of V2V technologies in motor vehicles.
• Based on preliminary information used for the report, NHTSA estimated that the V2V equipment and supporting communications functions (including a security management system) would cost approximately $341 to $350 per vehicle in 2020, and it is possible that the cost could decrease to approximately $209 to $227 by 2058, as manufacturers gain experience producing this equipment (the “learning curve” effect). These costs would also include an additional $9 to $18 per year in fuel costs due to added vehicle weight from the V2V system. Estimated costs for the security management system ranged from $1 to $6 per vehicle, and were estimated to increase over time due to the need to support an increasing number of vehicles with V2V technology. The estimated communications costs ranged from $3 to $13 per vehicle. Cost estimates were not expected to change significantly by the inclusion of V2V-based safety applications, since the applications themselves are software and their costs are negligible.
• Based on preliminary estimates used for the report, the total projected preliminary annual costs of the V2V system fluctuated year after year but generally indicated a declining trend. The estimated total annual costs ranged from $0.3 to $2.1 billion in 2020, with the specific costs depending upon the technology implementation scenarios and discount rates. The costs peaked to $1.1 to $6.4 billion between 2022 and 2024, and then gradually decreased to $1.1 to $4.6 billion.
• The analysis conducted for the V2V Readiness Report estimated that just two of many possible V2V safety applications, IMA and LTA, would on an annual basis potentially prevent 25,000 to 592,000 crashes, save 49 to 1,083 lives, avoid 11,000 to 270,000 MAIS 1–5 injuries, and reduce 31,000 to 728,000 property-damage-only crashes by the time V2V technology had spread through the entire fleet, if manufacturers implemented them.
The Readiness Report also recognized that additional items need to be in place for a potential V2V system to be successful. These items were listed as follows:
• Wireless spectrum: V2V communications transmit and receive messages at the 5.85–5.925 GHz frequency. The FCC, as part of an ongoing rulemaking proceeding, is considering whether to allow “Unlicensed National Information Infrastructure” devices (that provide short-range, high-speed, unlicensed wireless connections for, among other applications, Wi-Fi-enabled radio local area networks, cordless telephones, and fixed outdoor broadband transceivers used by wireless Internet service providers) to operate in the same area of the wireless spectrum as V2V.
• V2V device certification issues: V2V devices are different from other technologies regulated by NHTSA under the Federal Motor Vehicle Safety Standards, insofar as part of ensuring their successful operation (and thus, the safety benefits associated with them) requires ensuring that they are able to communicate with all other V2V devices participating in the system. This means that auto manufacturers (and V2V device manufacturers) attempting to comply with a potential V2V mandate could have a significant testing obligation to guarantee interoperability among their own devices and devices produced by other manufacturers. At the time of the Readiness Report, it was an open question whether individual companies could meet such an obligation themselves, or whether independent testing facilities might need to be developed to perform this function. Based on the security design evaluated for the report, it was thought likely that an entity or entities providing the security management system would require that device manufacturers comply with interoperability certification requirements to ensure the reliability of message content. The agency currently believes the creation of a standardized test device should mitigate manufacturer to manufacturer communication variances to help ensure interoperability.
• Test procedures, performance requirements, and driver-vehicle interface (DVI) issues: Test procedures, performance requirements, and driver-vehicle interfaces appeared to work well enough for purposes of the Model Deployment (as compared to a true production, real-world environment), but NHTSA concluded that additional research and development would be necessary to produce FMVSS-level test procedures for V2V inter-device
• As a result of this item from the Readiness Report, NHTSA undertook additional research to examine the minimum performance measures for DSRC communication and system security.
• Standing up security and communications systems to support V2V: In order to function safely, a V2V system needs security and communications infrastructure to enable and ensure the trustworthiness of communication between vehicles. The source of each message needs to be trusted and message content needs to be protected from outside interference. A V2V system must include security infrastructure to credential each message, as well as a communications network to get security credentials and related information from vehicles to the entities providing system security (and vice versa).
• Liability concerns from industry: Auto manufacturers repeatedly have expressed concern to the agency that V2V technologies will increase their liability as compared with other safety technologies. In their view, a V2V system exposes them to more legal risk than on-board safety systems because V2V warning technologies rely on information received from other vehicles via communication systems that they themselves do not control. However, the decision options under consideration by NHTSA at the time of the Readiness Report involved safety warning technologies—not control technologies. NHTSA's legal analysis indicated that, from a products liability standpoint, V2V safety warning technologies, analytically, are quite similar to on-board safety warnings systems found in today's motor vehicles. For this reason, NHTSA did not view V2V warning technologies as creating new or unbounded liability exposure for the industry.
•
• Consumer acceptance: If consumers do not accept a required safety technology, the technology will not create the safety benefits that the agency expects. At the time of the report, the agency believed that one potential issue with consumer acceptance could be maintenance. More specifically, if the security system is designed to require consumers to take action to obtain new security certificates—depending on the mechanism needed to obtain the certificates—consumers may find the required action too onerous. For example, rather than accept new certificate downloads, consumers may choose instead to live with non-functioning V2V capabilities.
The findings of the V2V Readiness Report also yielded a series of research, policy and standards needs. The agency believed some of these needs were significant enough that they should be addressed to properly inform any potential regulatory action; such as this NPRM. The agency also identified some needs from the Readiness Report that could be addressed later to potentially support other aspects of V2V deployment such as safety applications. Following is a list of needs identified in the V2V Readiness Report and their current status. The agency has completed what it believes is the necessary research for to inform and support this proposal, although the agency is continuing to study these and other issues. The agency notes that Table II–4 shows the status of the research related to safety applications, which are not being proposed in this NPRM.
Section V.F of NHTSA's Readiness Report detailed key similarities and some differences between U.S., European, and Asian V2X implementation approaches. There are several organizations in Europe and Asia conducting activities related to V2V and V2I communications and the U.S. DOT has established ongoing coordination activities with these regions and their representing organizations. For Europe, these organizations include DG CONNECT and the CAR 2 CAR Communications Consortium (C2C–CC). DG CONNECT is the EU directorate responsible for conducting research and pilot projects related to connected vehicles and C2C–CC has been working closely with CAMP as part of the EU–US V2X Harmonization Program.
A number of commenters to the ANPRM/Readiness Report addressed the issue of global harmonization. Most commenters addressing the issue encouraged the agency to pursue global harmonization between the U.S., EU, and Asia-Pacific regions as a way to reduce costs,
With regard to what specifically should be harmonized, commenters mentioned hardware,
NHTSA recognizes the value of implementing V2V in a globally-harmonized way. Consistency could reduce costs, complexity, and contribute to a successful, long-term sustainable deployment. As discussed in the V2V Readiness Report, significant V2V research and development activities have been completed and continue in both Europe and Asia. Real-world deployments have been announced in both regions focusing on V2I systems to
Collaboration between organizations and governmental bodies in the U.S. and Europe has led to extensive harmonization of the criteria for hardware, message sets, security, and other aspects needed to support V2V between the two regions. It will be possible to use common radios and antennas in both regions. Harmonization could potentially be enhanced by this proposal by prompting solidification of the work focusing on security and message performance requirements for common applications. The connected vehicle applications being developed in Europe place a much stronger priority on mobility and sustainability compared to U.S. focus on safety applications.
Japan, Korea and Australia are the Asia-Pacific countries most involved in pursuing DSRC-based V2X communications. In Japan, MLIT's current V2X approach centers on the adaptation of their electronic tolling system operating at 5.8 GHz. Additionally, some Japanese OEMs (mainly Toyota) are actively supporting the deployment of V2X using 760 MHz communications. Development of message sets in Japan is not yet complete but appears to be moving in a similar direction as the message sets harmonized between Europe and the U.S. Korea currently uses the 5.835–5.855 GHz band for Electronic Toll Collection and DSRC experimentation. Korea has performed field tests for V2V communication in this band. Industry sources indicate that Korea may shift DSRC for ITS to 5.9 GHz to be more aligned internationally.
In Australia, Austroads is the association of Australian and New Zealand road transport and traffic authorities. This organization is currently investigating potential interference issues, and working with affected license holders to evaluate the feasibility of use of the 5.9 GHZ spectrum for V2X in Australia. Another agency, Transport Certification Australia, is leading the design for security requirements, supporting field deployments, and working with the Australian Communications and Media Authority (ACMA) on identifying requirements for spectrum usage. Because the Australian vehicle market is predominantly comprised of imports from the U.S., Europe, and Asia, these Australian agencies have joined in the international harmonization efforts to ensure that the vehicle brought into the country are interoperable with each other and with the new cooperative infrastructure equipment and applications emerging on the market.
Canada has reserved spectrum at 5.9 GHz for V2X and is watching developments in the U.S. closely.
Harmonization and joint standardization is performed under an Implementing Arrangement for Cooperative Activities. This memorandum between the U.S. DOT and the European Commission established a collaborative relationship in 2009 and it was renewed in December 2014.
The harmonization and collaboration on standards is governed by a Harmonization Work Plan that has generated a set of smaller, flexible task groups to focus on specific subjects. The completed and ongoing task groups and their status are the following:
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○ Signalized intersections applications such as Signal Phase and Timing, Signal Request, Signal Status,
○ In-vehicle data message sets.
At this point, there is general agreement on the data concepts in these message sets, but there remain differences in how the data is conveyed between the infrastructure and the vehicles. These differences are due to project and communications restrictions. For example, the U.S. is planning for additional message sets for enhanced functionality; whereas the European approach may limit the initial applications and simply add data elements to the messages over time. ISO Technical Specification 19091, a standard covering to V2I and I2V communications for signalized intersections, is currently under development and is incorporating both harmonized content and recognizing region-specific content—a practical compromise resulting from existing differences in signal standards. Overall, 19091 allows for substantial hardware congruity while acknowledging that fully identical message standards are not viable at this time.
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The SCMS development activity has incorporated key outcomes of this activity, some of which include:
• Implementation of harmonized policies engenders and sustains public trust in the C–ITS system and applications, particularly within a highly mobile environment that expects C–ITS services to remain available as networks evolve over time and as services cross borders.
• To support cross-border/cross-jurisdictional operations of C–ITS applications, individual security systems (known as C–ITS Credential Management Systems or CCMS) require a defined range of harmonized processes as well as specific, secure data flows to support digital auditing and system transparency.
• Planning for inter-CCMS or intra-CCMS communications will require decisions when developing near-term operational systems but those decisions may have longer-term impacts on crypto-agility, system flexibility, and evolution of systems that must be considered from the start.
• Critical near-term steps for policy and decision makers to perform include:
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HTG group members comprise a small group of international experts who worked together intensively with co-leadership. Members are provided by the EC DG–CONNECT and U.S. DOT, and typically chosen from among the editors of many of the current cooperative ITS standards in the different SDOs providing direct linkages into those SDO activities, as well as representatives of the EU and U.S. DOT and the Vehicle Infrastructure Integration Consortium (VIIC), and expert representatives from roadway and infrastructure agencies, system integrators, and policy analysts. HTG6 expanded the membership beyond the EC and U.S. DOT to include Transport Certification Australia (TCA) plus observers from Canada and Japan.
As the U.S. is taking the lead in potential V2V deployment, whereas Asia and Europe are focusing primarily on V2I implementation, the agency expects that a finalized implementation driven by this proposal will set precedent and potentially adjust standards for V2V implementation globally.
To begin the rulemaking process, NHTSA issued an ANPRM on August 20, 2014.
In the ANPRM and the accompanying V2V Readiness Report, we emphasized the capability of V2V to be an enabler for many advanced vehicle safety applications as well as an additional data stream for future automated vehicles.
Current advanced vehicle safety applications (
One important example that we mentioned in the ANPRM is intersection crashes.
However, in spite of the benefits of the technology, we explained in the ANPRM that we did not expect that V2V technology would be adopted in the vehicle fleet absent regulatory action by the agency.
In the V2V Readiness Report,
We further discussed and summarized our preliminary information regarding many of the technical aspects of a potential rule including: The types of safety problems that could be addressed by V2V,
The report also explored various important policy issues including: the agency's legal authority over the various aspects of the V2V environment (
In the context of the V2V Readiness Report, the ANPRM asked 57 questions to help solicit comments from the public more effectively.
The ANPRM questions also covered policy issues such as legal interpretation of NHTSA's authorities under the Motor Vehicle Safety Act,
We raised important questions regarding the potential sharing of the DSRC spectrum allocation by soliciting comments on potential sharing and, if so, ideas on how to share the spectrum safely.
In response to the ANPRM, the V2V Readiness Report, and our questions, we received more than 900 comments.
While expressing general support, the automotive manufacturers stated their belief that the Federal government needs to assume a large role in establishing key elements of the V2V environment (
Automotive suppliers generally expressed support for the technology as well. They further generally opined that the technology and standards for the technology are mature enough for initial deployment. For example, DENSO
Safety advocacy groups also expressed support, but emphasized the importance of ensuring interference-free spectrum for V2V. For example, the American Motorcyclist Association stressed the need for interference-free spectrum to ensure the safety applications will function. V2V, in their view, has the unique capability to address crashes that represent a significant portion of motorcycle crashes (
Two standards development organizations also submitted comments. The two organizations (SAE and IEEE) were involved in developing various standards incorporated in this proposed rule. Both generally expressed support for the agency's proposal and stated that—in spite of on-going research—the standards are mature enough to support deployment of DSRC devices and ensure that they are interoperable.
While expressing general support for the technology and NHTSA's efforts in this area, technology/communications device manufacturers expressed two general concerns. Through their trade associations,
Other government agencies also submitted comments. The NTSB commented that both V2V and vehicle-resident crash avoidance technologies are important and they are complementary—especially when one (vehicle-resident) fills the gap during the deployment of the other (V2V).
A significant number of commenters also raised privacy concerns with this rulemaking. In addition to a large number of individual commenters, organizations such as EPIC stated that, since a potential rule would create significant privacy risks, they recommend that the government take various actions to protect the information (
Finally, many individual citizen commenters (in addition to the topics covered above) discussed their perception that this rulemaking proposes to mandate a technology that poses a potential health concern. The EMR Policy Institute
Approximately 30 days after issuing the agency's Advance Notice of Proposed Rulemaking (ANPRM)
Questions in the RFI covered topics such as potential governance structures for the SCMS, requests for estimates of necessary initial capital investment, how respondents believed the SCMS (or the components that they were interested in operating) could generate revenue and be financially sustainable (in order to ensure its uninterrupted operation), what respondents thought of the current SCMS design and, finally, the respondent's interest in standing up and operating some or all of the components of the national V2V SCMS.
NHTSA received 21 responses by the December 15, 2014 response closing date, and approximately 11 respondents indicated an interest in running some or all components of the SCMS. The remaining responses commented more generally on issues of potential governance and liability with two common themes: (1) That the Federal Government should take the lead in standing up and operating the SCMS; and (2) that the Federal Government should indemnify companies participating in the SCMS from liability.
The RFI respondents included vehicle manufacturers, software component developers and suppliers, cryptography experts, certificate management entities, satellite and cellular service providers and academia. Because the process of deploying cooperative V2V technology and supporting establishment of an SCMS both are unprecedented activities, the agency believed it was appropriate to meet with the subset of eleven respondents who expressed interest in operating aspects of the SCMS or the SCMS as a whole. These meetings ensured that the agency and the individual respondents shared a mutual understanding of each respondent's comments, their potential role in an SCMS, and the agency's views on the ways in which an SCMS could be established and deployed.
Meeting discussions covered a wide range of topics—including details of cryptography intricacies, certificate distribution methodologies, root storage and protection, to potential overall SCMS management. NHTSA found these meetings to be very beneficial in terms of introducing the agency to some new potential stakeholders and service providers different than the vehicle OEMs and suppliers with whom NHTSA typically. The diversity of RFI respondents exemplified the multi-stakeholder and cross-cutting nature of the V2V ecosystem.
Additional details on the SCMS RFI responses can be found in Section V.B.4.
The agency believes that it will not be possible to begin to address the 3.4 million crashes identified in Section II.A, especially the intersection crashes and left-turning crashes, given today's vehicle-resident technology offerings. As described earlier, the limitations of current sensor-based safety systems, in terms of direction and distance, likely will not be able to address intersection and left-turning crashes, among other potential crash scenarios, as effectively as V2V communications could.
The agency's proposal to regulate V2V technology is broken into distinct functional components, some of which have alternatives that could potentially be employed “in-conjunction-with” or “in-place-of” the agency's proposal. The distinct functional components are: The actual communications technology itself (Section III.E), proposed messaging format and content requirements (Section III.E.2), authenticating V2V messages (Section III.E.3), V2V device misbehavior detection and reporting (Section III.E.4), malfunction indication requirements (Section III.E.5), software and certificate updating requirements (Section III.E.6), and proposed cybersecurity related requirements (Section III.E.7).
NHTSA's proposal would require that new light vehicles include vehicle-to-vehicle communication technology able to transmit standardized BSMs over DSRC as described in Section III.E below, beginning two years after issuance of a final rule and phasing in over the following three years at rates of 50 percent, 75 percent, and 100 percent, respectively. “Light vehicles,” in the context of this rulemaking, refers to passenger cars, multipurpose passenger vehicles, trucks, and buses with a gross vehicle weight rating of 10,000 pounds (4,536 kilograms) or less.
In addition to requiring new light vehicles to be able to transmit and receive BSMs over DSRC, the proposal would also require that similarly-capable aftermarket devices achieve the same DSRC performance.
Besides being the first FMVSS to involve vehicles relying on information transmitted by other vehicles, this FMVSS would also be the first to incorporate elements of secure wireless communication protection directly into the performance requirements.
The agency has put forth this proposed rule on the basis that a fully-implemented V2V system, as currently envisioned, is a compilation of many elements that provide a data-rich technology platform that ensures secure and interoperable communications enabling safety warnings and advisories for drivers. As described in the V2V Readiness Report, V2V devices send out BSMs to alert other vehicles to their presence, and receive BSMs from other vehicles in order to determine whether to warn their drivers of an imminent crash situation. BSMs must be accompanied by message authentication capabilities so that the receiving V2V communication will allow suppliers and vehicle manufacturers to innovate and spur the market for applications that will provide consumers increased safety.
The agency believes that a mandate for all light vehicles is necessary to achieve the safety goals of this proposal. The two vital pieces in order to achieve these crash avoidance benefits are (1) ensuring interoperable V2V communications, and (2) achieving a critical mass of communicating vehicles in the American fleet. NHTSA believes that this proposal is the only way to achieve these two pieces because of the lagging adoption of advanced safety technologies in the marketplace. As evidenced by the slow voluntary deployment of vehicle sensor-based advanced driving assistance systems, the agency believes that it will be even more difficult to achieve a critical V2V implementation level without a mandate due to the cooperative nature of the V2V system. If it cannot reach a critical deployment level within a certain timeframe, the safety benefits of V2V would drop dramatically, and manufacturers would have much less incentive to develop the safety applications (despite their relatively low costs) because they would not have a reason to make the initial investment to install the V2V communications equipment. This represents a classic “collective action” problem, of the sort that government regulation is designed to address. We do not believe that critical mass can be achieved, allowing the life-saving benefits of V2V to come to fruition, in the absence of a government mandate. We seek comment on these tentative conclusions.
NHTSA received a number of comments to the ANPRM and the V2V Readiness Report suggesting that V2V communication technology could be better encouraged through what the agency refers to as an “if-equipped” standard rather than a mandate for all new light vehicles—
Allowing manufacturers to choose whether to apply V2V technology in new vehicles could have two main risks in terms of holding back potential safety benefits. First, it is uncertain how manufacturers would voluntarily deploy V2V capability. Manufacturers typically have implemented new vehicle-resident technologies in their more expensive vehicles first. If manufacturers take this approach for V2V, NHTSA believes that a segmented approach to implementation of V2V technology will not be enough to quickly precipitate the data-rich environment needed to support development of manufacturer-supplied safety applications, or to support the needed establishment of a V2V communications security system. Leaving the pace of that development to the market will, we believe, delay the life-saving benefits of those safety applications because the effectiveness of applications depends on receiving messages from all other vehicles. Second, if fewer vehicles are equipped with V2V, there may be less incentive for industry to develop a sufficient security system, which will feed into concerns from consumers regarding perceived potential privacy and cybersecurity issues. Taken together, the delayed effectiveness of the safety applications plus potentially increased concerns about security may lead manufacturers not to include V2V capability in a significant amount of vehicles at all. For these reasons, NHTSA proposes to require new light vehicles to be V2V-capable.
NHTSA and, we believe other stakeholders, will be working to educate consumers about V2V, and will ensure that the V2V system is designed to minimize security risks and protect privacy appropriately. We believe consumer education will alleviate fear of the unknown as V2V enters the vehicle fleet. Findings from our consumer research between the ANPRM and this NPRM are discussed below in Section IV, and NHTSA will be considering these issues carefully as we move forward.
While we are proposing a V2V communications mandate, we also seek further comment on the costs and benefits of an “if-equipped” option, particularly considering the substantial monetary and potential social costs of a mandate. Do commenters believe an if-equipped option would be a preferable approach, and if so, why? What costs and/or benefits should we consider relative to an if-equipped approach, and how do those costs and benefits compare to our analysis of the costs and
In addition, what benefits may accrue from a more gradual, market-based approach to a technology that has never before been widely deployed? What affect would such an approach have on the ability to iterate and test potential V2V technology solutions, including issues related to costs, reliability, security, and deployment? How would an if-equipped approach affect consumer choice and privacy protections? We also seek examples and information related to the success and failure of other network-reliant technologies, including those that evolved in the absence of a government mandate and those that were mandated and whether the example is applicable or not to a safety sensitive function.
NHTSA's research thus far indicates that V2V communications technology is feasible for new light vehicles. The Safety Pilot Model Deployment demonstrated that interoperability is possible and directly informed the requirements in this proposed FMVSS and also in SAE standards such as J2735 and J2945. The agency is confident that V2V devices integrated into light vehicles consistent with these requirements will provide the technical foundation for national deployment of DSRC-based crash avoidance capability.
Many consumers may not be ready to purchase a new vehicle, but may be interested in having V2V capabilities in their current vehicles. NHTSA believes that it is likely that aftermarket products may be developed in response to consumer interest in V2V, and we strongly support the innovation and accessibility that aftermarket devices could foster, all potentially leading to expanded and earlier benefits from V2V communication technology. As the name suggests, “aftermarket” refers to products that the vehicle owner purchases and adds to his or her vehicle after the vehicle's manufacture. Aftermarket products are distinguished from “original equipment,” which is installed on the vehicle during its manufacture, prior to initial purchase. Allowing aftermarket products to participate in the V2V system will enable the technology to spread faster than if introduced through new vehicles only—thus accelerating safety benefits.
As part of setting standards for aftermarket V2V devices, however, NHTSA recognizes that some aftermarket products may not be able to populate optional BSM data elements if they do not have access to the CAN bus. Aftermarket devices will therefore need to use other methods to populate elements needed to calculate vehicle position in order to support crash avoidance warnings. Some data elements, such as turn signal indication, will not be able to be derived from other methods. As a result, the inability of some aftermarket devices to populate certain optional BSM data elements may impact the fidelity (ability to balance the level of false positive warnings) of safety applications that the aftermarket device supports. In the Safety Pilot Model Deployment, there were three separate types of “aftermarket” devices—some that were fully integrated into the vehicle just like original equipment; some that were connected to the vehicle for power, but did not have access to the vehicle's data bus; and some that also only connected for power, and could only transmit BSMs but could not receive them and could not deliver crash avoidance warnings. Based on the information we currently have before us, we think it is reasonable to assume that these three types of aftermarket devices could be available in the rulemaking timeframe.
For example, OEMs may choose to offer their own aftermarket V2V devices that can be retrofitted onto earlier vehicle models (retrofit means the devices can interface with the vehicle data bus), made by that OEM, at one of their retailers. For another example, V2V devices, which are not unlike today's dedicated aftermarket navigation systems (
NHTSA does not wish to limit the development of different types of aftermarket devices, but we do seek to ensure that all devices participating in the system perform at a minimum or better performance level for V2V communication. This is important because, in order to ensure safe and secure crash avoidance benefits, all BSMs transmitted need to perform at a minimum performance level such that safety applications can identify imminent crash situations and issue warnings to the driver to avoid a crash. Therefore, the minimum performance requirements need to be the same for all devices with provisions that accommodates the optional data elements that can be used to perform better than the minimum.
The proposed requirements for any V2V devices recognize that, as DOT discovered in the Safety Pilot Model Deployment, installation can significantly impact how devices perform. The agency believes there is high probability that a certified device installer could complete the installation for aftermarket safety devices. It is imperative that all V2V components be properly installed to ensure that an aftermarket device functions as intended. Whereas some vehicle owners may choose to replace their own brakes or install other components on their vehicles themselves, installation requirements for aftermarket V2V devices may not be conducive to a do-it-yourself approach. Improper installation of a GPS antenna has the potential to affect the proper population of BSM data elements. Faulty position data from a transmitting vehicle can result in false warnings, improperly timed warnings, etc. Moreover, an improperly installed aftermarket device may put all other V2V-equipped vehicles it encounters at risk until the given vehicle stops communicating, or until its messages are rejected for misbehavior.
The agency seeks comment on the potential need for certification of aftermarket V2V device installations. If so, please provide any potential recommendations of appropriate retail outlets, the certification mechanisms, and authorizers (vehicle manufacturers, device manufacturers, device retailers, others) that should be employed. Conversely, do commenters believe that future available technology may allow consumers to self-install V2V devices such as web-based tools, or other potential methods, that could verify accuracy of an installation? Research supporting this possibility would be very helpful.
NHTSA has concluded that V2V communication technology combined with V2V-based safety applications can provide significant safety benefits and potentially help drivers avoid thousands of crashes per year. We believe that by leading with a mandate for V2V communication technology, NHTSA will be able to foster industry development and deployment of new, beneficial safety applications. As previously discussed in the V2V Readiness Report and in the above discussion concerning the safety need, there are a number of these applications that the agency believes could be ready to be deployed soon after a V2V mandate is in effect. In particular, the agency has highlighted two specific applications, IMA and LTA.
The agency focused on these potential safety applications because prototypes of these applications were used during Safety Pilot Model Deployment, because we have sufficient data, and because they can be effectively enabled only by V2V. IMA warns drivers of vehicles approaching from a lateral direction at an intersection, while LTA warns drivers of vehicles approaching from the opposite direction when attempting a left turn at an intersection.
As discussed in the V2V Readiness Report, the agency has and will continue to investigate other potential V2V safety applications that could be enabled by V2V communications.
At this time, though, the agency does not have sufficient information to include with this NPRM proposed test procedures or performance standards for LTA and IMA or any other safety applications. To that end, we request comment on any additional information or research on IMA, LTA and any other applications that could inform and support an agency decision regarding whether to mandate safety applications with or shortly after a final rule requiring DSRC.
NHTSA's proposal to mandate V2V communications capability for new light vehicles is based upon the best currently-available scientific data and information. Consistent with its obligations under Executive Order (E.O.) 13563, Improving Regulation and Regulatory Review (Jan. 18, 2011), and E.O. 13610 on the retrospective review of regulations, NHTSA will review relevant new evidence and may propose revisions to a subsequent proposed or final rule as necessary and appropriate to reflect the current state of the evidence to provide an effective regulatory program. In obtaining that new evidence, NHTSA may consider collections of information that may trigger the Paperwork Reduction Act, and would notify the public of these collections through the separate
In order to ensure that vehicles broadcast basic safety messages to support potential safety applications, the agency is proposing performance requirements for DSRC-based V2V communications. As part of this, the agency is also requesting comment on alternative interoperable technology provisions that would allow other technologies to satisfy the mandate, as long as they meet performance and interoperability requirements, which are based on the capabilities of today's DSRC-based V2V communications.
The agency is proposing to require that V2V devices be capable of broadcasting V2V messages in an interoperable manner,
In order to create this uniform method, an FMVSS would need to contain requirements in a few areas. First, it would need to establish the content of the information to be sent to the surrounding vehicles (by not only specifying the type of information to send, but also the measuring unit for each information element and the level of precision needed). Second, the FMVSS would need to specify requirements for the wireless transmission of the content (
In addition to those three points, the FMVSS would also need to specify other aspects of performance for a V2V-communications system in order to support full-scale deployment and enable full functionality including security. The agency recognizes that some capabilities are not necessarily needed to support operations during the first few years of deployment, but would be required as the V2V vehicle fleet grows.
First, the devices regardless of the communication technology used would need a uniform method for dealing with possible occurrences of high volumes of messages (
In short, an FMVSS would explain: (1) What information needs to be sent to the surrounding vehicles; (2) how the vehicle needs to send that information; (3) how a vehicle validates and assigns confidence in the information; and (4) how a vehicle makes sure the prior three functions work in various operational conditions (
Finally, we acknowledge that research is ongoing in a few of the areas we discuss in this section. While research continues in these areas, we have described for the public the potential requirements that we are considering, and the potential test methods for evaluating compliance with those requirements. We believe that the public comments that we will receive in response (coupled with the agency's ongoing research) will produce a robust record upon which the agency can make a final decision.
Our purpose for proposing a standardized set of transmission requirements is in line with our vision for V2V as an information environment that safety applications can use. By creating a standardized method for transmitting the basic safety message, we are creating the information environment with one clear method for accessing it. Our current belief is that anyone who wants to implement safety applications should know how their system can obtain the V2V information as an input for their application.
In order to have a standardized method for transmitting the basic safety message we believe that a few aspects of performance need requirements. We tentatively believe that all devices should be required to transmit:
• With a sufficient power/range to guarantee reaching other DSRC devices, within a minimum radius, that would allow use of the basic safety message information reliably;
• on the same channel, and support using the same data rate(s); and
• at the times required for each data element so that people who have applications know when it will have information.
In order to ensure that surrounding vehicles within a certain range of each vehicle transmitting basic safety messages can reliability receive the messages, The proposal includes requirements for the transmission range of the messages. While the research to date has included various specifications for the antenna (
By specifying the requirements in this fashion, we not only set requirements that can more closely follow real-world conditions, but also leave aspects of design open to manufacturer choice (
• The three-dimensional (latitudinal, longitudinal and elevation) minimum range that the basic safety message transmission would need to reach;
• a test device (and its specifications,
• the reliability of the reception of the basic safety message (
In addition, our current belief is that the agency would not need to establish specifications for the transmitting device itself. In other words, we request comment on our current belief that the following design-level requirements would not be necessary for an FMVSS:
• Transmission power;
• antenna polarization; and
• antenna placement.
A basic safety message needs to travel far enough to support potential safety applications that we anticipate would take advantage of the information available through DSRC communications. Aside from the basic “open air” communication scenarios, it is important to also consider whether devices will be able to communicate with others that are on the same road but, perhaps, not at the same elevation or approach angles (
Our strategy we considered regarding what minimum range requirement we should include for transmitting the basic safety message was to balance:
• The information needs for potential safety applications; and
• technical capabilities demonstrated.
In terms of information needs for the safety applications, our research to date used a minimum 300 m transmission range—while recognizing this range would diminish in urban and non “open air” environments. The applications tested in the Safety Pilot Model Deployment assumed vehicles were transmitting basic safety messages at the 300 m range. In particular, we believe that DNPW requires the longest communication range for effective operation because it addresses a crash scenario where two vehicles approach each other head-on. Using the target range of 300 m, two vehicles approaching at 60 mph would be afforded approximately 5.6 seconds for the DNPW application to detect the crash scenario and issue a warning. Based on this information, our current belief is that 300 m will serve the needs of the anticipated safety applications.
Based on the existing research, our proposal is to adopt 300 m as the minimum transmission range. We believe that this supports the needs of anticipated safety applications and can be operationally met given current technological capabilities; as demonstrated in Safety Pilot Model Deployment. Currently, we also do not anticipate any safety application requiring more range than 300 m. Thus, we tentatively do not see a reason to increase the minimum transmission range beyond 300 m.
Finally, we have not included a
We ask for comment on this proposed minimum. Is there any reason that the agency should require a
In addition to the 2-dimension range of the basic safety message transmission, we need to consider the potential changes in elevation on roadways. Thus, in addition to establishing a minimum distance that the basic safety message needs to travel, we also need to establish an elevation angle that the message needs to travel.
Safety applications may need information from vehicles at a higher elevation (because of changes in the slope of the roadway, for example). Thus, our current belief is that a proposal to regulate DSRC radio performance should also evaluate whether a vehicle transmitting the basic safety message can transmit said message at an angle that is sufficient to cover potential roadway elevation changes.
Our proposal would require that vehicles transmit the basic safety message not only to 300 m around a vehicle (in all directions—
We ask for comment on this proposed minimum. Should the agency choose a different minimum elevation angle requirement? What would be appropriate alternative minimum elevation angle range values and why? Please provide data to support your position.
In order to give context to our proposed requirement, we are also describing the method the agency would use in assessing the elevation angle range performance requirement (
• The important characteristics of the test device for the purposes of evaluating this requirement; and
• the area around the vehicle where we can place this test device.
As further discussed in the test procedure section of this document, we anticipate that our test method would specify various aspects of the test device for the purposes of evaluating a vehicle's DSRC radio performance. However, for the purpose of evaluating this aspect (
Based on the currently-available research, the agency would measure this using a test device with a sensitivity of −92 dBm. We believe that −92 dBm is an appropriate sensitivity for the test device receiving the basic safety message during the test because −92 dBm generally models what average devices (
Further, our understanding is that −92 dBm falls on the less-sensitive side of the range of an average wireless device's antenna sensitivity. We believe that using a less sensitive device within that range is appropriate in this instance because it means we are using a more stringent test condition that is still within the range of an average device antenna's sensitivity.
In addition to specifying the device, we also believe it is important to specify the location of the device relative to the vehicle being tested. We are proposing to define a zone around the vehicle where a test device is used to evaluate the ability of the vehicle to receive the basic safety message. Currently, the proposed zone is defined as 300 m 2-dimensional range with an elevation angle that can be set at + 10 degree and −6 degrees.
For testing the 2-dimensional (longitudinal and lateral) range, the agency would specify an area within a circle around the vehicle that we may test. The test circle has the following characteristics:
• It is 1.5 m above the test surface.
• It is parallel to the test surface.
• It has a center point that is 1.5 m above the vehicle reference point.
• The circumference of the circle is any point at a 300 m radius from its center point.
In other words, when conducting the compliance test, the agency test engineer may place the test device at any point that is 1.5 m above the ground and within the area of a circle whose center point is 1.5 m above the vehicle reference point and whose radius is 300 m.
For testing the elevation range of the vehicle's transmission, we tentatively believe it is preferable to use two slightly different evaluation methods for the upward elevation versus the downward range. For the upward elevation range, our proposal is that the test engineer may place the test device at any point along the following line:
• The line originates at a point that is 1.5 m above the vehicle reference point.
• The line rises at a +10 degree angle from the test surface
• The line terminates at any point that is directly above the circumference of the circle used in the 2-dimentional range test.
On the other hand, for testing downward elevation range, the agency would place the test device at any point along the following line:
• The line originates at a point that is 1.5 m above the vehicle reference point.
• The line falls at a −6 degree angle from the test surface
• The line terminates at any point where it intersects the test surface.
Test the downward elevation at a point that is likely closer to the vehicle than the upward elevation, we believe that this method would relieve some test complexities while still ensuring
As noted above, testing the elevation range would enable NHTSA to test for compliance at any point along those aforementioned lines. While we believe that −92 dBm is an appropriate sensitivity for our test device when it is located 300 m away from the tested vehicle, we request comment on whether the test device should still have a sensitivity of −92 dBm if NHTSA tests the vehicle performance closer to the vehicle along the aforementioned elevation testing lines. What would the appropriate function be to determine the sensitivity based on the test device's location along those testing lines?
We further request comment not only on the test method but also on whether there are other aspects of the test that the agency would need to define in order to clearly evaluate this aspect of performance.
The agency is proposing to require that a message packet error rate (PER) is less than 10%. We believe that 10% PER is an appropriate threshold and that vehicles will still be able to receive the basic safety messages so long as the PER is below 10%. The agency believes the PER metric at the proposed rate fulfills the need to evaluate how
The Packet Error Rate (PER) is one way of quantifying how reliably a message can travel a given distance. In essence, it measures how often (
A PER of less than 10% aligns with the ASTM standard E2213–03 (2003) 4.1.1.2 where “
We currently believe that testing the range (both 2-dimensional and elevation) and the reliability (PER) of the transmission with a specified test device (−92 dBm) in specified locations is sufficient to determine whether a vehicle would be able to deliver basic safety messages to vehicles around it in the real world (
• Antenna location on the vehicle;
• antenna polarization; and
• transmit power.
The agency and its research partners utilized antenna location mounting requirements on vehicles used in the Safety Pilot Model Deployment activity. However, our tentative conclusion is that it is unnecessary to specify requirements for antenna location. The location of the antenna on a vehicle can affect the ability of the vehicle to transmit the basic safety message to all the necessary locations around the vehicle. However, we believe that testing for reception of the basic safety message at the aforementioned locations around the vehicle would clearly show whether the location of the vehicle antenna is installed at an appropriate location where the vehicle structure would not interfere with the transmission of the basic safety message.
If the antenna location is appropriate enough to transmit the basic safety message to meet the needs of the safety applications, we tentatively see no need to further restrict the location of the antenna on the vehicle (as it is also an important styling decision for the auto manufacturer). However, we request comment on this tentative conclusion. Are there any reasons why the agency should establish requirements for the antenna location on the vehicle? What would these restrictions be? How can they be objectively defined on the vehicle? What data supports your conclusions?
We also tentatively believe that the agency does not need to establish performance requirements for the transmitting antenna's polarization. We are aware that the research to date generally recommended a nominal vertical polarization configuration for the DSRC antennas sending the basic safety message. The research recommended that configuration because vehicle sheet metal can serve as the ground plane and can degrade reception of horizontally polarized waves at or near the horizon.
While we agree that using a non-optimal antenna polarization would lead to increased cost and complexity of the system (
Finally, the requirements and test method also do not directly test for the transmit power. Our current belief is that our test method sufficiently covers this aspect of performance by establishing the range at which the vehicle needs to transmit the basic safety message and the receive sensitivity of the test device. We note that the research to date has recommended various transmission power levels. For example, the SAE J2945/1 standard recommended a minimum radiated power of 15 dBm (under uncongested condtions). However, we believe that our
We currently do not believe it is necessary to further specify the transmit power for vehicles covered by the proposal. Based on the manufacturer's choices regarding antenna location on the vehicle (and potentially other factors such as the body of the vehicle, etc.), a manufacturer may need to make different transmit power choices in order to transmit the message to the required distance. As with antenna location and polarization, we believe that the transmission power is sufficiently addressed (albeit indirectly) by the requirements. We believe that the requirements would establish an appropriate balance between affording the manufacturers design freedom, while still ensuring that they achieve the safety goal of transmitting the basic safety message far enough and reliably enough to support the safety applications. We seek comment on whether there is any reason for the agency to establish a requirement for the transmit power. What should the transmission power be and why?
The agency's proposal is not specifying required transmission power levels for V2V devices. The FCC places restrictions on the transmission power levels of devices utilizing a given spectrum and our expectation is that DSRC devices operating in the designated bandwidth would meet the FCC defined operating specifications. However, we do not believe that our current proposal (
FCC Part 95L specifies a max EIRP limit of 33dBm for Private OBUs on channels 172, 174, 176, 178, and 184. Our understanding is that devices would be able to meet the these requirements at a power setting lower than the restricted level (Safety Pilot Model Deployment devices were set at a 20 dBm power level).
In addition to proposing requirements for the transmission range and reliability, we believe it is also important for DSRC-based V2V communications to utilize the same channel and data rate. The channel is a band of frequencies where the transmission occurs. Parties agreeing to use the same channel to communicate are like people that agree to call each other using a particular phone line. The data rate is the speed at which a sender is transmitting information through the channel.
The FCC has statutory authority for allocating spectrum rights and designating band plans for commercial spectrum allocations, including the 5.9 GHz band. DOT defers to the FCC's authority with respect to spectrum rights and channel plans. Based on FCC rules and research to-date, all devices participating in the V2V information environment have utilized the same channel and data rate to transmit BSMs. In relation to DSRC, FCC has specified that BSM transmissions and reception will occur on channel 172,
As we discuss below, there are various options for both the channel and the data rate—each with advantages and disadvantages. While there are different choices available, each choice should be able to achieve the objective of ensuring interoperability across devices if it is implemented consistently by all devices. Thus, we are proposing to that all vehicles should transmit the basic safety message on Channel 172, via a dedicated radio at a data rate of 6 Mbps). We also request comment on whether there are other choices for these two aspects of performance that the agency should consider.
The FCC currently divides the 5.9 GHz spectrum into seven, ten- megahertz channels consisting of one Control Channel (Channel 178); six Service Channels (Channel 172 for safety-critical communications and Channels 174, 176, 180, 182, and 184 for non-safety-critical communications); and one five megahertz channel, which would be held in reserve. The FCC also allows combining Channels 174 and 176 or Channels 180 and 182 to produce two twenty-megahertz channels, (which would be Channel 175 and 181, respectively).
As we discussed in the sections above, we believe that devices participating in the V2V information environment need exchange messages on the same channel in order to receive each other's broadcasts (
Our tentative conclusion is that broadcasting on Channel 172 via continuous mode (radio set to channel 172, a 10 MHz band) is appropriate for devices in the V2V information environment. Thus, we believe that all vehicles should transmit their basic safety messages on the same channel (172). Our tentative conclusion is based on our understanding of the existing research and in alignment with the FCC spectrum allocation. The agency expects that all non-safety-critical communications will occur on the remaining channels allocated for DSRC use by the FCC. The research suggests that a 10 MHz band is sufficient for transmitting the basic safety message to the necessary 300 m range at a sufficient level of reliability PER of less than or equal to 10%.
We seek comment on all related issues we should take into account when considering this proposal, as well as any other potential alternatives.
NHTSA and the U.S. DOT are committed to finding the best method to develop, successfully test, and deploy advanced automotive and infrastructure safety systems while working to meet existing and future spectrum demands. DOT supports sharing so long as it does not interfere with safety of life communications. In the summer of
• Overall Goals as listed in the DSRC-Unlicensed Device Test Plan
1. Understand the impacts of unlicensed devices operating in the DSRC band.
2. Develop the capability to evaluate proposed band sharing mechanisms.
3. Define requirements necessary for sharing mechanisms to prevent interference.
4. Collaborate with the NTIA and FCC to provide Congress with results on impacts to DSRC operations from proposed sharing mechanisms.
• Specific Objectives and Goals as listed in the DSRC-Unlicensed Device Test Plan
1. Develop the capability to do accurate and relevant experimental evaluations of band sharing and interference between unlicensed devices and DSRC devices.
2. Characterize the existing radio frequency (RF) signal environment in and near the DSRC band.
3. Measure the effect of unlicensed devices on the background noise level.
4. Measure the impact unlicensed device transmissions have on receiving DSRC messages.
5. Measure DSRC suppression caused by Clear Channel Assessment (CCA) of DSRC devices in the presence of unlicensed device transmissions.
6. Measure other impacts on DSRC channel quality of unlicensed device transmissions (
7. Determine the minimum received power levels at which DSRC and unlicensed devices can sense the other.
8. Investigate how interference and detection (determined in the previous objectives) varies if the bandwidth of the overlapping unlicensed device transmission changes.
9. Measure the impact of DSRC operations on unlicensed device performance recognizing that the two radios may form an interactive system.
10. Investigate mitigation possibilities once potential U–NII–4 devices designed and programmed to share the band with DSRC are available.
This DOT testing effort is part of a larger collaborative testing and modelling effort with the FCC and DOC, encouraged by Congress, to ensure appropriate interference-avoidance and spectrum rights allocation in the 5850–5925 MHz (5.9 GHz) band. Congress called upon DOT to lead, in close coordination with FCC and DOC, the development of 5.9 GHz Dedicated Short Range Communications (DSRC) technology, vehicle safety testing, and DSRC capabilities testing. Furthermore, Congress called upon NTIA to study the possibility of allowing unlicensed operations in the 5.9 GHz band. The U.S. Department of Transportation (DOT), the U.S. Department of Commerce (DOC), and the Federal Communications Commission (FCC) each have core, yet interdependent, roles to play in advancing this research.
Recently, the FCC issued a Public Notice to refresh its record regarding its draft proposal to allow sharing of the 5.9 GHz band by U–NII devices.
The FCC described the two proposed sharing approaches as follows: (1) Detect and avoid, under which unlicensed devices would monitor the existing DSRC channels, and if they detected any transmitted DSRC signal, they would avoid using the entire DSRC band. After waiting a certain amount of time the unlicensed device would again sense the DSRC spectrum to determine if any DSRC channels are in use or whether it could safely transmit; and (2) Re-Channelization, under which the DSRC spectrum would be split into two contiguous blocks: one for safety-related communications and one for non-safety-related communications, by moving the control channel and the two public safety channels to the top portion of the band. Additionally, the remaining four DSRC service channels would be reconfigured at the lower end of the band as two 20 megahertz channels rather than maintaining four 10 megahertz channels. The segments designated for safety-related communications would remain exclusive to DSRC, and the remaining spectrum would be shared between the DSRC service channels and unlicensed devices.
We seek comment on the costs and benefits of each sharing proposal, and whether and how we should consider each of these approaches relative to this proposed rule.
In setting a data rate, one is balancing between two competing interests: (1) the speed at which one wants to transmit the information, and (2) how far the information can travel (and how reliably it can travel that distance). In other words, if we send more information in a smaller amount of time, the information cannot reliably travel as great of a distance.
In the context of our rulemaking, our proposal for data rate considers the following technical questions:
• How far do we need the message to travel?
• What is an acceptable PER (
• What bitrate do current systems and voluntary standards under development use? If a final rule used a different set of requirements, how significant would this change be?
In the sections that follow, we first discuss the competing considerations for our data rate proposal. Using the information that we have from our discussion on data rate, we then discuss our proposal for the channel.
The agency is proposing to require devices to transmit at 6 Mbps. We believe it is reasonable to expect that transmitting basic safety messages at the 6 Mbps rate can easily cover the necessary range assuming 300 m at a very low PER of 10%. The available research from both CAMP and BAH support this initial conclusion, as described later in this section. Further, while we are requesting comment on changing the bitrate, we note that the current systems and voluntary standards under development all will be able to support multiple bitrates within the ranges examined (
Finally, while the theoretical analysis by BAH suggests that increasing the bitrate would help to mitigate congestion mitigation, we are unsure given the lack of real-world testing whether altering the bitrate and channel bandwidth is necessary given that the agency is considering other channel
We request comment on our potential approaches to conclusions and our questions above. To support the commenting process, we are also presenting alternative choices for bitrate in the section that follows and we seek comment on those alternatives.
The BAH research suggested alternate bitrate possibilities that would change based on the level of congestion on the channel. Their rationale behind this approach is that, when the channel is not busy, the transmitting device should use a lower bitrate that can more reliably send the message. However, when the channel congestion is detected, the device should use a higher bitrate to send the message quicker and vacate the channel as soon as possible. This is a logical strategy because when a vehicle is in a congested environment (
Based on this logic, BAH recommended in its research that devices transmit in the following manner:
• When the Channel Busy Ratio
• when the channel busy ratio exceeds 50%, transmit the BSM at a data rate of 18 Mbps and continue to transmit the BSM at a data rate of 18 Mbps until the Channel Busy Ratio falls below 20%.
While we have proposed to use a standard 6 Mbps bit rate, we request comment on the recommendation from BAH and specifically would seek data regarding the following questions:
• Is it appropriate to change the bitrate based on channel busy ratio if the performance within the relevant range is relatively similar across the bitrates under consideration? Would it be more advantageous to use 18 Mbps at all times?
• For changing message bitrates, our understanding is that the transmitting device sends a basic safety message with a header (the first part of the message) always transmitted at 6 Mbps. Our understanding is that the header instructs the receiving device to switch to another bitrate for the remainder of the message. How does this process impact the speed at which devices in the V2V information environment can transmit and receive basic safety messages?
• Is there any information on how much time one would save between transmitting a basic safety message at 6 Mbps versus 18 Mbps (and other bitrates)? In other words, many more messages can be transmitted within a given timeframe if one were to change the bitrate?
• We note that 3 Mbps, 6 Mbps, and 12 Mbps are bitrates that device makers are
• What would the impact be on current systems and voluntary standards under development if the agency were to use a different bitrate (from 6 Mbps) in a final FMVSS?
• BAH suggests that all radios now support 6 and 9 Mbps transmission. (Section 4.3.1 of BAH Report). Is there any information on whether current DSRC radios can support 18 Mbps and dynamically switch between the two bitrates based on channel congestion ratio? What's the cost to implement this change?
There are currently two bodies of research available to the agency on the impact that different bitrates can have on the range and reliability of the transmission of the basic safety message, CAMP and work performed by BAH funded by the agency. In essence, the CAMP research showed that there is a small difference in PER between a 6 Mbps and 12 Mbps data rate at 300 m, the assumed minimum range for V2V communications. The BAH research shows that there was a difference in PER between 6 Mbps, 9 Mbps, 12 Mbps, and 18 Mbps. However, most of these differences occurred at a distance exceeding 500 m.
CAMP conducted a test involving real devices in an outside environment. VSC–A Report Appendix I
In addition, the VSC–A research explored the potential impact of using 12 Mbps as opposed to 6 Mbps within a 300 m test range. As evident in the figure below, when using 6 Mbps, nearly all the devices (up to the 300 m test range) received the messages with a very low PER. However, when switching to 12 Mbps, we observe a small increase in the number of devices that could not receive the messages with a low PER between the range of 100 and 300 m.
The research also examined the impact of different bit rates based on transmission power (
BAH also conducted research comparing the impact of data transmission rate to the reliability and range of the transmission. In their research, involving transmissions sent on a flat and open road at a test facility, 18 Mbps (they also tested 6 Mbps, 9 Mbps, and 12 Mbps) did not perform as well (
In BAH's report, they surmise that the wide variation of PER at distances above 500 m for all bitrates is attributable to multipath fading.
Thea agency recognizes there other BSM transmission performance parameters that will be necessary for real-world implementation. These parameters are found in the applicable application specifications for DSRC message content and performance parameters. The agency does not see a reason to establish requirements for these parameters based on currently available information. However, we request comment and any supporting information from the public on whether there may be advantages to establishing requirements in these areas to support the safety applications and/or ensure interoperability within the V2V information environment.
The age of the BSM transmission is monitored by the data element, DE_DSecond. The DSecond data element provides a time value when a BSM is populated with data there may be a lag between the time the data is collected and populated in the BSM—and when the BSM is actually sent. We are proposing that the device should not transmit a BSM if the data within the BSM is over 150 milliseconds old. In the test procedure section in this document, we are specifying a test device for receiving basic safety messages from the tested vehicle. Our rational is that the requirements and test methods requires the device to transmit a timely BSM.
Other measurements present in the BSM should be aligned to DE_DSecond insofar as possible in the implementation. Since other measurements present in the BSM do not have an absolute time stamp, it is not clear how this is done in practice. Nevertheless, practical implementations to date have used the most recent measurement updates known to the transmitter at the time when the BSM is composed.
In addition to the issue of transmitting the basic safety message, the V2V research to date also included potential requirements covering the reception of the basic safety message. The potential requirements in this area include the ability of the vehicle to:
• Receive a basic safety message given a particular test device's transmission power and distance from the vehicle;
• translate the 0's and 1's received over the wireless airwaves into the basic safety message (
• authenticate the signature of the basic safety message to confirm that the information is from an authenticated source (
While the research (
Although this may be counterintuitive, we believe that directly evaluating the reception of the basic safety message is best conducted
As this proposal does not include requirements for applications, the agency would need to require vehicles to output a log or record of the basic safety messages that they received within a given amount of time in order to assess whether the vehicle is able to complete the three tasks mentioned above. However, we tentatively believe it's unnecessary at this time to include additional requirements to check a vehicle's ability to receive basic safety messages. By requiring the vehicle to mitigate congestion, we believe that the vehicle must incorporate the ability to receive the message.
Regardless of methods employed, congestion mitigation requires the vehicles to determine the local vehicle density inside a given radius as part of the determination of the maximum time between messages. To do this, the vehicle not only has to have the ability to understand the base channel busy ratio, but also decode the message enough to expose the various temporary IDs of the received BSMs to get an accurate vehicle count. To decode the message far enough to get the temporary IDs, the vehicle needs to be able to interpret the BSM and all of its sub-layers.
We also believe that automakers implementing safety applications would ensure that the vehicle would have the capability to receive the basic safety message (including receiving the transmission and processing the transmission to obtain the message) and authenticate the message. Because the performance of an automaker's safety application in a vehicle would rely on the vehicle's ability to reliably receive basic safety messages, we believe that automakers implementing safety applications would also have a strong incentive to implement an appropriate receive capability in their vehicles.
However, we request comment on our tentative conclusion. We seek comment on whether there is any reason that the agency should include direct requirements for receiving the basic safety message (independent of the vehicle's capability to utilize the information for a safety application, congestion control, Misbehavior detection, or other intended uses). Further, we request comment on what performance the agency should assess and how the agency should assess such performance (
One potential way to establish direct requirements and measure performance of those requirements would be to require vehicles to:
• Store all basic safety messages received within a certain amount of time (
• output the data through a specified interface or collection of interfaces (
To test this performance, we would use a test device to generate basic safety messages near the tested vehicle. Access the tested vehicle using the specified interface in the standard and download the basic safety messages received file. Verify that the basic safety messages received by the tested vehicle match the basic safety messages transmitted by the test device. We request comment on whether this is a viable method for establishing requirements for this aspect of performance.
Finally, another important part of ensuring interoperability of any network is for all the devices participating in the network to agree to the same communications method (
DSRC communications within the 5.85 to 5.925 MHz band are governed by FCC 47 CFR parts 0, 1, 2 and 95 for onboard equipment and Part 90 for road side units. In reference to the OSI model, the physical and data link layers (layers 1and 2) are addressed primarily by IEEE 802.11p as well as P1609.4; network, transport, and session layers (3,4 and 5) are addressed primarily by P1609.3; security communications are addressed by P1609.2; and additional session and prioritization related protocols are addressed by P1609.12.
Further, a variety of communication performance standards specific to the V2V communications and BSM transmission/reception are defined in SAE J2945 while data element and data frame definitions and coding requirements are defined in SAE J2735.
Devices adhering to these standards know how to package the basic safety message for transmissionover the DSRC 5.9 GHz spectrum. They also know how to interpret and unpack transmissions over that spectrum in order to obtain the basic safety message. While our proposed rule does not include explicit requirements for vehicles transmitting basic safety messages to utilize the methods for packaging the basic safety message in IEEE 802.11 and 1609, our proposed performance test (in effect) would require vehicles to do so.
As further discussed in the test procedure section in this document, we are specifying a test device for receiving basic safety messages from the tested vehicle. Our proposed test device would utilize the method for unpacking the basic safety message that is specified in 802.11 and 1609. Thus, in essence, vehicles transmitting the basic safety message will need to package the message utilizing the same method in order to deliver the message to the test device in our test. If the vehicle is unable to transmit a message packaged in a way that can be unpacked by our test device (
In this manner, we believe we are specifying a protocol stack that would ensure that devices following the packaging method of the protocol stack would be able to transmit and receive basic safety messages on the DSRC 5.9 GHz spectrum. We request comment on our tentative conclusion. Does the
Vehicle to Vehicle technology incorporates many components to facilitate crash avoidance capabilities. The basis for Vehicle-to-Vehicle crash avoidance is the communication of safety information among vehicles. Figure III–4 identifies the various components that a DSRC-based system would include; the DSRC radio, GPS receiver, Memory, Safety Applications, Vehicle internal communications network, System Security, and the Driver-Vehicle interface.
To support the V2V wireless communications, a set of voluntary consensus standards will need to continue to be developed. These standards define such things as how devices are to communicate over an identified frequency; how to exchange information including instructions for sending and receiving messages; how to structure, format, and understand message content; and the data elements making up the message content.
We expect that V2V communication will be covered by a family of integrated standards from different organizations that deal with different aspects of wireless communications and message exchange. Such standards will facilitate V2V device developers and implementers successfully exchanging safety messages and security information (
A voluntary consensus standards body is defined by the following attributes:
• Openness;
• balance of interest;
• due process;
• an appeals process;
• consensus, which is defined as general agreement, but not necessarily unanimity, and includes a process for attempting to resolve objections by interested parties, as long as all comments have been fairly considered, each objector is advised of the disposition of his or her objection(s) and the reasons why, and the consensus body members are given an opportunity to change their votes after reviewing the comments.
Voluntary consensus standards follow a rigorous, industry inclusive development process where each standard is developed by an established
In relation to DSRC V2V Communications, to date two voluntary consensus standard organizations have developed separate, however, interrelated standards based on DSRC-enabled V2V communications. These organizations are the Institute of Electrical and Electronic Engineers (IEEE), and the Society of Automotive Engineers (SAE). IEEE has developed two standards, IEEE 802.11p and IEEE 1609.x. IEEE 802.11p establishes how compliant devices will transmit and receive messages using the 5.9 GHz frequency. IEEE 1609.x defines the protocols for radio channel operations, message exchange, and message security. SAE has also developed two standards, SAEJ2735 and SAEJ2945. SAEJ2735 specifies the BSM message set, its data frames, and data elements. SAEJ2945 establishes minimum performance requirements for the BSM data elements in various messages.
The set of standards for DSRC detail the procedures, protocols, and message content to support the broadcast (special communication capability of DSRC) and receipt of the Basic Safety Message and the linked communications needed to transfer security materials to establish a more secure V2V communications environment.
To facilitate the communication needed from devices (hardware) to the applications (software) the International Organization for Standards (ISO) established the Open System Interconnect reference model (OSI). The OSI reference model consists of seven layers that define the different stages data must go through to travel from one device to another over a network.
The layers represent levels of interfaces to enable the bits that represent data to be properly transported and interpreted. The layers are illustrated in Figure III–5. The first layer starts at the bit/hardware device level and indicates how the steam of raw information is sent to the next layer. In relation to V2V this would be the DSRC radio level. In addition to the raw information, layer 2 organizes data packets into network frames that are transported across the V2V wireless network. These first two levels are covered by IEEE 802.11p. The next 3 layers are covered by IEEE 1609.x. Layers 3, 4, and 5 handle the addressing and routing of messages, management of the packetization of data and delivery of packets, and the coordination of message transmissions and authorization (security). Layer 6, session layer, and layer 7, application layer, are covered by SAE J2735 and SAE J2945 and provide for the conversion of incoming data for use by the application and interface protocols with the applications.
As indicated previously, SAE and IEEE have developed and established standards for DSRC. The DSRC protocol stack and related standards are illustrated in Figure III–6.
Working from the bottom of Figure III–6 and starting with the physical layer, the IEEE 802.11–2012—IEEE Standard for Information technology-Telecommunication and information exchange systems-Local and metropolitan area networks-Specific requirements Part 11: Wireless LAN Medium Access Control (MAC) and Physical Layer (PHY) Specifications was published 29 March 2012. The standard covers operations of Wi-Fi devices. A specific section of the standard, 802.11p, covers DSRC communication for V2V and V2I devices that use the 5.9 GHz frequency. The standard describes information exchange between system local and metropolitan networks at the device radio level.
From the device (hardware) level of 802.11, the IEEE 1609.x family of standard establishes the protocols for Wireless Access in Vehicular Environments (WAVE). These standards support the network, transport, and session OSI layers. The 1609 standards that are relevant to DSRC include the following:
• 1609.0—Guide for Wireless Access in Vehicular Environments (WAVE) Architecture—This section of the standard describes the full set of 1609 standards and their relationships to each other and other relevant standards such as 802.11. The guide was published 11 December 2013.
• 1609.2—Security Services for Application and Management Messages—Describes the secure message formats and processing for use by WAVE devices, including methods to secure WAVE management messages and methods to secure application messages. It also describes administrative functions necessary to support the core security functions. The V2V security design is based on this standard and incorporates an expanded application of Public-Key infrastructure to secure V2V communications and appropriately protect privacy. This standard is associated with Layer 5, session layer, and Layer 6, presentation layer. This standard was published 26 April 2013.
• 1609.3—Networking Services—In relation to Layers 3 and 4, network and transport, this standard describes the Internet Protocol (IP), User Datagram Protocol (UDP), and the Transmission Protocol (TCP) elements of the internet model and management and data services for WAVE devices. This standard was published 13 July 2012.
• 1609.4—Multi-Channel Operations—This standard crosses layers 2 through 5 to support multi-channel operations of the DSRC radio. Wireless radio operations that include the use of other channels need to provide instructions concerning the operation of the control channel (CCH), the service channel (SCH), interval times, priority access, channel switching, and routing. The current design for a V2V DSRC device uses two radios. One radio is tuned to channel 172 for transmission and reception of the safety-critical communication of the BSM. The second radio uses multi-channel operations to set the CCH and SCH, and use the other channels to support other messages transmission such as the messages associated with security materials. This standard was published 7 February 2011, however, a draft corrigendum that corrects errors is pending publication.
• 1609.12—Identifier Allocations—For the WAVE system this standard describes the use of identifiers and the values that have been associated with the identifiers for use by the WAVE system. This standard was published 21 September 2012.
• Layers 6, Presentation, and Layers 7, Application, are supported by the two SAE standards that define the elements and the minimum performance requirements for the BSM data elements.
SAE J2735—DSRC Message Set Dictionary specifies a message set, and its data frames and data elements specifically for use by application intended to utilize the 5.9 GHz frequency. For crash avoidance safety, the standard identifies the Basic Safety Message (BSM). The standard includes an extensive list of BSM data elements divided into two parts. Part one includes elements that are transmitted with every message. Part two includes elements that are included in the transmission when there is a change of status. The BSM is exclusive to the support of crash avoidance safety applications. Section III.E identifies the BSM elements that are identified as minimum performance requirements for V2V devices.
SAE J2945—DSRC Minimum Performance Requirements—This standard resulted from research indicating a need for a separate standard that would describe the specific requirements for the data elements that would be used in the BSM. The standard will also cover other DSRC messages; however, the first part of the standard will specify the performance requirements for the BSM data elements. The draft of the first part of the standard is being developed using results of V2V research. The standard for BSM performance requirements is scheduled to be completed and balloted late 2015.
The standards explained above represent voluntary consensus standards that have been developed by standards development organization. These standards are not regulatory. These standards, however, do provide a basis of investigation as to what is needed in relation to identifying the minimum performance requirements that if met ensure the proper and safe functionality of V2V DSRC device that will result in the avoidance of crashes.
The SAE and IEEE standards supporting DSRC discussed are not performance requirements
Figure III–7 illustrates our understanding of the hierarchical relationship associated with performance requirements and how standards are used at different component design specification levels. The bulk of the V2V related standards support primarily support product development specifications at the Controller Spec level and the Component Technical Spec level. The specifications are verified at each level by different component test and sub-system tests. The Auto OEMs conduct tests at the system level to verify design and system operations. After installation, OEMs conduct vehicle integration tests to verify installation and system operation in relation to design specification and regulation identified performance requirements. Once the integration is verified, the Auto OEMs verify compliance with the performance requirements. This hierarchy demonstrates how top level performance requirements supported by standards provide the information to successfully design and implement V2V components that will be interoperable and meet identified system level performance requirements.
The voluntary consensus standards provide information that support both performance requirements and design specifications, and are the bridge for connecting the requirements to the specifications. In relation to the NPRM, the work performed by NHTSA in relation to performance requirements is to identify, and define performance requirements and verification tests that will indicate that V2V device have been designed and implemented such that these devices will operate to provide the DSRC communications and security that will support crash avoidance applications.
This section is intended to recognize and support the continual progression of communication technology. It proposes alternative interoperable technologies performance requirements grounded in today's DSRC technology, which would enable the deployment of potential future V2V communications technologies that meet or exceed the proposed performance requirements, including interoperability with all other V2V communications technologies transmitting BSMs.
This section provides performance-based requirements that would support transmitting the basic safety message via alternative interoperable technologies. The proposed requirements are limited to the transmission of the BSM only. Potential security and privacy requirements and alternatives are discussed in those respective sections of this proposal.
Alternative technologies would need to meet the same message transmission requirements as DSRC-based devices, minus any DSRC-specific requirements such as channel or data rate specifications.
Alternative technologies would need to support the same message transmission range and reliability requirements as DSRC-based devices, minus any specific references to DSRC.
Alternative technologies would need to support the same message transmission range requirements as DSRC-based devices, minus any specific references to DSRC.
Alternative technologies would need to support the same message transmission longitudinal and lateral range requirements as DSRC-based devices, minus any specific references to DSRC.
Alternative technologies would need to support the same message transmission elevation performance requirements as DSRC-based devices.
Alternative technologies would need to support he same message transmission elevation test requirements as DSRC-based devices.
Alternative technologies would need to support the same message transmission elevation transmission performance test device requirements as DSRC-based devices, minus any reference to DSRC.
Alternative technologies would need to support the same message transmission elevation test device location requirements as DSRC-based devices.
Alternative technologies would need to support the same message transmission reliability requirements as DSRC-based devices, minus any reference to DSRC.
Alternative technologies would need to support the same message transmission range performance indirect tests as DSRC-based devices.
Alternative technologies would need to identify the same transmit power as DSRC-based devices, where applicable for a specific communication medium.
A final rule will need to indicate the range at which the vehicle needs to transmit the basic safety message and
Alternative technologies would need to meet the same transmission timing requirements as the DSRC-based proposal minus any DSRC-specific requirements, such as channel and data rate. In keeping with the more general nature of the standards for alternative technologies, specifying aspects such as channel congestion or the need for staggering or synchronizing message transmission is assumed not to be needed and assumed to be handled by any protocol or communication medium used for V2V communication.
Alternative technologies would need to support the same message transmission frequency as DSRC-based devices, 10 times per second (10 Hz).
Alternative technologies would need to address the same issues for staggering transmission timing as DSRC-based devices, minus any direct reference to DSRC.
Alternative technologies would need to address the same issues for staggering transmission timing as DSRC-based devices, minus any direct reference to DSRC.
Alternative technologies would need to support the same message age monitoring requirements as DSRC-based devices.
Alternative technologies would need to support the same message reception requirements as DSRC-based devices, minus any references to message congestion mitigation, misbehavior detection, and DSRC-specific messaging content.
Additionally, NHTSA does not seek comment on the need to specify requirements for reception interference from operation in the adjacent unlicensed spectrum given this would be spectrum dependent.
V2V devices using alternative technologies would need to be capable of transmitting and receiving an established message from other V2V devices, regardless of the underlying technology (
At the core of this proposal is the basic safety information that we believe vehicles need to send in order to support potential safety applications. In order to realize the safety benefits discussed above, safety application designers need to know what consistent set of information will be available, what units will be used to express that information, and the level of accuracy that each information element will have. This uniform expression of the basic safety information is important because a safety application needs to rely on the information in the messages and assume that the information is accurate to within a given tolerance. The requirements proposed in this section are consistent across any potential communication technology employed in V2V communications.
To date, the automotive industry (through SAE) has been developing voluntary consensus standards
Finally, we are also proposing to exclude certain data elements from being transmitted as a part of the BSM. We are proposing this limitation in order to balance the privacy concerns of consumers with the need to prove safety information to surrounding vehicles.
While we request public input on any of the issues discussed in this section, we especially would like input on whether we have appropriately selected (1) the data elements to include/make optional/exclude, and (2) the tolerance levels for each data element.
In the work completed by SAE thus far,
Before reaching the actual elements that support safety applications, the basic safety message needs certain preliminary elements that help a receiving device to know what it is receiving. The three elements that fall into this category are the Message ID, the Message Count, and the Temporary ID. We tentatively believe that all three of these elements are necessary as they allow the receiving device to interpret the digital code it is receiving and the safety information inside the message. The three elements provide the information needed for the device to properly process a sequence of messages that delivers vehicle position and motion data needed to interpret possible crash situations.
The first element is the Message ID. This data element explains to the receiving device that the message it is receiving is a basic safety message. SAE Standard J2735 specifies that this data
The second element here is the Message Count. In SAE Standard J2735, the Message Count assigns each basic safety message a number in sequence between 0 and 127.
Finally, the Temporary ID is a four-byte string array randomly-generated number that allows a receiving device to associate messages sent from the same device together. While the identity of the sending device is not important for a safety application to take appropriate actions during a crash-imminent situation, it
In order to accomplish these goals, we propose that vehicles transmit a Temporary ID as specified in SAE Standard J2735. Based on the SAE standard, the Temporary ID is a randomly-generated four-byte sequence of numbers selected from 4,294,967,296 combinations.
In addition to the data elements necessary for packaging the basic safety message, the Time data element is critical because all of the information within the basic safety message (
In order to accomplish this purpose, we propose a standard system for vehicles to express time in the basic safety message and a requirement for the accuracy of the time. DSRC-based devices would be required to adhere to SAE Standard J2735
In addition to using the UTC standard, we propose to require vehicles to transmit the Time data element to an accuracy of 1 ms (
This set of data elements form the foundation of the basic safety message because it is the information that enables all the safety applications being developed to utilize the V2V information environment. The location information of the surrounding vehicles enables a safety application on a vehicle to know whether a crash imminent situation exists or is likely to exist in the near future. For example, an application such as IMA would use location information of surrounding vehicles to determine whether another vehicle is heading into the intersection and likely to cause a crash.
For location, longitudinal and lateral (2D) data, and also vertical (elevation) data would be required. We acknowledge that longitudinal and lateral data are more commonly used in V2V safety applications (since vehicle travel is mostly two dimensional). However, elevation also is important in a number of respects. For example, safety applications such as FCW or LDW can potentially take into account elevation information for merging traffic in on-ramp situations. Further, applications currently under development such as IMA are already taking elevation into account to
In order for vehicles to accurately communicate their position in a basic safety message to each other, all vehicles need to agree to a single point on the vehicle as the reference point. Without such a point, the reported position for each vehicle could vary by meters depending on the size of the vehicle and the point on the vehicle that the message is reporting. Thus, we are providing a proposed definition for a vehicle reference point—based upon which the agency would evaluate the compliance of the vehicle location information in the basic safety message.
Our proposal is to define the vehicle reference point as the theoretical point projected on the surface of the roadway that is in the center of a rectangle oriented about the vehicle's axis of symmetry front-to-back. This rectangle encompasses the farthest forward and rearward points and side-to-side points on the vehicle, including original equipment such as outside side view mirrors on the surface of the World Geodetic System-84 (WGS–84) ellipsoid (see Figure III–8). The position reference is obtained from measurements taken when the vehicle is situated on level ground/roadway,
Longitude and latitude position would require that vehicles report a position that is within 1.5 m of their actual position at a Horizontal Dilution of Precision (HDOP)
Due to the different situations in which elevation is relevant, vehicles would be required to report elevation in the basic safety message with an accuracy of three meters—rather than 1.5.
In addition to knowing the vehicle's position, a safety application should also consider the characteristics of that vehicle's movement. Rather than extrapolating these characteristics (with less accuracy) based on the position information, safety applications currently under development already consider movement information about the surrounding vehicles in determining whether a crash-imminent situation exists. For the basic safety message, we tentatively believe that speed, heading, acceleration, and yaw are the most relevant pieces of information about a vehicle's moment.
We are proposing characteristics for message content related to speed, heading, acceleration, and yaw rates. Essentially, we propose to measure the rate at which the sending device's location is changing and also any changes to that rate at which a device's location is changing. Because a safety application is generally concerned with the potential future locations of the device (rather than just its present location), it is likely that safety applications will utilize this type of information.
For example, through combining the speed and heading information with a devices's current location, a safety application can calculate whether a surrounding vehicle can collide with the safety application's vehicle. Further, having information about the vehicle's acceleration will make that prediction more accurate because it tells a safety application whether the vehicle is speeding up or slowing down. Yaw rate also affects the predicted location of the vehicle because it measures the rate at which the vehicle's direction is changing (
We are proposing that vehicles report their speed in the basic safety message accurate to within 0.28 m/s (1 kph). We tentatively believe that this is the appropriate accuracy for the Speed data element based on the agency's experience in the Safety Pilot Model Deployment, where systems reporting speed information accurate to within 1 kph effectively supported the tested safety applications. We are not aware of any instances during the Model Deployment where an application warned at the incorrect time (
We note that the basic safety message requirements in SAE J2735 state that the speed is reported in increments of 0.02 mph. We currently believe that it is appropriate, in addition to the tolerance of 1 kph established above, to also specify the incremental units to be used by the vehicle in reporting its speed. While it may not be technically feasible to report the speed information with a tolerance of only 0.02 mph, we believe that (by requiring the vehicle to report speed in incremental units of 0.02 mph) we can capture better information about the vehicle's change in speed. Further, by establishing these consistent requirements, vehicles will be able to better rely on the information they are receiving from the surrounding vehicles. As with our rationale for the tolerance of 1 kph in the preceding paragraph, our rationale for proposing that vehicles report the speed information in increments of 0.02 mph is based on our experience in the Safety Pilot testing. In the Safety Pilot, vehicles reported information using these specifications and it provided effective information for the safety applications tested in that program.
We request comment on these tentative conclusions. Is there any data that suggest that the agency should adopt a different tolerance level for the speed information reported in the basic safety message? Is there similar data for the incremental values for reporting speed that we propose to require?
Heading in relation to BSM and crash avoidance is defined as the “actual” heading in relation to the vehicle position reference point (explained above) that indicates the course of the vehicle's motion regardless of the vehicle's orientation to that motion,
For Heading, the agency would require different levels of accuracy based on the vehicle's speed. We tentatively believe that this is appropriate because we anticipate that most vehicles will be determining vehicle heading using GPS information. We recognize that the accuracy of GPS-determined heading varies based on speed. We also tentatively believe that heading information might not be as critical at lower speeds. Therefore, we believe it is appropriate to provide more flexibility at lower vehicle speeds. Thus the requirements for heading need to support V2V crash avoidance would read as follows:
• When the vehicle speed is greater than 12.5 m/s (~28 mph), it is required to report vehicle heading accurately to within 2 degrees; and
• when the vehicle speed is less than or equal to 12.5 m/s, it is required to report the vehicle heading accurately to within 3 degrees.
We tentatively believe that 2 degree accuracy for speeds above 12.5 m/s is appropriate because research indicates that at approximately 12.5 m/s (28 mph)
In addition to providing different requirements for accuracy at different speeds, we tentatively believe it is appropriate to require that vehicles “latch”
In this case, the agency is proposing to require the system to latch the heading when the vehicle drops below 1.11 m/s (~2.5 mph). We tentatively believe that 1.11 m/s is an appropriately low threshold where, at speeds lower than 1.11 m/s, the heading information is not as crucial because the vehicle is not changing its location at a significant pace. For reference, a NHTSA 2006 study measured the idling speed of the vehicles (
Further, the agency is proposing to require vehicles to unlatch their heading information (and transmit a heading value that is within 3 degrees of its actual heading) when its speed exceeds 1.39 m/s
For Acceleration, the agency would require vehicles to report horizontal (longitudinal and lateral) acceleration with an accuracy of 0.3 m/s
Finally, for Yaw Rate, the agency would require vehicles to report this information to an accuracy of 0.5 degrees per second. The requirement is based on the need to provide accurate and timely safety alerts for the crash scenarios and corresponding potential safety applications identified in Table III–2. The requirement was obtained by extensively testing commercially-available equipment and automotive sensors in a wide variety of driving environments, and the numbers were proven to be reasonable based on the equipment and sensor capabilities, while also supporting safety alerts from the appropriate safety application at timings that would enable a driver reaction sufficient to avoid the corresponding crash scenario.
In addition to the information discussed thus far, the agency would require additional data conveying the transmitting vehicle's path history, future predicted path, and exterior lights status to also be transmitted as part of the Vehicle Safety Extension (Part II) for V2V safety communications. The data element, Event Flags, shall also be transmitted as long as a defined event is active. For exterior lights status and other, similar data where access to the vehicle databus may be necessary, the agency assumes all integrated devices will have access this information. Aftermarket, standalone devices may or
Path history, which provides an adaptable, concise representation of a vehicle's recent movement over some period of time and/or distance, consists of a sequence of positions selected to represent the vehicle's position within an allowable error. The path history can be used not only by safety applications on the transmitting vehicle, but also by other vehicles, which can use this information to predict the roadway geometry and for target vehicle classification with reference to the roadway.
For the Path History (PH) data frame, the agency would require that the vehicle use a history of its past GNSS locations (as dictated by GNSS data elements including UTC time, latitude, longitude, heading, elevation, etc.), sampled at a periodic time interval (typically, 100 ms) and interpolated in-between by circular arcs, to represent the vehicle's recent movement over a limited period of time or distance.
Path history points should be incorporated into the Path History data frame such that the perpendicular distance between any point on the vehicle path and the line connecting two consecutive PH points shall be less than 1 m. In this way, the points present in the path history will concisely represent the actual path history of the vehicle based on the allowable position error tolerance (1 m) between the actual vehicle path and its concise representation. Objective testing of applications as part of the VSC–A Project showed that a PH error tolerance of 1 m satisfies the needed accuracy for target vehicle classification and meets the performance requirements of the safety applications that were developed and demonstrated.
For the subset of the available vehicle path position data elements, a minimum number of PH points necessary to satisfy the required error tolerance between the vehicle path and its PH representation (1 m) should be selected to populate the Path History data frame. Populating the Path History data frame with the minimum number of PH points possible offers significant savings in over-the-air wireless bandwidth when transmitting the PH information to other vehicles wirelessly. Additionally, vehicles should report the minimum number of PH points so that the represented PH distance (
Lastly, to ensure the most accurate representation of the vehicle's current trajectory, the Path History data frame shall be populated with time-ordered PH points, with the first PH point being the closest in time to the current UTC time, and older points following in the order in which they were determined. And, so as to permit safety applications to operate properly, the Path History data frame shall not include any additional data elements/frames in the BSMs intended for vehicle safety communications.
Not only is it important to determine where a vehicle has been, it is also useful for safety applications to know where a vehicle is headed, or its future path. This future trajectory estimation can significantly enhance in-lane and out-of-lane threat classification.
Trajectories in the Path Prediction (PP) data frame are represented, at a first order of curvature approximation, as a circle with a radius, R, and an origin located at (0,R), where the x-axis is aligned with the transmitting vehicle's perspective and normal to the vehicle's vertical axis. The vehicle's (x,y,z) coordinate frame follows the SAE convention. The radius, R, will be positive for curvatures to the right when observed from the transmitting vehicle's perspective, and radii exceeding a maximum value of 32,767 are to be interpreted as a “straight path” prediction by receiving vehicles.
The radius, R, can be derived using various means, including map databases, vision systems, global positioning, etc. Alternatively, simple physics equations can be used to compute a curvature based on instantaneous dynamics information (vehicle speed and rate of change of heading, or yaw rate) provided by the vehicle. This curvature can then be extrapolated forward (as a continuous radius of curvature) to provide an estimate of the vehicle's likely intended future trajectory, or path. To minimize the effect of sensor noise and in-lane driver wandering, however, it is also necessary to use low-pass filtering techniques (time constant greater than 2 ms typically) in instances where the radius is derived from instantaneous vehicle information, such as from rate sensors and velocity.
Confidence in the predicted path based on the rate of change of the vehicle dynamics can also be computed in order to infer non-steady-state conditions, such as those stemming from lane changes, curve entry and exit points, curve transitions, and obstacle avoidance, where large changes in vehicle yaw rate occur over a short period of time. In such situations, path estimations may be largely inaccurate and, as such, confidence levels would be low. Conversely, a high confidence value would be reported during steady-state conditions (straight roadways or curves with a constant radius of curvature).
When a deviceis in steady state conditions over a range from 100 m to 2,500 m in magnitude, the agency is proposing to require that the subsystem populate the PP data frame with a calculated radius that has less than 2% error from the actual radius. The agency believes that this range and error rate is appropriate to ensure the effectiveness of safety applications that rely on such information. For the purposes of this performance requirement, steady state conditions are defined as those which occur when the vehicle is driving on a curve with a constant radius and where the average of the absolute value of the change of yaw rate over time is smaller than 0.5 deg/s
After a transition from the original constant radius (R1) to the target constant radius (R2), the subsystem shall repopulate the PP data frame within four seconds under the maximum allowable error bound defined above.
Lastly, when the transmitting vehicle is stationary, we propose requiring that a device report a “straight path” radius of value 32,767 and confidence value of 100%, which corresponds to a value of 200 for the data element.
For the Exterior Lights data element, the agency is proposing to require that the subsystem shall set the individual light indications in the data element to be consistent with the vehicle status data that is available. If meaningful values are unavailable, or no light indications will be set, the data element should not be transmitted.
The data element, Exterior Lights, provides the status of all exterior lights on the vehicle, including parking lights,
The data element, Event Flags, conveys the sender's status with respect to safety-related events such as antilock brake system (ABS) activation, stability control activation, hard braking, and airbag deployment, among others. Similar to that mentioned for the Exterior Lights data element, the additional information conveyed in the Event Flags data element can serve to augment the other BSM information used by applications when determining whether to issue or suppress warnings. Furthermore, because the inclusion of the Event Flag data element suggests that an unusual, safety-related event has occurred, vehicles receiving a message containing an Event Flag element may choose to process it differently than a message that does not.
The Event Flags and respective criteria the agency proposing to require in the BSM are defined in SAE J2735 as follows:
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If a stated criterion is met, the sender shall set the Event Flag to 1. If, and only if, one or more of the defined Event Flags are set to 1, the subsystem shall transmit a BSM with the corresponding Event Flags within 250 ms of the initial detection of the event at the sender. The Event Flags data element shall be included in the Vehicle Safety Extension data frame for as long as an event is active. Messages containing Event Flags may also include related optional data. When one or more criteria associated with an event are no longer satisfied, the sender shall set the flag to zero in any Event Flag data element that it sends.
The agency is requesting comment on the appropriateness of each of the Event Flags and corresponding criteria described above.
In addition to describing the location and the motion of vehicles, the device can use other pieces of information to verify state and motion, if the device has access. The agency assumes all integrated devices will have access this information. Aftermarket, standalone devices may or may not be able to access this information. This type of information in the basic safety message can collectively identify operational status and motion that can be used to confirm calculated position and future position of surrounding vehicles. Thus, it helps safety applications determine whether a potential crash imminent situation could exist.
Two pieces of information help fulfill this objective. They are the Transmission State and Steering Wheel Angle data elements. The Transmission State provides an indication concerning the operational direction of the vehicle in relation to its reference point. This information puts the speed, heading, location, etc. information into context. The steering wheel angle (which is not the same as the vehicle heading because this indicates the direction of the steering wheel control itself and not the vehicle) is a data element that indicates which way the wheels are turned, providing another possible indication of direction (in some cases the vehicle's wheels can be turned, however, the vehicle could be skidding in a different direction.).
This data element would require that vehicles report whether they are in a gear in the forward or reverse (or neutral) direction. We tentatively believe that the relevant information for a safety application is whether the vehicle is in gear to begin moving; and if so, whether it will do so in the forward or reverse direction. Thus, our proposal currently does not include any requirement for reporting the gear ratios of the vehicle.
This data element would require that vehicles report the direction of the steering wheel angle to within 5 degrees of the actual steering wheel angle. Here, we are seeking to use another element to confirm actual heading of the vehicle. Thus, the Steering Wheel Angle data element describes the movement of the steering wheel itself (
This data element is also an element that is fundamental for a safety application's determination of whether a crash scenario might occur. In addition to knowing where a vehicle is, the characteristics of its motion (to predict where the vehicle will be in the near future), and some aspects of the
Thus, we tentatively believe that having a 0.2 m tolerance is an appropriate balancing of those competing interests. This level of specificity meets the need to identify the physical extent of the vehicle for crash avoidance given that vehicle size is to be rounded up which will still provide for the appropriate calculation of a warning such that the driver can take appropriate action to avoid a crash. The additional size for some vehicles will only present an insignificant amount of additional warning time (0.0022 seconds at 25 mph to 0.007 seconds at 65 mph using a 3 second time to collision baseline) that will be transparent to all drivers.
In addition to considering different tolerances for the vehicle length and width data elements, another option is to use vehicle size categories or only express the vehicle length and width in increments of a given value. For example, requiring that the vehicle length be expressed in only increments of 0.2 m would mean that a vehicle with a 10.12 m length and a vehicle with a 10.01 m length would have the same value of 10.2 for the vehicle length in the basic safety message. This type of requirement could have the advantage of aggregating many different vehicles into particular size categories and potentially help discourage identifying a basic safety message to a particular vehicle. We request comment on these potential options (
SAE J2735 also contains a variety of additional data elements that the agency is not proposing requirements for in this notice. We tentatively believe that these data elements are elements that may be useful in safety applications that may be used by various suppliers to enhance the operation of an application to issue a warning or suppress a warning. While these data elements will add more information on a status of the vehicle (especially with regard to whether a vehicle is under control), we do not currently have enough information to determine how such information might be applied to an application and thus tailor such information to that application (or applications). Thus, we tentatively believe it is premature to propose requirements for these data elements but are preserving the possibility for these data elements to potentially be employed to ensure future interoperability as technology evolves. The agency is proposing to require that devices either adhere to SAE J2735 for these data elements, or transmit the “unavailable” data value for each of these elements (in accordance with SAE J2735) These data elements are:
When identifying the data elements to include in the BSM, the agency considered those that would be needed to support possible future applications and the suppression of warnings to reduce the number of false positive warnings. The use of some applications may be limited only to authorized vehicles—for example, only law enforcement and emergency vehicles might have access to an application providing traffic signal priority or pre-emption for emergency or enforcement purposes. To support identification of authorized vehicles, the agency considered including in the BSM optional elements such as the Vehicle Identification Data Field, which includes: VIN string, Owner code, Temporary ID, and Vehicle type. These data elements could identify and verify an emergency or law enforcement vehicle to a traffic control device for signal preemption purposes. However, our privacy experts identified VIN and other data elements directly linked to specific private vehicles and their owners as potential sources of privacy risk to individuals.
To help reduce the privacy risk that could stem from the transmission of information that could be used to associate V2V messages with individual consumers, our proposal excludes certain data elements from transmission as part of the BSM. Specifically, V2V transmissions via DSRC or any future interoperable V2V communications technology may not include data directly identifying a specific private vehicle or individual regularly associated with it, or data reasonably linkable or linkable, as a practical matter, to an individual.
NHTSA seeks comment on these tentative conclusions. Specifically, we request comment on our proposed exclusion from the BSM of data elements that directly identify, or are reasonably linkable or linkable as a practical matter, to a private individual. Do commenters have thoughts on whether, as a practical matter, any data element (or combination of data elements) currently proposed as part of the BSM is reasonably linkable to an individual on a persistent basis? We seek comment on whether this aspect of NHTSA's proposal appropriately balances consumer privacy with safety—or whether, by declining to identify definitively those data elements that are, or may be, “reasonably linkable” to an individual (and therefore must be excluded from the BSM under NHTSA's proposal), NHTSA will undermine the NPRM's overarching goal of establishing a standardized data set for the BSM and providing adequate data for safety applications.
In addition to the content of the basic safety message, we are aware that participants in the V2V Safety Pilot have included data persistency performance in their on-board V2V systems in order to minimize the time needed for vehicles to begin transmitting basic safety messages after the vehicle starts up.
The advantage of doing so is that when the vehicle starts up, it already has information about its last known location, heading, etc. that was accurate when it shut down. The premise is that upon device startup, the device could begin transmitting sooner rather than waiting for new information, such as receiving a new heading or calculating
NHTSA recognizes that the practice of saving vehicle data over vehicle on-off-on events is typically used to enhance feature performance, improving consumer acceptance. However, NHTSA does not believe at this time that a minimum requirement for data persistency is needed, nor that we need to identify specific data elements that should be stored upon shutdown and retrieved at startup.
Based on the available information, we currently agree with the research to date that minimizing the time it takes for a vehicle to begin transmitting the basic safety message is desirable as it helps ensure that vehicles will be providing information into the V2V environment as soon as possible after they begin moving. We also agree with the research to date that including data persistency performance in vehicle V2V systems is a good way to accomplish this task.
Instead, the agency's proposal would require that vehicles begin transmitting basic safety messages within a specified amount of time after startup without specifying the method that a manufacturer would choose to meet that requirement. While a manufacturer may use data persistency techniques to meet the performance requirement, we believe that this method for achieving the safety goal appropriately gives the manufacturer more design flexibility.
While the basic safety message transmitted from one vehicle can be useful to other vehicles when the vehicle is stationary, we currently believe that (at a minimum) the vehicle should begin transmitting basic safety messages at a time when we might reasonably expect people to begin driving their vehicle after getting into it. In other words, our current thinking is that the vehicle should begin transmitting before the vast majority of drivers begin driving the vehicle.
The proposed requirements are that a vehicle shall begin transmitting the basic safety message within 2 seconds after a vehicle key on event has occurred. This proposed requirement is based on the final performance requirement associated with FMVSS No. 111 for rear visibility systems. While a V2V system and rear visibility system are not identical, the agency believes the research and decisions leading to finalizing the two second system startup requirements are fungible to V2V and the overarching safety goal.
In NHTSA's rear visibility rulemaking, our naturalistic driving data indicated that 90% of drivers do not select reverse and begin the backing maneuver less than 4.25 seconds after opening the vehicle door.
While based on FMVSS No. 111, this proposed requirement for V2V initialization time would need to adjust the test procedure in a few ways to account for the characteristics of a vehicle's V2V system. First, we note that vehicle's V2V system needs to be active whether the vehicle is moving in reverse or moving forward. Thus, the test procedure and requirements should not be based solely on reverse gear. Second, while the temperature condition of the test would affect the rear visibility system display's response time, the temperature condition is not as relevant for a vehicle's V2V system. Instead, the test should specify environmental conditions that approximate the level of access to characteristics of its surrounding environment that a vehicle would normally have to populate the information in the basic safety message (
In summary, NHTSA is proposing to require that, after a conditioning procedure, vehicles begin transmitting basic safety messages with the required content and at the required frequency within 2.0 seconds after the driver puts the vehicle into the forward or reverse gear. The conditioning procedure would specify that the vehicle is under open sky conditions as in our test procedure for evaluating the content of the basic safety message. Then the procedure would specify that the test technician:
• Drives the vehicle in any heading at any speed for five minutes;
• stops the vehicle and deactivates the vehicle for any amount of time between 30 minutes to an hour;
• checks to ensure that the V2V system components are in a powered off state;
• opens the driver's door to any width,
• closes the driver's door;
• activates the starting system using the key; and
• selects any gear (forward or reverse) at any time not less than 4.0 seconds and not more than 6.0 seconds after the driver's door is opened. The driver door is open when the edge of the driver's door opposite of the door's hinge is no longer flush with the exterior body panel.
We acknowledge that this procedure may not be representative of a small number of real-world scenarios. For example, if a vehicle is in a parking structure like a garage, it might not have access to open skies. However, for these instances we do not think that there is any practicable way for the vehicle to ascertain its position quickly using GPS. Thus, we cannot determine a way to ensure that a test specifying those conditions would be a practicable test. We also note that the proposed procedure does not include moving the vehicle between shut down and startup. While vehicles might be moved when shut off, we think those are special circumstances (
We request comment on our proposal for helping to ensure that vehicles begin broadcasting basic safety messages before a vehicle begins to move. More specifically, NHTSA requests comments in relation to whether a data persistency requirement is needed, and specifically in relation to:
• Supporting the interoperability of V2V devices;
• The performance of BSM transmission and how data persistency can be used to properly reduce the time of the initial transmission; and
• The possible impacts to crash avoidance functionality.
Please provide any supporting evidence that the agency can used to make an informed decision.
As discussed previously, V2V safety applications can utilize the data in the basic safety message (such as position, heading, and speed) about other vehicles around it to determine whether it and another vehicle are in danger of crashing. In other words, a safety application would determine whether it is necessary to take action (
Thus it is important that the safety application can place as much confidence as possible in the data contained within BSM messages and detect when messages are modified or changed while in transit. To help improve the level of confidence in BSM messages the agency's primary message authentication proposal describes a Public Key Infrastructure (PKI) approach to message authentication.
In addition two alternatives are presented for comment. This first alternative for message authentication set out for comment is less prescriptive and defines a performance-based approach rather than a specific architecture or technical requirement. The second alternative set out for comment stays silent on message authentication and does not specify a message authentication requirement, leaving authentication at the discretion of V2V device implementers.
The agency is proposing to mandate requirements that would establish a message authentication approach based on a Security Credential Management System (SCMS) that uses Public Key Infrastructure (PKI) digital signatures to sign and verify basic safety messages. This would include requiring devices to sign each message, send a valid certificate with each message, and periodically obtain up-to-date security materials.
When transmitting a BSM, the sender uses a security certificate issued by a certificate authority to digitally sign each BSM. The security certificate is composed of the following elements:
When a nearby device receives a properly formed BSM, it can use the certificate included in the BSM to verify that the digital signature in the BSM is valid. Furthermore, the receiving device can also verify that the security certificate included in the BSM is valid as well. The receiving vehicle can verify that digital signature on the certificate included in the BSM is digitally signed by the certificate authority that issued it to the sending device. The receiving device should already have a copy of the authorizing certificate for the authority stored on-board. In the event that it does not, the receiving device would need to request the authorizing certificate from the sending device. Once the authorizing certificate is obtained, the receiving device can verify that the certificate authority is valid and the certificate used to sign the BSM is also valid. This process can be repeated for any number of certificate authorities that are in the PKI hierarchy, up to the root certificate authority, which authorizes the entire system. This process allows receiving devices to verify a sender's credentials. For detailed information on the proposed Security Credential Management System, see Hehn, T., et al., “Technical Design of the Security Credential
The SCMS organization certifies that a device is indeed authorized to participate in the V2V environment and then issues credentials to the device. Thus, a receiving device can have more confidence in the information contained in a BSM message because it knows that the SCMS previously confirmed the sender is an approved device and issued these credentials.
In addition to the SCMS device certification, a device also needs to properly sign the basic safety message. The following sections discuss how the device utilizes the certificates from the SCMS and how the agency can confirm that devices are doing so.
The process for signing the basic safety message involves the use of two “keys,” one public and one private.
The agency employed this signing process in V2V devices used throughout its research activities and was proven through the Safety Pilot Model Deployment activity. Devices in these activities have been signing the basic safety message and constructing the security credentials of the message by combining the message content with the certificate, the signature, and the time stamp of the information.
Table III–4 shows how the public key, private key, and signature fit together with the other parts of the basic safety message.
When the transmitting device sends a basic safety message it assembles each of the parts of the message in Table III–4 above. The vehicle uses a combination of the message content, timestamp, and a private key to generate the signature. The device also attaches the certificate to the message. The certificate includes the public key, corresponding to the private key used to sign the message, the validity period of the certificate, and the signature from the Pseudonym Certificate Authority. The pseudonym certificate contains the signature of the PCA from the SCMS allowing message receivers to verify the pseudonym certificate. The validity period is used to determine if the certificate is valid or if the receiving device should reject the credentials if they are expired.
The vehicle constructs the signature by using the message content and the time stamp portions of the message as inputs into the following process:
(a) Create a hash
(b) Input the hashed contents through an Elliptical Curve Digital Signature Algorithm
A device receiving the basic safety message performs the following sequence of steps in order to verify the signature:
(a) Generate the hash of the basic safety message content and timestamp using the same NIST defined formula used for generating the signature.
(b) Input the message hash, public key, and digital signature into the signature verification function (ECDSA) to verify the BSM digital signature is valid.
(c) Verify the pseudonym certificate (from the sending device) is within the validity period.
(d) Verify the digital signature of the pseudonym certificate back to the root certificate authority ensuring the SCMS issued the credentials.
(e) Verify the pseudonym certificate is not listed on the Certificate Revocation List.
As discussed in the next section, the agency is considering a potential test method that would mimic many of the functions of the receiving device in order to assess whether devices are properly signing their messages with valid credentials when they are transmitting basic safety messages.
The agency is currently considering evaluating a device's ability to properly sign the basic safety message by utilizing a test device to receive basic safety messages during a static test. The test device would perform the key functions described above to verify the authenticity of the sender and of the message. Following is discussion of the general testing framework and the potential performance requirements that the agency is considering within the context of such a test.
The agency currently envisions testing message authentication for compliance as executing a message security and signage protocols test in a static test environment (
In effort to replicate real-world conditions, the agency's current strategy is to define a test device that can perform the following functions as described in SAE J2945/1 v1.0
• If the full pseudonym certificate is included in the BSM, then the device will need to extract the public key from the pseudonym certificate of the test vehicle.
• If the certificate digest (hash of the full certificate) is included in the BSM, then the device will need to perform a look-up in cached memory of the full certificate and then extract the public key from the pseudonym certificate of the device under test.
• Confirm that the public key and the credentials in general are indeed from the SCMS (
• Use the public key to verify the signature section of the basic safety message (
In terms of specific procedures, we tentatively believe that using many of the test conditions from our static test evaluating the transmission range and content of the basic safety message would be appropriate. In essence, we believe that the same test could be used to also evaluate whether the vehicle is appropriately signing its basic safety messages. Tentatively, we believe that including the following additional step in the static test would be sufficient to evaluate this area of performance.
• Collect basic safety messages from a transmitting device for at least 100 minutes and repeat the test at least seven days later.
• Using the messages collected in this test, the agency's test device should be able to verify the device under test is properly signing the basic safety message.
• The data collected should also reveal that the device under test is sending the required certificate (from the pseudonym certificate authority) or the certificate digest.
• The agency's test device should also be able to determine whether the device under test is using credentials issued by the appropriate authority (
• Finally, the test duration timeframes of this additional step should enable our test device to determine whether the vehicle is changing its certificates at the required interval.
We request comment on this test method and commenter's input on a potential test device that could be used to execute this proposed test schema. Would a test device that performs all of the functions outlined above sufficiently mimic real world conditions and also define those conditions sufficiently to achieve a repeatable test method? What other details should the agency explore and define? Are there other test methods that the agency should consider that can confirm that the transmitting vehicle signs the basic safety message properly with a less complex test?
The agency is also proposing to adopt a static test to evaluate the transmission range and other requirements (see Section III.E.1.a)). As testing experienced is gained, it may prove more efficient to combine the security credential, RF transmission, and possible other tests. The agency invites comment on the potential to combine and streamline test where possible.
Using the potential test method described in the previous section, we believe the agency would be able to verify that V2V devices are properly signing their basic safety messages, authenticating themselves as accurate sources of information. In essence, by using a test device that would be able to verify the digital signature using the ECDSA algorithm, the proposed test schema confirms that:
• The sending device produced the correct hash of the message content/timestamp;
• the sending device appropriately sent its pseudonym certificate; and
• the public key could decode the signature created by the sender's private key.
By comparing the hash created by our test device to the hash decoded from the basic safety message we received from the device under test, our test procedure should be able to confirm the device under test is correctly signing the basic safety message. Further, we anticipate that the test device would also identify the root certificate authority and validate up to the root certificate authority.
The agency is considering including requirements to reduce the size of the basic safety message by requiring that vehicles not transmit parts of the basic safety message when they are not necessary. In theory, this could potentially conserve bandwidth in higher volume scenarios. The pseudonym certificate included in the basic safety message is an area under evaluation where message size could be reduced.
A receiving V2V device requires pseudonym certificates to decode the signature and confirm the identity of the sender. However, the agency does not anticipate that every message will need to carry the full certificate as the pseudonym certificate does not change for every message. This allows a period of time where the same certificate and potentially allowing for messages to only part of the entire pseudonym certificate. Therefore, the agency believes it would be appropriate, under certain circumstances, for devices to transmit a certificate digest which would be a hash of the full certificate.
A potential challenge to this approach is requiring a receiving device to support capture and storage of full certificates and certificate digests, as transmitting only a digest necessitates relating the digest to a full certificate. In addition to the capture and storage of certificates, the agency is also evaluating a potential requirement for the interval between the transmission of a full certificate and certificate digests. Current research suggests that the vehicle should transmit the full certificate twice per second and the digest the remaining times. However, if there is an event flag (
We tentatively believe that a final rule on V2V would need to establish at least a minimum interval for transmitting the full certificate so that surrounding vehicles will know the maximum amount of time that they will need to wait in order to be able to confirm the identity of a transmitting vehicle. Without such a requirement, we question whether the standard would be able to ensure that vehicles transmitted their pseudonym certificate at a sufficient frequency to support the safety applications that other vehicles may use. However, we request comment on whether a minimum requirement for transmitting the full certificate is necessary. If so, what the minimum time should be and whether a maximum time (or a specified interval such as 1 time per second) would be appropriate for this aspect of performance.
Thus, for this aspect of performance, our final performance requirements could specify minimum (and potentially maximum) times for transmitting the full certificate and requirements for what types of information need to be in the certificate digest. Thus, in addition to the testing method that we described above, our test device for that test method would also need to ensure that:
• The vehicle is transmitting the full certificate at the required interval;
• the vehicle is transmitting the certificate digest (which identifies the full certificate and when the full certificate was transmitted with all other messages that do not have the full certificate; and
• the certificate or digest transmitted along with a basic safety message is valid (
As part of the process of signing a V2V message using the proposed SCMS approach, a vehicle could use a single certificate that is valid for a long period of time (
However, this approach could create additional privacy risk for consumers, as use of a single certificate could enable an observer collecting V2V transmissions to associate the basic safety messages coming from a single V2V device with a single sender. While associating a group of messages with a specific driver would need additional information outside of the V2V system, additional information would not be needed to know that all messages using the same certificate come from the same vehicle. To help mitigate this risk, we propose that vehicles frequently change or rotate certificates so that it will be more difficult to associate a large
Recent research evaluated several models for changing certificates. In the Safety Pilot Model Deployment, certificates had a validity period of 5 minutes and were completely discarded after use. Changing certificates on a more frequent basis helps to minimize potential privacy risk for individuals, it requires a large volume of certificates for a vehicle to manage, approximately 100,000 certificates for one year of operation. Model Deployment researchers determined that this approach would be inefficient as the majority of the time a vehicle is not in operation but certificates were still expiring even when the vehicle was not in operation. Based on the experiences learned from this project, the researchers developed a more efficient design where a vehicle will have 20 valid certificates per week and changes certificates at least once every 5 minutes. Under this design, only 1,050 certificates would be needed per year. This is believed to strike a balance between privacy and efficiency by using certificates that rotate every five minutes and are valid only for one week. This alternative certificate usage model is currently under development and will be tested in the field as a part of the SCMS Proof-of-Concept projects.
We recognize that methods of changing certificate credentials exist on a spectrum between the competing interests of maximizing privacy protections and technological practicability. For example, it would afford the most privacy protection for consumers to use a different set of credentials with every basic safety message (
In order to balance these competing interests, our tentative conclusion is that the current method for changing certificates used in the research would be a reasonable compromise that protects privacy in a technically feasible way. By rotating among 20 certificates every five minutes, we are ensuring that no group of basic safety messages will be linked to more than 5 minutes of other safety messages at a time. In other words, a person obtaining basic safety messages from a device may not be able to associate those messages with each other because their certificate is only used for 5 minutes out of every 100 minutes. Further, a device shutting off at one particular location would unlikely use the same certificate upon startup. Finally, in order to ensure that a person could not obtain all 20 certificates for a particular device, we are proposing for devices to completely discard their certificates each week and replace them with 20 new certificates.
We request comment from the public on our proposed method for changing certificates and privacy concerns. Have we appropriately balanced the privacy interest with the interest in maintaining the technical feasibility of producing and storing certificates in vehicles? Is periodically rotating certificates the right approach to limiting the privacy impact of having signed messages? Have we established the appropriate thresholds for the method for changing certificates (
As we discussed in Section III.E.3.b)(2)(a), our static test method for assessing whether a device is appropriately signing their basic safety messages can also assess whether a device is changing its security credentials as required if our test lasts for an appropriate amount of time. Based on our proposed requirements, we believe that it is appropriate to test the device for 100 minutes twice, separated by 7 days.
Testing the device for a 100 minute duration would sufficiently assess whether the device is rotating certificates every five minutes and using a different certificate every five minutes for the duration of 100 minutes (
The agency is also considering whether to require that devices stop transmitting basic safety messages if they lack valid security credentials,
The agency has included no regulatory text for SCMS-based message authentication and instead has a bracked placeholder for where it would be if this were to be part of a final rule. The agency expects that regulatory text in any final rule would include:
• Additional definitions in S.4 Definitions for ” SCMS-based message authentication, which would be consistent the discussion in this proposed rule and any public comments.
• A provision on signing the BSM, which would require that the device must generate a signature for each BSM.
• A provision on rotating certificates.
The agency is also bringing forth potential alternatives to the SCMS-based
The fundamental approach to this first alternative only requires that the receiver of a basic safety message be able to validate the contents of a message such that it can reasonably confirm that the message originated from a single valid V2V device, and the message was not altered during transmission. This alternative would broadly require that implementations utilize government-audited and approved cryptographic algorithms, parameters, and approaches.
This alternative's less prescriptive approach for message authentication results in a general testing requirement that would similar in context as the proposed PKI based authentication but leaves the extent of the proposed requirement undefined, or yet to be defined, static test procedures. This approach is inherently aligned with recognizing that potential future communication and their potential message authentication needs would be varied and, therefore, requires varied test methods for message signing and authentication.
NHTSA seeks comment on potential test methods and the test devices that could accommodate other, future, or yet-to-be-developed message signing and authentication schemas that could be applied to V2V communications. The agency is interested in details on how a test device could fulfill the general requirement to sufficiently reflect real-world conditions and also define those conditions sufficiently to achieve a repeatable test method that ensure verified communications between V2V devices, using varied communication mediums? What other details should the agency explore and define? Are there other test methods that the agency should consider that can confirm that a transmitting V2V device signs the basic safety message properly?
This second potential alternative set out for comment does not specify any message authentication requirements for devices participating in a V2V communications. Under this second potential alternative, BSM messages would still need to be validated with a checksum or other integrity check and employ some form of through a misbehavior detection system to attempt to filter malicious or misconfigured messages. However, there would be no specific message authentication requirement. Implementers would be free to include such a feature as an optional function. The agency would not establish any performance requirements or test procedures under this potential alternative. The agency seeks comment on this no message authentication approach.
NHTSA is proposing to establish practices and procedures for devices participating in V2V communications to recognize device misbehavior, both internally and by other devices. The fundamental purpose of misbehavior detection is to provide a means for V2V devices to identify and block messages from other misbehaving or malfunctioning V2V devices. V2V devices would be required to report device misbehavior to a central authority, namely the Security Credential Management System, once misbehavior is confirmed via a series of self-diagnosis or plausibility checks on incoming messages. This includes identifying methods for device self-diagnosis of both hardware and software to ensure that the device has not been altered or tampered with from intended behavior.
If an anomaly is detected and confirmed by a series of secondary plausibility checks, a “misbehavior event” would be identified, and a sample of BSM information such as geo-location, time-stamp, and a digitally signed (encrypted) certificate from the misbehaving device would be recorded as “evidence” of the event. The reporting device would then transmit its misbehavior report to the SCMS misbehavior authority (MBA) using a secondary communications channel.
The intent of the MBA is to gather misbehavior reports by all devices participating in the network. These reports would be analyzed in accordance with established and governed policies for global misbehavior detection determine if and when a particular vehicle should be placed onto a Certificate Revocation List (CRL). More accurately, is and when information related to a particular device's certificates should be placed onto the CRL such that other vehicles can use the information to identify the misbehaving device, assume it cannot be a trusted device, and ignore its messages. The CRL would be updated periodically by the MBA and distributed to participating V2V devices.
The agency views misbehavior detection as a key feature of the proposed security architecture: That misbehaving devices are able to be efficiently detected, and their identity made available to other devices participating in the network. At the highest level, confidence in the V2V messaging could be eroded if misbehaving devices are not detected and reported to a centralized authority.
As indicated in Table II–5, additional research is being conducted to better understand the data, processing, and algorithm development necessary to implement misbehavior detection at both the local (device) level and global (SCMS) level. For misbehavior to be effective, techniques must be identified, developed, and implemented in both devices and at a central authority for the system to secure V2V messages. The proposed requirements concerning detection and reporting support misbehavior detection functionality, but do not include at this time the actual techniques to detect and identify misbehavior. Research is being conducted; however, the actual nature of misbehavior in the V2V ecosystem has yet to be defined given the lack of misbehavior data to support actual development of techniques and algorithms. Initial data will be available once the SCMS Proof-of-Concept (Section V.B.6.e) is operational and supporting the security of the Connected Vehicle Pilot activities. The agency seeks comment regarding the requirements to support misbehavior detection, the investigation of detection and identification techniques, and possible implementation issues including the need to evolve detection
The agency has worked extensively with its research partners to develop a comprehensive set of proposed reporting requirements for misbehavior detection. The reporting requirements attempt to strike a balance between frequency, the amount of data reported, and the need to effectively and efficiently identify misbehavior to mitigate any potential effects. As described previously, the purpose of the misbehavior reports is to:
• Indicate potential misbehavior and misbehaving devices, and
• indicate suspicious activities around the reporting device.
The agency is proposing that a misbehavior report is a message signed by the reporting device and shall include at a minimum the following data:
• The reporter's certificate.
• GNSS coordinates (latitude, longitude and elevation) at the location where the misbehavior was initially identified.
• The GNSS coordinates where the misbehavior appears to have ended. This field is optional as it may not apply to all misbehavior. This could be useful for indicating where a DoS attack begins and where it ends.
• BSMs from both host device and remote threat device.
• Warnings present at time of misbehavior detection, if any.
• List of neighboring devices.
• The Coordinated Universal Time (UTC) at which the misbehavior was detected.
• Information identifying the detection method that triggered the report.
The agency seeks comment on the proposed inclusion of the above data in a misbehavior report. Specifically, we would appreciate commenters providing any potential additional data that should be included. The agency also asks commenters to provide feedback on the potential for inclusion of any personally identifiable information (PII) related to misbehavior and the potential positives and negatives of such an inclusion.
Additionally, the agency is also seeking comment on the potential inclusion of the following items in the misbehavior report:
A misbehavior report shall be generated as follows:
Misbehavior reports shall be stored as follows:
The agency recognizes the misbehavior mechanism identifies anomalies that could indicate malfunctions or malicious activities that could adversely impact proper operation of individual devices or the system; possibly causing unsafe or unreliable operation if trusted. Misbehavior operations and subsequent device requirements ensure that the device perpetrating the misbehavior can be rendered innocuous by revoking the device's security certificates effectively making them an untrusted source to properly functioning devices. The agency is therefore proposing the following the requirement is applied to a central authority, namely the SCMS, responsible for global misbehavior and management:
• The agency requires that a central authority employ protocols that establish a disposition based on reporting from various sources to mitigate the potential for misbehavior detection to become a gateway for an easy cybersecurity threat for denial of service.
The agency believes the proposed misbehavior reporting requirements could help reduce the number of misbehaving devices whose messages would be accepted by the V2V network and thus help reduce the chance of false safety warnings. The agency seeks comment on the misbehavior reporting approaches describe in this section along with potential other approaches the agency should consider.
More specifically, the agency appreciates thorough explanation of any suggested alternative approaches to misbehavior reporting, as well as sufficient description of why you believe that the proposed approach is, or is not appropriate. Additionally, the agency would appreciate suggestions on how to properly and reasonably test for misbehavior in a V2V system.
The agency has included no regulatory text for SCMS-based misbehavior detection and reporting and instead has a bracked placeholder for where it would be if this were to be part of a final rule. The agency expects that regulatory text in any final rule would include:
• A provision on detecting misbehavior related to both malfunctioning sensors and physical tampering.
• A provision addressing a BSM failing any plausibility check, which would require the device to generate a misbehavior report that meets certain minimum requirements.
• A provision concerning creating and sending misbehavior reports. This provision would set requirements about what data would need to be included in a misbehavior report (which would include the information listed above).
• A provision detaling how misbehavior reports would need to be stored
• A provision concerning the credentials of a locally-detected misbehaving device already on the locally-stored CRL.
• A provision concerning communicating with the SCMS.In addition, the agency would need to include additional regulatory text on test procedures including the ability to detect misbehavior and receive certificates from the SCMS.
In contrast to the primary misbehavior detection proposal, the agency is seeking comment on an alternative approach to misbehavior detection where there are no requirements to report misbehavior or implement distribution of information to facilitate blocking based on misbehavior reports to an authority. Implementers would be free to include such features as reporting the detection of any misbehavior or a malfunction as optional functions. Independent of this alternative approach, the agency is proposing to require that implementers identify methods that would check the functionality, including hardware and software, of a V2V device ensuring that the device has not been altered or tampered with from intended behavior.
The agency appreciates commenter's views on this potential alternative approach including reasons why or why not this potential would be appropriate for identifying misbehaving or malicious devices participating in V2V communications. We also encourage commenters to provide any suggested alternative approaches to misbehavior reporting, as well as sufficient description of why you believe that the proposed approach is, or is not appropriate. Additionally, the agency would appreciate suggestions on how to properly and reasonably test for misbehavior in a V2V system.
The agency is proposing to require that all V2V devices be equipped with a mechanism for notifying users that the device and/or its supporting equipment is not operating normally and some form of repair is necessary. The requirements proposed in this section are consistent across any potential technology employed in V2V communications. The agency is not specifying a format for the notification mechanism, as elaborated below—it can be an illuminated telltale, a message in the message center, or something else—but it must be presented in the vehicle itself for OBE or on the device itself for non-integrated aftermarket products. This proposed requirement aligns with the proposed misbehavior requirements and cost estimates, in that misbehavior detection requires devices to perform self-diagnostics and report to users a failure condition. Likewise, the cost estimates for the proposal include costs for some type of malfunction indicator and reflect what we would consider to be a “minimalist” approach.
The agency has a long history of requiring both diagnostics and malfunction indicators. FMVSSs for electronic stability control (No. 126), tire pressure monitoring systems (No. 138), and air bags (No. 208), among others, include requirements for indicating when the system is in a failure condition. In these cases, the agency believed, and therefore required, that proper maintenance to ensure system operation is vitally important to driver and passenger safety. The agency has no reason to believe any differently for V2V devices, other than potentially strengthening those beliefs based on the cooperative nature of V2V and how the benefits are a “networked good,” where one device has the potential to benefitting many others.
• Any device participating in the V2V system shall clearly indicate to their users a malfunction condition occurring in the device, its supporting equipment or the inputs used to form, transmit, and receive a basic safety message. Malfunction indication shall be provided in instances such as:
The agency seeks comments on these proposed requirements. More specifically, the agency would like commenters to give their views on malfunction indication, the best ways to convey device malfunction to users, and why they believe this to be the case.
The agency anticipates that, over time, V2V devices and the system overall will require periodic updates to address functionality, potential security, or potential privacy issues as they arise after a vehicle owner or operator takes possession of a vehicle. The agency is proposing that V2V devices allow for over-the-air (OTA) software and certificate updates and those device users be notified of any consent required for periodic device updates.
We anticipate this highest potential for periodic updates will come in two primary forms: Device software updates and security credential updates. In either case, the agency believes user notification and consent would be required to execute the update. The approach of this proposal is provide the basic platform to enable V2V communications where the hardware needed is the most technologically basic enabler, essentially a radio transmitter and receiver. The device complexity, intellectual property and overall V2V operation is primarily rooted in the firmware and software loaded into a V2V device's hardware. The agency
Over the air updating will provide significant flexibility for updates, not only to V2V devices but many vehicle-resident components, to fundamental device operation but also, following suit of smartphone devices, enable “pushing out” new applications to automotive devices. The agency believes this approach can and will best exploit the V2V communications “platform” contained in this proposal.
As discussed throughout the proposal and more specifically, the legal authority section, the agency believes V2V device users will need to consent to both software and security certificate updates. Therefore, the agency is proposing to require that devices participating in the system provide users with indication, in the form of a descriptive telltale or text message displayed in a vehicle message center that is in clear view of the driver, that device software or security certificate updates are available and that users need to consent before the update can occur. The indication and consent mechanism must reside in the vehicle or device.
The agency seeks comment on this proposed requirement for software and certificate update. Do commenters agree with the proposed approach, why or why not? Do commenters have alternative suggestions for how V2V device users can seamlessly consent, without burden, to software and/or certificate updates? More specifically, how do commenters perceive potential mechanisms for receiving notification and consenting, or not, to any potential updates. What potential implications may result from the anticipated need for updates and consent? What real-world experience do commenters have performing over the air updates for devices? Please provide any supporting information that may help the agency explore and finalize an approach.
Today's electronics, sensors, and computing power enable the deployment of vehicle safety technologies, such as forward-collision warning, automatic-emergency braking, and vehicle-to-vehicle technologies, which can keep drivers from crashing in the first place. NHTSA strongly believes in the need for cybersecurity, which is essential to the public acceptance of increasingly computerized vehicle systems, to the safety technology they govern, and to the realization of the safety-enhancement potential they offer.
Cybersecurity, within the context of road vehicles, is the protection of automotive electronic systems, communication networks and nodes that interface with vehicles, control algorithms, software, users, and underlying data from malicious attacks, damage, unauthorized access, or manipulation. The agency has been taking a holistic approach to vehicle cybersecurity, considering that all access points into the vehicle could potentially be compromised, and is focused on solutions to harden the vehicle's electronic architecture against potential attacks and to ensure vehicle systems take appropriate and safe actions, even when an attack may be successful.
NHTSA's vehicle cybersecurity approach is built upon the following principles:
• Based on the risk-based prioritized identification and protection of safety-critical vehicle control systems and personally identifiable information;
• Provides for timely detection and rapid response to vehicle cybersecurity incidents in the field;
• Designs-in methods and measures to facilitate rapid recovery from incidents when they occur, and;
• Institutionalizes methods for accelerated adoption of lessons learned across the industry through effective information sharing, such as through participation in the Auto ISAC.
Our vehicle cybersecurity research program considers all access points into the vehicle, more broadly than, but also including V2V. This approach makes a distinction between
(1) how vehicle architectures should be designed that interface with the outer world such that risks to safety-critical system functionality could be effectively mitigated; and
(2) how each unique access point could be protected such that an appropriate relationship could be established for the messages exchanged over that medium.
Related to hardening the vehicle architectures to be cyber-resilient agnostic of the type of communications interface, NHTSA is pursuing a best-practices approach, which is based on the National Institute for Standards Technology's (NIST) proven cybersecurity framework that includes five principal functions: Identify, Protect, Detect, Respond, and Recover.
This approach suggests that all interfaces between the vehicle electrical architecture and the external world (personal or aftermarket devices, cars, infrastructure, cloud, etc.) need to be carefully considered for risks and appropriate mitigation strategies be implemented. These include not only protection methods, but also intrusion detection techniques, rapid remediation strategies and fast adoption of new lessons learned, because we assume that all entry points into the vehicle, such as Wi-Fi, infotainment, the OBD–II port, V2V, and other points of potential access to vehicle electronics, could be potentially be or become vulnerable over time. We suggest that the industry should make cybersecurity a priority by using a systematic and ongoing process to evaluate risks. And, this process should give explicit considerations to privacy and cybersecurity risks through the entire life-cycle of the vehicle. Further, safety of vehicle occupants and other road users should be an overriding consideration when assessing risks.
We continually monitor the industry as they move towards a more cyber-aware and cyber-resilient posture and will take necessary actions to ensure that there are no unreasonable safety-risks.
NHTSA does not overlook the potential risks of interfacing the V2V vector with vehicle systems; however, we believe that the holistic approach we are taking in the broader sense as outlined above apply to the common characteristics of various different communications interfaces in the same manner.
In this section, we will primarily focus on the unique attributes of the V2V communications interface and present key steps that are being taken to mitigate the potential incremental risks they could pose.
Key attributes of V2V communications interface, as they relate to cybersecurity risks include the following:
(1) Security and privacy by design through a message authentication,
(2) Broadcast-listen protocol,
(3) Well-defined and fairly limited message structure,
(4) Communications range is limited to about 1000ft,
NHTSA's primary proposed message authentication alternative for V2V communications employs a PKI-based security. Each broadcast message is signed with cryptographic keys to facilitate a method for the receiving units to validate the authenticity and integrity of the transmitted message from its source.
Both the primary and performance-based alternatives for message authentication seek to ensure the integrity of messages between communicating units to help assert that the message has not been altered during transmission or been sent from a malicious sender. It is important to note that this approach does not necessarily validate the accuracy of the message content received.
We consider the cybersecurity risks associated with
(1) the PKI authentication method, and the infrastructure supporting it,
(2) the contents of the messages received, and
(3) the V2V communication interface as a potential channel to inject malware
In Section V, the primary message authentication proposal describes the SCMS. The system described is focused on the security functions and requirements necessary to help secure the V2V communications environment. Implementations of the performance-based alternative for message authentications may also need similar compensating approaches depending on the approach taken. While the proposed primary message authentication architecture provides well-recognized security protections, we further consider the potential cybersecurity vulnerabilities and discuss how they are expected to be mitigated.
• The OBE will contain security materials that are critical to the operation of the V2V device, and the system as a whole. This includes long term enrollment certificates, short term pseudonym certificates, public/private keys, SCMS security policies, and misbehavior reports. All of this data, if retrieved by unauthorized parties, could allow potential “bad actors” to transmit messages that may appear valid to the general ecosystem of devices because these messages are using actual credentials given to a trusted device.
• Attempts to retrieve valid security materials could involve targeting physical OBEs. In addition to having access to OBEs on personal vehicles, OBEs on vehicles that are at their End-of-Life (EOL) decommissioning phases (such as those that can be taken from vehicles in junkyards) could also create a pathway. In the event that a vehicle with a device has met with the end of its useful life, it is foreseen that the device could have up to three years' worth of valid security certificates, assuming that it has regular communication with the SCMS.
• One method that could mitigate the risk associated with retrieval of security information through physical access to the OBE would involve hardware security against tampering such as the use of FIPS
• The agency believes that the current environment regarding cybersecurity and protecting the public warrants a level of hardware security that goes beyond evidence of tampering to actually protecting cryptographic information in the event of a device breach with malicious intent. Therefore, the agency is proposing to require that V2V devices have a minimum of FIPS–140 Level 3 security protection. The agency also believes that at, a minimum, the following information shall be stored in FIPS–140 Level 3 storage:
• The level of security requirements defined by FIPS–140 Level 3 is somewhat different than the historical regulatory authority approach exercised by NHTSA. NHTSA issues performance based requirements which can be found in the many safety standards issued and managed by the agency, although we can be specific in equipment requirements if it is necessary to meet a safety goal. Evaluating security protection ability does not necessarily conform to a performance requirement and compliance test paradigm followed by the agency. As such, NHTSA anticipates device compliance to be conducted by the agency through third party testing laboratories with expertise in confirming the appropriateness of device's hardware security.
• NHTSA seeks comments on this approach (FIPS–140 Level 3 requirement) and on what constitutes tampering, applicable triggers for zeroisation, and how the triggers could be implemented such that routine vehicle maintenance activities can be accomplished without undue burden on the V2V device. The agency seeks comment on the proposed FIPS–140 Level 3 device security requirements. In specific, the agency seeks comment on the FIPS and CCP security approaches briefly described in this section and the pros/cons of each, potential compliance approaches including verification schema for information that should be contained in a functioning, secure device, and views on the whether the proposed level of protection is sufficient for anticipate cybersecurity needs.
• Another approach that could address the more specific EOL OBE security exposure could be for the SCMS to establish a process and procedure by which responsible entities could notify the SCMS of end-of-life devices (entities that deal with old, junked, crashed or otherwise unusable vehicles that contain OBEs.) This would require the entity that determines the device is at its EOL be able to report to the security certificate information the SCMS would need to remove the device from the system by including the
We request comments on whether a process approach can succeed and whether there may be other means to secure the on-unit security information.
The agency has included no proposed regulatory text to support the cybersecurity requirements discussed in the primary proposal for message authentication based on the SCMS. However, the agency expects that regulatory text in any final would include a provision requiring that V2V devices have a minimum security protection of FIPS–140 Level 3, as described above.
NHTSA seeks comments regarding the cybersecurity needs and requirements and how regulatory language could be crafted to appropriately express the requirements in terms that industry can implement and in terms by which performance can be objectively evaluated.
The agency has included no proposed regulatory text to support the cybersecurity requirements discussed for a performance-based message authentication alternative. However, the agency expects that regulatory text in any final rule would include a provision requiring that V2V devices have a minimum security protection of FIPS–140 Level 3 for storage of cryptographic certificate, key, and other sensitive data. In addition, a V2V device connected to a vehicle data bus would need to incorporate isolation measures (firewalls) to prevent the V2V module from being a conduit allowing malicious outside actors to gain access to the vehicle data bus and other vehicle modules connected to the data bus.
The agency has included no proposed regulatory text to support the cybersecurity requirements discussed for a no message authentication alternative. However, the agency expects that regulatory text in any final rule would include a provision requiring that a V2V device connected to a vehicle data bus would need to incorporate isolation measures (firewalls) to prevent the V2V module from being a conduit allowing malicious outside actors to gain access to the vehicle data bus and other vehicle modules connected to the data bus.
For the primary message authentication proposal, the SCMS provides key services and security. Key functions of the SCMS include:
• Communications with DSRC devices to transfer of security certificates,
• CRL maintenance and communications to the vehicles.
Section III.E.3.b) explained how security certificates are obtained, when and why certificates are changed, and how additional certificates would be requested and obtained. SCMS provides this service and uses encryption methods to facilitate secure communications to protect security information in transit.
CRLs are distributed to appropriate end-points in the same manner. The credentials and message encryption protect the communication between devices and the SCMS.
The security system of the SCMS is complex and intricate; due in part to privacy protection, therefore the agency requests comments regarding the cybersecurity viability of V2V security and invites comments concerning the relationship of V2V security to the larger vehicle security universe.
While the security overlay of the V2V communications establishes confidence between authentic entities, the message content indicating the vehicle's behavior is obtained from sensors (such as GPS) and vehicle data buses. It would be possible to manipulate the sources of data to the OBE, which could send a BSM message with inaccurate message content to its surrounding. In cases, the message could be constructed intelligently that could make the messages sent from that vehicle not correspond to the sending vehicle's physical behavior.
Such manipulation could result in surrounding vehicles responding with warnings to the driver early on. The misbehavior detection mechanisms set out in this proposal are designed to detect the anomaly, however it is possible that specifically crafted messages could be delivered and accepted by safety applications.
In the case of the primary misbehavior detection proposal, the misbehaving sender would also hopefully be detected and the sender added to the CRL. However, it is important to examine what could happen if the message is not detected as misbehavior and the time period before the sending vehicle is added to CRL. OEMs treat V2V as a new sensor for the vehicle and applications designed using this message would assess the safety-risks associated with this sensing mechanism being wrong. Generally, warning systems imply less severity than active control. OEMs indicate that they would take safety-conscious approach, which would be different for different applications. They further indicate that for active control, they tend not to rely on any single sensor even in modern systems and expect that to be the same when V2V becomes available to get in the mix of their sensor suite. The impact of such malicious act would be limited vehicles within the communications range of the unit (~1,000 ft).
The broader impact on GPS or timing spoofing/jamming may have similar impacts, or result in limited denial of service. Misbehavior detection is projected to help in such cases and could also help identifying and enforcing rules against jammers.
Given there has been more reports of GPS jammers being used,
In addition, we solicit comment on whether our assessment of cybersecurity risks due to spoofed and potentially malicious BSM message data is reasonable. We also solicit input from OEMs and Suppliers on how they expect to handle potential single point failures associated with BSM signal contents. What risk-based criteria and process would be appropriate for V2V safety applications to help ensure the validity of the BSM message data received from other vehicles relative to vehicle-local sensor readings? If data from a vehicle's onboard sensors suggest a different outcome as compared to data from an incoming BSM message, how
One of the cybersecurity risks that needs considered is whether V2V communications could be used to insert malware to the OBE, unexpectedly change configuration, or result in unwanted behavior. Since the V2V channel will be mandated on all new cars, this medium would likely become one of the dominant wireless access points on the vehicle fleet in the field over time.
Further, it should be considered that, since the V2V protocol is based on broadcast and listen methodology, and does not establish networks between participating units the way a traditional network protocol does. Instead, communications takes place through a well-defined BSM message structure.
• It is well established that many software and hardware vulnerabilities occur at the communications interfaces of systems. Security of the interfaces must be the highest priority when developing a system. Therefore, we believe that implemented systems should provide adequate controls to prevent malformed, incomplete or erroneous messages that do not fit the specifications to pass to the OBE.
• The DARPA HACMS program has shown that formal verification can be used to mathematically prove the correctness of systems or interfaces. Formal verification uses mathematical techniques to formalize software as a mathematical proposition to be proved. While testing provides incomplete evidence of correctness, a proof guarantees correctness of the system. In an active project, we are pursuing the development of a formally verified reference parser for the V2V communication interfaces that could provide the industry guidance on one way to ensure that only expected range of BSM Part 1 and Part 2 would be accepted by the OBE. While we do not anticipate requiring the use of a formally verified parser, we expect that industry will pay attention and utilize such tools or other means to ensure that common communication interface vulnerabilities do not exist in implemented V2V units.
• NHTSA also anticipates pursuing fuzz-testing of production-level implementations of V2V hardware with and without the use of a formally verified parser. We also intend to develop a framework of test protocols and message sets that manufacturers could use to test their implementations.
• We reemphasize the importance of securing the V2V communication channel. If the V2V interface is not properly secured (whether by design or in implementation), we need to consider the possibility of a “worm”
We solicit input on whether the overall need for rapid remediation methodologies would imply different requirements for the V2V communication interfaces as opposed to others (such as cellular, Bluetooth, Wi-Fi). Further, we solicit comment that exploitation of a potential vulnerability in the V2V OBE does not immediately imply safety-critical system compromise.
The cybersecurity environment changes continually and at times rapidly. Capabilities designed into systems should take the whole lifecycle of the vehicle into account and provide for rapid response methods to potential incidents in the field. These methods could take various forms but should consider both the issue containment and practical remediation needs.
Generally, first important step is having a method to identify cybersecurity issues and share them with the broader community. We and the industry believe that the Automotive Information Sharing and Analysis Center (Auto ISAC) established in 2015 will have a major role in this respect. We anticipate that V2V related intelligence sharing through Auto-ISAC will accelerate the identification of issues and remediation actions. As part of this process, it should be foreseen that various aspects of the V2V design may need updates over the life of systems in the field, such as:
In the case of primary message authentication approach, the SCMS can update certificate and security protocols that are inputs to each device, but the actual software that performs the security management for different devices can and will be implemented differently by different manufacturers. Each device supplier will need to manage handling of potentially required security updates. It is likely that there will need to be coordination among the SCMS and various devices suppliers to facilitate such updates. It may be the SCMS through the Misbehavior Authority that identifies the need for an update and communicates this to suppliers so that updates can be prepared.
There are many methods by which updates can be implemented. As seen with the different kind of devices that exist today, like tablets/iPads, there are various options and issues. Automated updates to computer systems can be implemented wired or wirelessly. Some of the updates; however, require consent; that screen that asks if you agree to the terms related to the update that may go on for pages. Some methods (personally updating device firmware) require technology savvy that many consumers do not possess. Others require owners bringing their cars to dealers, which are not often followed well.
According to a study released by IHS in September of 2015,
Japanese OEMs pioneered navigation map updates in Japan via their telematics systems. BMW, VW, and Tesla have announced OTA procedures for updating navigation maps. In fact, both Tesla and BMW have already documented utilizing OTA updates to fix security issues onboard their vehicles.
With new vehicles having more connectivity with the Internet and other wireless media, IIHS is predicting that upwards of 160 million cars will partake of OTA updates globally by 2022. In fact many of these may already be available to cars now. XM radios can potentially be utilized to download OTA updates to vehicles and in fact are pre-installed on upwards of 70 percent of all new light vehicles. 4G services, as well as onboard Wi-Fi units are penetrating further into the vehicle fleet as well.
Given that V2V operational and security software may need to be updated securely and widely while systems are in service, it may be unreasonable to expect that non-OTA software updates may have the desired impact and effectiveness (based on experiences in non-OTA domains for recalls). As such, NHTSA is soliciting feedback on whether it should consider requiring that V2V enabled vehicles have built-in OTA capability to have critical software updates, and seeks comment on the practicability of requiring this in future vehicles. NHTSA also solicits feedback on whether vehicle owners should be given the option to decline critical security updates.
In addition, there will be situations when a security vulnerability may be known to NHTSA and manufacturers but not all V2V-equiped vehicles will have installed the patches or updates to mitigate the flaw. During this period, vehicles in the fleet may be vulnerable until the patch or update is installed. NHTSA is seeking comment on how this period of vulnerability should be managed, the time period over which updates or patches should be installed, how the number of patched and unpatched vehicles should be measured to determine patch adoption, and how to manage the situation when vehicles do not receive patches or user refuse to accept or agree to the update.
The National Highway Traffic Safety Administration (NHTSA), under the U.S. Department of Transportation, is the U.S. government agency that was established to carry out safety programs under the National Traffic and Motor Vehicle Safety Act of 1966, re-codified as Title 49 U.S.C. Chapter 301, Motor Vehicle Safety (the Vehicle Safety Act). Under that authority, NHTSA issues and enforces Federal motor vehicle safety standards (FMVSS) that apply to motor vehicles and to certain items of motor vehicle equipment. Associated regulations are found in Title 49 of the Code of Federal Regulations (CFR), Parts 500–599.
The Vehicle Safety Act requires that motor vehicles and regulated items of motor vehicle equipment as originally manufactured for sale in the United States be certified to comply with all applicable FMVSS. NHTSA does not play any part of the certification process. NHTSA does not approve any motor vehicles or motor vehicle equipment as complying with applicable FMVSS. Instead, under 49 U.S.C. 30115, each vehicle manufacturer and equipment manufacturer is ultimately responsible for certifying that its vehicles and equipment comply with all applicable FMVSS.
When establishing the FMVSS, NHTSA must ensure requirements are practicable, meet the need for motor vehicle safety, and are stated in objective terms. Each FMVSS specifies the minimum performance requirements and the objective test procedures needed by the agency to determine product compliance with those requirements.
The Office of Vehicle Safety Compliance (OVSC) is the office within NHTSA's Enforcement Division that is responsible for compliance verification testing. OVSC funds independent test laboratories throughout the United States to execute the verification tests. The verification tests are not certification tests since the vehicle manufacturers are ultimately responsible for vehicle certification, but are used to verify that tested motor vehicles appear to meet the requirements of the FMVSS. OVSC utilizes the test procedures specified in each FMVSS as the basis for developing a more detailed test procedure that includes test conditions, set-ups, test equipment, step-by-step test execution, and data tables. Each funded test laboratory is required to utilize the OVSC test procedure to establish even more detailed test procedures with step-by-step approaches documented including check-off lists and data tables.
In most cases, when OVSC and a contracted test laboratory perform FMVSS tests, the test vehicle appears to meet the requirements of the applicable standard; however, in some instances, test failures are identified. When an apparent test failure is identified, the following steps will be followed by OVSC to resolve the possible noncompliance.
• The contracted test laboratory notifies OVSC of any potential test failure.
• The test laboratory verifies that the test procedure was executed exactly as required and that all laboratory test equipment utilized has up-to-date calibration information attached.
• The test laboratory provides detailed test results to OVSC for evaluation.
• The laboratory may be directed to recalibrate any critical test equipment to ensure proper operation.
• The vehicle manufacturer is notified of the test failure and the test data is shared.
• OVSC requests the manufacturer provide documentation and its basis for certification.
• The vehicle manufacturer may choose to conduct additional internal testing to gather additional data for evaluation.
• Meetings will be held as required with test laboratory and vehicle manufacturer personnel to identify test execution related problem or possible vehicle noncompliance.
• Additional verification tests on same vehicle or identical vehicle may be executed to validate test results.
• If noncompliance is identified and confirmed by vehicle manufacturer, the manufacturer is required to submit a 49 CFR part 573 report of noncompliance report within five working days after a noncompliance has been determined.
• The manufacturer will work with NHTSA to ensure a fix has been developed to correct the identified noncompliance.
• Follow-up tests may be executed to verify the fix does in fact correct the problem.
• The vehicle manufacturer will work with NHTSA to ensure no new noncomplying vehicles are sold and that the vehicles on the road are recalled to fix the confirmed noncompliance.
The above steps are not necessarily in the exact order they may occur based upon the type of test failure and because
To ensure that light vehicles equipped with a V2V communications system, On Board Equipment (OBE), is interoperable and compliant with the minimum performance requirements, the regulatory text of this proposal includes static, dynamic, and simulated performance tests. These tests have the potential for evaluating the performance of the V2V Radios and verifying the accuracy of the Basic Safety Message (BSM) safety message, Part I.
Overall, we anticipate devices being tested will be instrumented with independent measurement sensors, devices, and a data acquisition system (DAS) in order to collect V2V system data. The independent measurement equipment will collect Differential Global Positioning System (DGPS) information, vehicle speed, vehicle 3-axis accelerations, vehicle yaw rate, vehicle systems status information, and radio performance data.
In the Readiness Report, NHTSA extensively discussed the importance of consumer acceptance to the success of V2V, given that as a cooperative system that benefits from network effects, V2V depends on drivers' willingness to participate. V2V needs vehicles to be equipped in order to broadcast messages that other vehicles can “hear,” but in order for equipped vehicles to join the roads, consumers must be willing to recognize the benefits of a V2V system and support its adoption by the U.S. vehicle fleet via the purchase of the new, equipped vehicles, or by adding V2V capability to their existing vehicles through aftermarket devices. Thus, consumers must
Additionally, the courts have determined that public acceptance of a mandated technology is necessary to ensure that the mandate fulfills the requirements of the Safety Act. As discussed further in Section V.C below, if the public rejects a technology that the agency has required for new vehicles, the courts have found that the standard may neither be practicable nor meet the need for safety in the absence of public acceptance. If vehicle manufacturers literally cannot sell V2V-equipped vehicles because consumers
NHTSA must therefore consider the potential elements of a V2V requirement that may affect public acceptance, and do what we can to address them, both through carefully considering how we develop the mandate, and through consumer education to improve understanding of what the technology does and does not do. Additionally, we expect, simultaneously, that vehicle manufacturers subject to the eventual mandate will likewise work to improve public understanding of the benefits of V2V, boosting consumer acceptance overall. We also seek comment on the extent to which an if-equipped approach potentially may alleviate some consumer acceptance concerns.
Based on our review of the research conducted so far and the responses to the ANPRM and Readiness Report, NHTSA believes that the several elements of the V2V system discussed below may affect public acceptance.
A “false positive” occurs when a warning is issued to a driver and the warning is unnecessary (or when the driver believes the warning is unnecessary), because there is no immediate safety risk that the driver has not already accounted for. False positives can startle and, if there are too many, annoy a driver, causing drivers to possibly lose confidence in the system's ability to warn them properly of danger and desire to have the warning disabled; reducing overall system benefits. If the driver does not notice immediately that a false positive is in fact false, the driver might carry out an unnecessary evasive maneuver, potentially increasing the risk of an accident.
In the SPMD, we initially saw fairly high numbers of false positive warnings for some V2V applications.
At this time, NHTSA cannot account preemptively for the possibility of future false positive warnings. Given that we are only proposing today to mandate V2V transmission capability and are not yet requiring specific safety applications, we are not developing requirements for how safety applications must perform, and we recognize that doing so would be a significant undertaking. We do expect, however, that manufacturers will voluntarily develop and install safety applications once V2V communications capability is required available. As with existing advanced crash avoidance systems and as in the SPMD, we expect manufacturers to address false positive issues that arise in use in order to improve customer satisfaction. Because false positive issues with V2V-based safety applications are typically a software issue rather than a hardware issue Manufacturers may even be able to solve by deploying solutions to such problems through over-the-air software updates, rather than requiring vehicles to be brought in for adjustment. Data from the SPMD suggests that it is possible to reduce false positives in production safety applications and thus we believe it should not pose a significant public acceptance issue for V2V. Additionally, if NHTSA determines in the future that false positives in the field create an unreasonable risk to safety, NHTSA could pursue remedies for them through its enforcement authority.
If consumers fear that V2V communications will allow their movements to be “tracked,” either for government or private purposes, and that such information could be used to their detriment, they may avoid buying new cars with V2V systems installed, or attempt to disable the V2V systems in
NHTSA expects manufacturers to pursue a privacy positive approach to implementing the proposed V2V requirements. In furtherance of the Fair Information Practice Principles (FIPPs), especially those of transparency and notice, we have developed a draft privacy statement that we will require manufacturers to provide to consumers, included in the regulatory text below. In order to ensure effective notice, we intend for manufacturers to provide this statement to consumers in understandable, accessible formats and at multiple easily identifiable locations and times, including but not limited to the time of sale. We seek comment from the public on the most effective time and means of providing such multi-layered notice to individuals purchasing new and used vehicles with V2V systems. We note that the industry has developed a set of voluntary privacy principles for vehicle technologies and services, which have been accepted by members of both the Alliance and Global Automakers, covering the significant majority of motor vehicle manufacturers.
To date, vehicle technologies that have raised privacy concerns for consumers have been “opt-in,” meaning that either consumers expressly agree to the use of these technologies in their vehicles (and thereby provide explicit consent) or consumer purchase vehicles containing technologies not mandated by NHTSA (and thereby, arguably, provide implicit consent). V2V presents a somewhat different situation, as we are proposing that at least 50 percent of new vehicles will be required to have V2V devices starting in model year 2021. Since this would be a mandated technology, consumer choice will be limited to the decision of whether or not to purchase a new car (all of which eventually would contain V2V technology, if mandated). From a privacy perspective, such implicit consent is not an optimal implementation of the FIPPs principle of consumer choice. However, as discussed below in Section VI.C., the agency has determined that there are no viable alternatives to a mandate of V2V technology. In the agency's view, the absence of consumer choice is required to achieve safety in the V2V context, increasing the significance of ensuring that industry deploys V2V technology in a privacy positive, transparent manner and provides consumers with effective, multi-layered privacy notice. Consumers who are privacy-sensitive tend to feel more strongly when the government is mandating something that creates potential privacy risks to individuals, as compared to when they voluntarily choose whether to purchase and use such technology. NHTSA and vehicle manufacturers will continue to work to ensure that V2V does not create the type of privacy impacts frequently raised in comments, and will need to educate consumers about the potential privacy impacts and privacy-enhancing controls designed into the V2V system. That said, NHTSA seeks comment on the extent to which an if-equipped approach potentially may provide consumers with more of a choice to “opt in” to V2V technology—or whether, if mandated, consumers should be provided an “opt out” option for privacy reasons.
If consumers fear that V2V will allow wrongdoers to break into their vehicle's computerized systems and take control of vehicle operation, then, as with privacy concerns, they may avoid purchasing new vehicles equipped with V2V or attempt to remove already-installed V2V in their own vehicles. This fear is really a two-part concern: (1) That V2V equipment can be “hacked,” and (2) that
Regarding the concern that V2V equipment can be hacked, as discussed in much more detail in Section III.E.7 above, counter measures have been identified using a risk-based approach to determine the types of threats and risks to the equipment that may occur. We are proposing to require additional hardening of the on-board V2V equipment beyond normal automotive-grade specifications to help reduce the chance of physical compromise of V2V. In addition we have included alternatives for message authentication and misbehavior reporting to solicit comment regarding to further reduction of cybersecurity risk in V2V message exchange. We seek comment on what additional requirements, if any, we might consider adding to the standard to mitigate infiltration risk yet further. If commenters believe additional steps are needed, we ask that they describe the protection mechanism and/or approach as fully as possible, and also provide cost information to accomplish them—or whether, if mandated, consumers should be provided an option to disable V2V for cybersecurity reasons.
Regarding the concern that V2V equipment, if hacked, can create a safety risk, NHTSA expects manufacturers to ensure that vehicle systems take appropriate safe steps to the maximum extent possible, even when an attack may be successful.
In March 2014, researchers from Galois, Inc. issued a white paper with specific recommendations for reducing security risk associated with V2V communications, which they stated would “automatically rule out a whole class of security vulnerabilities” at low cost with known technologies.
• All legal inputs shall be specified precisely using a grammar. Inputs shall only represent data, not computation, and all data types shall be unambiguous (
• Every input shall be checked to confirm that it conforms to the input specification. Interface messages shall be traceable to mission-critical functionality. Non-required messages should be rejected.
• Parsers and serializers shall be generated, not hand-written, to ensure they do not themselves introduce any security vulnerabilities. Evidence should be provided that
○
○ parse(i) = REJECT, for all non-valid inputs i.
• Fuzz testing shall be used to demonstrate that implementations are resilient to malicious inputs.
• A standardized crypto solution such as AES–GCM shall be used to ensure confidentiality, integrity, and the impossibility of reply attacks.
DARPA staff, in discussing V2V cybersecurity issues with DOT researchers, recommended these techniques be included in any V2V requirements going. NHTSA seeks comment on whether these specific techniques should be incorporated into the proposed FMVSS requirements, and if so, how; alternatively, NHTSA seeks comment on whether these techniques should be incorporated prior to vehicle manufacturer certification with the FMVSS, and if so, how, and how NHTSA would verify their incorporation.
As discussed in more detail below in Section IV.E, a number of individual citizens commented to the ANPRM and Readiness Report that they were concerned about what they believed to be potentially negative health effects that could result from a DSRC mandate. As discussed in Section IV.E below, NHTSA has considered this issue carefully, and whether there are ways to mitigate these concerns without obviating the very real safety benefits that a V2V mandate will enable. We believe that consumer education, undertaken both by the Federal government and by vehicle manufacturers, may help to alleviate some of these concerns.
Working with Booz Allen Hamilton, NHTSA has conducted additional research on consumer acceptance issues since the ANPRM and Readiness Report. The objective of the research was to conduct both qualitative and quantitative research to broaden our understanding of consumers' acceptance of V2V technology and to inform future outreach and communication efforts to the public. The qualitative phase included focus groups held in Spring of 2015. Focus group participants were shown a brief video on what V2V communications are, how they work, and how they contribute to vehicle safety, and then asked to discuss a series of questions about the technology, their understanding of it and interest in it, and benefits and drawbacks. Overall, on a scale of 1 to 10, the majority of focus group participants rated their interest in V2V as a 5 or higher for the next car. However, participants also expressed concern that the technology would not be effective if it were not universally adopted, and that over-reliance on or distraction by V2V warnings could cause drivers to become less attentive and increase risk. Although most focus group participants believed that V2V would allow drivers to be tracked, few were concerned with the privacy implications of tracking.
Following the conclusion of the focus groups and analysis of their findings, a survey was developed for online quantitative testing to examine these issues further. The survey was conducted by Ipsos, under contract to BAH. The survey sought to evaluate several objectives:
• What is the degree of public acceptance of V2V?
• What proportion of people are concerned about each barrier? How much importance is attached to that concern?
• What proportion of people agree with the potential benefits of V2V? How much importance is attached to that benefit?
• How does the population differ on the above viewpoints (age, gender, urbanicity, etc.)?
• What are predictors of acceptance of V2V technology (age, gender, urbanicity, etc.)?
Over 1,500 people responded to the survey, and the sample was matched to the target population on age, gender, ethnicity, income, and region. Respondents viewed a brief informational video about V2V, and then answered 35 questions. Approximately half of respondents were interested in having V2V in their next car, with “accepters” tending to be male, older, urban, and more educated. All responses had a margin of error of ±2.5 percent
In terms of barriers or concerns, 69 percent of respondents believed that V2V would encourage other drivers to be too reliant and less attentive to the driving task, and over 50 percent expressed concern about cybersecurity and the need for enough vehicles to be equipped for the benefits to accrue. Between 30 and 40 percent expressed concern about tracking by the government or law enforcement and about the risk that they themselves could become too reliant and inattentive to driving. Only 20 percent expressed concern about health risk from electromagnetic activity. Of those concerns, however, some were deemed
In terms of benefits of V2V, 55 percent of respondents believed that V2V would reduce the number and severity of vehicle crashes, 53 percent believed that it would make driving more convenient and efficient, and 50 percent believed that V2V could lower insurance rates. As for barriers, respondents tended to believe that benefits for others would be somewhat greater than the benefits that they themselves would experience. Importance did not vary as much for benefits as it did for barriers.
In terms of how opinions about benefits and barriers correspond to whether a respondent wanted V2V in their next car, the survey results found that, on balance, all respondents were concerned about barriers, but “accepters” of V2V rated the benefits more highly. When asked how much they would be willing to pay for V2V, 78 percent of respondents were willing to pay less than $200.
Based on the research conducted thus far and assuming that the survey respondents are, as intended, reasonably representative of the nation as a whole, it appears that while there may be work yet for the agency and manufacturers to do in order to reassure consumers of V2V's benefits, there may not be a sufficient public acceptance problem that an FMVSS requiring V2V communications in new vehicles would face clear legal risk on that issue. NHTSA intends to continue researching approaches to consumer outreach on V2V and will work with industry and other relevant stakeholders in doing so. We seek comment on what the agency should consider in developing those approaches to best ensure the success of a future V2V system.
In the ANPRM, we sought comment on whether there were any issues relating to consumer acceptance that the agency had
While NHTSA had asked in the ANPRM whether commenters had thoughts regarding whether V2V-based
Generally, if NHTSA concludes that a vehicle system or technology provides sufficient safety benefits that it should be required as an FMVSS, NHTSA has not permitted it to be disabled. In fact, Congress expressly prohibits manufacturers, distributors, dealers, and motor vehicle repair businesses from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle in compliance with an applicable motor vehicle safety standard prescribed by NHTSA.
For example, FMVSS No. 126 for electronic stability control (ESC) allows manufacturers to include an “ESC Off” control that puts the system in a state where ESC does not meet the FMVSS performance requirements, as long as the system defaults to full ESC capability at the start of the next ignition cycle and illuminates a telltale in the meantime to warn the driver that ESC is not available.
As another example, FMVSS No. 208 for occupant crash protection allowed manufacturers to include a device up until September 1, 2012, that deactivated the right front passenger seat air bag, but only in vehicles without a second row of seating, or in vehicles where the second row of seating is smaller than a specified size.
Thus, in prior instances when NHTSA has allowed drivers the option of changing or disabling the functionality of a required safety system, it has been in the interest of providing
Moreover, unlike for most of the prior technologies in which NHTSA allowed drivers the option of changing or disabling the functionality of a required safety system, allowing V2V communications to be disabled would affect the safety of more drivers than just the driver who turned off their own V2V device. A cooperative system like V2V protects you by making you more “visible” to other drivers and by letting you know when they pose imminent risks to you. A driver who disables V2V on their vehicle makes their vehicle less visible to other drivers, potentially affecting their own relative safety risk and the safety risk to those around them. The safety benefits from a cooperative system could be undermined by allowing drivers to opt out. If there is no safety benefit from opting out, and doing so would undermine safety benefits both for the driver who opts out and for drivers around them, opting out may not be justified.
However, V2V is a novel technology concept in the transportation context, which differs in some ways from other technologies covered by the FMVSS. NHTSA recognizes that, as discussed elsewhere in this notice, any technology that is required to transmit and receive information on a persistent basis creates potential privacy and cybersecurity risks. NHTSA is making every effort to reduce these risks while setting requirements that would provide life-saving benefits. That said, we acknowledge that there may be circumstances when there could be a need to deactivate the V2V device on a vehicle. These may include individuals or groups with specific privacy needs, the emergence of unanticipated cybersecurity threats, or other reasons. To address these cases, NHTSA is requesting comment on possible approaches to deactivating V2V related hardware and software as and when appropriate, as well as the costs and benefits of such approaches. These could include deactivations initiated by drivers, manufacturers, or the government; with different scopes, such as vehicle-specific or broader deactivations; with different lengths, such as for a single key start or more long-lasting; and with different levels of ease, such as an accessible consumer-friendly method or one that would require mechanical expertise.
NHTSA takes consumer privacy very seriously. Although collection of data by on-board systems such as Event Data Recorders and On-Board Diagnostic systems is nothing new, the connectivity proposed by the Agency will expand the data transmitted and received by cars. V2V systems will create and transmit data about driver behavior and the surrounding environment not currently available from most on-board systems. For this reason, V2V and future vehicle to infrastructure and pedestrian (V2X) technologies raise important privacy questions.
The agency is committed to regulating V2V communications in a manner that both protects individuals and promotes this important safety technology. NHTSA has worked closely with experts and our industry research partners (CAMP and the VIIC) to design and deploy a V2V system that helps protect consumer privacy. As conceived, the system will contain multiple technical, physical, and organizational controls to reduce privacy risks—including those related to vehicle tracking by individuals and government or commercial entities. As proposed, V2V messages will not contain information directly identifying a vehicle (as through VIN, license plate or registration information) or its driver or owner (as through name, address or driver's license number), or data “linkable, as practical matter,” or “reasonably linkable” to an individual. NHTSA intends for these terms to have the same meaning, specifically: Capable of being used to identify a specific person on a persistent basis without unreasonable cost or effort, either in real time or retrospectively, given available data sources. Our research to date suggests that using V2V transmissions to track the path and activities of identified drivers or owners, while possible, could be a complex undertaking and may require significant resources and effort.
We request comment on the proposed mandate that the BSM exclude data elements “reasonably linkable” to an individual (as that term is defined above) and whether this appropriately balances consumer privacy with safety. Additionally, will exclusion from the BSM of “reasonably linkable” data elements undermine the need for a standard BSM data set in furtherance of interoperability or exclude data required for safety applications?
NHTSA, with the support of the DOT Privacy Officer and NHTSA's Office of the Chief Information Officer, conducted an interim privacy risk assessment of the V2V system prior to issuance of the Readiness Report and ANPRM. The interim assessment was intended to provide the structure and serve as a starting point for NHTSA's planned PIA, which is a more in-depth assessment of potential privacy impacts to consumer privacy that might stem from a V2V regulatory action, and of the system controls that mitigate those risks. On the basis of then available information and stated assumptions, NHTSA's interim privacy assessment identified the system's business needs, relevant system functions, areas of potential risks, and existing/other risk-mitigating technical and policy controls.
NHTSA received a significant number of comments on the issue of privacy in response to the ANPRM and Readiness Report. Generally, the privacy comments related to consumer acceptance and reflected consumer and industry concerns that the V2V system would be used by government and
1. NHTSA's privacy impact assessment;
2. “privacy by design” and data privacy protections;
3. data access and privacy;
4. consumer education; and
5. Congressional or other government action related to V2V data.
Since receiving these comments, NHTSA has worked closely with privacy experts to identify and prioritize for further analysis specific areas of potential privacy impact in the V2V system. Additional privacy research, such as dynamic modeling related to location tracking and analysis of PKI best practices, is underway that will refine NHTSA's approach to mitigating potential privacy impacts stemming from the V2V system. On the basis of the PIA, comments received on the NPRM and PIA, and ongoing privacy research, agency decision-makers will be in an informed position to determine whether any residual risk (
Over a dozen organizations requested that NHTSA conduct a privacy impact assessment (PIA) of the V2V system as proposed in the NPRM. Many of these commenters noted additionally that a PIA will be critical to consumer acceptance of V2V. Several organizations requested that NHTSA take steps (in addition to conducting a PIA) to help enhance and speed consumer acceptance of V2V technologies. Comments relating to the scope of NHTSA's PIA included a request that NHTSA broaden the scope of its privacy analysis to include privacy impacts associated with vehicle to infrastructure (V2I) and vehicle to “other” (such as pedestrians) (V2X) applications, and also that NHTSA release privacy research underlying its PIA.
The Alliance of Automobile Manufacturers (Alliance) suggested that NHTSA hold public workshops with the Federal Trade Commission (FTC) to thoroughly investigate privacy issues related to the V2V system. It also recommended that NHTSA expand the scope of the PIA so that it “considers all possible uses of the envisioned transportation communications network including all potential internal and external abuses, and other challenges not solely those concerned with safety, mobility and the environment.” The Automotive Safety Council recommended that an independent third party review the PIA. Finally, the Electronic Frontier Foundation (EFF) and Privacy Rights Clearinghouse requested that NHTSA release all initial risk assessments and research on which its initial risk assessment and PIA are based, including those related to location tracking and identification capabilities. Additionally, the Alliance took the position that PIA should analyze the privacy concerns relating to the broader V2X communications infrastructure, which includes commercial venture, law enforcement, and taxation issues. The FTC requested that NHTSA take into account the Fair Information Practice Principles (FIPPs) framework in regulating the V2V system.
NHTSA agrees with commenters emphasizing the critical importance of issuing a PIA detailing the agency's analysis of the potential privacy impacts of the V2V system as proposed in the NPRM. Not only is NHTSA required by law
With regard to the scope of NHTSA's PIA, the agency wishes to emphasize that, to the extent possible in the context of a still evolving V2V ecosystem, our PIA intentionally is scoped to take into account potential internal and external threat actors and potential abuses of the V2V system—not solely those directly related to safety, mobility or environmental applications. As discussed in the PIA Summary section below, NHTSA's PIA focusses not on specific V2V system components or applications. Rather, it focuses on data transactions system-wide that could have privacy impacts, and the controls that mitigate those potential impacts. To the extent that specific V2V data transactions might be vulnerable to privacy impacts, our risk-analysis broadly considers potential threats posed by a wide range of internal and external actors, including foreign governments, commercial non-government entities, other non-governmental entities (such as research/academic actors and malicious individuals or groups). Additionally, our analysis takes into account potential privacy impacts posed by internal V2V system actors.
Many commenters requested that NHTSA deploy the V2V system in a way that ensures drivers' privacy and the security of the system. Some sought specific privacy protections, such as “total anonymity” if drivers cannot opt out of the V2V system, the protection of any PII associated with the system, and avoidance of using any PII at all. Commenters also sought end-to-end encryption of any PII, no local or remote V2V data storage, and limitations on V2V data collection, as well as technical and administrative safeguards on any V2V data collected.
Mercedes-Benz commented that the security entity envisioned to secure the V2V system, called the Security Credential Management Server (SCMS), must have security and privacy controls to protect against external threats and internal abuses. Fiat Chrysler Automobiles (FCA) expressed concern about the potential privacy impacts of the security system's design, called the certificate revocation list (CRL). The National Motorists Association emphasized safeguarding V2V messages sent via mandated V2V devices. Infineon Technologies pointed out that the unique cellular subscriber number would defeat the privacy and tracking requirement in the system, as proposed, to the extent that cellular is used as a V2V communications media. American Trucking Association requested that NHTSA protect the confidentiality of proprietary information, such as lane
Based on our exploration of privacy impacts and analysis of the V2V system design to date, we respectfully disagree with the position espoused by EFF that the V2V system fails to protect driver privacy. The system contains multiple technical and organizational controls to help mitigate unreasonable privacy risks posed by external actors including those posed by SCMS insiders. V2V transmissions would exclude data directly identifying a private motor vehicle or its driver or owner and reasonably linkable to an individual via data sources outside of the V2V system or over time. V2V devices would transmit safety information in only a limited geographical range. Neither the V2V system, nor its components (including OBEs) would collect or store the contents of messages sent or received, except for a limited time to maintain awareness of nearby vehicles for safety purposes or case of device malfunction. Additionally, the system described in our proposal would be protected by a complex PKI security infrastructure designed specifically to help mitigate privacy impacts and create a secure V2V environment in which motorists who do not know one another can participate in the system without personally identifying themselves or their vehicles.
As discussed in the PIA and demonstrated by the data flows detailed in that document, the CRL discussed in the misbehavior reporting section of our primary proposal also would be designed to mitigate privacy impacts to individuals. It would contain specific information sufficient to permit V2V devices to use certificate information to recognize safety messages that should be ignored, if received. However, the CRL would not contain identifying information about specific vehicles or specific certificate numbers—nor would the information on the CRL permit third parties or SCMS insiders to identify specific vehicles or their owners or drivers.
The Agency understands that concern about whether the V2V system can or will be used by government and commercial entities to track the route or activities of individuals is critical to consumer acceptance and the viability of NHTSA's proposal. DOT is continuing to work with privacy experts to identify additional controls that might further mitigate any privacy risks (including that of tracking) in the V2V system, no matter how remote. The planned implementation by DOT of a proof of concept (PoC) security entity (discussed in Section V.B.6.e)) and related policy research will provide an operational environment in which to continue to explore the viability of additional privacy controls applicable to the V2V system, as currently envisioned and designed.
That said, as we noted in the Readiness Report, it is important to emphasize that residual risk stemming from the V2V system will never be zero due in part to the inherent complexity of the V2V system design and the diversity/large number of interacting components/entities, both technological and human. Additionally, technology changes at a rapid pace and may adversely impact system controls designed to help protect privacy in unforeseen ways. For these reasons, as is standard practice in both the public and private sectors, NHTSA has performed a PIA to identify potential areas of residual risk and resulting privacy consequences/harms that might result from its proposal. The current status of NHTSA's PIA is summarized below. The technical framework for the V2V system has gone through many iterations and adjustments during the conduct of the V2V research program, as the system has evolved to meet revised or additional needs and to incorporate the results of research. For this reason, while the current technical framework is sufficient for purposes of NHTSA's rulemaking proposal, DOT's assessment of the potential privacy impacts that could result from the V2V proposal necessarily will be an ongoing process that takes into account future adjustments to the technology and security system required to support the technology, as well as ongoing privacy research. After reviewing comments on the NPRM and PIA and working closely with the FTC and stakeholders to address privacy concerns, NHTSA will issue an updated PIA concurrent with its issuance of a V2V final rule.
The issue of data ownership arose in the comments of Ford, Auto Care Association, and others. All of these commenters requested clarification of who owns the data generated by the V2V system. Many commenters asserted that vehicle owners should own V2V and other data generated by motor vehicles, generally. Systems Research Associates requested a specific regulation vesting ownership in vehicle owners, not manufacturers. Another commenter expressed concern about ownership of data inherent in the context of car sharing and rentals arrangements.
The inherently related concept of consumer consent also appeared in many privacy comments. Civil liberties organizations suggested that NHTSA mandate that consumers provide “active consent” in the form of express written consent before manufacturers may collect data containing personally identifiable information (PII). Manufacturers requested that NHTSA ensure transparency by requiring that consumers authorize collection of PII through either consent or contract, and that manufacturers inform vehicle owners of what information will be collected and how this information will be used. This approach to transparency is consistent with industry privacy principles adopted in 2014 by members of the Alliance and the Association of Global Automakers, entitled “Consumer Privacy Protection Principles for Vehicle Technologies and Services” (OEM Privacy Principles or Principles), discussed in prior sections. Several manufacturers and civil liberties organizations, including EPIC and EFF, suggested that these voluntary industry principles should serve as a baseline for data privacy protections in the V2V context. EPIC also suggested that NHTSA follow the White House's Consumer Privacy Bill of Rights.
NHTSA feels strongly that in the context a V2V system based on broadcast messages, the critical consumer privacy issue is not that of data ownership, but that of data access and use—ensuring that the consumer has clear, understandable and transparent notice of the makeup of the V2V message broadcast by mandated V2V equipment, who may access V2V messages emanating from a consumer's motor vehicle, and how the data in V2V messages may be collected and used. For this reason, NHTSA proposes that motor vehicle manufacturers, at a minimum, include the following standard V2V Privacy Statement (set forth below) in all owner's manuals (regardless of media) and on a publicly-accessible web location that current and future owners may search by make/model/year to obtain the data access and privacy policies applicable to their motor vehicle, including those specifically addressing V2V data and functions. We also seek the public's assistance in identifying additional formats and methods for providing this privacy statement to consumers that
The National Highway Traffic Safety Administration (NHTSA) requires that your vehicle be equipped with a Vehicle-to-Vehicle (V2V) safety system. The V2V system is designed to give your vehicle a 360 degree awareness of the driving environment and warn you in the event of a pending crash, allowing you to take actions to avoid or mitigate the crash, if the manufacturer of your vehicle has installed V2V safety applications.
Your V2V system periodically broadcasts and receives from all nearby vehicles a V2V message that contains important safety information, including vehicle position, speed, and direction. V2V messages are broadcast ten times per second in only the limited geographical range (approximately 300 meters) necessary to enable V2V safety application to warn drivers of pending crash events.
To help protect driver privacy, V2V messages do not directly identify you or your vehicle (as through vehicle identification number or State motor vehicle registration), or contain data that is reasonably or, as a practical matter, linkable to you. For purposes of this statement, V2V data is “reasonably” or “as a practical matter” linkable to you if it can be used to trace V2V messages back to you personally for more than a temporary period of time (in other words, on a persistent basis) without unreasonable expense or effort, in real time or after the fact, given available data sources. Excluding reasonably linkable data from V2V messages helps protect consumer privacy, while still providing your V2V system with sufficient information to enable crash-avoidance safety applications.
Your V2V system does not collect or store V2V messages except for a limited time needed to maintain awareness of nearby vehicles for safety purposes or in case of equipment malfunction. In the event of malfunction, the V2V system collects only those messages required, and keeps that information only for long enough to assess a V2V device's misbehavior and, if a product defect seems likely, to provide defect information to your vehicle's manufacturer.
NHTSA does not regulate the collection or use of V2V communications or data beyond the specific use by motor vehicles and motor vehicle equipment for safety-related applications. That means that other individuals and entities may use specialized equipment to collect and aggregate (group together) V2V transmissions and use them for any purpose including applications such as motor vehicle and highway safety, mobility, environmental, governmental and commercial purposes. For example, States and localities may deploy roadside equipment that enables connectivity between your vehicle, roadways and non-vehicle roadway users (such as cyclists or pedestrians). These technologies may provide direct benefits such as use of V2V data to further increase your vehicle's awareness of its surroundings, work zones, first responders, accidents, cyclists and pedestrians. State and local entities (such as traffic control centers or transportation authorities) may use aggregate V2V safety messages for traffic monitoring, road maintenance, transportation research, transportation planning, truck inspection, emergency and first responder, ride-sharing, and transit maintenance purposes. Commercial entities also may use aggregate V2V messages to provide valuable services to customers, such as traffic flow management and location-based analytics, and for other purposes (some of which might impact consumer privacy in unanticipated ways). NHTSA does not regulate the collection or use of V2V data by commercial entities or other third parties.
While V2V messages do not directly identify vehicles or their drivers, or contain data reasonably linkable to you on a persistent basis, the collection, storage and use of V2V data may have residual privacy impacts on private motor vehicle owners or drivers. Consumers who want additional information about privacy in the V2V system may review NHTSA's V2V Privacy Impact Assessment, published by The U.S. Department of Transportation at
If you have concerns or questions about the privacy practices of vehicle manufacturers or third party service providers or applications, please contact the Federal Trade Commission.
Many commenters emphasized the need to educate consumers about the V2V system to enhance public acceptance through a coordinated and wide-spread information campaign utilizing traditional print and television outlets and the web, including the AAA, Global, Arizona Department of Transportation, Cohda Wireless, GM, Infineon Technologies, National Motorists Association, Pennsylvania Department of Transportation, Toyota, TRW Automotive, Automotive Safety Council, and Delphi Automotive.
Comments from the Automotive Safety Council, TRW Automotive, and Delphi Automotive suggested that such education should focus on the V2V safety message, what it contains, and how any information in the BSM will be used. The National Motorists Association recommended that NHTSA educate motorists on the system's privacy protection assurances. AAA recommended educating the public on how the V2V system will benefit them, and on the privacy and security protections built into the system. Toyota suggested that NHTSA educate the public about the fact that the V2V system will not transmit or store PII. The Privacy Rights Clearinghouse suggested that NHTSA educate the public on how the V2V system works. Honda focused more on educating the public on the security designed into the V2V system.
NHTSA agrees with commenters that educating the public about this important new safety technology, and the security and privacy protections designed into the V2V system, will be critical to consumer acceptance. For this reason, as suggested by many commenters, the agency plans to work closely with the FTC, motor vehicle manufacturers, privacy advocates and other stakeholders to design a comprehensive public education strategy on the topic of privacy in the V2V system for consumers. Any claims regarding security or privacy made as part of NHTSA's public outreach will necessarily be justified by evidence based on the best scientific knowledge regarding security and privacy. Development of a consumer education strategy will likely be among the privacy-specific topics addressed in public meetings and/or workshops held by the agency after issuance of the NPRM and PIA.
NHTSA received comments from civil liberties groups and manufacturers that included calls on Congress to take action to protect consumer privacy in the V2V system. EFF and Privacy Rights Clearinghouse took the position that
NHTSA understands why legislation making it illegal for third parties or government agencies to collect V2V messages, or limiting those parties' retention or use of V2V messages, would be attractive to stakeholders—and the Alliance is correct in its assertion that such government action is outside the scope of the agency's regulatory authority over manufacturers of motor vehicles and motor vehicle equipment. As noted above, the introduction of V2V technology creates new privacy risks that cannot be fully mitigated. That said, in the agency's view, the V2V system is protected by sufficient security and privacy measures to mitigate unreasonable privacy risks. NHTSA seeks comment on these tentative conclusions—and on whether new legislation may be required to protect consumer privacy appropriately.
Section 522 of the Consolidated Appropriations Act, 2005 (Pub. L. 108–447) requires that Federal agencies conduct privacy impact assessments (PIAs) of proposed regulatory activities involving collections or system of information with the potential to impact individual privacy. A PIA documents the flow of information and information requirements within a system by detailing how and why information is transmitted, collected, stored and shared to: (1) ensure compliance with applicable legal, regulatory, and policy requirements regarding privacy; (2) determine the risks and effects of the proposed data transactions; and (3) examine and evaluate protections and alternative processes for handling data to mitigate potential privacy impacts. It is a practical method of providing the public with documented assurance that the agency has identified and appropriately addressed potential privacy issues resulting from its activities. A PIA also facilitates informed regulatory policy decisions by enhancing an agency's understanding of privacy impacts, and of options available for mitigating those potential impacts.
After reviewing a PIA, members of the public should have a broad understanding of any potential privacy impacts associated with a proposed regulatory action, and the technical and policy approaches taken by an agency to mitigate the resulting privacy impacts.
The V2V system is complex and involves many different components, entities, communications networks, and data flows (within and among system components). For this reason, NHTSA opted not to analyze the potential privacy impacts in the V2V system on a component-specific basis. Rather, NHTSA focused its PIA on discrete data flows within the system, as an organic whole. NHTSA worked with privacy experts to zero in on discrete aspects of the V2V system most relevant to individual privacy for impact assessment purposes, identify and prioritize potential privacy impacts requiring further analysis (such as dynamic modeling), and validate the privacy-related requirements in NHTSA's regulatory proposal.
The V2V NPRM PIA identifies those V2V transactions involving data most relevant to individual privacy and the multiple technical, physical and policy controls designed into the V2V system to help mitigate potential privacy impacts.
To place our discussion of potential V2V privacy issues in context, NHTSA's PIA first briefly discusses several non-V2V methods of tracking a motor vehicle that currently exist.
For comparative purposes, it is useful to consider the potential privacy impacts of the V2V system in the context of tracking mechanisms that do not involve any aspect of the V2V system (non-V2V tracking methods). These non-V2V methods of tracking inform the Agency's risk analysis because, to the extent that they may be cheaper, easier, and require less skill or access to a motor vehicle, they are relevant to our assessment of the likelihood of an individual or entity attempting to use V2V as a method of tracking. Examples of mechanisms that currently may be used to track a motor vehicle target include physical surveillance (
As a starting point for the analysis that underlies this PIA, NHTSA identified and examined all data flows within the V2V system to determine which included data fields that may have privacy impacts, either alone or in combination. We identified three data flows relevant for privacy impact purposes:
Below, we describe these three data flows and detail the technical, policy and physical controls designed into the system to mitigate potential privacy impacts in connection with each flow. We then discuss the potential privacy impacts that remain, notwithstanding existing privacy controls. These constitute potential areas of residual risk for consideration by decision-makers.
BSMs are one of the primary building blocks for V2V communications. They provide situational awareness information to individual vehicles regarding traffic and safety. BSMs are broadcast ten times per second by a vehicle to all neighboring vehicles and are designed to warn the drivers of those vehicles of crash imminent situations.
Under NHTSA's proposal and any future adaptation of the technology, BSMs would contain information regarding a vehicle's GPS position, speed, path history, path trajectory, breaking status and other data, as detailed above in Section III.E. As discussed below, some data transactions necessitated by the security system may result in additional potential privacy impacts, some of which may be residual.
Under NHTSA's proposal, when a vehicle receives a BSM from a neighboring vehicle, its V2V system validates the received message and then performs a cross check to evaluate the accuracy of data in the message. For example, it might compare the message content with other received messages or with equivalent information from onboard vehicle sensors. As a result of that cross check, the vehicle's V2V system may identify certain messages as faulty or “misbehaving.” NHTSA's primary proposal for misbehavior reporting proposes that the V2V system then prepares a misbehavior report and sends it to the V2V security entity. The security entity evaluates the misbehavior report and may identify a defective V2V device. If it does, the V2V security entity will update the Certificate Revocation List (CRL) with information about the certificates assigned to the defective V2V device. The CRL is accessed by all V2V system components and vehicles on a periodic basis and contains information that warns V2V system participants not to rely on messages that come from the defective device. The security entity also might blacklist the device, in which case it will be unable to obtain additional security credentials from the security entity.
Also under our proposal, organizational and/or legal separation of information and functions within the security entity are important privacy impact-mitigating controls that are designed to prevent a single component or insider from having sufficient information to identify certificates assigned to a specific vehicle or owner. NHTSA plans to work closely with stakeholders to develop policies and procedures to institutionalize appropriate separation of data and functions within the National SCMS.
Under the second alternative for misbehavior reporting, the no misbehavior reporting proposal would not involve any additional broadcast or transmission of reports to V2V security entities. This means that no additional privacy risk would be imposed under the no misbehavior reporting alternative.
As described above, NHTSA's primary proposal for misbehavior reporting proposes that the V2V equipment in vehicles send misbehavior reports to the V2V security entity. Such reports will include the received BSM (which appears to be faulty) and other information, such as:
As explained above, by evaluating misbehavior reports, the security entity envisioned may identify misbehaving V2V devices in vehicles and place information about those devices on the CRL. The security entity then would make updated CRLs available to V2V system participants and other system parts on a periodic basis to alert OBEs to ignore BSMs coming from the defective V2V equipment. There is only one type of CRL. Current system design plans do not include placing individual security certificates on the CRL. Rather, each CRL would contain information (specifically, linkseed1, linkseed2, time period index, and LA Identifiers 1 and 2) that OBEs could use to calculate the values of the certificates in messages that should be ignored.
From the inception of the research program that would result in V2V technology over a decade ago, NHTSA has worked with its research partners, CAMP and the VIIC, to purse an integrated, privacy positive approach to the V2V system. For this reason, the V2V system described in our proposal would contain multiple layers of technical, policy and physical controls to help mitigate potential privacy impacts system-wide. Below, we discuss the privacy impact-mitigating controls that would apply to each of the three privacy-relevant data flows discussed above. In the course of this discussion, we detail some of the key privacy controls that we expect to see in a National SCMS (based on the current SCMS technical design, see Section V.B.2).
Under our proposals, the BSM would not contain information that directly identifies a private motor vehicle (as through VIN, license plate or registration information) or its owner or driver. BSM transmissions also would exclude data “reasonably linkable” or “as a practical matter” linkable to a specific individual.
Another critical control would help mitigate privacy risks created by signing messages. At the time of manufacture, a vehicle's V2V equipment would receive 3 years' worth of security certificates. Once the device is initialized into the V2V security system, the security system would send to the device keys on a weekly basis that will unlock 20 certificates at a time. During the course of the week, a vehicle's V2V equipment would use the certificates on a random basis, shuffling certificates at five minute intervals. These certificates would enable a vehicle's V2V system to verify the authenticity and integrity of a received BSM or, in the alternative, identify V2V messages that should be ignored (
V2V equipment in vehicles would transmit safety information in a very limited geographical range, typically only to motor vehicles within a 300 meter radius of a V2V device. This limited broadcast is sufficient to enable V2V crash avoidance applications in neighboring vehicles, while limiting access by more geographically distant vehicles that cannot benefit from the safety information.
Neither V2V devices in motor vehicles, nor the V2V system as a whole would collect or store the contents of V2V messages sent or received, except for the short time period necessary for a vehicle to use messages for safety applications or in the limited case of
NHTSA has proposed performance requirements that include use of FIPS–140 Level 3 hardware security module (HSM) in all V2V equipment in motor vehicles. This physical computing device would safeguard and manage a vehicle's security certificates and guard against equipment tampering and bus probing. This type of secure hardware provides evidence of tampering, such as logging and alerting of tampering, and tamper resistance such as deleting keys upon tamper detection.
NHTSA would require that motor vehicle manufacturers, at a minimum, include a standard V2V Privacy Statement in all owner's manuals (regardless of media) and on a publicly accessible web location that current and future owners may search by make/model/year to obtain the data access and privacy policies applicable to their motor vehicle, including those specifically addressing V2V data and functions, as detailed in Section IV.C. As discussed above, NHTSA also considering the possibility of requiring additional methods for communicating the V2V Privacy Statement to consumers and seeks comment on the most effective methods for providing such notice.
When a V2V device in a motor vehicle appears to malfunction, the V2V system would collect and store only BSMs relevant to assessing the device's performance, consistent with the need to address the root cause of the malfunction if it is, or appears to be, widespread.
Like all security materials exchanged between V2V equipment in vehicles and a security authority, misbehavior reports would be encrypted. This would help limit but not prevent potential privacy risks that could stem from unintended or unauthorized access to data in misbehavior messages. Specifically, this would reduce the possibility that BSMs contained in misbehavior reports may provide information about the past location of a reporting vehicle (and thereby of the vehicle owner's activities and relationship between the two vehicles), or of vehicles located nearby the reporting vehicle.
A key privacy-mitigating control applicable to this data stream is the technical design for the security entity proposed by NHTSA, which provides for functional and data separation across different organizationally and/or legally separate SCMS components. This technical control is designed to prevent individual SCMS entities or insiders from using information, including from misbehavior messages, for unauthorized purposes. The technical separation of information and functions within the security entity could be overcome only by a specific entity within the security organization (called the Misbehavior Authority or MA) after determining, based on misbehavior messages, that a vehicle's V2V equipment is malfunctioning and needs to be blacklisted (
An example of information separation serving as a privacy control is evident in one particular component of the security organization—the Location Obscurer Proxy (LOP). Misbehavior messages (like other communications between a vehicle's V2V equipment and the security entity) travel through the LOP entity to get to other parts of the security organization. The LOP would strip out information from the misbehavior message that otherwise would permit other parts of the security organization (like the MA) to associate a vehicle's V2V messages with its geographic location. This technical separation of geographic information from messages transmitted between vehicle's V2V systems and the security entity is designed to prevent individual security entities or V2V security organization insiders from colluding to use BSM information inappropriately or to track individual vehicles.
The design for the V2V security entity (or SCMS) calls for the separation of some critical functions into legally distinct and independent entities that, together, make up the SCMS. This legal separation of security entity governance is designed to prevent individual entities or V2V security organization insiders from colluding to use information for unauthorized purposes such as tracking individual vehicles.
It is possible that information regarding a vehicle's revoked security certificates could enable all revoked certificates to be associated with the same vehicle. This might be used to persistently identify a vehicle during the vehicles' activities. In order to mitigate this potential privacy risk, once a vehicle's V2V system determines that information about it is on the CRL and that the security organization has revoked its security certificates, it would stop broadcasting the BSM.
Based on our analysis of the privacy relevant data flows and controls discussed above, we identified five potential privacy scenarios for further research and/or consideration by the Agency. Table IV–1 below summarizes the scenarios and corresponding system transactions identified for further analysis.
As noted above, based on our exploration of privacy impacts and analysis of the V2V system design to date, it is NHTSA's expectation that the multiple technical, policy and physical controls incorporated into the design of the V2V system detailed will help to mitigate privacy risks to consumers. Methods of tracking vehicles, such as surveillance and use of specialized GPS devices already exist and may be easier, less expensive, and require less skill and access than would vehicle tracking using V2V messages or other information in the V2V system in certain conditions. Nevertheless, DOT is continuing to work with privacy experts to perform dynamic modeling and explore the viability of additional controls that might further mitigate any potential impacts demonstrated in the privacy-relevant transactions identified above for further analysis. The planned implementation by DOT of a PoC security entity (SCMS) and related PKI policy research will provide an operational environment in which to continue to explore the viability of additional privacy-mitigating controls applicable to the V2V System, as currently envisioned and designed. We seek comment on whether there are other potential privacy risks stemming from the V2V systems proposed that the agency should investigate and, if so, what specific risks.
NHTSA received numerous comments from individuals in response to the ANPRM concerning the potential for V2V technology to contribute to electromagnetic hypersensitivity (“EHS”). Overall, the comments focused on how a national V2V deployment could potentially disadvantage persons that may be electro-sensitive.
According to the World Health Organization (WHO), EHS is characterized by a variety of non-specific symptoms that are attributed to exposure to electro-magnetic frequencies (“EMF”) by those reporting symptoms. The symptoms most commonly experienced include dermatological symptoms (redness, tingling, and burning sensations) as well as neurasthenic and vegetative symptoms (fatigue, tiredness, difficulty concentrating, dizziness, nausea, heart palpitation, and digestive disturbances). The collection of symptoms is not part of any recognized syndrome. Reports have indicated that EHS can be a disabling problem for the affected individual; however, EHS has no clear diagnostic criteria and it appears there is no scientific basis to link EHS symptoms to EMF exposure. Further, EHS is not a medical diagnosis, nor is it clear that it represents a single medical problem.
The Federal Communications Commission (FCC), federal health and safety agencies such as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) have been actively involved in monitoring and investigating issues related to radio frequency (“RF”) exposure. Federal, state, and local government agencies and other organizations have generally relied on RF exposure standards developed by expert, non-government organizations such as the Institute of Electrical and Electronics Engineers (IEEE) and the National Council on Radiation Protection and Measurements (NCRP).
Several U.S. government agencies and international organizations are working cooperatively to monitor research on the health effects of RF exposure. The World Health Organization's (WHO) International Electromagnetic Fields Project (IEFP) provides information on health risks, establishes research needs, and supports efforts to harmonize RF exposure standards. Some health and safety interest groups have interpreted certain reports to suggest that wireless device use may be linked to cancer and other illnesses, posing potentially greater risks for children than adults. While these assertions have gained increased public attention, currently no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses.
In the U.S, IEEE has developed limits for human exposure to RF energy, and these limits have been widely influential around the world and require periodic updates. Internationally, the exposure limits for RF energy vary widely in different countries. A few countries have chosen lower limits, in part due to differences in philosophy in setting limits. IEEE and most other
Many comments to the ANPRM were related to the implementation and expansion of “smart grid” or “smart meter” technology being deployed in the United States. The “smart grid” generally refers to a class of technology used to bring utility electricity delivery systems into the 21st century, using computer-based remote control and automation. These systems are made possible by two-way communication technology and computer processing that has been used for decades in other industries.
Federal legislation was enacted in both 2005 (Energy Policy Act, or “EPAct”) and 2007 (Energy Independence and Security Act, or “EISA”) that contained major provisions on demand response, smart metering, and smart grids.
In the last several years, some consumers have objected to deployment of the “smart” utility meters needed for DOE's Smart Grid implementation. Smart meters transmit information via wireless technology using electromagnetic frequencies (EMF). Smart utility meters operate in the 902–928 MHz frequency band and the 2.4 GHz range, which is where the human body absorbs energy less efficiently and the Maximum Permissible Exposure (MPE) limits for RF exposure are less restrictive.
Smart utility meters in households or businesses will generally transmit data to an access point (usually on utility poles) once every four hours for about 50 milliseconds at a time. Once the smart grid is fully active, it is expected that smart utility meters will transmit more frequently than once every four hours, resulting in a higher duty cycle.
A typical “smart” utility meter device uses a low power one watt wireless radio to send customer energy-usage information wirelessly.
The public objections to these deployments have been based on concerns over potential health effects. Specifically, some consumers are concerned about exposure to wireless RF emissions emanating from smart meters in their homes, which has led to legal challenges for smart meter programs. Due to these objections, several state commissions authorized an “opt-out” provision for individual consumers who do not wish to have smart meters installed in their homes. In response to public perception of the technology, the Department of Energy pursued development of outreach materials citing current scientific and industry evidence that radio frequency from smart grid devices in the home is not detrimental to health. The materials are being provided to state commissions, utilities in the DOE Smart Grid Program, and other community-based organizations in effort to convey
Many consumer and industrial products use or produce some form of electromagnetic energy. Various agencies within the Federal Government have been involved in monitoring, researching, or regulating issues related to human exposure to radio frequency radiation. A summary of the federal Government's role is provided below:
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The Americans with Disabilities Act (“ADA”) does not contain a lengthy list of medical conditions that constitute disabilities. Instead, the ADA provides a general definition for “disability,” which requires a showing of a having a physical or mental impairment that substantially limits one or more major
To date, the agency is unaware of any finding that EHS constitutes a disability. As mentioned above, the NIBS IEQ provided some recommendations, but did not conclude the EHS was in fact a disability. The agency is unaware of any further actions, either by the Access Board or some other entity, which recognized EHS as a disability or any science that would prove this.
Globally, some nations have heightened awareness of EHS by requiring provisions to accommodate those claiming its effects. In Sweden, for example, these provisions could include unique lighting fixtures and/or computer monitors for places of employment. The Canadian Government, The Canadian Human Rights Commission (CHRC) has also recognized EMS, describing environmental sensitivities as follows: “The term “environmental sensitivities” describes a variety of reactions to chemicals, electromagnetic radiation, and other environmental factors at exposure levels commonly tolerated by many people.”
The agency appreciates the ANPRM comments bringing attention to V2V technology and a potential relationship to EHS. The agency takes these concerns very seriously. The literature review conducted by the agency highlighted long, and still ongoing, activities to better understand the relationship to electromagnetic radiation and the symptoms of individuals reporting electromagnetic hypersensitivity. As a Federal government agency focused on automotive safety, NHTSA acknowledges the expertise of our sister agencies such as the Federal Communications Commission and the Food and Drug Administration, among others, which have been involved with electromagnetic fields, in parallel with the pervasiveness of cellular phone deployment in the United States and globally.
The FDA currently states in response to the question, “Is there a connection between certain health problems and exposure to radiofrequency fields via cell phone use?” that “The results of most studies conducted to date indicate that there is not. In addition, attempts to replicate and confirm the few studies that did show a connection have failed.”
V2V devices are currently certified for use in the 5.9 GHz frequency allocation by the FCC, and the agency additionally anticipates any future certifications by the FCC will ensure that V2V devices will comply with all criteria related to RF emissions.
Currently, the FCC publishes a very helpful guide on “Wireless Devices and Health Concerns,”
V2V devices would operate at distances to humans significantly further that the distance relationship of a portable cellular phone to its operator, where the device is generally carried on a person or pressed directly to the ear. V2V devices used in the Safety Pilot operated at similar power levels to handheld cellular phones and the agency expects power levels for production deployment to remain consistent with the levels used in the Safety Pilot activities. Based on these two conditions, we believe it is reasonable to anticipate that any new guidance issued by the RFIAWG and its participating federal agencies on future cellular phone or wireless device usage could potentially be relevant to V2V devices, albeit in a somewhat diminished magnitude based on the distances the devices will operate in relation to persons.
As part of exploring different methods of authenticating V2V messages, the agency has examined in addition to the primary message authentication proposal's PKI base SCMS (single-root approach), two potential approaches to ensuring V2V messages are secure. These include a vehicle based approach, and an approach where multiple roots of confidence would be utilized. Each approach is described in the following sections.
For V2V communications to work effectively and as intended to facilitate crash avoidance safety applications, it is critical that users of the network have confidence in the validity of basic safety messages received from other system users—indistinct users whom they have never met and do not know personally. For this reason, DOT and its research partners have developed a sophisticated security system that allows for the creation and management of digital security credentials (referred to as “certificates”) that enable users to have confidence in one another, and the system as a whole. In fact, the security system designed to create confidence in the V2V environment is a more complex and sophisticated version of the same public key infrastructure (PKI) system that consumers and merchants use every day to verify credit card transactions at the supermarket or make on-line purchases (any time you see the “https,” for example). PKI systems also have long been used by the Federal government and corporate America,
In the V2V context, system participants use digital certificates to validate the integrity of safety messages exchanged 10 times per second by V2V devices in motor vehicles. The body of each safety message is unencrypted; the sender signs the message with a digital certificate and the receiver checks to ensure that the signature is valid before relying on the message content. This PKI verification process requires an organization referred to as a Security Credential Management System (SCMS) to provide those necessary signing credentials (
When NHTSA issued its V2V Readiness Report, for a variety of reasons discussed therein, the agency envisioned that the SCMS would be established, funded, and governed primarily by one or more private entities—possibly a consortium of automobile and V2V device manufacturers—with limited Federal involvement. Through comments to the ANPRM, the SCMS RFI process, collaborative research with the VIIC, and additional DOT policy research, NHTSA now has developed several different potential processes by which a V2V SCMS might be stood up, owned, operated, and governed. DOT is committed to playing a central pre-deployment role in developing the organizational framework of a viable and sustainable V2V SCMS, as well as the policies and procedures required to support the SCMS—depending on comments received in response to this NPRM. In order to do so, DOT has expanded the scope of its pre-deployment policy research significantly to include several additional critical activities. DOT intends to work closely with experienced PKI and organizational management consultants and stakeholders to:
• Deploy a Proof-of-Concept SCMS based on the current design to support additional privacy and security research, as well as the certificate needs of CV Pilots funded by DOT and early industry adopters of V2V;
• Develop policies and procedures (based on industry best practices, standards, comparable privacy-sensitive PKIs, and individual input from SCMS and V2V stakeholders) that could be used to govern the organization, accreditation, and operation of a V2V SCMS and its components, including drafts of an SCMS Certificate Policy (CP), Certification Practice Statement (CPS), and Privacy Policy;
• Develop a model for, and then prototype a private, multi-stakeholder governance entity (on the basis of existing multi-stakeholder models) that could support deployment of an operational SCMS.
• Develop one or more public-private governance models (on the basis of existing comparable organizations) that could support deployment of an operational SCMS, given appropriate funding.
We are hopeful that this critical technical and policy research will provide government and private stakeholders with a detailed blueprint of several viable options for standing up an SCMS. One promising path that DOT actively will continue to explore is that of working with a private sector, multi-stakeholder entity that could serve as an SCMS Manager to deploy, govern, and coordinate operation of a fully-operational V2V SCMS, in which DOT would play an ongoing advisory role. However, DOT's planned research also encompasses robust exploration of other paths that could support the deployment of a sustainable, operational V2V SCMS, given appropriate public and/or private funding.
We begin this discussion with a description of the technical and organizational design of the SCMS that will support V2V, V2I, and V2X communications. We then summarize and address comments on the technical design received by NHTSA in connection with the ANPRM, V2V Readiness Report, and RFI process. As the foundation to a discussion of SCMS governance, we identify the diverse group of public and private entities and stakeholders with interests in deployment of a V2V SCMS (together described in this document as members of a “SCMS ecosystem” or “SCMS industry” requiring governance for successful deployment of V2V communications). We summarize and address governance comments received in response to the ANPRM, V2V Readiness Report, and during the RFI process. We detail DOT's planned deployment of the proof-of-concept (POC) SCMS. We then detail planned work with experts and SCMS “industry” participants to develop policies and procedures for the National SCMS, and to flesh out one or more a viable model for organization, ownership, and governance of the National SCMS. Following is a discussion of ICANN as a comparative industry example of successful, private sector multi-stakeholder governance, the evolution of which is instructive to government and private sector stakeholders in the SCMS ecosystem. Finally, we outline NHTSA's plan to issue, on the basis of this additional PKI and organizational research, a policy statement on SCMS governance on which we will seek comment from stakeholders representing all aspects of the SCMS ecosystem.
The technical design for a SCMS reflects the processes associated with certificate production, distribution, and revocation, and illustrates how these SCMS functions interact with each other and with OBE. Several functions work together in a PKI system. The V2V SCMS is based on a standard PKI design to which additional functions have been added specifically to address the identified security and privacy needs of V2V, V2I, and V2X technologies. The term “pseudonym functions” is used to refer to those functions responsible for creating the short-term certificates used by the OBE in V2V messaging. The term “pseudonym” is used to indicate that short-term certificates contain no unique or personally-identifying information about users or their vehicles, but still allow users to participate in the system, in essence allowing use of a pseudonym. The pseudonym functions differ from those functions that take part in the “bootstrap” process, described later in this section. Pseudonym functions create, manage, distribute, monitor, and revoke short-term certificates for vehicles.
These functions are listed below in alphabetical order:
Distinct from the pseudonym functions that execute the short-term certificate processes are the functions that carry out the “bootstrap” process (the initialization of the device into the system). The bootstrap process establishes the initial connection between OBE and the SCMS. This process is characterized by its chief
The functions within the bootstrap process are listed below in alphabetical order:
A brief description of each SCMS function is provided in Table V–1.
The technical design of the SCMS is focused on communications and activities of the various PKI functions. Among other fundamental principles, the technical design for the system incorporates a “privacy by design” approach that separates information and organizational functions in order to mitigate potential risks to consumer privacy. The model depicted in Figure V–1 below illustrates one way these functions could be grouped into legal/administrative organizations within the larger SCMS “industry,” while still protecting consumer privacy appropriately and ensuring secure, efficient communications.
Blue boxes in the diagram represent Certificate Management Entities (CMEs), or groupings of SCMS functions. Functions carried out within the CMEs are represented by the white boxes. For purposes of this illustrative model, these groupings clarify those functions that may be owned by multiple organizations, versus those that may be best handled in a more centralized manner. However, as noted in the V2V Readiness Report, ultimately, the decision as to which SCMS functions may be perform by a single entity and whether central and non-central functions may be combined are matters of governance defined by the system's Certificate Policy. For this reason, if this PKI technical design for the SCMS is implemented, the final decision on which organizations can be owners/operators and how scope and responsibility will be divided among the CMEs will likely be a central policy issue determined jointly by NHTSA and the entity that takes the lead in governing and coordinating operation of the V2V SCMS.
The design of the Security Credential Management System has gone through many iterations and adjustments throughout V2V research program as the system has evolved to meet revised or additional needs. Additionally, evolutionary changes have occurred as a result of implementation and operation in support of the USDOT's Safety Pilot Model Deployment.
To better understand maturity and robustness of the SCMS, the USDOT retained the MITRE Corporation to conduct an independent evaluation and risk assessment of both security and privacy design features of the SCMS. This work was used to inform continuing refinements and provide USDOT with a basis for future policy and technical decisions related to deployment.
MITRE was directed to conduct: (1) An independent and comprehensive evaluation and risk assessment of the July 2013 SCMS design for a V2V connected vehicle environment; and (2) a technical analysis of the potential privacy risks of the entire V2V system that includes security but also focuses on the operation of V2V communications in support of crash avoidance safety applications.
The independent evaluation by MITRE identified security requirements needed to support secure V2V communications, and revisited threats and risks in relation to the design and how the identified requirements addressed the potential risks. The results of the SCMS design evaluation are detailed in Final Requirements Report, September 11, 2015, Report Number: FHWA–JPO–15–235, and Final Design Analysis Report, September 18, 2015, Report No: FHWA–JPO–15–237.
The MITRE evaluation was based on the previous 6 years of research that investigated core issues related to: Securing DSRC communications; privacy implications; achieving interoperability; governance and organizational structure; and identifying and addressing communication threats and risks. The Government provided reports associated with these studies to the MITRE Corporation as a basis to conduct their evaluation and identify the minimum requirements of the SCMS that would support the three primary components of the system that are:
1. V2V devices that support DSRC messages broadcast to and received from other devices; and the ability to send/receive messages to/from the Security Certificate Management System for digital security credentials that provide the means of message authentication;
2. A Security Certificate Management System (SCMS) which is the security organization that issues, distributes, and revokes digital security credentials. The
3. A communications network that facilitates two-way encrypted communications between an SCMS and a DSRC device (to include both vehicles and roadside units).
The MITRE evaluation focused on a revised SCMS technical design that benefited and evolved from knowledge gained during operation of a technical prototype implemented as part of the Safety Pilot Model Deployment. This prototype implementation exercised initial technical functionality needed to produce and manage security certificate material for the deployed devices, and, there was a rudimentary technical organization and management structure. This early SCMS prototype provided technical data related to PKI architecture and functions, and there were new insights gained regarding the over-the-air transmission of security materials and use of alternate communication media that include DSRC and cellular.
Prior to the MITRE evaluation were years of research conducted to understand and develop the SCMS design. The first forma research was conducted in 2010. CAMP commissioned 5 leading communication/internet security entities to assess the security needs and identify a security approach for DSRC communications. Security Innovations, Escrypt, Telcordia Technologies Carnegie Mellon University, University of Illinois at Urbana-Champaign, and General Motors India Science Lab investigated aspects of the system and collaborated on recommendations. Security Innovations and Escrypt conducted a risk analysis and identified initial risks related to broadcast communications among vehicles and devices. These risks included denial of service attacks, Sybil attacks, altered messages, replay of messages, and compromised nodes. The risks were rated and mitigation techniques identified. The risk analysis was combined with investigations by: Telcordia Technologies (design and analysis of applicable and scalable PKI systems); Carnegie Mellon and University of Illinois at Urbana-Champaign (adaptations to address privacy); and General Motors India Lab (misbehavior detection solutions). The overall recommendation was a PKI based system with frequently changing certificates.
Two years later after preliminary work was done on the SCMS design, USDOT and CAMP conducted a risk assessment based on the NIST 800–30 publication, Guide for Conducting Risk Assessments. Using the NIST framework, attackers and attack scenarios were identified. Identified attackers included, for example, a clever outsider and a well-funded foreign hostile organization. Attack scenarios included local and widespread Sybil attacks, Root Compromise, Intermediate Certificate Authority Compromise, Registration Authority Compromise, False Misbehavior Report, False Certificate Requests, and Trust Management Compromise. For various attack scenarios risk was estimated based on likelihood and impact. The estimates were based on a modified NIST risk matrix given the NIST matrix did not rate any scenario as “high”. The risk assessment identified Root Compromise, Intermediate Certificate Authority Compromise, Registration Authority Compromise, and Trust Management Compromise to have high risk even after possible mitigation techniques were considered. This work informed the next stage of SCMS design refinement which included (among other refinements) an objective of finding new innovative techniques to move high risks to medium risks, and medium risks to low risks.
An updated high level SCMS design was completed July 2014 and documented via 4 separate but connected reports that included: (1) Study 1, Security Credential Management System, Final Report, July 2014; (2) Vehicle Safety Communications Security Studies Final Report, July 2014; (3) Study 3 Final Report, Definition of Communication Protocols Between SCMS Components, July 2014; and, (4) Phase 2 Final Report Volume 3: Security Research for Misbehavior Detection, Nov 2014.
These reports formed the base of the information available to MITRE regarding the latest design of the SCMS.
Other reports provided to MITRE included past research findings concerning interoperability, initial communications security needs, and SCMS organizational analysis.
MITRE also had access the standards referenced in the reports that included SAEJ2735, IEEE 1609, and the latest input to SAEJ2945 that was being developed during the MITRE evaluation.
MITRE used the information described above to identify the minimum or essential requirements needed for a SCMS design to support the three primary components identified above (Final Requirements Report—September 11, 2015, Report Number: FHWA–JPO–15–235), and an assessment of how the latest SCMS design aligns with these minimum requirements (Final Design Analysis Report—September 18, 2015, Report No: FHWA–JPO–15–237). The Requirements Report also includes a risk assessment where MITRE reviewed past risk assessments and identified threats, threat actors, attacks, vulnerability, consequence, likelihood, impact severity, and risk in relation to the minimum requirements and latest design information base on the NIST 800–30, Guide for Conducting Risk Assessments.
The risk assessment assessed a number of possible threats to the system, some described by the CAMP reports, others identified by the MITRE team. Of the twenty-one threats identified, MITRE concluded that fourteen may be mitigated by a system design that conforms to the minimum requirements, but for seven of the threats, no system design requirements seemed to apply.
The MITRE Final Design Analysis report evaluates the SCMS design (as documented in the above listed Reports from CAMP) against a list of derived minimum requirements from the Final Requirements Report.
MITRE noted that the design of the SCMS has several innovative elements that deserve further development and analysis in future design revisions and system operational implementations. The list below identifies areas
• Required cyber-resiliency capabilities, such as designs for continuous monitoring for proper operation, anomaly detection functions, and systematic software reset of installed software components.
• Misbehavior Authority (MA) design. The MA constitutes a critical single point of failure as conceived. Additionally, it presents enticing points for adversary compromise against key system objectives surrounding trustworthiness, misbehavior handling, and acceptance.
• Design of capabilities that would enable secure updating of on board equipment (OBE), Security Credential Management System (SCMS), and other component software, especially given the complexity and lifetime of the system and its components.
• Completion and clarification of the specifications of the operation and reporting functions around misbehavior, blacklist, revocation, and of the data elements maintained.
• Evaluation of the reduction of risks in privacy protection with the pseudonym certificate (PC) design instead of other, less complex, yet suitable privacy sensitive designs.
The above areas will be addressed by USDOT and its industry partners as the SCMS design continues to be refined, and as part of the implementation and operation of the first-ever fully representative SCMS proof of concept (PoC).
Further, even though it is not yet clear whether the SCMS should be designated as a “critical national infrastructure”, once the SCMS Proof-of-Concept becomes operational, USDOT intends to apply the NIST Framework for Improving Critical Infrastructure Cybersecurity, (currently, Version 1.0, February 12, 2014). Much of the guidance provided in The Framework for Improving Critical Infrastructure Cybersecurity is directed at organizational practices to identify cybersecurity risks; protect against threats and detect cybersecurity events; and respond to and recover from cybersecurity breaches. As the SCMS PoC organizational design and governance policies mature and are actually being implemented, then USDOT will be able to apply the NIST Framework to help identify and mitigate residual risks.
In should be noted that USDOT (and MITRE) were precluded from applying the NIST Framework for Improving Critical Infrastructure Cybersecurity because the design of the SCMS was only conceptual (not yet implemented) and detailed organizational designs, governance structures, and operational policies and procedures remained to be completed and implemented. However, the risk assessment performed by MITRE did follow the basic process of identifying the state of the current system and developing a target state of cybersecurity to obtain through refinement and additions to technical, operational and governance aspects of the system. Examples include the MITRE risk assessment, the investigation regarding the role, functions, and governance responsibilities of an SCMS manager, and the analysis and evaluation of cybersecurity protection needs that moved the protection requirement from FIPS–140 Level 2 to Level 3. The SCMS design continues to mature to address risks such as Root Compromise
Further, it should be understood that the SCMS PoC is being implemented at this time by USDOT to serve USDOT sponsored demonstrations and early deployments—and to allow for a better understanding both technically and operationally of how the SCMS may be deployed at a national level. To this extent, the designs, methods, policies and procedures implemented to ensure secure communications, manage privacy risks, and address cybersecurity threats will need to be accepted and implemented by the private entities that choose to establish and operate a National SCMS.
We welcome comment concerning: The cybersecurity risks associated with the SCMS; the analysis methods used to date to assess risk; and what framework/assessment methods should be used during SCMS PoC implementation and operation; and any other information regarding possible threats and risk that have not yet be identified.
As discussed in Section II.F, NHTSA issued a Request for Information (RFI)
The purposes of the RFI were to help the agency: (1) Become aware of private entities that may have an interest in exploring the possibility of developing and/or operating components of a V2V SCMS; (2) Receive responses to the questions posed about the establishment of an SCMS provided in the last section of the RFI; and (3) Obtain feedback, expressions of interest, and comments from all interested public, private, and academic entities on any aspect of the SCMS.
NHTSA received twenty-one responses to the RFI with approximately eleven of the responses indicating an interest in running aspects of, or the entire, SCMS. The respondents included vehicle manufacturers, software component developers and suppliers, cryptography experts, certificate management entities, satellite and cellular service providers, and academia.
Deployment of a V2V communications system, and of an SCMS to support confidence in V2V communications, are unprecedented activities. For this reason, the agency believed it was appropriate to meet with a subset of respondents, the eleven expressing interest in operating aspects of the SCMS or the SCMS as a whole, to ensure there was a shared understanding of respondents' comments, potential role in an SCMS, and the agency's position on a possible SCMS creation and implementation. The agency was able to meet with ten of the eleven respondents that had indicated interest in operating aspects of a potential SCMS. One respondent, Verizon, was not able to meet with the agency. The meetings took place between January and March of 2015 at DOT headquarters either in person or via teleconference.
Overall, the meeting discussions were very informative and the agency greatly appreciated the time and effort the respondents expended following-up their RFI responses. In general, based on the RFI comments and the discussions with respondents, the team identified the following key themes concerning various aspects of the SCMS.
• Government must play a significate role in the establishment and management of the SCMS.
• Business opportunities are seen at the CME and Security services levels.
• Security system entities understand the relationship of the design to privacy, with some indicating they may be able to find some efficiency as they develop their systems.
• One respondent indicated that the design sets a new paradigm that other regions may adopt in the future.
• An SCMS Board of Directors needs to be initialized by the Federal Government—specifically citing the existing ICANN Model,
• Establishment of the SCMS Manager would require capital/initial funding.
• One entity discussed being the SCMS Manager.
• One entity indicated they would build and operate the entire SCMS system but would need another entity to be the SCMS Manager.
• Little information provided about potential financial models.
• Possible revenue sources included: CME license fees, certificate subscription fees, yearly service fees.
• To move forward with development/deployment, all indicated they need more information regarding the Government role, the SCMS Manager, and details about the security design.
• Liability was a major concern, with a strong interest from all participants in some form of Federal indemnification.
The University of Michigan's Transportation Research Institute (UMTRI) met with representatives from the NHTSA V2V NRPM Team to discuss their SCMS RFI response. UMTRI's response provided views regarding privacy, governance, potential SCMS component separation and linkage. UMTRI's RFI response indicated other parties may be better suited to respond on specific governance organizational aspects but supported a public-private partnership model for overall governance, a potential model discussed in the V2V Readiness Report. UMTRI went one step further by offering the suggestion of an additional “public-private-academic” model that could potentially benefit from an academic partner's fundamentally neutral stance, little commercial interests and direct access to significant research resources. More specifically, UMTRI expressed interest in participating in the SCMS Manager and potentially being “a proper candidate” for operating the two Linkage Authorities identified in the current system design. UMTRI indicated their regular work on classified projects, existing infrastructure, and their experience “running highly privacy sensitive computer systems such as the University of Michigan Health System support their interest in operating the Linkage Authorities.”
UMTRI indicated other parties may be better suited to provide a response regarding financial sustainability. In our meeting, however, UMTRI indicated they could possibly pose the SCMS financial sustainability proposition to their MBA students as a potential project.
When discussing potential SCMS operational and policy standards, UMTRI indicated support for NHTSA's approach that SCMS components like the CME should be legally distinct. Support for keeping SCMS components legally separate is rooted in the need to ensure privacy and based on the key notions that firewalls within a single legal entity might not be sufficient to ensure privacy, different legal organizations will most likely protect a data center with a differing technologies, and that distinct legal organizations inhibit the possibility of a single point of entry into multiple systems.
UMTRI suggested two types of operational policies, Type 1 for applications that are under governance of SCMS Manager (
Certified Security Solutions, Inc. (CSS) represented the exposure to new potential stakeholders, suppliers, and services V2V is bringing to NHTSA. CSS supplies security solutions such as security certificate management systems and managed public-key infrastructures (PKI). CSS also provides digital security consulting services related to PKI and identity and access management. Historically, the agency has not interacted with suppliers such as CSS in the course of regulating vehicle manufacturers and, similarly, CSS has been involved with industries far removed from the auto industry, such as supporting digital certificates for surgical devices like heart pacemakers.
CSS indicated interest in three areas of the SCMS: (1) Participation in an advisory board regarding the policy, specifications, and requirements of the SCMS, V2V initiative, and its components, (2) creating components and solutions, such as the Registration Authority or Device Configuration Manager, and (3) creating software and/or managed service offerings for operations and oversight such as “dashboards” used for monitoring system performance.
CSS's response to the RFI centered on the first question related to governance. CSS foresees a large and diverse array of participants involved in the operation of a National SCMS deployment. As such, CSS indicated examples of “self-governance” advisory boards that have, “proven to be relatively effective in improving the interoperability and overall security of their respective areas.” In their view, CSS suggested that this sort of overall model “makes the most sense when considering the magnitude and importance of an initiative such as the SCMS.” These examples included:
• The certification authorities (CA)/Browser forum (
• The Internet Engineering Task Force (IETF) (
• The Industrial Internet Consortium (
The agency's meeting with CSS yielded additional details on their written response along with ideas for potential approaches to a National SCMS deployment. At the highest level, CSS indicated a potential SCMS advisory board would be responsible to define the appropriate certificate policy standards to ensure consistent and successful implementations that will be required for the anticipated multiple CAs deployed across multiple systems.
CSS indicated that utilizing multiple root CAs may benefit from redundancy versus a single root CA, and also brought forth the notion of “bridged” root CAs that could be cross-signed to allow different vehicle or device manufacturers to “trust” each other while maintaining their own “root of trust,” enhancing confidence in message exchanges.
SCMS financial sustainability discussions were limited to existing approaches for certificate management services, where per certificate fees could potentially be avoidable.
Representatives from Trustpoint Innovation Technologies met with the V2V NPRM Team to discuss their submission to the RFI response. Trustpoint was founded in 2012 by Dr. Scott Vanstone and Sherry Shannon. Mr. Vanstone was also a co-founder of Certicom, whom also provided a response the SCMS RFI, which was acquired by BlackBerry in 2009.
Trustpoint has been involved with the SCMS and security design research conducted with the agency's research partner, CAMP. Trustpoint's response to the RFI focused on their interest in helping to develop deployment-ready SCMS components such as the Pseudonym CA, Registration Authority, Linkage Authority, Enrollment CA, Intermediate CA, and Root CA.
Trustpoint indicated that significant investment and development in software and testing will be necessary to deploy a National SCMS. This is based on their belief the PKI approach used for SCMS research will need to be extended and extensively proven for a production system, based on the need for a new software stack
When meeting with the agency, Trustpoint expanded on their views of a National SCMS deployment. The key discussion points included cryptography approaches, attack vectors, participation in a consortium, and thoughts on production deployment that includes clear policies and procedures, and thoughts on device level security. In addition, Trustpoint reviewed the cost model the agency provided with the ANPRM and V2V Readiness Report.
Trustpoint discussed how Elliptic Curve Cryptography (ECC) is, in their opinion, the only feasible security solution for resource-constrained environments where processing power, power consumption, storage space, and bandwidth are limited. In comparison to RSA,
Trustpoint supported the development of a “test bed” for components that could operate in a National, deployed system. Successful deployment and verified operation in the test bed could be considered “certified for deployment.” Components certified in the test bed would support an “off-the-shelf” software component approach that, for example, would yield Registration Authorities for each manufacturer. Trustpoint stressed the need to have standardized components for consistent system interaction while allowing each OEM to manage their vehicle fleets individually versus a central management approach. The SCMS Proof of Concept project currently under development by the agency and CAMP, to support connected vehicle test beds that will be deployed regionally along with expansion of the Safety Pilot Model Deployment environment more broadly throughout southeastern Michigan, could potentially serve as a test bed for broader, National system deployment. Trustpoint suggested, however, that additional definition and implementation will be needed in the areas of operation, management, and auditing for a successful National SCMS deployment.
Trustpoint suggested the cost model provided by the agency and used in the V2V Readiness Report cost calculations needed some adjustment in the areas of bandwidth, hardware security module, and software development costs. More specifically, Trustpoint indicated replication for hardware security would be needed for redundancy and continuous, uninterrupted system operation. Trustpoint estimates the annual issuance of 36 million certificates will have additional bandwidth needs beyond that estimated in the cost model. Finally, Trustpoint believed the software development cost used in the cost model was substantially underestimated.
Dura Automotive Systems, LLC is a Tier 1 supplier to the automotive industry supplying structural body systems, mechatronic control systems, and exterior systems including window systems and exterior trim. Dura responded to the SCMS RFI with a vision of how the SCMS Manager could be formed, implemented and sustained. Dura indicated they would like to fulfill the role of developing and implementing the SCMS governance board and participating as a member. Dura was the only respondent indicating interest in taking the role of developing functions at the SCMS Manager level and above.
Dura favored a private model governance approach for the SCMS, excluding some identified issues. In their response, DURA identified two successful examples of both private and public models currently in place that address requirements similar to those identified in the RFI. A private model example is the Internet Corporation for Assigned Names and Numbers (“ICANN”),
DURA specifically suggested, “a policy statement from the Department of Transportation advising the public that the U.S. government is prepared to enter into an agreement with a new, not-for-profit corporation formed by private sector transportation multi-stakeholders to administer the Security Credential Management System” and suggested the corporation be referred to as, “the Inter-Connected Automotive Safety Network (“ICASN”). Additionally, Dura suggested that its incorporation, governance and operation mirror as much as possible to that of ICANN.”
Dura suggested a subscription-based approach for ongoing SCMS sustainability and further recommended “aligning the subscription period with vehicle licensing/annual license plate renewal.” Dura also commented on how liability for system operation could influence costs; more specifically, from an insurance cost perspective.
Robert Bosch LLC affiliate ESCRYPT provided a response to the SCMS RFI with comments on potential governance strategies and expressed interest in implementing the Pseudonym Certificate Authority (PCA) and Linkage Authority (LA) components.
Bosch-ESCRYPT supported a private-public collaboration versus a self-governance model and commented that SCMS ownership should take a multi-layered approach, with high level
ESCRYPT expressed interest implementing a production SCMS PCA and LA based on their support of the Safety Pilot Model Deployment. In their SCMS RFI response, ESCRYPT proposed an architecture that utilizes two types of certificates to ensure privacy. The first is short term pseudonyms, lasting from seconds to hours and being switched frequently. The second is long-term certificates along with three Certification Authorities: Long-Term; Pseudonym; and a Resolution Authority, the latter of which strips anonymity from pseudonym certificates that are believed to be a potential threat.
When meeting with the agency, Bosch-ESCRYPT expressed the importance of regional policy harmonization and stable standards, indicating that, once implemented, these important pieces will be not be changed easily or quickly.
The agency asked ESCRYPT for their experience on device management and how ESCRYPT has handled conditions such as managing and closing security breaches, device “end of life” management, and hardware security to help inform potential approaches for this NPRM. ESCRYPT indicated that over-the-air (OTA) software update is the best approach to closing potential security breaches and in support of NHTSA's vital recall efforts. When discussing device “end of life” scenarios, ESCRYPT suggested the approach of revoking existing certificates for an identified device and preventing future certificate updates allowing, in theory, the device to “fade away” from the system. Finally, when discussing potential hardware security needs, Bosch indicated they have experience with hardware security modules (“HSM”) and secure hardware extensions (“SHE”) successfully deployed in Europe and that, in terms of V2V, a lower-security implementation limits potential use cases of a system. The agency interprets this discussion, overall, that proposing a hardened device could extend a device's capability and contribute to overall system confidence.
Certicom, a wholly owned subsidiary of Blackberry Ltd., provided a response to the SCMS RFI and also met with the agency to follow-up their response. Certicom provides “applied cryptography and security solutions for the embedded market” including engagement with governments and vehicle OEMs. Certicom has experience implementing Elliptic Curve Cryptography (ECC), “which provides the most security per bit of any known public key cryptosystem.” Certicom's parent company, BlackBerry, builds devices used by government and enterprise organizations, and operates a global secure network and mobile messaging platform. BlackBerry Technology Solutions also operates BlackBerry's QNX group which has presence in automotive telematics implementations.
Certicom supported a private consortium to manage a V2V SCMS, indicating that this approach could help “accelerate the deployments of V2X systems” serving both infrastructure and aftermarket devices. They stated that a possible “concern could arise if regulation unnecessarily limits the opportunity for participants to drive commercial innovation.” Certicom expressed interest in the SCMS operational roles of the Certificate Management Entity (CME) such as operating a Certification Authority (CA) and/or a Registration Authority (RA). However, Certicom indicated revenue models and costs would need to be better understood before committing definitively to any portion of the system operation.
Certicom commented that long-term viability of the SCMS is highly dependent on public acceptance. As such, participants in the system need a strong public identification (brand) and experience with successful security, safe, reliable and privacy implementations.
During the agency's meeting with Certicom, the discussion focused on clarifying the RFI responses but also in key areas of revenue generation, security approaches, and certificate and device management approaches used for Blackberry devices and other implementations that Certicom has supported, which includes public utility installed residential “smart meters.”
Certicom indicated there could be many reasons that entities would want to participate in a National SCMS and there could be potential opportunities presented such as the support of the security needs for manufacturing and system operations. In addition, expanded future roadside equipment could lead to yet-unknown revenue generation opportunities. Overall, V2V and a supporting SCMS could, in theory, “create a whole new market.” Certicom also suggested participants in the SCMS could generate on-going revenue by royalties from device manufacturers.
In terms of approaches to device security, Certicom indicated there are at least three security key-scenarios for devices. The following table provides an overview of these approaches and a corresponding, relative level of security provided by each.
When discussing device and certificate management, Certicom provided an overview of three certificate distribution and management systems: Blackberry PKI, the ZigBee Smart Energy public utility residential meter system, and Certicom's approach to certificate and asset management for device original equipment manufacturers (OEMs).
The certificate service for Blackberry devices is designed for scalability, and secures devices from “birth” where a registration “seed” is embedded in the a device's onboard microchip (“silicon”) at the time of device manufacturer. The registration seed could be viewed like a V2V enrollment certificate, all of which is linked to the “root of trust” for the Blackberry ecosystem.
Certicom's overview of the ZigBee public utility smart meter certificate system varies from Blackberry devices,
In this implementation, ZigBee “Smart Energy” device certificates utilize an EQCV format issued in batches of one million. Certicom indicated they are able to issue approximately one million certificates in approximately one and half hours of processing. Each device participating in the system is identified by unique vendor identification, and verification is performed to confirm that each device's media access control (MAC)
Finally, Certicom provided an overview of a certificate authority and asset management system that they are able to supply for device original equipment manufacturers. The system is designed to enable OEMs and silicon vendors to remotely secure devices that are assembled at geographically-dispersed locations, similar to how vehicles are assembled. The system described provides operational visibility and control of secure key injection into a device at time of manufacture or initialization, secure device serialization and tracking, and support for anti-cloning and anti-counterfeiting. Figure V–3 provides a representation of this system and shows the remote management across various locations. The “tester” would be the point of security key injection into a device.
Certicom indicated that this system enables OEMs to manage and distribute the sensitive security keying material, along with potentially other sensitive information, to an untrusted contract manufacturing environment supplying components for their end product. Figure V–4 shows the process flow for loading security information to a device in an untrusted manufacturing environment.
As mentioned elsewhere in this section, device management also involves potential updates to device software to support technology updates and, importantly, in support of potential device recall scenarios. Certicom discussed Blackberry's OTA update service used for updating, configuring, and managing software and applications. Their updates leverage the existing Blackberry exclusive secure infrastructure for global distribution. This system also gathers status and data to support fleet monitoring capabilities for device operation. A graphic overview of the system is shown in Figure V–5.
With end-of-life and misbehavior being key elements of a national V2V deployment, the agency inquired about approaches for managing devices under these conditions. Certicom indicated that Blackberry devices can be remotely made non-functional (“bricked”) when a device is determined to be out of service, stolen, not functioning properly or potentially “misbehaving.” Reactivation of a “bricked” device requires interaction with Blackberry.
SiriusXM Satellite Radio provided a response to the SCMS RFI and also met with the V2V NPRM team as follow-up. Their written response to the RFI focused on the opportunity for satellite transmission to perform non-safety-critical, “back haul” type operations for a SCMS. This could include certificate distribution, over the air updates, and certificate revocation list distribution, among other potential supporting transactions. SiriusXM commented that employing a satellite network as an alternative distribution path for safety certificates and the CRL would promote the development of a V2V system by enhancing scalability and the SCMS network footprint, and enable faster distribution of security information for V2V-equipped vehicles.
SiriusXM indicated that satellite transmission could potentially “bridge the gap” between initial V2V deployment and roadside unit deployment and, in the longer term, support more remote regions that may not have roadside units deployed. SiriusXM indicated that their infrastructure “could provide the ubiquitous, simultaneous, and robust distribution of security certificates and the certificate revocation list (“CRL”) in a V2V system.” SiriusXM's satellite network covers the contiguous United States and portions or Canada and Mexico, which could possibly assist with potential cross-border challenges. Their network also includes signal repeating equipment to supplement service in urban areas where satellite reception could be blocked by buildings or other obstacles.
According to SiriusXM, 69 million vehicles are currently equipped with their radios, and they expect this to increase to 100 million vehicles by 2017 as approximately 70% of new vehicles are equipped with their receiver.
When discussing privacy, SiriusXM indicated that no subscription would be required to receive satellite V2X data and that it would be available to any vehicle equipped with their satellite receiver. SiriusXM did not present any potential revenue generation concepts during the discussion. Additionally, SiriusXM stated V2X will be a transparent data service on its system, meaning that no V2X-related data is collected on the vehicle, and that the satellite delivery system has no knowledge of which vehicles are active and receiving data or where vehicles are located.
In terms of device management, SiriusXM suggested a hardware security module (HSM) for V2V-enabled devices as part of a trusted, secure data exchange environment. SiriusXM provided very detailed technical descriptions of how device-level security could be implemented and managed using satellite radio service. This included discussing the potential use of group codes, interaction with the HSM, in-use certificate downloads, available service channels, and revoked vehicle identification, all of which leverages its experience with the development and deployment of its satellite radio network that appears to have addressed many similar challenges found in V2V device deployment and management.
Ford Motor Company (“Ford”) and Volkswagen Group of America (“Volkswagen”) submitted joint comments to the SCMS RFI. Together, Ford and Volkswagen indicated they are encouraged by the progress made in the collaborative activities between NHTSA and CAMP, in which they participate. However, they state in their comments that remaining items need resolution to enable an effective deployment of a V2V communications system, such as: (1) NHTSA's authority to mandate an SCMS; (2) an acceptable and stable funding model, and; (3) measures to address potential liabilities associated with participating in and/or being subject to a SCMS.
Ford and Volkswagen commented that the SCMS cannot be a private entity because vital functions of the SCMS cannot be delegated to a “private” entity, “which lacks the authority to require all participants in a V2V (let alone V2X) communication system to adhere to the system's necessarily rigorous operational policies, and enforce revocation based on unacceptable performance.” Ford and Volkswagen stated that they, other OEMs, and others that will necessarily rely on the SCMS must have a role, along with government, in establishing SCMS operational policy. Additionally, they stated that Federal authority over the SCMS is essential and a binding governance board for SCMS management is needed.
Finally, Ford and Volkswagen stated that funding for centralized SCMS components or functions should come from a federal source. They do not support any funding model relying on the sale of data to third parties, and, additionally, the SCMS funding model “should not be based on a potential requirement that specific services must be enabled within the vehicle to offset operational costs.” Conversely, non-centralized components, like the certificate management entity (CME) or registration authority (RA), could be established independently for their own use.
The Society of Automotive Engineers (“SAE”) responded to the RFI with interest in playing a supporting role in SCMS deployment. SAE indicated interest in working with SCMS stakeholders in a partnership and/or larger consortium to support the SCMS functions, “through a combination of standards development, conformance programs and training.”
SAE International standards J2735 and J2945 were revised and are being developed to support a national V2V deployment by providing a consistent, standardized approach to V2V device implementation across the industry.
The American Motorcyclist Association (“AMA”) commented to the SCMS RFI by urging DOT to test the V2Vcommunication systems to ensure that motorcyclists' safety and privacy are secure. AMA expressed their support for DOT's position “for further testing before adopting the rule authorizing U–NII devices (
The Alliance of Automobile Manufacturers, Inc. (“Alliance”) reiterated their comments to NHTSA's V2V ANPRM where they “agreed with NHTSA's assessment that a strong SCMS is necessary for a properly functioning V2V communications system.” The Alliance also reiterated its ANPRM comments expressing concerns with how a privately-run SCMS could address the broad structural and governance challenges that an SCMS manager would need to address, such as:
The Alliance maintained in its RFI response that addressing the above policy issues, which are necessarily national in scope, requires strong unified Federal leadership, not just presence.
The Association of Global Automakers (“Global Automakers”) provided general comments along with direct responses to the RFI questions. In its comments, Global Automakers strongly supported a public-private partnership model for SCMS operation by stating that “the agency has underestimated the necessary governmental role in managing the SCMS and too narrowly constrained the participation of other agencies in SCMS operations. Contractor operation of many aspects of the SCMS is feasible but must be conducted under the authority and supervision of a significant governmental entity.”
Global Automakers further stated that, to be effective, the SCMS must be a monopoly, which is not allowed under law for a private entity, and that funding for the SCMS should come from the government rather than from revenue generated by consumers; less potential consumer subscription funding opportunities for some potential V2I services. Additionally, the SCMS should be developed to support V2V and V2X holistically, at the outset, in partnership with the Federal Highway Administration (FHWA) and possibly other agencies such as the Federal Communications Commission and the Federal Trade Commission where privacy is of concern. Global Automakers stated that cross-agency coordination and harmonization is critical to the effective operation of the SCMS.
Global Automakers expressed concern with the potential approach for the “Device Non-compliance and Potential Recalls” discussion in the RFI materials, specifically, that it believed that the approach suggested by the agency would undermine consumer privacy, be impractical, and be redundant to systems that are already in place to manage recalls. It commented that the proposed “link between specific installed V2V devices or production lots of devices and enrollment certificates” would create a potential perception that V2V communications could be traced to individual vehicles and drivers.
Verizon Communications' RFI response focused on potential steps and pathways to achieving a National SCMS deployment and focused on three key approaches to SCMS policies and operations standards and potential adjustments to the PKI implementation. In more detail, Verizon suggested that: (1) NHTSA should define a system of policies, regulations, workflows, and technical interoperability that provides for the management and control of the overall SCMS; (2) implement an “identity PKI” as a baseline and “bootstraps” anonymously allowing linkage between certificates and supporting potential device recalls; and (3) an “anonymity PKI” solution that allows the device to perform any necessary operations anonymously.
General Motors, LLC (“GM”) submitted comments to the SCMS RFI that also included broader V2V rulemaking comments. GM stated, in the
Focused comments regarding the SCMS stated its belief in the requirement for Federal oversight of the SCMS Manager, the central root authority organization, direct engagement with the Misbehavior Authority and coordination of certification labs.
CTIA is an international nonprofit organization representing the wireless communications industry. CTIA's members include wireless carriers and their suppliers, as well as providers and manufacturers of wireless data services and products. CTIA's comments to the SCMS RFI focused on the benefit of leveraging existing authentication and security technology, along with utilizing existing networks and infrastructure to promote standardization and interoperability. CTIA also stated that the private sector is best positioned to address V2V SCMS cybersecurity and privacy concerns and should be utilized to help implement cybersecurity best practices.
Tesla Motors, Inc. (“Tesla”) commented primarily on the security of the SCMS design presented in the V2V Readiness Report by urging NHTSA “to ensure that all possible security aspects are considered and accounted for when implementing its chosen design.” Tesla commented that much more analysis and consideration needs to be given to the SCMS before it is implemented as proposed. Tesla acknowledges that it has not been involved with the Crash Avoidance Metrics Partnership (CAMP) consortium and that this brings a new perspective to the CAMP SCMS design.
Tesla believes that, as envisioned, the CAMP system fails to consider adequately how the system could be attacked or the vast amounts of information that will necessarily pass between vehicles and that NHTSA's proposed system has gaps that must be addressed before it is implemented.
Tesla narrowed its primary concerns into the following: (1) Because inputs are insecure, false messages are likely, even with secure V2V subsystems; (2) vehicles must have some way to determine whether messages, particularly misbehavior reports, are legitimate; (3) certificate revocation lists (“CRLs”) do not scale well for widespread use; (4) public‐key cryptography is poorly suited to the demands of an embedded, high‐speed environment; and (5) transmitted messages could be the source of privacy breaches.
Tesla concluded their comments by stating that “the Company believes that the CAMP system has fundamental issues and challenges that must be revisited in order to allow for successful implementation of the SCMS.”
Intercede, Ltd. is a software company solely focused on producing and delivering identity and credential management solutions to entities such as Government, Aerospace and Defense, Finance, Healthcare, Large Corporations and Managed Service Providers. Intercede's response to the RFI focused on the need for the SCMS to provide a secure and trusted environment for V2X, and stated that it will be necessary to consider the V2X communication devices over their entire lifetime, which was defined as:
• Initial manufacture;
• Upgrade;
• Maintenance;
• Transfer of ownership;
• Renewal;
• Compromise;
• Natural end of life.
Intercede's response went on to state that “it is also important to consider the interactions beyond the communication channels that must be established into a secure trust system. Failure to do so would open up potential back doors into this trust system that could allow for compromise to occur from within.” Follow-up discussion with Intercede stressed its views regarding the need for a complete, systems approach to security—encompassing “cradle to grave” for devices. And that, “By adopting a controlled and secure approach to device identity management, NHTSA will enable a strong trust environment to be established that can then be built on for large-scale key generation during the lifetime of the device in the field for V2X communications.”
The RFI responses and subsequent meetings benefitted NHTSA greatly by providing additional technical perspectives on the SCMS PKI design. For example, DOT had originally dismissed the use of satellites as a viable communications media for transmission of security materials between the SCMS and OBE, but our meeting with Sirius XM Radio brought to NHTSA's attention the fact that, due to advances in technology and the close working relationship between the auto and satellite industries, satellite could in fact be a technologically and economically viable, secure and private media for such security transmissions. Similarly, the PKI technical model put forth by NHTSA in its Readiness Report assumes that a single root must form the basis for trust system-wide. However, as a result of meetings with CSS, NHTSA now is aware of the possibility that, through use of a trust bridge, one or more SCMS organizations, possibly representing different regions or even manufacturers, may be able to co-exist and together, provide more redundancy in security for V2V and V2X DSRC communications.
With limited exception, comments received in response to the ANPRM generally endorsed the PKI design as an appropriate security solution for V2V and V2I DSRC communications. For example, GM, the Alliance, Toyota, and the Automotive Safety Council all concurred that the SCMS design described in the ANPRM and the V2V Readiness Report should provide the required level of security while also protecting the privacy of the end users. Throughout all the comments there were two major concerns with the SCMS design that were cited by multiple commenters: (1) The overall complexity of the design; and (2) a fallback plan for a compromised root.
One of the recurring comments in the ANPRM focused on the overall complexity of the design of the SCMS and the plan for implementing such a system. The design of the SCMS is more complicated than any existing PKI systems due primarily to the need to protect the privacy of the end users both from outsider and insider attacks. As such the various functions in the system are separated logically and organizationally in an attempt to ensure that one organization does not have access to all the information needed to identify the end users. Therefore, this
The second technical concern highlighted in the comments is the impact on the system if the private key of the SCMS root certificate authority is compromised. If the root CA is compromised, then this would compromise certificates for all V2V devices, roadside infrastructure devices, and SCMS components. Reissuing the certificates for over 350 million end users would require a significant amount of time and resources to complete. For example, all V2V devices would need to be re-initialized in order to receive a new enrollment certificate; however, this process must occur over a secure communications channel. This may require all devices to return to the dealership or service center in order to have access to the secure communications channel required for the initialization process.
In response to the first concern, the agency agrees that the level of complexity of the design does increase the risk associated with the implementation and deployment of this system. To combat that risk, one commenter suggested that the system be implemented through a phased development approach where components of the system are developed, tested, and deployed incrementally. This approach would ensure that the deployed components are secure and reliable for additional components are deployed into the system. The agency agrees with this recommendation and is employing in it the development of the SCMS Proof-of-Concept. This system is being developed using an incremental approach that focuses on first implementing and testing the core components of the system, followed by the non-core components. After the system is developed and tested, it will be operated for a significant period of time by DOT. During this operational period, existing V2V and V2I test beds will be integrated with the SCMS POC, and it will provide the necessary security credential materials to these test beds. The knowledge gained from the operation of the SCMS POC will inform the development of the National SCMS that will be required to support an eventual FMVSS.
The agency also concurs that it would be a catastrophic event for the root CA to be compromised, and as such we are exploring various approaches for disaster recovery that can be implemented to mitigate this risk. The SCMS Proof-of-Concept will implement and test root management and disaster recovery solutions that will allow a root CA to be revoked without requiring the recall and re-initialization of all the V2V and V2I devices in a secure environment. One of the solutions to be tested in the SCMS POC is a distributed root management approach that utilizes root electors to manage the trust relationships in the system. Another solution being evaluated includes the use of redundant root CAs where only a single root is active at any one time. These approaches will be tested and evaluated during the operation of the SCMS POC to ensure that in the event of a compromised root, the system can be recovered without the need to recall every V2V and V2I device.
Deployment of an SCMS PKI to secure V2V DSRC communications will require governance of a wide range of complex functions and involve numerous public and private stakeholders, which together we refer to here as the SCMS “industry” or SCMS “ecosystem.” We expect that SCMS stakeholders will include: Manufacturers of OBE, RSU, and aftermarket safety devices (ASD); certification labs that test OBE (and potentially ASDs); organizations supporting V2V communications; auto manufacturers; standards organizations; PKI experts; State and local government users, and others. In Figure V–6, below, the shapes represent different groups of organizations that interact with the SCMS in some way. Some of these organizations will need to be stood up, while others currently exist today and will likely expand their operations to play a role in the SCMS. The overlapping of shapes represents mutual reliance in executing operations, and the arrows represent communication and the need for inter-organizational arrangements. The SCMS is the focal point of the certificate management industry, as it encompasses the CMEs that oversee all PKI functions responsible for establishing the foundation of security in the V2V/V2I/V2X system.
Some of the questions that NHTSA raised in the V2V Readiness Report about industry governance structure for the SCMS include:
• How and by whom are decisions made about various policies, standards, requirements, and practices?
• Who has the authority to mandate and enforce compliance with the policies, standards, and industry requirements?
• Who makes up the overseeing financial, legal, management, and executive operations of the entities in the SCMS?
• Is there a central industry body and, if so, who oversees it? Who is part of this central industry body?
• How do the various entities interact with each other?
• How is risk and liability allocated across the organizations?
• Who will own the intellectual property (data and software) of the system and how will it be licensed (allocated) among responsible entities?
In answering these questions, NHTSA continues to explore a variety of governance models (ranging from public to public-private to private) as potential options for governing the SCMS industry. Due primarily to the absence of Federal funds to support a public SCMS, to date NHTSA has focused primarily on fleshing out a model of private SCMS ownership and governance that assumes costs will be covered by increases in the purchase price of new vehicles and V2V safety devices. As we noted our V2V Readiness Report, in a private SCMS industry the organizational structure and operation of the SCMS would be determined largely by private owners and operators of CME components, under oversight of an SCMS Manager (ideally an industry-wide coalition of CME owners and other stakeholder representatives who, together, agree on the terms of self-governance and system-wide rules and policies). The SCMS Manager would provide critical system management by enforcing and auditing compliance with uniform technical and policy standards and guidance system-wide. Uniform standards and guidance would establish and ensure consistency, effectiveness, interoperability, sustainability, and appropriate privacy protections across the CMEs to facilitate necessary communications, sharing of information, and operational connections, and would be based in large part on existing technical and policy standards applicable to PKI systems.
The Readiness Report explained NHTSA's view that, in the context of a privately owned SCMS “industry,” a private model could be a viable mechanism for SCMS governance in which NHTSA would have only a minimal role in ensuring system integrity, largely through its traditional regulatory activities. We also indicated that NHTSA's existing legal authority would accommodate the use of grants, cooperative agreements, or other agreements to facilitate stakeholder—and even DOT—input into governance of a private SCMS.
Comments to the ANPRM and Readiness Report relating to SCMS ownership and governance came mostly from members of the automotive industry and their trade groups. While agreeing with NHTSA's assertion that a V2V system is not complete without a robust SCMS, almost without exception, industry commenters vehemently disagreed that a private self-governing industry coalition could be a viable mechanism for SCMS system governance. Commenters believed that a private SCMS could not provide the security, privacy, certainty, stability, long-term functionality, or management of costs and risk required for a nationwide SCMS to support V2V DSRC communications, and lacked the legal authority to address cross-border issues
For example, both the Alliance and Mercedes described the SCMS as a “core government responsibility.” Noting that “for V2V to work effectively, every vehicle manufacturer will have to participate in the SCMS and abide by its rules,” the Alliance explained that:
The Alliance also stated that “resolution of policy issues requires coordination among multiple federal agencies (FHWA, FTC, FCC, EPA),” and that “Congress was best positioned to provide the needed coordination and nationwide-scope for addressing infrastructure, governance of networks and SCMS, consumer privacy, sustainable funding, international cross-border and liability/IP policy issues.”
Global commented that “private sector options for operating the Security Credential Management System (SCMS) do not guarantee certainty over the management or the cost of operation the system and its long-term stability.” GM, likening the issuance of security certificates to the minting of coinage by the Federal government, argued that ensuring a secure V2V system would require that the Federal government: (i) Operate or support operation of a central root CA that all V2V certificates must use, or mandate that all V2V certificates use a central root CA; and (ii) review and approve minimum levels of security for the keys and cryptography used by the root CA and subordinate CAs authorized by the root CA. Mercedes described the SCMS as a “backbone infrastructure, which must be set up and controlled with the leadership of state and federal authorities” and echoed the comments of the Alliance that only Federal government oversight would ensure industry-wide participation in an SCMS and compliance with its requirements. Similarly, Honda commented that the federal government should be responsible to ensure the safe and efficient operation of the V2V security framework, and should consider a public-private partnership as an option for the operation and management of the SCMS, with federal oversight, supervision and funding.
The agency agrees with commenters that, for a variety of policy reasons, ideally the Federal government should play a more central leadership role in the establishment and governance of a V2V SCMS. For this reason, as detailed above, DOT now has taken the lead in working with SCMS stakeholders to develop the policies and standards that should form the basis for governance of a National V2V SCMS, as well as to model and prototype organizational options for a governance entity to manage SCMS operations.
In analyzing SCMS governance options, NHTSA and its research partners have investigated a variety of industries with characteristics similar to those seen as critical for a V2V SCMS governance model, including security, privacy protection, stability, sustainability, multi-stakeholder representation and technical complexity.
Of the governance models we examined, governance of the internet naming protocol systems (DNS) by the Internet Assigned Numbers Authority (ICANN) possessed numerous characteristics that seem to translate most directly to a private or public-private governance model for the V2V SCMS. ICANN is a private, not-for-profit corporation created by private sector entities in direct response to efforts by the Federal government to privatize certain Internet-related tasks in a manner that permits robust competition and international participation in its management. ICANN is managed by a multi-stakeholder Board of Directors (representative of the functional and geographic diversity of the Internet) that oversees a number of Internet-related functions previously performed directly on behalf of the Federal government by other organizations, notably the Internet Assigned Numbers Authority (IANA) (formerly located within the Department of Commerce but now operated by ICANN). Pursuant to various Memoranda of Understanding with ICANN (ICANN MOUs), the Department of Commerce agreed gradually to transfer to ICANN certain Internet-related functions, with the goal of having ICANN carry out operational responsibility for these functions in a financially self-sustaining manner after a limited transition period. At the same time, the Department of Commerce also entered into a series of funded project agreements with ICANN, on a sole source basis, to perform technical and policy activities required to facilitate the transition of authority for those functions to ICANN.
The ICANN MOUs and project agreements called for the Federal government to exercise significant oversight of ICANN's activities until such time as ICANN was stable and could provide certain stability, sustainability and policy assurances to the Federal government. After 11 years, the Department of Commerce gave up its oversight of ICANN with respect to the operation and governance of specific Internet naming protocol functions, but committed to ongoing participation in ICANN's Governmental Advisory Committee (GAC). ICANN continues to perform certain technical maintenance tasks under contract to Commerce, as do other Commerce contractors. In 2014,
How is ICANN relevant to governance of the V2V SCMS? ICANN provides NHTSA with a potential road map for how it can work with public and private stakeholders to develop a successful governance structure for a multi-stakeholder, geographically and functionally diverse technology-intense system not unlike V2V. Like the V2V SCMS, successful deployment of an Internet naming protocol required uniform and consistent application of technical and policy standards enabling interoperability and system-wide confidence. As would be required for enforcement in a privately governed SCMS, ICANN uses a binding Registry Agreement as the enforcement mechanism through which it ensures that its policy and technical standards are applied Internet-wide. Like the SCMS ecosystem or “industry,” the Internet “industry” involves numerous commercial, academic, geopolitical, and other private and public stakeholders involved in a broad range of Internet-related functions, the success of which requires system-wide, coordinated governance. As would be likely in the SCMS context, ICANN was developed and operates on a foundation of the fundamental principles of security, stability, resiliency, multi-stakeholder participation, openness, fairness and robust completion. Additionally, as detailed in the ICANN MOUs, after a period of direct government oversight and funding, the privatized functions governed and coordinated by ICANN were designed to be financially self-sufficient (
We agree with Dura and the VIIC that ICANN's organizational structure could translate well to a potential V2V SCMS governance model. The details of ICANN's mission, core values, powers, responsibilities, governing principles and procedures are set forth in its Articles of Incorporation, Bylaws, Charter, and other publicly available documents. In accordance with those documents, ICANN is governed by the binding decisions of a Board of Directors, consisting of both voting Directors and non-voting liaisons. The voting Directors consist of members selected by a functionally and regionally diverse nominating committee that reflects the diversity of Internet ecosystem, as a whole: the Address-Supporting Organization (ASO), the Country-Code Names Supporting Organization (CCNSO), the Generic Names Supporting Organization (GNSO), the At-Large Community and the President ex officio. Directors may not be officials of countries or multinational geo-political entities. Only ICANN's President can be both a Director and ICANN employee. Non-voting liaisons are a means for the Board to obtain input from world-wide governments, through the Government Advisory Committee (GAC), and three function-specific expert committees, the Internet Engineering Task force (ETF), Security and Stability Advisory Committee (SSAC) and Root Server System Advisory Committee (RSSAC). The organization has an Ombudsman appointed by the Board to act as a neutral dispute resolution practitioner and provide an independent internal evaluation of complaints by members of the ICANN community who believe that the ICANN staff, Board or an ICANN constituent body has treated them unfairly.
NHTSA also found quite instructive the procedures used by the Department of Commerce to effectuate the process of successfully privatizing certain Internet-related functions. In July 1997, the Department of Commerce first published a Request for Comments on behalf of an interagency working group examining the appropriate future role of the Federal government in the DNS and other issues related to the administration of the DNS. The following year, in early 1998, based on the 1400 pages of comments it received to its Request for Comments, it issued a rulemaking notice proposing certain actions designed to privatize the management of Internet names and addresses in a manner that allowed for the development of robust competition and facilitates global participation in Internet management.
Act much like a standard-setting body. To the extent that the new corporation operates in an open and pro-competitive manner, its actions will withstand antitrust scrutiny. Its standards should be reasonably based on, and no broader than necessary to promote its legitimate coordinating objectives. Under U.S. law, a standard-setting body can face antitrust liability if it is dominated by an economically interested entity, or if standards are set in secret by a few leading competitors. But appropriate processes and structure will minimize the possibility that the body's actions will be, or will appear to a court to be, anti-competitive.
Later the same year, in July 1998, the Department of Commerce opted to proceed with privatizing management of the internet DNS not through rulemaking but by issuing a Statement of Policy expressing the Government's intent to “recognize, by entering into agreement with, and to seek international support for, a new, not-for-profit corporation formed by private sector Internet stakeholders to administer policy for the Internet name and address system.”
• Department of Commerce had the authority to support privatization of the DNS on the basis of its general authority
• The APA notice and comment requirements did not apply to the Department of Commerce's general statement of policy, as it contained not substantive regulatory requirements but a general framework for privatizing the DNS;
• Establishment of ICANN by the private sector was not subject to the Government Corporation Control Act or various other legal requirements applicable to entities that are part of or controlled by the Federal Government;
• Department of Commerce had authority to enter into the MOUs,
It must be noted that the circumstances that led to creation of ICANN are different, in significant respects, than those that now necessitate the creation of an SCMS to support V2V DSRC communications. When it issued its Policy Statement, Department of Commerce had funds dedicated to administration of the DNS it sought to privatize and already had taken on responsibility for performing that function, in accordance with Federal law. For this reason, the Department of Commerce had a legal obligation closely to oversee ICANN's assumption of responsibility for the DNS during a transition period. It also continued to fund ICANN in the performance of certain additional functions previously performed by IANA, even after it ceased to oversee ICANN's policies and operation of the DNS in 2009. By contrast, to date, NHTSA has not assumed responsibility for carrying out any security functions relative to mandated automobile equipment, so no infrastructure or funding for this purpose now exists. Additionally, NHTSA seeks not to privatize existing federal security functions or infrastructure, but to work closely with public and private V2V stakeholders to take the technical design, intellectual property and body of policy developed through DOT's SCMS research and facilitate the creation of a new operational entity—a National SCMS to support V2V, V2I, and V2X DSRC communications.
Despite these differences, NHTSA believes that ICANN serves as a strong comparative industry model of how NHTSA can work with stakeholders in the SCMS ecosystem to facilitate creation and support of a multi-stakeholder private sector entity to govern and coordinate operation of the V2V SCMS.
It is clear that there are numerous different paths that government and private stakeholders theoretically could follow in implementing a National SCMS to support the V2V ecosystem—paths the organization, governance and financial viability of which DOT expects its expanded policy research to develop and assess. There may even be other viable security models that could provide sufficient confidence and consumer privacy protection to V2V messages. However, if NHTSA mandates V2V communications equipment in light motor vehicles and moves forward with implementing the SCMS technical design described above, the agency believes that one promising path was that pursued by Department of Commerce when it spurred private sector establishment of ICANN. Specifically, DOT could facilitate the creation of a multi-stakeholder entity capable of governing and coordinating operation of a National SCMS. DOT's expanded policy research, including stakeholder input, modeling, and prototyping of potential governance models, as well as comments on the NPRM, will help determine whether such an SCMS should be a purely private entity in which DOT plays an advisory role—or whether the Federal government should assume control over some critical SCMS functions (for example, ownership of the definitive root).
The process followed by the Department of Commerce as it privatized certain DNS functions could be a useful roadmap for how NHTSA might work with the private sector to establish a new, multi-stakeholder entity to take on governance and coordinate operation of a V2V SCMS. NHTSA's 2014 ANPRM, V2V Readiness Report and SCMS RFI could be viewed as the first steps in this process. NHTSA used the input the agency received in response to these public documents, in meetings with RFI respondents, and through SCMS policy research performed by the VIIC and others, to expand the scope its planned SCMS governance and policy research discussed in Section V.B.6. This critical SCMS policy research is intended to give DOT a central role in, and direct control over, development of draft policies, procedures and standards that could the basis for governance of a National SCMS, including draft a Certificate Policy, Certificate Practice Statement, Registration Agreements, and Privacy Policy. Another central aspect of DOT's planned SCMS policy research will be working with PKI and organizational consultants and stakeholders to prototype a multi-stakeholder governance structure (much like ICANN's Board of Directors) capable of satisfying the needs of the broad range of diverse participants in the SCMS ecosystem. If successful, this prototype could serve as a model for a private sector entity that could establish and oversee a deployed National SCMS.
If appropriate based on the Department's planned research, DOT then could issue a draft V2V SCMC Policy Statement describing a process (similar to that followed by DOC and ICANN) by which the Department could, if it chooses to, work collaboratively with a new multi-stakeholder private entity to develop the binding policies and technical standards required for stable and sustained operation of a V2V SCMS. After an initial period of joint policy development and direct DOT oversight under contract, prior to full SCMS deployment, DOT gradually could terminate some or all its oversight of the new entity's activities, completing the transition of authority prior to full SCMS deployment. Thereafter, representatives of NHTSA and other Federal government agencies, both within DOT (DOT–R, FHWA, FMCSA, and the others) and elsewhere in the Federal Government (FCC, FTC), could serve in an advisory capacity on a Government Advisory Committee or as nonvoting SCMS Manager Board Members.
As a result of a better understanding obtained from operating the prototype security system during Model Deployment, as well as feedback from the SCMS Request for Information, ITS–JPO and NHTSA realized that expanding to a National level SCMS would require an intermediate step. Specifically, that additional research was required to prove the concept and develop a SCMS working model that allows for investigating the full range of technical, policy, and organizational elements involved in deploying and operating the SCMS. Investigating these components includes providing security certificate management services to continuing vehicle communications research activities and early deployments.
As part of developing a working SCMS model, DOT will:
• Develop and implement a proof of concept SCMS (the SCMS PoC) that is fully representative of the Final SCMS design, and which will provide certificate management services to early deployments and demonstrations, including but not limited to CV pilots,
• Act as the overall SCMS PoC Manager, including developing policy and procedures that will govern the interactions between the various entities involved in the V2X eco-system, and
• Based on stakeholder input, will advanced and adapt SCMS PoC policies and protocols such that they would represent possible policies and protocols suitable for the establishment and operations of a SCMS that could support a national deployment of vehicle communication technology.
The SCMS proof-of-concept (PoC) will be fully representative of a production SCMS in terms of functionality, features, and capabilities. It will support all certificate management “use-cases” envisioned for a production system, and incorporates all elements of the final design developed by DOT and its industry partners. While not intended to be “full-scale”, the SCMS PoC will be capable of servicing up to 17 million vehicles annually. The SCMS PoC is being developed to:
1. Support end-to-end testing of the certificate management use-cases thus demonstrating feasibility and practicality of system;
2. Demonstrate the extensibility of the SCMS design (multiple non-central components);
3. Support scalability testing through modeling, simulation, and real-world deployments;
4. Support integrity, robustness and system vulnerability testing;
5. Will be used in actual connected vehicle operations by servicing a variety of early deployments and demonstrations including the Connected Vehicle pilots (Tampa, NYC, Wyoming), the Smart City Challenge program recipient, as well as other government sponsored (state & local) and private sector deployments that we anticipate emerging over the next several years; and
6. Will be able to support future connected vehicle application demonstrations programs for FMCSA, FTA, and FRA (
NHTSA and its industry partners (CAMP) are currently in the process of prototyping an SCMS system that is capable of executing all the core use-cases associated with the security certificate management life cycle including enrollment, certificate generation, certificate request and fulfillment, and revocation. This proof-of-concept SCMS (the SCMS PoC) is being developed to support real-world operations of early V2V deployments at connected vehicles pilots sponsored by DOT (in Florida, New York City, and Wyoming and elsewhere). NHTSA and its industry partners will continue to refine, test and mature the design of the SCMS—including addressing the functions and features listed above—by leveraging this prototype environment. To support these refinement efforts, we are establishing multiple instantiations of the SCMS including Production, Quality Assurance and Development environments. Further, we are in the process of retaining an additional (in addition to MITRE) independent cyber-security testing and evaluation Team to conduct a thorough design review on the Final SCMS design, and to complete focused penetration testing and vulnerability discovery on the actual SCMS prototype by leveraging the Development environment platform.
DOT will develop, operate, and manage the SCMS PoC through multiple contract/agreements with multiple entities, illustrated via Figure 1. Figure 1 identifies five research activities including the SCMS PoC Governmental Management that represent the SCMS PoC Manager Environment. This environment depicts the boundaries of the SCMS PoC Governmental Management activities. DOT has already established an agreement that is currently developing an initial prototype of the SCMS PoC that will be the basis for the operational environment and support ongoing functional (refinement) development. SCMS PoC Governmental Management includes the development of policies that support the technical processes and procedures and the organizational protocols that establish interfaces (communications) between entities that support policy and operational execution. DOT, with the support provided by the Governmental Management contractor, will be the SCMS Manager and set policies and protocols that will address threats in relation to access and change authority. The SCMS Manager will develop and establish a Certificate Policy and Certificate Practice Statement that sets the policies and protocols that must be accepted and followed to be approved to participate in the SCMS environment.
A separate agreement will establish the operational SCMS PoC (provides the technical functions that enables generation, distribution and monitoring of SCMS security materials). Related to the separate agreement that establishes PoC operations is an agreement that provides for the technical management that encompasses the development and documentation of technical process and procedures end entities will use to initialize devices and obtain security materials. Another contract will provide Connected Vehicle Support Service that supports the initial interactions regarding end entity applications for device initiations, technical support questions, and questions about policies and procedures. The Connected Vehicle Support contractor will establish and operate the initial interface with end users.
Beyond the SCMS PoC manager environment, the SCMS PoC Governmental Manager will in most cases indirectly interface with other research activities such as the CV Pilots, and other support entities that include Certification Service entities, and Device Suppliers. The most direct outside relationship will be with the National SCMS Prototype Policy Development research. The SCMS Governmental Management effort will need to interface with the National SCMS Prototype Policy Development research to support national level SCMS prototype policy development.
The SCMS PoC environment, together with the connected vehicle pilot sites sponsored by DOT, will provide an opportunity to refine the SCMS Manager concept and other non-technology related policies and procedures needed to address security threats.
NHTSA has invested considerable resources and effort in refining and maturing the Security Credential Management System Design. The Agency has enlisted the assistance of leading PKI experts in developing the design, and the design has been formerly reviewed by MITRE Corporation (see Section V.B.3 for summary of MITRE review) and other Federal Agencies including DARPA and NIST have also reviewed the design. NHTSA believes that the SCMS concept and design offers a practical, efficient and effective means for addressing the need for confidence in V2V and V2I communications—while simultaneously addressing privacy concerns arising from potential vehicle tracking using V2V communications. Nevertheless, a fully representative prototype of the SCMS system has not yet been developed and tested, although NHTSA and the JPO are in the process of doing just that, (see Section V.B.6.e) for details).
In addition, the SCMS concept calls for periodic (or routine) communications between the vehicle and various certificate management entities (which reside in the “infrastructure” on the internet) to execute a variety of certificate management life-cycle services including: re-provisioning of on-board pseudonym certificates; distribution of certificate revocation lists; and potential a component for sending misbehavior detection reports from vehicles to the Misbehavior Authority of the SCMS as described in the Proposal. While NHTSA believes that such periodic vehicle to infrastructure communications can readily be accommodated thru either V2V DSRC communications (using roadside units, or RSUs), or through the rapidly
To manage the normal risk associated with any new and complex information security system, and to address a means for potentially reducing the need for V2I security communications, NHTSA has been, and continues to investigate alternatives to the SCMS concept.
NHTSA seeks comments on all aspects of the SCMS. In technical design, development, and potential deployment, including DOT's proposal to expand its governance role in development of a viable organizational model and policies and procedures applicable to a National SCMS, and the use of ICANN as a possible roadmap for how to facilitate establishment of a private, multi-stakeholder entity to manage and oversee operation of the National SCMS.
In late 2012 NHTSA began investigating a certificate management concept termed the “vehicle based security system” (VBSS). VBSS is based on principals associated with Group Manager concepts for managing cryptographic materials—and adapted for vehicular application by NHTSA engineers.
The major difference between SCMS and VBSS is in generating short-term certificates. The SCMS approach relies on individual vehicles to periodically request pseudonym certificates from infrastructure-based entities, (most notably a Pseudonym Certificate Authority, or PCA) which in turn generates and signs short-term certificates. Vehicles then download batches of certificates which are used to digitally sign BSM messages. In contrast, the VBSS concept calls for delegating this authority to individual vehicles, and as a result the communications with the infrastructure are reduced.
DOT funded a Feasibility Study of the VBSS concept in 2014 (completed by Oakridge National Laboratory, ORNL) and the first phase of study was completed in December, 2015.
Under the VBSS concept, the Pseudonym Certificate Authority (PCA), Registration Authority (RA), Linkage Authorities (LAs) and Request Coordination, that are fundamental components in SCMS, are eliminated. VBSS establishes a Group Manager/Group Managers (GM) to provide credentials that make it possible for each vehicle to act as a certificate authority—an entity that can generate short-term certificates.
Each vehicle is a member of a group and is assigned a unique membership secret, a signing key. All member signing keys for a particular group are associated with a single group certificate. A vehicle generates its own ephemeral pseudonym certificates by signing the public key from a self-generated key pair with its group signing key; vehicles act as subordinate Certificate Authorities and pseudonyms are generated on demand based on travel requirements. Pseudonym verifiers use the group certificate to authenticate the pseudonym certificate,
Use of pseudonyms (short-lived identifiers) and separation of distributed identifiers are the primary means of achieving an acceptable level of privacy. Within a VBSS, how groups are designed will also affect the preservation of individual privacy. As the number of distinct groups increases within a geographical area, privacy protection decreases; if every vehicle within a geographic area were in its own group (the extreme case); the group identifier becomes a unique vehicle identifier. This situation can be mitigated by ensuring group diversity is minimized regionally.
Misbehavior detection and reporting, and revocation are maintenance operations that are common to both SCMS and VBSS. There are misbehavior reporting alternatives discussed in SCMS security section of this proposal. In relation to misbehavior and revocation, VBSS may offer some advantages relative to managing communications associated with revoked vehicles. With SCMS, as the number of revoked vehicles grows—including those vehicles revoked because they are at the end of their useful life, the CRL list must also grow. NHTSA and its industry partners are investigating mechanisms for managing the size the CRL but nevertheless remains a challenge. With VBSS, instead of sending out CRLs to revoke vehicles, a Group Broadcast (GB) distributes group credential updates to participating vehicles; this occurs when a sufficient number of vehicle misbehavior reports have been validated resulting in one or more revocations; otherwise, group credentials do not change. With comparison to the SCMS using CRL list to remove compromised devices from the V2V communication system, the size of CRL will increase with the number of compromised devices, VBSS revocation mechanism's advantage is that the size of group credential updates will not increase with the number of compromised devices.
The Phase I study of VBSS and comparisons with other approaches suggests VBSS is feasible because group-based credentials provide a means to delegate infrastructure-based operations to vehicles in an effective way while facilitating the basic requirements of authentication, privacy, and maintenance of confidence. However, while Group-based signature schemes are an active area of research they are evolving and much less mature than other cryptographic systems. For this reason, VBSS remains in its preliminary stages.
NHTSA is continuing its research of the VBSS concept and is beginning a Phase II research Study in 2016. This work will focus on modeling a Group Manager and enhancing our understanding of the Group Manager software engineering requirements. NHTSA seeks comment on the viability of the VBSS certificate management approach including potential advantages and disadvantages relative to the SCMS approach. Specifically, we seek comment on the following:
U.S. DOT research, performed in partnership with European, Australian, and Japanese partners, has recognized that the world will evolve into a multi-root world and that crypto-agility will be a required capability as a response to increasing cybersecurity attacks.
While these capabilities are not required at the initiation of a connected, cooperative environment, they are useful technical and policy constructs to incorporate as the threat profile shifts and as the operational environment grows.
There are three potential paths to consider, all with advantages and disadvantages (we further note that these paths are not exclusive and that as the technologies evolve, they may converge):
(1) There is the path of establishing a single chain to the Root Authority that allows for devices/equipment or operational entities to become enrolled and implicitly trusted by the system. In such a system:
a. The Root Authority requires a significant level of security to ensure that it is not comprised.
b. The root authority can authorize intermediate certificate authorities which can support a diversity of operational parameters. However, all intermediate certificate authorities under a single root authority must operate with the allowable policies of the root authority.
c. There is a requirement for a mechanism to manage root authorities which is capable of transitioning the fundamental cryptographic elements if the Root Authority is compromised. This mechanism must be similarly as highly secured as the root authority and has the ability to revoke the compromised root and add a new root in a controlled and efficient way for all participants in the security system.
d. The mechanism for managing the root, although requiring (and incurring costs for) a high level of security, allows for orderly migration of the security system to incorporate root replacements and cryptographic improvements (as long as the devices within the system are capable of adopting such new cryptographic processes), thus future-proofing the overall system to the extent possible within known parameters.
This is the path that the US is taking to establish initial operations to support emerging connected vehicle environments.
(2) There is the path of establishing multiple, co-existing roots in which each Root Authority must have an agreement with other root authorities that describe an appropriate level of trust. Based on the trust level, a host of interfaces have to be enacted for data transfer that assures one operational root that the other operational root remains trusted. See the report titled,
A benefit to this path is that with multiple operational roots, if one is compromised, another root could potentially take over operations (although this is highly dependent upon the trust levels—if the other operating root that has to take over does not trust the credentials of the compromised root (even if the credentials in use are still valid and not compromised), then all actors enrolled in the compromised root will have to cease operations of the cooperative applications until they can be proven to be trusted actors and enrolled in the uncompromised root authority).
Understanding the different trust levels is the key to understanding whether there are benefits to a multiple root world. A key conclusion to the analysis on how to enact different trust levels is that adding even one additional root to the system increases the number of interfaces among entities which exponentially increases the attack surface of the inter-related systems. This model also increases costs of running different organizations, increases the costs associated with data analysis, and increases the costs of auditing and updating policies. In addition, it seems that agreement of common security policies under the initialization of parallel operational roots, operated by different organizations with different priorities, is likely to be very difficult, adversely affecting the level of trust that may be established among various root authorities.
Furthermore the Government will have no authority to compel one Root Authority to interface with another Root Authority. This would adversely affect interoperability given the equipment under the different roots would not interact in crash avoidance situations reducing the effectiveness of V2V. For example a group of OEMs could be covered under one Root Authority were as a group of aftermarket suppliers could be covered under a different Root Authority. If the OEM group decides that the aftermarket devices do not meet the OEM level of performance then no agreement would be implemented and equipment in the OEM group would not interact with equipment in the aftermarket group. This could create market disparity and reduce consumer choice.
(3) There is one additional path that is very similar to path #2, but also incorporates the use of different types of security credentials (or security certificates). The use of the NIST elliptical curve SHA–256 offers a significant advantage over other types of credentials in that it includes the lowest amount of overhead for an appropriate level of trust and authentication among vehicle moving at very high speeds.
This version of the model would allow for different credentials (such as “brainpool” or other curves) to also be used in operations. This version of the model significantly increases the complexity of the system. While it offers greater crypto-flexibility, having the ability to recognize and use different credentials will require that ALL equipment/devices/applications will have to be able to recognize and trust messages created with either type of credential in order to ensure continued interoperability. This path may increase the cost and complexity of equipment on the vehicle and/or change the nature of the equipment, as the receivers will have to recognize the different cryptographic technologies and perform additional/different validity checks for the different cryptographic technologies. Also, this capability/path is not yet proven and would need to be demonstrated under a number of conditions to ensure that the transactions and timing can still meet the safety applications requirements for latency of the exchange and scalability of the dedicated spectrum available for low-latency communications, such as the V2V Basic Safety Message.
This is the path that is under consideration within the European Union at this time.
All of these paths are, in some sense, multi-root in that it is necessary to have at least a back-up root as part of an internal system. The analysis of the different paths highlights some of the key issues that will need to be addressed as the future evolves:
• Security credentials: At some point, we can expect that the security credentials based upon the current cryptographic level will be broken due to quantum computing and that new security approaches and/or new cryptographic curves will be needed. Research is needed into new curves to ensure that new security approaches do not significantly increase the communications overhead in order support the latency requirements for V2V communications.
• Governance/Certificate Policies: New root management and recovery solutions will need to be developed as the initial, smaller connected vehicle environments evolve into more complicated, region-wide, overlapping environments that may operate at different levels of security. This has been addressed in the first path through the innovative creation of Root Electors that provide the ability to revoke a compromise Root and establish a new Root without having to re-initialize devices.
NHTSA has broad statutory authority to regulate motor vehicles and items of motor vehicle equipment under the National Traffic and Motor Vehicle Safety Act (the “Safety Act”).
For example, the agency's authority to address the privacy and security of vehicle data associated with the operation of those technologies is discussed at length. Id., at pp. 1448, 1465–72. Addressing data security is necessary to safeguard the effectiveness of these technologies and promote their acceptance by vehicle users. Addressing privacy is similarly necessary to promote public acceptance. The views expressed in that article fairly encompass the agency's views of its regulatory authority.
The vehicle technologies that enable vehicles to send messages to and receive messages from each other are vastly different from those that existed when the Safety Act was enacted. Then, the vehicle operating systems were largely mechanical and controlled by the driver via mechanical inputs and linkages. Components and systems were either designed into the vehicle at the time of original manufacture or were later
Today, in contrast, an increasing number of vehicle functions are electronic. These functions can be activated and controlled automatically and do not necessarily require driver involvement, unlike the mechanical functions of previous generations of vehicles. V2V technologies require no driver involvement in order to send and receive information that can be used for vehicle safety functions. Other ways in which V2V technologies differ from the mechanical technologies prevalent when the Safety Act was first enacted include the fact that how they operate can be substantially altered by post-manufacture software updates, and that advances in communications technology make it possible for nomadic devices with vehicle-related applications to be brought into the vehicle.
The language of the Safety Act, however, is broad enough to comfortably accommodate this evolution in vehicle technologies. NHTSA's statutory authority over motor vehicles and motor vehicle equipment would allow the agency to establish safety standards applicable both to vehicles that are originally manufactured with V2V communications devices, and to those devices added after original manufacture.
In the Safety Act, “motor vehicle” is defined as a “vehicle driven or drawn by mechanical power and manufactured primarily for use” on public roads.
(A) Any system, part, or component of a motor vehicle as originally manufactured;
(B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle; or
(C) any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner, that—
(i) is not a system, part, or component of a motor vehicle; and
(ii) is manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding users of motor vehicles against risk of accident, injury, or death.
NHTSA's authority over these groups of items—(1) systems, parts, and components installed or included in a vehicle, (2) replacements and improvements to those systems, parts, and components, (3) accessories and additions to motor vehicles, and (4) devices or articles with an apparent safety-related purpose—is very broad. The status of these items as motor vehicle equipment does not depend on the type of technology or its mode of control (mechanical or electronic), or whether an item is tangible or intangible. The transition from mechanical to electromechanical systems has thus had no effect on the extent of NHTSA's authority over motor vehicle performance. NHTSA has regulatory authority under the Safety Act over all the systems, parts, and components installed on new motor vehicles, even as motor vehicle control systems become increasingly electronic, and perhaps increasingly automated, in the future.
Put in the context of V2V-related motor vehicle equipment, NHTSA considers the following items subject to the agency's regulatory authority:
(1) Any integrated original equipment (OE) used for V2V communications or safety applications reliant on V2V communications.
(2) Any integrated aftermarket equipment used for V2V communications or safety applications reliant on V2V communications, under 30102(a)(7)(B), if the equipment “improves” an already-existing function of the vehicle or is an “addition” to the vehicle.
(3) Some non-integrated aftermarket equipment, depending on its nature and apparent purpose, under 30102(a)(7)(B), if the equipment is a motor vehicle “accessory” (something to be used while the vehicle is in operation, that enhances that operation), or 30102(a)(7)(C), if the equipment is a device used for the apparent purpose of traffic safety (purpose would be clearly observable from the characteristics of the object and the context of its use, rather than necessarily defined by the manufacturer's intent for the equipment).
(4) Software that provides or aids V2V functions, and software updates to all of this equipment, because, under 30102(a)(7)(B), updates can be considered as replacements or improvements.
(5) Potentially some roadside infrastructure (V2I), under 30102(a)(7)(B) and (C), because if its apparent purpose is safety, it may be an “accessory” or a “device . . . manufactured . . . with the apparent purpose of safeguarding users of motor vehicles against accident, injury, or death.” We currently anticipate that only a small subset of roadside infrastructure may fall within this category.
A number of commenters to the ANPRM and Readiness Report raised issues with the agency's discussion of the bounds of its authority. While most commenters agreed that the agency has clear authority to require V2V communications devices in new vehicles and to regulate aftermarket V2V devices,
In response, NHTSA agrees that we have authority under the Safety Act to require V2V communications devices in new vehicles and mandate specific aspects of their performance, and to require similar performance from aftermarket V2V devices designed to participate in the V2V system, as long as those standards are consistent with Safety Act requirements.
We disagree, however, with the points raised by the Alliance regarding certificate and software updates. At this time, NHTSA is not requiring that certificate and software updates be pushed to vehicles without consumers' consent—we are simply requiring that manufacturers alert consumers, via a telltale or message center indicator, to the fact that V2V will not work if they are out of certificates or in need of some other kind of update, and that devices be capable of receiving such updates.
Alternatively, if manufacturers are concerned that consumers would not accept new certificate downloads and would thereby lose the safety benefits of V2V communications, manufacturers could install V2V devices that are pre-loaded with all the certificates that the device would need over its lifetime. This approach would presumably necessitate more storage capacity on the V2V device (and thus more cost), and could also present a potentially bigger security risk if the device were somehow compromised. We seek comment on whether requiring devices to come pre-loaded with a lifetime's worth of certificates could be a better approach than requiring consumers to consent to (and obtain) new downloads, and if so, why.
Besides certificates, however, we expect that software associated with both the V2V communications device itself, and with any accompanying applications that rely on V2V communications for information, would likely need updating during the vehicle's lifetime. As explained above, as for certificate updates, we are proposing to require that manufacturers include a means to communicate to the driver if and when a software update is needed. If the driver then chooses not to accept the update, the system must continue to warn them that V2V functionality is not available. If manufacturers choose not to update software when issues with it are discovered, and safety problems result, NHTSA may choose to pursue those problems under its enforcement authority.
Some commenters disagreed with the agency's statements in the Readiness Report that our Safety Act authority extended to cover RSE.
With regard to the agency's authority under the Safety Act over RSE, although we are not proposing in this NPRM to regulate any RSEs, we disagree that a device that performs non-safety functions in addition to safety functions is necessarily not motor vehicle equipment. Tires, for example, perform the non-safety function of helping a vehicle travel down the road by creating friction between the wheel and the road, but that friction also plays a safety role by helping the vehicle stop rapidly when the driver hits the brakes. Brakes and steering wheels, for that matter, help drivers execute turns which may be necessary to reach their intended destination, but they also help drivers avoid crashing their vehicles. Many items of motor vehicle equipment that NHTSA regulates perform safety functions in addition to being generally necessary for the driving task. NHTSA can regulate those items insofar as they affect vehicle safety. By providing a link between the SCMS and the vehicle, and potentially being the mechanism by which the vehicle's V2V communications device is able to obtain new security certificates and information about which other vehicles to trust and not to trust, the RSE may play a vital role in creating the environment needed for safety. A BSM cannot be sent without a certificate, and a V2V communications device must not trust an untrustworthy partner vehicle, or safety applications may not function properly.
That said, NHTSA does not currently anticipate the need to specify requirements for the RSE that may participate in the overall V2V system. We note that FHWA has already issued specifications for roadside units that are publicly available,
Thus, the agency believes that our existing Safety Act authority comfortably allows us to require V2V communications devices in new motor vehicles and aftermarket equipment. The following section examines what the Safety Act requires NHTSA to consider in developing an FMVSS, and how the proposal in this NPRM may meet those requirements.
Under the Safety Act, NHTSA's motor vehicle safety standards are generally performance-oriented.
In the Safety Act, the Secretary is directed to issue motor vehicle safety standards. “Motor vehicle safety standards” are defined as “minimum standard[s] for motor vehicle or motor vehicle equipment
While NHTSA is directed to establish performance standards, the case law and the legislative history indicate that when necessary to promote safety, NHTSA can be quite specific in drafting its performance standards and may require or preclude the installation of certain equipment. The cases have reinforced this concept by determining that NHTSA is “generally charged”
Although the Safety Act directs NHTSA to issue performance standards, however, Congress understood that the agency may preclude certain designs through these performance standards. “Motor vehicle safety” is defined in the Safety Act as the performance of a motor vehicle in a way that protects the public from unreasonable risks of accident due to (among other things) the design of a motor vehicle.
The courts have further elaborated on the framework established by Congress and have recognized that, when necessary to achieve a safety purpose, NHTSA can be quite specific in establishing performance standards even if certain designs will be precluded. For example, the Sixth Circuit found that an agency provision permitting rectangular headlamps, but only if they were of certain specified dimensions, was not an invalid design restriction and “serve[d] to ensure proper headlamp performance,” reasoning that “the overall safety and reliability of a headlamp system depends to a certain extent upon the wide availability of replacement lamps, which in turn depends upon standardization.”
Further, the cases indicate that NHTSA can establish standards to require the installation of certain specific equipment on vehicles and establish performance standards for that equipment. For example, the Tenth Circuit found in
Thus, in summary, NHTSA is required to issue performance standards when regulating motor vehicles and motor vehicle equipment. However, NHTSA is able to be quite specific in establishing performance standards and may preclude certain designs that are contrary to the interests of safety. Further, NHTSA may require the installation of certain equipment and establish performance standards for that equipment.
As Section III.E discusses at length and as the regulatory text at the end of this preamble discusses at length, NHTSA has developed a set of proposed performance requirements for DSRC performance. These sections explain: (1) What information needs to be sent to the surrounding vehicles; (2) how the vehicle needs to send that information; (3) how a vehicle shows that it is a valid source of information; and (4) how a vehicle makes sure the prior three functions work in various operational conditions (
The provisions allowing alternative technologies to satisfy the mandate are performance-oriented, but do not specify a particular way of communicating. The goal of this is to maximize industry's ability to innovate and potentially employ future communication technologies that may be able to meet the performance requirements (like, for example, latency) for V2V-based safety warning applications. While alternative technologies would be subject to several aspects of the test procedures set forth for DSRC-based devices, it leaves open for industry to develop a number of aspects of performance, including interoperability with all other V2V communications technologies that transmit BSMs. We believe that the inclusion of some performance tests makes these provisions consistent with the Safety Act requirement of standards being “performance-oriented.” We seek comment on this tentative conclusion.
As required by the Safety Act, standards issued by the agency must “meet the need for motor vehicle safety.”
However, a standard need not address safety by direct means. In upholding NHTSA's authority to issue a safety standard requiring standardized vehicle identification numbers, the Fourth Circuit Court of Appeals found that an FMVSS requiring VINs met the need for motor vehicle safety by such indirect means as reducing errors in compiling statistical data on motor vehicle crashes (in order to aid research to understand current safety problems and support future standards, to increase the efficiency of vehicle recall campaigns, and to assist in tracing stolen vehicles).
We believe that there is a clear nexus between the safety problem and the proposals in this document. In the case of DSRC-based devices, DSRC can enable all of the safety applications under consideration by the agency, such as Intersection Movement Assist, Left Turn Assist, and Electronic Emergency Brake Light, which means that DSRC can help to address the safety problems of,
Moreover, case law supports that DSRC need not directly create more safety itself, as long as it is enabling other safety applications. If VINs could be upheld as meeting the need for motor vehicle safety simply by virtue of the fact that they aid research in understanding safety problems and supporting future standards, as well as aiding recall campaigns and tracking of stolen vehicles, then DSRC, which would directly enable half a dozen safety applications at its inception and perhaps many more eventually, seems even more clearly to meet the need for safety in that respect.
Non-DSRC devices should have a similar nexus to the safety problem.
A standard is objective if it specifies test procedures that are “capable of producing identical results when test conditions are exactly duplicated” and performance requirements whose satisfaction is “based upon the readings obtained from measuring instruments as opposed to subjective opinions.”
Using those two elements of objectivity (capable of producing identical results and compliance based on measurements rather than subjective opinion), the Sixth Circuit Court of Appeals found that the test procedure in question in an early version of FMVSS No. 208 was not objective because the test dummy specified in the standard for use in compliance testing did not give consistent and repeatable results.
The record supports the conclusions that the test procedures and the test device specified . . . are not objective in at least the following respects: (1) The absence of an adequate flexibility criteria for the dummy's neck; the existing specifications permit the neck to be very stiff, or very flexible, or somewhere in between, significantly affecting the resultant forces measured on the dummy's head. (2) Permissible variations in the test procedure for determining thorax dynamic spring rate (force deflection characteristics on the dummy's chest) permit considerable latitude in chest construction which could produce wide variations in maximum chest deceleration between two different dummies, each of which meets the literal requirements of SAE J963. (3) The absence of specific, objective specifications for construction of the dummy's head permits significant variation in forces imparted to the accelerometer by which performance is to be measured.
Other courts have also reached similar conclusions. The Ninth Circuit Court of Appeals, relying on the same reasoning adopted by the Sixth Circuit, found that a compliance road test specifying the use of surfaces specifically rated with quantifiable numbers (defining the “slickness” of the surfaces) was objective despite “[t]he fact that it is difficult to create and thereafter maintain a road surface with a particular coefficient of friction,” which the court held “does not render the specified coefficient any less objective.”
As discussed above, under the proposal, we have developed and are proposing performance requirements, including compliance test procedures, for DSRC. We will continue evaluating the compliance test procedures further and receiving public input during the comment period that can assist us in fine-tuning the procedures and ensuring that they meet our statutory requirements. For alternative technologies, given that the testing to this point that led to the development of the test procedures for interoperability did not evaluate the use of non-DSRC communication technologies, we seek comment on how the regulatory text alternative technologies can achieve interoperability in an objective manner.
In general, the practicability of a given standard involves a number of considerations. The majority of issues concerning the practicability of a standard arise out of whether the standard is technologically and economically feasible. An additional issue is whether the means used to comply with a standard will be accepted and correctly used by the public.
First, significant technical uncertainties in meeting a standard might lead a court to find that a standard is not practicable. For example, the Sixth Circuit Court of Appeals upheld NHTSA's decision to amend FMVSS No. 222 to include requirements for wheelchair securement and occupant restraint on school buses with a static
(1) [N]eed to develop an appropriate test dummy; (2) need to identify human tolerance levels for a handicapped child; (3) need to establish test conditions; (4) need to select a “standard” or surrogate wheelchair; (5) need to establish procedures for placing the wheelchair and test dummy in an effective test condition; and (6) need to develop an appropriate test buck to represent a portion of the school bus body for securement and anchorages.
However, the requirement that a standard be technologically feasible does not include the additional requirement that the agency show that the technology to be used to comply with the standard is already fully developed and tested at the time that the standard is promulgated. The Sixth Circuit upheld a NHTSA standard requiring “Complete Passive Protection,” that required the installation of airbags as standard equipment by a future date, rejecting petitioner's contention that NHTSA may only establish performance requirements which can be met with devices which, at the time of the rulemaking, are developed to the point that they may be readily installed.
[I]t is clear from the Act and its legislative history that the Agency may issue standards requiring future levels of motor vehicle performance which manufacturers could not meet unless they diverted more of the ir resources to producing additional safety technology than they might otherwise do. This distinction is one committed to the Agency's discretion, and any hardships which might result from the adoption of a standard requiring . . . a great degree of developmental research, can be ameliorated by the Agency under . . . The section [that] allows the Secretary to extend the effective date beyond the usual statutory maximum of one year from the date of issuance, as he has done [here].
Second, a standard can be considered impracticable by the courts due to economic infeasibility. This consideration primarily involves the costs imposed by a standard.
Finally, a standard might not be considered practicable if the public were not expected to accept and correctly use the technologies installed in compliance with the standard. When considering passive restraints such as automatic seatbelts, the D.C. Circuit stated that “the agency cannot fulfill its statutory responsibility [in regard to practicability] unless it considers popular reaction.”
We believe that the proposal is consistent with these requirements. Technologically, DSRC has existed for over a decade, and is currently being used in Japan to support V2I applications and electronic toll collection. The performance requirements and test procedures being proposed to help ensure interoperability should also ensure the technological practicability of the proposal. In terms of economic practicability, NHTSA currently assumes that the cost of a DSRC standard would include costs for device hardware and software, as well as costs for the security and communications system that would be necessary in order for DSRC to function properly. As discussed in Section VII below, we estimate the likely total cost for a V2V system to the consumer (vehicle equipment costs, fuel economy impact, SCMS costs, and communication costs) at approximately $350 per new vehicle in 2020. Economic practicability requires that compliance with the standard should not be so burdensome as to create a significant harm to a well-established industry. It does not seem likely that a court would find the standards economically impracticable either for the auto industry, or for any small business interests potentially implicated, since those would more likely be in the context of aftermarket devices (phone apps and so forth), which are entirely voluntary and do not represent a mandate.
For the question of public acceptance, the main concerns with regard to the proposal likely relate to security and privacy. To address such concerns, the requirements in the proposal include tests to ensure tamper-resistance of the DSRC unit; security requirements for the messages themselves; express requirements that certain identifying information
With respect to comments on the agency's authority received to the ANPRM and Readiness Report, commenters tended to support generally the agency's authority to establish an FMVSS for V2V communications, while some commenters offered their own interpretations of what would be necessary for a standard to be consistent with the Safety Act. The Alliance, for example, argued that a proposal to mandate DSRC in new vehicles and set standards for DSRC aftermarket devices would not meet the Safety Act criteria if (1) NHTSA could not prove that the standard would improve safety as compared with not adopting a new FMVSS; (2) NHTSA did not present how a security system would be “established, funded, governed and operated”: and (3) FCC opened the 5.9 GHz spectrum to unlicensed wireless devices and the operation of those devices resulted in harmful interference to V2X communications.
As discussed above, NHTSA continues to believe that the proposal is consistent with the Safety Act. As Section III.E discusses at length and as the proposed regulatory text for the proposal at the end of this preamble discuss at length, NHTSA has developed proposed requirements for DSRC performance. These sections explain: (1) What information needs to be sent to the surrounding vehicles; (2) how the vehicle needs to send that information; (3) how a vehicle shows that it is a valid source of information; and (4) how a vehicle makes sure the prior three functions work in various operational conditions (
We do not agree with commenters that the proposed standard must be perfectly neutral regarding technology, nor that all possible issues associated with ensuring the long-term success of V2V must be resolved prior to issuing a proposal. As explained above, case law supports the principle that an FMVSS may restrict design flexibility if certain designs would be contrary to the interests of safety. Additionally, we do not believe that waiting to issue a proposal until, for example, DSRC is more thoroughly tested in the fleet, or an SCMS is fully funded and operational, or every potential consumer concern is resolved, would be in the best interest of safety. S9 of the regulatory text, however, is directly responsive to the TIA comment requesting that the agency consider a technology agnostic approach. As covered in the discussion concerning why we are proposing to require V2V communications, for a technology like V2V, where a critical mass of equipped vehicles is needed to create the environment for safety benefits to be possible, the agency does not believe that sufficient quantities of V2V-equipped vehicles will be introduced in the market absent a mandate. By proposing this FMVSS, we aim to create an information environment which, we believe, will then enable the market to bring forth the safety, mobility, and environmental benefits that we anticipate V2V can provide. We intend to continue working closely with other Federal agencies and industry stakeholders on spectrum issues, with industry stakeholders and consumer groups and others on consumer-related concerns, and with all relevant parties on developing an SCMS to support a V2V network. We will also continue our research to improve and refine potential performance requirements and test procedures, as discussed above. Again, public comment on the proposal will facilitate our careful consideration of these issues, and we look forward to hearing from commenters on how to resolve them to best serve the interests of safety.
Besides the proposal, the agency is considering two regulatory alternatives—the first, a “mandate V2V communications and safety applications” alternative, under which the agency also requires new vehicles to have IMA and LTA capabilities; and the second, an “if-equipped” alternative, that would set baseline requirements for V2V communications, but not require new vehicles to have this technology on any specific schedule. Under both the “mandate V2V communications” proposal and the “and safety applications” alternative, the phase-in rate for V2V communications for new vehicles would be 50 percent in the first required year, 75 percent in the second year, and 100 percent in the third year and beyond. We have evaluated the “and safety applications” alternative in terms of two different phase-in scenarios—in the first scenario, safety applications would be required for new vehicles at a phase-in rate of 0 percent—50 percent—75 percent—100 percent over four years; while in the second scenario, safety applications would be required for all new vehicles in the first year that V2V communications are required. The “if-equipped” alternative, on the other hand, faces much greater uncertainty regarding the technology adoption. Based on the estimated costs of V2V radios and the SCMS, and the “network” nature of V2V communication, the agency believes that Alternative 2 is unlikely to lead to
The “if-equipped” alternative is consistent with the agency's Safety Act authority, which does not require NHTSA to require technology for new vehicles. It is therefore not discussed further in this section.
The agency evaluated our authority to mandate specific safety applications in the Readiness Report
As discussed in the Readiness Report, an FMVSS for a safety application must include minimum requirements for its performance. This first requires a determination of what tasks the safety applications need to perform, which would vary based on the types of safety risks/crash scenarios that the application is intended to address. The agency explained in the Readiness Report that it is examining the currently-available (research-stage) performance and test metrics associated with each safety application, and analyzing these metrics against the available safety data to determine whether these metrics cover the relevant safety problem.
The Readiness Report explained that the agency envisioned that an FMVSS for one of the analyzed safety applications would set performance requirements that could be met by any technology, but that if V2V communications performance requirements made it reasonable to require more robust performance, we could require that performance if V2V communications were mandated. The agency recognized for some applications, like IMA and LTA, performance requirements can likely be met only with V2V communications-based technologies due to their ability to detect crossing-path vehicles, but for others, a variety of technologies could potentially be used.
With regard to other Safety Act requirements for an FMVSS, the Readiness Report concluded as follows:
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Commenters generally agreed with the agency's authority to issue FMVSSs for V2V-based safety applications (both in terms of mandating their installation and regulating their performance), and also agreed that more work was likely needed before such FMVSSs would be consistent with Safety Act requirements. The Alliance, for example, agreed that NHTSA could specify levels of performance for safety applications that “indirectly eliminate[d] some forms of delivering the safety application within the motor vehicle,” but stated that much work was needed before it would be clear that an FMVSS for any safety application met Safety Act criteria.
NHTSA agrees with some commenters that earlier introduction of safety applications would guarantee earlier achievement of safety benefits associated with V2V capability, and we also agree with other commenters that additional work would likely be necessary in order for the agency to ensure that potential FMVSSs for safety
In response to comments that FMVSSs should be performance-oriented and technologically neutral, we envision that each FMVSS for one of these safety applications would set performance requirements that could be met by any technology. However, if V2V communication performance requirements made it reasonable to require more robust performance, we could require that performance when V2V communication is mandated.
We continue to believe that any FMVSSs for the V2V safety applications would meet the need for safety, insofar as we would issue them to address safety problems that continue to cause crashes in the absence of regulation or market forces driving the adoption of these technologies. The safety applications are clearly intended to relate to safety—they warn drivers of dangerous conditions and are intended to promote safety by triggering a response to avoid the danger.
There are several things that the agency could do to help solidify the nexus of safety application warning and driver response. For example, and as raised by commenters, research continues at this point to develop driver-vehicle interfaces for each of the safety applications. We will want to be able to demonstrate how effective the DVIs we may eventually mandate are at warning the drivers and inducing them to avoid the dangerous situation. We currently have reason to believe that the V2V safety applications will meet the need for safety, but additional information and analysis will make that case stronger and we request comment on this.
FMVSSs for V2V safety applications also need to be objective, meaning that they specify test procedures that are “capable of producing identical results when test conditions are exactly duplicated” (meaning that the agency and the manufacturer must be able to obtain the same result from identical tests) and performance requirements whose satisfaction is “based upon the readings obtained from measuring instruments as opposed to subjective opinions.” As discussed above, test procedures and performance requirements for the V2V safety applications are still being developed, but NHTSA would ensure that any test procedures it may require would meet the criteria of being objective, and also technologically practicable. NHTSA would provide appropriate lead time for any FMVSSs to ensure these criteria are met, as well.
In terms of economic practicability, NHTSA currently assumes using preliminary cost estimates that the cost of standards for the V2V-based safety applications would primarily include costs for software that would be used by the vehicle to interpret V2V communications signals and make decisions about whether to warn the driver, as well as costs for any hardware that would be necessary to make those warnings happen via the DVI. As discussed above, it seems unlikely that economic practicability would be an issue for potential safety application FMVSSs, but more research to determine costs more precisely would be beneficial to this assessment.
While the Safety Pilot Model Deployment provided participating manufacturers with useful real-world experience in tuning prototype applications to maximize effectiveness and minimize false positives, DVI requirements remain under development, and more work needs to be done before we can be confident that eventual FMVSSs for V2V safety applications will not have public acceptance risks.
Under both the Vehicle Safety Act and the Highway Safety Act, NHTSA has other ways of affecting the parts of the V2V system that cannot be regulated directly. For example, 49 U.S.C. 30182 provides NHTSA authority to enter into contracts, grants, and cooperative agreements with a wide range of outside entities to conduct motor vehicle safety research and development activities, including activities related to new and emerging technologies. Separately, the Highway Safety Act (23 U.S.C. 401
A principle of appropriations law known as the “necessary expense doctrine” allows NHTSA to take the next step of entering into contracts or agreements to ensure the existence of sufficient communications and security systems to support deployment of V2V technologies, if V2V communications are mandated or otherwise regulated by a Federal Motor Vehicle Safety Standard or other NHTSA regulation. According to that principle, when an appropriation is made for a particular purpose, it confers on the receiving agency the authority to incur expenses necessary to carry out the purpose of the appropriation.
For these reasons, in addition to NHTSA's research, development, and collaboration authority under the Vehicle Safety Act and the Highway Safety Act, the necessary expense doctrine provides sufficient authority under the Vehicle Safety Act to take the next step of entering into agreements or contracts, either for cost or no-cost, with the goal of ensuring the existence (
NHTSA received comments to the ANPRM and Readiness Report from some stakeholders suggesting that NHTSA itself must obtain funding for and develop at least parts of the SCMS as a Federal project.
The Readiness Report discussed the issue of legal liability in the context of V2V,
For the first category, NHTSA stated that from a products liability standpoint, V2V safety warning technologies, analytically, are quite similar to on-board safety warnings systems found in today's motor vehicles, and that therefore, V2V warning technologies do not create new or unbounded liability exposure for industry, because the driver remains responsible for failing to avoid a crash when the technology only warns and does not intervene. Consequently, NHTSA stated that it is not necessary, nor would it be appropriate to advocate the liability limiting agenda sought by industry in connection with potential deployment of V2V safety warning technologies via government regulation—and that, in any event, only Congress has the authority to provide the V2V-based liability relief sought by industry.
For the second category, NHTSA indicated that it was premature to take a position on the need for liability limiting mechanisms applicable to operators and owners of the SCMS, and that the appropriateness of such liability limiting/risk sharing measures will turn on: (1) The constitution and governance of the SCMS; and (2) the extent to which the primary and secondary insurance markets make insurance coverage available to SCMS entities and other owners and operators of V2V infrastructure.
NHTSA received a number of comments in response. Generally, commenters felt that NHTSA should conduct additional research on liability before proceeding with a V2V mandate, including with respect to the liability of automobile manufactures, owners and operators of the SCMS and V2V communications and security infrastructure, and vehicle owners. While NHTSA will continue to research and analyze potential liability issues stemming from a mandated V2V System, the Agency does not believe that additional research or work with stakeholder and consultants on this issue should delay the rulemaking process or the deployment of this important new safety technology.
Bendix and Cohda agreed with the agency's assessment of liability issues,
Several commenters stated that additional mechanisms to limit liability are necessary before V2V can be deployed. The National Motorists Association stated that Congress needed to define liability for individual motorists and expressly distribute liability among OEMs, operators, drivers, and other public and private stakeholders.
A number of commenters disagreed with the agency's assessment that V2V-based safety warnings created no additional liability than what already exists for current on-board safety warnings systems.
With regard to the agency's assessment of liability mitigation through insurance, the Alliance argued that it did not believe insurance would necessarily be available to cover entities involved in the SCMS since no data existed yet on which to base underwriting estimates, citing cybersecurity insurance as an example of another area where the insurance industry is unwilling or hesitant to provide insurance.
Other liability issues raised by commenters included concerns about liability associated with infrastructure. Michigan DOT requested more discussion of liability issues for owners/operators of public RSE infrastructure.
It is clear that potential liability stemming from V2V communications is a policy issue of great concern to the automotive industry and certain other stakeholders. It also is true that V2V safety warnings rely on cooperative technology that is different than the technologies deployed in existing on-board safety warnings systems, which do not rely on data received from devices and infrastructure outside of a motor vehicle. The primary policy issues in the OEM context are whether liability related to the V2V System can be addressed by the existing product liability paradigm (
The agency has researched, analyzed and continues to grapple with this difficult and potentially quite broad question. We do not, as suggested by some commenters, dismiss the critical importance of potential legal liability to V2V stakeholders. We recognize fully that liability is a potential impediment to deployment of V2V technology. Nevertheless, from a policy perspective, the agency continues to believe that V2V safety warnings should not create liability risks for automobile manufacturers that differ in any meaningful way from risks posed by existing vehicle-based safety warnings systems—and that it is premature to propose or advocate the liability-limiting agendas sought by some stakeholders.
We first address some primary V2V liability risks to automotive manufacturers raised by commenters. We then discuss potential liability risks to owners and operators of SCMS entities, and the extent to which it is appropriate for NHTSA to develop or advocate liability-limiting mechanisms applicable to such providers.
Product liability law, which varies from State-to-State, generally concerns the liability of designers, manufacturers and distributors for harm caused to consumers and bystanders by “defective” or “unreasonably dangerous” products.
There is a broad range of product liability theories and defenses that could be applicable to liability litigation involving the V2V System. For purposes of this discussion, we focus on the product liability theory of “failure to warn,” which the Alliance, Mr. Dennis, and Mercedes Benz raised in their respective comments. A “failure to warn” claim is based on the theory that even a properly designed and manufactured product may be defective as a result of its manufacturer's failure to warn consumers of any dangerous characteristics in its product about which it knows or should know and which the user of the product would not ordinarily discover.
1. The manufacturer knew or should have known of the risks inherent in the product;
2. There was no warning, or the warning provided was inadequate;
3. The absence of a warning made the product unreasonably dangerous; and
4. The failure to warn was the cause-in-fact or proximate cause of the plaintiff's injury.
To avoid liability for failure to warn, a product's instructions or warnings must sufficiently alert the user to the possibility of danger.
The Alliance, Mr. Dennis, and Mercedes-Benz all took the position that the cooperative nature of V2V safety warnings and the external data sources on which V2V warnings are based change the fundamental nature of “failure to warn” claims and make them more complex.
In the context of V2V OBE failure claims, it also may be quite difficult for consumers to prove that a vehicle's V2V equipment caused or contributed to an accident. However, to the extent that the V2V communications proposed in this rule are used as a warning system, not a control system, then, as with existing vehicle-based warning systems, the V2V System is an aid to help drivers safely operate their vehicles. As discussed in varying places in this NPRM and the accompanying PRIA, at this time, NHTSA does not assume that V2V communications will be used as the sole basis for any safety system that exercises actual control of the vehicle. Thus, we assume that any liability concerns related to safety systems that do take control of the vehicle will not be affected by the presence of V2V.
In its comment, the Alliance stated that “conclusions about the applicability of the state of the law with respect to traditional failure to warn claims involving on-board warning technologies grossly oversimplifies the way such claims are likely to evolve in the V2X litigation.”
On a related note, the Alliance commented that NHTSA's reliance on Dykema's OEM Risk Assessment Report is misplaced, as that report assumes that a public or quasi-public entity will run V2V infrastructure when NHTSA assumes that the SCMS will be private. NHTSA respectfully disagrees with the Alliance on this point. Dykema's OEM Report contains no assumptions, explicit or implied, that would limit the utility or applicability of its analysis of OEM risk for V2V-related product liability claims. Additionally, with respect to infrastructure-based liability claims, the report specifically notes, without limitation and without referencing public ownership of such infrastructure, that “[a]lthough the structure of VII described herein focuses on a hypothetical DSRC-enabled system, the analysis and conclusions in this deliverable generally will apply to any VII network that communicates information V2V or V2I.”
Dykema's OEM Report also notes that a lawsuit might allege that a crash was caused, in whole or in part, by a failure in the communications infrastructure supporting V2V (
From NHTSA's perspective, the critical policy issues in the SCMS context are whether concerns about liability will be a stumbling block to creation and operation of a private SCMS—and, if so, whether a need exists for DOT to work with stakeholders to develop Federal liability-limiting options that would incentivize private participation in a National SCMS.
In the Readiness Report (as in Proposal A in this document), NHTSA focused on a private model of SCMS governance that did not involve Federal funds or liability protections —but instead functioned through industry self-governance by an SCMS Manager that would work with SCMS entities to determine the appropriate distribution of liability for harm and establish minimum insurance requirements. In response, commenters such as the Alliance took the position that private insurance would not necessarily be available to cover entities involved in the SCMS since no claims data existed yet on which to base underwriting estimates, citing cybersecurity insurance as an example of another area where the insurance industry has been unwilling or hesitant to provide insurance.
The agency acknowledges that SCMS entities may not be able to obtain adequate liability insurance without Federal intervention of some sort—but it is simply too early to tell. As we noted in the Readiness Report, the extent to which the primary and secondary insurance markets will make insurance coverage available to SCMS entities will be a factor in whether DOT supports development of liability-limiting mechanism to incentivize private SCMS participants. To this end, the agency expects that the issue of liability as a potential impediment to the establishment of a National SCMS will be among the issues that NHTSA and V2V stakeholders continue to grapple with going forward—and one that DOT's planned PKI and organizational policy research will explore fully (including through consultations with the insurance and reinsurance industries). However, due to the lack of substantive evidence that the private insurance market is unwilling to underwrite SCMS risks, NHTSA continues to believe that it is premature to take a position on the need to develop and advocate for Federal liability-limiting mechanisms for a National SCMS.
The agency also is of the view that potential liability based on failures in the SCMS may be limited substantially by lack of causation due to drivers' roles in failing to avoid crashes. However, NHTSA wishes to clarify a comment in the Readiness Report relating to limitations on consumer liability—specifically, the statement that:
It also is not clear to the agency why an SCMS Manager could not require that individuals and entities participating in an SCMS to agree to terms of use that would limit the liability of the SCMS and its component entities, either explicitly or via the same type of instructions and explanations of system limitations that the OEMs would use to limit liability.
In its comment, the Alliance noted that NHTSA appeared to be promoting
In this NPRM, the agency proposes that all light vehicles be equipped with technology that allows for V2V communications. The agency believes that this technology will facilitate the “free-market” development of various applications; both safety and non-safety related that would not be possible without a network of devices “talking” to each other.
However, at this time, the agency has decided to mandate V2V technology, but not mandate any specific applications. The agency believes this is the appropriate course for several reasons. First and foremost being that the agency believes V2V communication's cooperative nature needs a government mandate as the “spark” to establish a shared “open” platform that can be utilized to move this technology into the mainstream while not stifling potential, unforeseen innovations. In addition, the agency does not currently possess sufficient information to mandate particular safety applications, although, throughout this NPRM, we request additional information that could inform a potential decision to mandate certain applications.
This free-market approach to app development and deployment, though, makes estimating the potential benefits of V2V quite difficult. In a traditional NHTSA analysis of a safety technology, the agency would determine benefits by looking to the target population for the type of crash it is trying to avoid or mitigate and the effectiveness of the mandated performance requirement or safety technology in addressing those crashes. However, here, the technology being mandated by the agency, V2V communication, would only indirectly create safety benefits. Widespread adoption of V2V would facilitate the development of new safety applications that would not be possible otherwise, as well as help improve the performance of safety applications that already exist based on cameras or sensors. Further, V2V technology is expected to speed-up the deployment of various V2I technologies, which could have significant safety and congestion-relief applications.
The agency is confident that these technologies will be developed and deployed once V2V communications are mandated. The difficulty, though, is that the agency does not currently have sufficient information to definitively predict how or when this will occur. Thus, the agency has projected an adoption period based upon research conducted on the deployment of other advanced technologies as well as other information obtained during the development of this proposed rule. In addition, the agency demonstrates the potential safety benefits by analyzing two safety applications, IMA and LTA, both of which the agency believes are likely to lead to significant safety benefits that are likely only possible using V2V technology. The agency has therefore not quantified any benefits attributable to the range of other potential uses of V2V, although we acknowledge that such uses are likely to exist. The agency believes that, by focusing on only two of the many potential uses of V2V technology and given our experience with other technologies, we have taken a reasonable approach in estimating the potential benefits of the proposed rule and have likely understated the. The agency, though, requests comments on these assumptions to better inform the analysis that would support a final rule. Is there more detailed information concerning manufacturer's plans to reduce safety impacts associated with widespread adoption of V2V technology applications? If so, what applications and on what timeline?
The agency was able to use information obtained from the V2V Readiness Report in developing the cost estimates in this proposal. Where appropriate, the V2V Readiness Report cost estimates were adjusted to align with any new information obtained by the agency such as: That provided through comments to the V2V ANPRM, experience from the SCMS RFI activity, and by developing the proposed performance requirements.
The costs and benefits are presented in two measures: Annual and by model year (MY) vehicles (MY costs). The annual costs represent the yearly financial commitment while the MY costs represent the total investment born by the indicated MY vehicle, plus the lifetime fuel economy impact from those vehicles. In either accounting measure, the vehicle equipment, communication, and SCMS costs are assumed to be paid by new vehicle owners when their vehicles were purchased. The only difference between the two cost measures is the calculation of any potential fuel economy impact. The annual fuel economy impact measures the collective fuel impact from all V2V-equipped vehicles for a specific calendar year. In contrast, the lifetime fuel economy impact measures the fuel impact specifically for a MY vehicle through its operational life. All cost estimates are adjusted for 2014 dollars.
For this analysis, the agency is considering two potential technology implementation approaches that could meet the safety, security, and privacy specifications of the proposed rule. These two approaches are (1) utilizing one DSRC radio dedicated to V2V safety communications paired with secondary cellular, Wi-Fi, or Satellite communications (“one-radio” approach) and (2) utilizing two DSRC radios, one dedicated to V2V safety communications and one used for secondary communications such as SCMS or other “back office” type communications (two-radio approach). As a result, both the annual and MY costs are presented as a range which covers the costs from these two approaches.
The following sections describe the four parts of quantified costs, followed by the summary of the total quantified costs and non-quantified costs, and estimated cost per vehicle. This normalized per vehicle cost allows a straightforward comparison between various technology approaches and regulatory alternatives. All costs were estimated under the DSRC and app sales scenario specified in the Estimated Benefits portion of this chapter—Section VII.D.
As shown in Table VII–1, the total direct component costs to OEMs were estimated to be $162.77 for one DSRC radio and $229.91 for two radios. The total weight of one DSRC radio is approximately 2.91 lbs. whereas the weight of two radios is slightly heavier, about 3.23 lbs. For the two-radio approach, as previously discussed, two DSRC antennas are necessary: The first DSRC radio sends and receives the BSM, and the second radio handles security aspects of receiving certificates,
Overall, for this analysis the vehicle equipment costs are based on an OEM integrated device built into vehicles during their manufacture. This example device includes the costs of DSRC radios, DSRC antenna, GPS, HSM, and installation of relevant equipment (DSRC radios in short) and loaded with two safety applications. With specific regard to the safety applications, the app costs include software engineering and development costs since the agency is not assuming any additional interface beyond the DVI or equipment costs for the apps. The software engineering and development costs will be shared by millions vehicles, and thus is expected to be minimal across the fleet. The OEM integrated device is used as a basis for cost estimation as this device type provides a more accurate cost expectation associated with finalizing this proposal.
The agency also estimated potential costs for aftermarket devices that could enter the marketplace as a result of finalizing this proposal and enabling more consumers to benefit from V2V technology. As described elsewhere, aftermarket devices could be available in three distinct varieties: Retrofit, standalone, and a simple awareness device. The agency estimates that the three aftermarket device types would cost $400.28 for a retrofit device; $278.33 for a standalone device, and $101.74 for a simple awareness device.
The costs in Table VII–2 reflect the costs that OEMs pay to a component (Tier 1) supplier to purchase these components for the vehicles they manufacture, not the projected cost of these systems to consumers. To obtain the consumer costs, each variable cost is multiplied by 1.51 (
Component installation costs are primarily attributable to the labor needed to perform the installation, but the agency also accounts for potential, additional costs associated with materials used in the installation such as minor attachments brackets, or plastic tie downs to secure wires, etc. In Table VII–3, the installation costs are separated into “Material Costs” (for the minor attachments), “Labor Costs,” and “Variable Burden” (
When researching installation costs, the agency identified the need to make adjustments for GPS installation. Today, many vehicles are already equipped with GPS receivers and the percentage equipped as standard installation is likely to increase going forward. The agency estimates approximately 43 percent of MY 2013 light vehicles were equipped with GPS receivers.
Table VII–4 summarizes consumer costs for original equipment manufacturers (OEMs) for the first year of equipping a vehicle with V2V components. The consumer unit cost is estimated to be $249.19 for one radio and $350.57 for two radios in 2014 dollars.
As manufacturers gain experience through production of the same product, they refine production techniques, better manage raw material and component sources, and assembly methods to maximize efficiency and thus reduce production unit costs. Learning curves reflect the impact of experience and volume on the cost of production and are especially evident when a completely new product is introduced to the marketplace. V2V systems are expected to be installed on a growing portion of the vehicle fleet as manufacturers ramp up to the meet the proposed rule which would require 100% new vehicle installation by 2023, which is projected to be over 16 million units annually. This large scale production provides manufacturers with opportunities to reduce system costs through the learning process. Additional information on the agency's learning curve development and the derivation for learning curves related to V2V are detailed in Chapter 7 of the PRIA that accompanies this proposed rule.
NHTSA routinely performs evaluations of the costs and benefits of safety standards that were previously issued in an effort to estimate learning curve impacts, among other economic impacts, and provide the most accurate possible information at the time a rule is proposed and finalized. To estimate costs, the agency conducts a teardown study of the technologies used to meet the standards. In some cases, the agency has performed multiple evaluations over a span of years. For example, a teardown study may be performed to support the agency's initial estimates of costs that will result from the regulation, and again five years later to evaluate the impacts of the regulation after it has been in effect. These data, together with actual production data,
For V2V, the agency estimates that learning would reduce the unit cost for two radio implementations, including two safety applications, from approximately $350.57 in 2021 to $218.85 in 2060, which is about 62.5 percent. Applying the same learning pattern, the unit cost for a one radio system would decrease it from $249.18 in 2021 to $155.47 in 2060. Details of how learning would affect unit costs for both one to two radio implementations can be found in Table VII–5.
Table VII–6 summarizes the total annual vehicle component costs. As shown, total annual vehicle component costs would range from $2.0 billion to $4.9 billion. The cost per vehicle would range from $123.59 to $297.65. The lower bound is for one radio at year 2021 and the higher bound is the cost for two radios in 2023. In 2023, 100 percent of vehicles would be required to be equipped with the DSRC radios and more vehicles would be expected to have apps. Although the projected number of new vehicles that would have DSRC radios and safety applications continues to increase after 2023, the additional costs are offset by the falling component costs.
Table VII–6 presented below the cost per vehicle is the average cost spread across all new vehicles, not just affected vehicles. Due to the proposed phase-in schedule, the cost per vehicle in 2021 and 2022 is significantly lower than the unit cost shown in Table VII–5. Furthermore, the agency predicts complete safety application deployment would not be achieved until 2028, resulting in a slightly lower cost per vehicle for 2023 to 2027 than that shown in Table VII–2.
The communication cost estimates are based on the same model created by Booz Allen Hamilton under the contract with the DOT's Intelligent Transportation Systems Joint Program and used for the V2V Readiness Report. The model, Cost Model for Communications Data Delivery System (CDDS), is a Microsoft Excel-based model.
The communication cost estimates include the cost of in-vehicle communication components and any service fee that would be required with a specific communication network. For system design, four communication network technologies were evaluated for the CDDS: cellular, Wi-Fi, Satellite, and DSRC. The four technologies can be combined in various ways to form the communication system to support the vehicle to SCMS communication activities. The CDDS report and various cost estimates were published in the V2V Readiness Report and referenced specifically in the ANPRM in an effort to gather feedback on the estimated costs.
In response to the V2V ANPRM, and the Request for Interest (RFI) regarding the SCMS, the agency received information and feedback on cellular and satellite and how these technologies can support national V2V deployment.
• Hybrid—This system would use cellular, Wi-Fi, and satellite for vehicles to SCMS communication.
• DSRC—This protocol would use DSRC exclusively for V2V communications and for vehicles to SCMS communications through Roadside Equipment (RSE).
The hybrid system allows for the potential use of the three communication mediums cellular, Wi-Fi, and satellite. Each serves as a complement system to the other. In an effort to address potential security concerns, the agency added the cost of an in-vehicle hardware security module (HSM). The HSM, based on agency conversations with security experts, can potentially address the over-the -air communication security issues. Furthermore, the agency also recognized that satellite communication will not be
A DSRC-exclusive system would communicate with SCMS through RSUs, small “base stations” that allow vehicles to “phone home” using DSRC. A separate DSRC antenna will be used exclusively for communicating updates ensuring continual “listening” for safety component update related communications,. This dedicated DSRC communication channel would exist in addition to the dedicated V2V safety communications channel used for V2V safety communications, and, therefore, two DSRC radios would be required for this DSRC-exclusive communication system.
BAH estimated the potential number of RSUs needed to support a national deployment. First, RSU deployment was considered on three different road types: secondary roads, interstate highways, and National Highway System roads (NHS). Each type is defined by BAH as the following:
• Secondary roads refer to collector roads, State highways, and county highways that connect smaller towns, subdivisions, and neighborhoods.
• Interstate highways are the network of freeways that make up Dwight D. Eisenhower National System of Interstate and Defense Highways.
• The NHS roads are the collection of interstate highways, principal arteries, strategic highways, major network connectors, and intermodal connectors.
BAH then used spatial optimization and information from the 2009 National Household Transportation Survey (NHTS) to estimate the required number of RSE to achieve the desired amount of coverage. The usage of NHS roads (with 19,749 sites) was deemed the most logical because it achieves greater coverage than the interstate option (with 8,880 sites) while also requiring fewer RSE than secondary roads (with 149,434 sites) to achieve the same coverage, as shown below in Figure VII–1. As shown, NHS roads are the most realistic scenario, though secondary roads could achieve more coverage given more resources. Ultimately, the NHS road deployment method was deemed to be the most realistic.
The agency applied the assumptions used in the CDDS model to estimate communication costs. These comprehensive assumptions included the length of initial new certificate deployment period, the certificate download size and frequency at the full system deployment, the potential device misbehavior rate, and the potential size of a certificate revocation list. The cost model also considered the costs that relate to the three communication technologies used in the Hybrid approach: Cellular data rate, cellular component cost in the vehicles, Wi-Fi component costs, satellite data rate, and satellite radio cost. It is also necessary to consider the cost of road side units for the DSRC-exclusive approach system. The agency notes that while not included in these estimates, there is potential for road side unit costs to not be borne solely by a V2V system. Road side units may also be deployed in accordance with guidance from the Federal Highway Administration (FHWA) as signaling and related traffic control equipment undergoes normal upgrades. Overall, unless otherwise
The agency estimates the annual overall costs for the Hybrid communication option would range from approximately $148 million in Year 1 to approximately $490 million at Year 40. On a per vehicle basis, this equates to $9.18 in Year 1 to $25.47 after 40 years. The detailed estimated annual communication costs are shown in Table VII–8. The cost increase over time represents the increases in certificate distributions and SCMS communications as fleet penetration increases.
It is important to note the table reflects zero satellite and cellular data costs for the first three years. This zero cost results from the assumption that vehicles will be pre-loaded with three years of security certificates, reflecting that communication between vehicles and SCMS will be very limited during this time period. In addition, the acknowledged certificate revocations lists would be transmitted to vehicles during this time but, overall, the estimated misbehavior rate of 0.1 percent, combined with an anticipated, small revocation list size, would not have a substantive impact on communication costs.
Table VII–9 summarizes the estimated annual communication costs for the DSRC exclusive approach. Estimates for this option show a range of $0 at Year 1 increasing to an approximate $177 million annual average by Year 40. When viewed from a per vehicle basis, the costs range from $0 in the first year to approximately $9 annual average in the out years. An important note with this communication option is the need to include road side unit replacement based on the assumed 15-year life of span of this equipment, Years 19 and 34 reflect the annual cost of replacing this equipment.
Comparing the two communication options evaluated in this proposal yields a sharp cost difference between the Hybrid and DSRC option, a difference of approximately $325 million annually at full deployment. Exploiting the “free” usage of the allocated DSRC spectrum appears to provide clear advantages to consumers and the overall system sustainability. Challenges deploying the approach, however, are in the physical placement of the road side units across the nation in a timely manner. Leveraging the existing cellular and satellite network poses a clear advantage to accelerating deployment in the fleet.
The agency developed cost estimates for a potential SCMS based on additional research and modeling conducted by BAH, like the CDDS model used for communication cost estimation. The agency determined that it was appropriate to make some minor adjustments to the cost model based on updated information obtained between development of the original model and in preparation for this proposal. More specifically, the agency updated the model with changes to project salaries, compensation costs, and by including costs needed for establishing the SCMS (Year 0).
Salaries were revised using the most current data from Occupational Employment Statistics (OES)
To estimate the annual total costs for the entire SCMS, the agency first examined the costs for each of the 10 component functions of the SCMS. For each function, the costs comprised five expenditure categories: Hardware Purchase, Software Purchase, Software Operation and Maintenance (Q&M), Initial Facility Costs, Annual Facility Costs, and Full Time Equivalent (FTE) Costs. The SCMS model identified several locations that could be used to establish an SCMS as a way to develop facility cost averages. The averages are based on six geographically and demographically varying areas: Metro DC, Richland, WA, Denver, CO, Chicago, IL, San Antonio, TX, and Gastonia, NC. The key cost components evaluated are labor costs, energy costs, land cost, and monthly rent.
Table VII–10 and Table VII–11 show the estimated SCMS costs by specific SCMS function, the total costs, and the per vehicle cost. Any equipment related costs are adjusted for learning. As shown, the total estimated SCMS costs range from $39.1 million in the first year to $160.1 million in year 40 with per vehicle cost ranging from $2.42 to $8.29. The agency requests comment on its assumptions concerning potential SCMS costs. In particular, how would different approaches to the design of the SCMS affect the costs of operating the system? In addition, how would the costs of the SCMS be passed along to consumers?
In addition to the cost of V2V equipment itself, other potential costs include the potential for new equipment on vehicles to increase vehicle weight. The agency expects increased weight of V2V equipment will have a small impact on the fuel economy of the individual vehicles. Over the lifetime of these vehicles, this impact on fuel economy will create a cost for society.
Potential fuel economy impacts can be evaluated in terms of annual impacts and the lifetime fuel economy impacts for a specified MY vehicle (MY fuel impact). The annual fuel impact represents the additional fuel costs from all V2V-equipped vehicles for that year. The MY fuel impact represents the additional fuel costs for a life of a MY vehicle and should be discounted.
As described in previous sections, V2V components include DSRC radios and relevant parts/materials (
The impact of added weight on both annual and MY fuel economic is a function of vehicle volumes, vehicle miles traveled, survival probability (
Table VII–12 shows the annual fuel economy impact for both one-radio with the Hybrid option and two radios with the DSRC option. Note that the weight difference between the two-radio system and the one-radio system is 0.17 pound. This small weight difference resulted in no discernable difference between these two technology approaches. To be consistent with the measure used for other cost items, the “per vehicle” cost was estimated to be the cost per a new vehicle. As shown, the proposed rule would increase the current total annual fuel consumption by 1.10 million gallons in 2021 to 30.51 million gallons in 2060. The corresponding annual cost for these additional fuels was estimated to be $3.08 to $135.16 million, annually. These amounts were translated into $0.19 to $6.97 per new vehicle sold.
MY fuel cost (
Table VII–13 shows the MY fuel economy impacts at both 3 and 7 percent discount rates. As shown, at a 3 percent discount rate, the MY fuel economy impact of V2V related equipment is estimated to be $32.75 million at MY 2021 and gradually increasing to $104.73 million for MY 2050 vehicles. The cost per vehicle is estimated to be $2.02 for MY 2021 and $5.40 for MY 2050 vehicles. The increase in fuel cost in the future, especially after the third year when the full adoption of DSRC radios starts, is primarily due to projected higher fuel prices and vehicle sales, both of which can vary. The cost per vehicle for a particular MY vehicle is calculated by dividing the total fuel cost for that MY by the total vehicle sales of that MY vehicle. For the first two years, due to the proposed phased in implementation, the cost per vehicle is smaller than the cost per affected vehicle since cost per vehicle as defined is the average cost over all new vehicles.
At a 7 percent discount rate, the MY fuel economy impact is estimated to be $25.03 for million MY 2021 and $80.52 million for MY 2050 vehicles. The cost per vehicle for these two MY vehicles would be $1.55 and $4.15 for MY 202 and MY 2050 vehicles, respectively.
The annual costs represent the total annual capital investment and fuel economy impact from all V2V-equipped vehicles per year. The costs comprise four major categories: (1) Vehicle technology (
Table VII–14 presents the total annual costs and cost per vehicle. The total annual costs would range from $2.2 (the lower bound for 2021) to $5.0 billion (not shown, upper bound for 2024). The cost per new vehicle would range from $135 to $301 (lower bound for 2021 and upper bound for 2024). The lower and upper bounds represent the two technology implementation approaches (one-radio and two-radios) that the agency believes can meet the proposed rule and the security and privacy specifications.
Table VII–15 to Table VII–18 lists the total annual costs separately for the four cost categories. As shown, the majority of costs came from vehicle technology costs. The annual vehicle technology costs ranged from $2.0 to $4.9 billion (in 2023, not shown) and the per vehicle cost ranged from $124 to $298.
The SCMS costs included the costs for the establishment, operation, and maintenance of the system that covered the expenditure on human resources, equipment, facilities, energy, etc. The total annual SCMS costs would range from $39 to $161 million. This is equivalent to $2 to $8 per vehicle.
The communication costs included the costs for equipment and communication network that are needed in support of the vehicle-to-SCMS communication. The annual communication costs would range up to $494 million. The communication cost per vehicle would be up to $26 per vehicle.
The fuel economy impact was based on the added weight of 3.38 pounds for the two-radio technology approach and 3.21 pounds for the one-radio approach. Due to the insignificant weight difference between these two approaches, the estimated fuel economy impacts are identical for these approaches when factoring rounding errors. Therefore, the fuel economy impact as shown applies to both approaches. The annual fuel economy impact would range from $3 to 135 million. This equates to up to $7 per vehicle.
The primary difference between the annual and MY costs is the fuel economy impact. The PRIA assumes that vehicle technology, SCMS, and communication costs would be paid by vehicle owners when their vehicles were purchased. Thus, these three costs are identical between the annual and
Table VII–19 and Table VII–20 shows the MY costs at a 3 percent and 7 percent discount rate, respectively. At a 3 percent discount rate, the MY costs would range from $2.22 (lower bound at Year 1) to $5.03 billion (upper bound at Year 4, not shown). The cost per vehicle would range from $137.21 to $304.06. The lower bound of the costs represents the MY costs for the one-radio approach and the higher bound represents the cost for the two-radio approach.
At a 7 percent discount rate, the MY costs would range from $2.21 (lower bound at Year 1) to $5.01 billion (upper bound at Year 4, not shown). The MY cost per vehicle would range from $136.73 to $303.14.
The agency seeks comment on all aspects of the cost estimates developed for this proposal. This includes all cost assumptions, estimated component costs, communication costs including other potential options the agency did not evaluate, and views on potential SCMS costs. Please provide any supporting data for the comments. If necessary, the agency has processes and procedures for submitting confidential business information.
The agency identified four major non-quantified costs that could be related to the deployment of V2V devices. These include the potential health costs due to a potential increase in electromagnetic hypersensitivity (EHS,
Many commenters (mostly individual citizens) commented on the potential relationship of DSRC radio technology and electromagnetic field exposure hypersensitivity, raising concerns regarding the potential for a V2V mandate to increase electromagnetic beyond today's levels. The agency takes these concerns very seriously. The agency since has conducted a literature review and other research (on-going) to better understand electromagnetic radiation and its relationship to the symptoms of EHS. As we understand that the expertise of our sister agencies such as the Federal Communications Commission (FCC) and the Food and Drug Administration (FDA), among others, have been involved with electromagnetic fields, in parallel with the pervasiveness of cellular phone deployment in the United States and globally.
The FDA found that most studies conducted to date show no connection between certain health problems and exposure to radiofrequency fields via cell phone use and that attempts to replicate and confirm the few studies that did show a connection have failed.
One intangible outcome of the proposed rule is a perceived potential for loss of privacy. Individuals may perceive the V2V system as eroding their personal privacy and view this as a considerable negative consequence. Also, several surveys showed that individual attitudes towards information security seems inconsistent with their behavior on protection of their information.
To ease the privacy concerns and mitigate possible privacy loss, the agency is committed to regulating V2V communications in a manner that both protects individuals and promotes this important safety technology. NHTSA has worked closely with experts and our industry research partners (CAMP and the VIIC) to build privacy protections into the design and deployment of V2V communications that help guard against risks to individual privacy.
The agency has conducted a thorough privacy impact assessment as required by the Consolidated Appropriations Act, 2005, Public Law 108–447. This Act requires that Federal agencies conduct privacy impact assessments (PIAs) of proposed regulatory activities involving collections or systems of information in electronic form with the potential to impact individual privacy. A PIA documents the flow of information and information requirements within a system by detailing how and why information is transmitted, collected, stored and shared to: (1) Ensure compliance with applicable legal, regulatory, and policy requirements regarding privacy; (ii) determine the risks and effects of the proposed data transactions; and (iii) examine and evaluate protections and alternative processes for handling data to mitigate potential privacy risks.
Our analysis shows that this rule will generate significant net benefits due to improved safety, decreased loss of life, reduced property damage, and other impacts. While requiring this technology has costs, the analysis here shows that the benefits of this rule well justify those costs.
As discussed in greater detail elsewhere in this notice, the FCC designated the 5.9 GHz band (
Given the FCC's decision about how to allocate Channel 172, this rule results in the use of that particular radio spectrum for vehicle-to-vehicle communication even though that resource could potentially have alternative uses for society, including alternative safety applications. The FCC, not NHTSA or DOT, has the authority to determine the commercial use of spectrum. However, NHTSA understands the scarcity of spectrum and in the interests of providing a complete analysis of the costs and benefits of this rule seeks comment on the potential costs associated with the lost opportunity to exploit the spectrum at issue for other uses.
The FCC, as part of its own ongoing rulemaking proceeding, is considering whether to allow “Unlicensed National Information Infrastructure” (UNII) devices (that provide short-range, high-speed, unlicensed wireless connections for, among other applications, Wi-Fi-enabled radio local area networks, cordless telephones, and fixed outdoor broadband transceivers used by wireless Internet service providers) to operate in the same frequencies of the spectrum as V2V.
Opening any spectrum band to sharing could result in many more devices transmitting and receiving information on the same or similar frequencies. Depending on the technology, band, and uses at issue, such sharing can work well or can lead to harmful interference among those devices. Recognizing the scarcity of spectrum, in December 2015 and January 2016, the DOT, FCC, and the Department of Commerce sent joint letters to members of the U.S. Senate Committee on Commerce, Science, and Transportation, stating a shared “commitment to finding the best method to develop, successfully test, and deploy advanced automotive safety systems while working to meet existing and future spectrum demands,” and announcing an interagency, multi-phased testing regime that will be used to “provide reliable, real-world data on the performance of unlicensed devices that are designed to avoid interfering with DSRC operation in the 5.9 GHz band.”
The results of the interagency tests will also be utilized to inform NHTSA's proceeding as it progresses towards aproceeding prior to any final rulemaking on V2V. As noted in the joint DOT-FCC-Commerce letter that responds to a Congressional letter dated September 9, 2015, it is “imperative—to ensure the future automotive safety and efficiency of the traveling public—that all three phases of the FCC test plan be completed before reaching any conclusions as to whether [non-DSRC] unlicensed devices can safely operate in the 5.9 GHz band.” without interfering with DSRC operation.
DOT believes that any estimate of the opportunity cost of this NPRM should be made in the context of the FCC's existing policies and authorities. Put another way, in identifying and valuing other opportunities that might be precluded or degraded by this NPRM, DOT is considering those opportunities consistent with the FCC's designation of spectrum. However, in assessing the benefits in the context of the current FCC designation on which this rule focuses, we invite and will consider comments on opportunity costs associated with broader uses of spectrum beyond the current FCC designation.
In addition, we provide a further discussion of other potential benefits of DSRC beyond the two safety applications quantified in the economic analysis for this NPRM. Those
We first provide a further explanation of the potential additional safety benefits of DSRC beyond the two intersection safety applications quantified in the economic analysis for this NPRM.
The primary benefit of the proposed rule is improved automobile safety. Section VII.D discusses this benefit at length. DOT also wishes to present a broader discussion of the benefits not measured in the Primary Regulatory Impact Analysis and seek comment on the resulting estimate. To arrive at this estimate, we have taken existing research that quantified motor vehicle crashes as costing society over $242 billion in economic impacts in 2010 and caused societal harm of over $836 billion through fatalities, injuries and property damage. Adjusting the societal harm estimate to reflect the increase in traffic fatalities and CPI in 2015, we arrive at a value of $966 billion. Recognizing previous research has indicated that V2V could potentially avoid or mitigate 80% of unimpaired crashes, we have conservatively calculated scenarios where V2V is phased in linearly, reaching maximum crash reduction benefits of 5, 10, and 15% by 2035.
A more conservative approach to calculating total benefit of the rule could be considering a function of the number of lives that would be saved by V2V communication, multiplied by the economic value of a life. A number of values have been used for the economic value of a life; we compute our sensitivity analysis using values of $5–$13.4M. Table VII–22 below presents different estimates for the 2018 value of the benefit of the rule through 2050.
The benefits shown above offset the costs, including opportunity costs, of this proposed rule. Moreover, the beneficial uses of spectrum for vehicle-to-vehicle communications could well increase in the future. Over the last five years, the USDOT has sponsored the Connected Vehicle Program under Intelligent Transportation Systems Research. This program has identified more than fifty potential connected vehicle applications concepts, many of which have already been prototyped and demonstrated. As a part of this process, the component application development programs have also conducted assessments to measure safety, mobility, and environmental impacts. Field demonstrations have been supplemented by estimation of difficult-to-observe impacts and potential future impacts from broader application deployment using a range of analytical methods. The USDOT has published documentation from the more advanced application development efforts, including concepts of operations, system requirements, design documents, algorithms, functional descriptions, characterization test results, field test evaluation results and estimation of benefits associated with these prototypes. In total, the USDOT has identified fifty-three connected vehicle applications that will depend on effective vehicle communication. These fifty-three applications include thirteen safety applications that address vehicle occupant and pedestrian safety through communication with other vehicles as well as roadside infrastructure. They also include fifteen applications that address environmental quality and resource consumption, and many more that address congestion, mobility, and data gathering.
Decisions regarding whether to allow additional uses of spectrum than those currently authorized by the FCC for the ITS band are not within the scope of DOT's or NHTSA's authority. Comments on the value of these uses will, however, be accepted. Such comments should consider that the interagency spectrum sharing tests are not yet complete, and it will be impossible to fully measure such benefits until the feasibility of sharing is determined. If such sharing is possible, those benefits will likely decrease opportunity costs associated with mandating V2V communications. Nothing in this rulemaking would preclude the FCC, in conjunction with DOT and NTIA, from authorizing appropriate sharing at some future date.
The chart below is a generic calculation of the spectrum opportunity cost, based on preclusion of alternative uses for the spectrum. This estimate might overstate the value of opportunity cost if sharing is determined to be possible. We use estimated Wi-Fi values from 2013 and earlier reports to estimate the economic value of one MHz of
The estimated present value of each additional MHz up to 2050 ranges between $1.9B and $3.4B based on whether a 7 or a 3 percent discount rate is used, respectively.
We seek comment on whether these per-MHz figures are reasonable, including comment on the detailed analysis in footnote 3, as well as any alternative methodologies.
Other ways to estimate the opportunity cost of spectrum may be feasible, including using auction values for spectrum licenses. A method like this would require estimates of the ratio between auction value and annual consumer surplus. A method like that would generate far higher values than the table above because it uses licensed rather than unlicensed spectrum as a benchmark—making it yield an estimate that cannot be directly used to assess the value of unlicensed spectrum. Other considerations when using the estimates above to value the spectrum in question include:
The value of spectrum is highly situational and the historic spectrum value might not be a valid indication of the spectrum of the future. Spectrum value differs with respect to variables including, but not limited to, frequencies, size of the block or segment, international harmonization, geographic location, the timing of the release of new batches of spectrum, and the extent to which use is shared or exclusive. Frequencies might be the most significant factor to determine the value since different frequencies have different characteristics that make useful for different applications. The most useful bands of frequencies may be auctioned out and developed early. The spectrum values for these frequencies may have very different characteristics from the 5.9 GHz band and their value may exceed the value of the 5.9 GHz.
The cost of delivering information over spectrum varies and is a function of the range in which it operates. Higher frequency spectrums like 5.9 GHz broadcast over much shorter distances than lower frequency spectrums and thus require the interaction of interoperable devices over these short distances to transmit and receive messages in order for applications to activate.
Existing market values do not reflect the progressive increase of the economic value of spectrum over time (
The above estimates yield per-MHz figures for the gross opportunity cost that would result if spectrum in these bands were monopolized. However, the actual opportunity cost associated with spectrum that would result from mandating V2V in the way prescribed in this NPRM is represented by foregone alternative uses of that spectrum, which would be more limited.
It is possible that all spectrum within the relevant 75 MHz will ultimately be used for vehicle-to-vehicle communications given the substantial safety benefits of that technology. It is, however, likely that not all spectrum within the relevant 75 MHz will be de facto or de jure used exclusively for the specific safety applications envisioned by this rule,
The agency recognizes the possibility of higher litigation costs due to the cooperative nature of the V2V environment. However, the agency reiterates that driving tasks are drivers' responsibilities. The at-fault driver in a crash will bear the economic burden and this will not be altered in the V2V environment. Furthermore, V2V technology is expected to help avoid crashes and thus reduce the overall burden imposed on legal systems and traffic courts.
In order to estimate the benefits of this rule, the agency made several key assumptions. The agency applied the same assumptions for adoption and vehicle fleet penetration rates as for estimating both the costs and benefits of this proposed rule, as shown in Table VII–24 and Table VII–25.
The agency estimated the potential benefits of the proposed rule based upon a scenario where two safety applications, IMA and LTA, are voluntarily adopted by industry following a DSRC-mandate. The agency focused on these potential safety applications because we have sufficient data and because they can be effectively enabled only by V2V. IMA warns drivers of vehicles approaching from a lateral direction at an intersection, while LTA warns drivers of vehicles approaching from the opposite direction when attempting a left turn at an intersection. The agency notes that this may not be the scenario that actually occurs following a DSRC-mandate; manufacturers may choose to offer other safety applications that use V2V technology beyond these two and may offer those technologies or IMA and LTA in a time frame different from what is considered for purposes of analysis. In addition, manufacturers may also offer various other technologies that use DSRC, such as V2I or V2P technologies. These other technologies may offer benefits of a different amount than those calculated for IMA and LTA and they may accrue over a different timeframe. The agency requests comment on these assumptions.
Overall, three major factors influence the potential benefits of a V2V implementation: The size of the crash population, the safety application effectiveness, and vehicle communication rates. The undiscounted annual benefits thus are the product of these three factors and can be expressed mathematically by the following generic formula:
The target population (P) includes crashes, fatalities, injuries, and PDOVs. As described in Section II.A, the Safety Need, this proposed rule is estimated to affect potentially 3.4 million light-vehicle-to-light-vehicle crashes. This potential population excludes other crashes scenarios. More specifically, single-vehicle crashes were excluded based on the V2V's inherent cooperative operation, with two vehicles communicating with each to potentially issue a warning before a crash. Crashes with four or more vehicles were not included because the agency does not have data to estimate how effective the safety warning applications would be as these crashes might involve complex interactions among vehicles. Crashes involving pedestrians and pedal-cyclists were also excluded since these crashes might need the communication between vehicles and persons. Crashes involving motorcycles were excluded because the agency has not conducted any V2V research on motorcycles. Finally, crashes involving at least one heavy vehicle
Figure VII–2 depicts how the agency determined the potential target population for both the IMA and LTA safety warning applications. In addition, the figure also includes the corresponding monetized values at each “stage” of filtering for the potential target population. As indicated, the end result is an estimated 1.06 million crashes that could be addressed by the IMA and LTA safety warning applications, making up approximately 19 percent of the total police-reported crashes. These crashes resulted in 2,372 fatalities and 0.69 million MAIS 1–5 injuries and damaged 1.29 million vehicles. Together, these crashes cost society $121 billion, annually. Separately, IMA crashes resulted in 1,824 fatalities and 0.47 million MAIS
The target populations used for this analysis were retrieved from the 2010–2013 FARS and GES. FARS is a census of fatalities that occurred in fatal crashes on public roadways. FARS was used to derive the incidence of fatal target crashes and associated fatalities. GES is a sampling system of all police-reported crashes. GES was used to derive the MAIS 1+ injuries in non-fatal target crashes and PDOVs. The agency utilized multiple years of crash data to limit variations of crashes and provide the best possible estimate for projecting potential benefits.
The variables used to define the target crashes include vehicle forms submitted, vehicle body type, crash type, the first harmful event, relation to roadway, roadway alignment, roadway condition, rollover type, jackknife status, driver contributing factor, and vehicle contributing factor. Of these variables, the driver contributing and vehicle contributing factors were used to refine the target population. The driver contribution factor specifies whether driver's alertness contributed to the crashes. The vehicle contributing factor identifies whether vehicle's component failure or defect contributed to the crashes. Crashes where incapacitated or drowsy drivers were involved and where vehicle mechanical failures such as brake systems, tires, steering, and transmissions were cited as contributing factors were excluded.
The agency applied effectiveness rates for IMA and LTA. The effectiveness rate estimates are derived using the Safety Impact Methodology (SIM) tool developed by the Department of Transportation's Volpe Center, specifically for estimating the effectiveness of V2V technology. In order to obtain a crash warning using V2V technology, two V2V-equipped vehicles need to interact during a potential crash situation—if a V2V-equipped vehicle interacts with a non-V2V-equipped vehicle in a potential crash situation, no warning is to be expected, because the non-equipped vehicle would produce no BSM for the equipped vehicle to recognize and respond to. To be able to estimate the effectiveness of advanced crash avoidance technology such as V2V, NHTSA developed a methodology that uses available data and computer simulation,
Table VII–26 shows the effectiveness of IMA and LTA used for the benefit
These estimates are adjusted slightly from the effectiveness estimates used in the V2V Readiness Report to reflect the latest crash data available to the agency. There are no changes in methodology for developing the effectiveness estimate from that used in the V2V Readiness Report. In the Readiness Report, the agency estimated values of 41–55 percent for IMA and 36–62 percent for LTA, differences of only one to two percent at either end of the ranges. The differences originate in the minor adjustment in the injury probability curves for IMA and overall the newer crash data yielded a different crash scenario distribution. In order to account for potential uncertainty in these effectiveness rates, the agency included lower effectiveness rates in the uncertainty analysis for this rule. The agency requests additional information concerning the potential effectiveness of these two applications.
The communication rate (C
The agency believes a similar, market-driven approach could take hold for V2V technology once the equipment becomes widely available and consumers recognize the potential benefits.
The agency believes that IMA and LTA could be adopted as standard equipment on a schedule similar to the “combined” schedules for the FCW and LDW displayed in the NCAP data. Based on broad collection of implementation information such as, the ITS study, NCAP data, agency meetings with manufacturers, announcements on V2V implementation from vehicle industry, and the cost consideration; the agency established the a safety application adoption trend of 0% for the first MY vehicles that have DSRC radios, 5%, 10%, 25%, 40%, 65%, 90%, and 100% for each following MY vehicles, respectively.
The agency believes that this adoption rate is reasonable. We note that the pattern is similar to those shown in the NCAP data; with slow initial rate spanning approximately two years and then increasing year over year at a rate that would reach full adoption in the eighth year of the implementation of the DSRC technology. Under this adoption scenario, the benefits estimates assume IMA and LTA would not be deployed in the first year. In the second year, with the required 75 percent DSRC installation rate and the five percent safety application adoption among the DSRC-equipped vehicles, five percent of the total new vehicles (= 0.05 * 0.75) are expected to have the two safety applications. In the third year, 10 percent of the new vehicles (= 0.1 * 1.00) would have the apps, and so on so forth. Overall, the benefits (and costs) of the proposed rule were estimated based on this specific technology adoption scenario, as shown in Table VII–27.
Table VII–28 shows the communication rates from 2021 to 2060 by vehicle type (
The overall communication with vehicles that had the apps would be rare in the first three years as measured by those rates for IMA. The rate would reach over 50 percent (51.41%) in 2034, the 14th year of the implementation of the proposed rule. In 2039, 5 years later, the rate would reach 75 percent. In 2044, the communication rate would reach over 90 percent.
For LTA, the communication rates would be smaller than the general communication rates. In 2022, for example, the contributable rate for LTA with vehicles equipped with the apps is about 0.02 percent, 50 percent of the overall communication rate. However, the ratio would increase over time and narrow the difference between these two rates. In 2034, the rate for LTA would be 41.36 percent, 80.5 percent of the overall communicating rate.
Since the agency is not mandating any applications, we next made an assumption concerning at what rate IMA and LTA could be adopted voluntarily by industry. We contracted with the Intelligent Transportation Society of America (ITS America, or ITS) to conduct a study to better understand the utilization of DSRC among stakeholders and to investigate potential safety application deployment and product development.
The ITS study confirmed many aspects of the agency's proposed requirements and assumptions regarding potential V2V deployment including the proposed implementation timing. However, the study was not able to predict clearly a safety application adoption trend after an initial deployment. To fill this gap and establish a potential trend, the agency examined the adoption patterns of the three crash avoiding warning systems reported as part of regular data submissions associated with the agency's New Car Assessment Program (NCAP). The crash avoiding warning systems are blind spot detection (BSD), forward collision warning (FCW), and Lane Departure Warning (LDW). We note that only FCW and LDW are currently reported on NHTSA's Safer Car technologies as being “Recommended Technologies,” while BSD is reported to NHTSA for research purposes but not, at this time, presented to the public.
Table VII–29 lists the adoption rates for these systems that were offered as standard equipment and the combined adoption rates for the technologies offered as standard or optional. As
The agency believes a similar, market-driven approach could take hold for V2V technology once the equipment becomes widely available and consumers recognize the potential benefits. The agency believes that IMA and LTA could be adopted as standard equipment on a schedule similar to the “combined” schedules for the FCW and LDW displayed in the NCAP data.
Based on broad collection of implementation information such as, the ITS study, NCAP data, agency meetings with manufacturers, announcements on V2V implementation from vehicle industry, and the cost consideration; the agency established the a safety application adoption trend of 0% for the first MY vehicles that have DSRC radios, 5%, 10%, 25%, 40%, 65%, 90%, and 100% for each following MY vehicles, respectively. The agency notes that the pattern is similar to those shown in the NCAP data; with slow initial rate spanning approximately two years and then increasing year over year at a rate that would reach full adoption in the eighth year of the implementation of the DSRC technology. Under this adoption scenario, IMA and LTA would not be deployed in the first year. In the second year, with the required 75 percent DSRC installation rate and the five percent safety application adoption among the DSRC-equipped vehicles, five percent of the total new vehicles (= 0.05 * 0.75) are expected to have the two safety applications. In the third year, 10 percent of the new vehicles (= 0.1 * 1.00) would have the apps, and so on so forth. Overall, the benefits (and costs) of the proposed rule were estimated based on this specific technology adoption scenario, as shown in Table VII–27. However, in order to test the significant uncertainty in this assumption, we included adoption rate as one of the variables in our uncertainty analysis.
The agency, though, requests comment on these assumption. Do commenters have more concrete data concerning the potential or likely adoption rate of these applications? Are there any other technologies that have been voluntarily introduced into the fleet that the agency should consider when projecting the potential adoption rate of IMA and LTA?
The maximum annual benefits represent the crashes, fatalities, injuries, and property damage vehicles (PDOVs) that can be reduced annually after the
• Eliminate 537,000 to 746,000 property damage only vehicles (PDOVs)
The annual benefits are summarized every five years from 2021 to 2060 in Table VII–30. As shown, the proposed rule would not yield benefits in Year 1 due to the zero percent safety application adoption rates for new vehicles in that year. However, the agency estimates that five years after a final rule is issued, Year 5 (2025), 10,094 to 13,763 annual vehicle crashes would potentially be prevented, saving 23 to 31 lives and preventing 6,946 to 9,197 MAIS 1–5 injuries. Moreover, the agency estimates this proposed rule has the potential to prevent 12,496 to 16,949 damaged vehicles.
As the fleet penetration increases, the proposed rule could prevent 107,120 to 147,615 crashes, save 244 to 332 lives, and reduce 73,983 to 99,254 MAIS 1–5 injuries by Year 10, a more than ten-fold increase from Year 5.
After 20 years, the agency estimates about 80 percent of the maximum benefits will be achievable. The yields an estimated to 349,914 to 487,561 crashes prevented, 789 to 1,089 lives save, and the reduction of 242,589 to 329,909 MAIS 1–5 injuries.
The lifetime benefits for a MY vehicle (also MY Benefits), as described earlier, represent the total benefits that would be accrued through the life of a vehicle. The MY benefits represent the total benefits that would be accrued though the life of a vehicle. The lifetime benefits can occur at any time during the in-use life of a vehicle and are required to be discounted to reflect their present values (2014 dollars). The discounting procedures for future benefits and costs in regulatory analyses are based on the guidelines published in OMB Circular A–4 and OMB Circular A–94 Revised.
The agency's analysis for determining lifetime benefits uses two approaches. One approach is a so-called “free rider” approach and the other is the “no free-rider” approach, where the primary difference is the treatment on the distribution of benefits from crashes involving different MY vehicles.
The “free-rider approach” is based on the notion that the lifetime benefits of a specific MY vehicle should correspond to the investment up to that specific MY of vehicles and that benefits should be credited to the later MY vehicles. For example, if benefits are from a crash that involved a MY 2021 vehicle and a MY 2030 vehicle, under this approach, all benefits would be credited to the MY 2030 vehicle. The MY 2021 vehicle would not receive any benefits because the benefits would not be realized until the investment on the MY 2030 vehicles is made. In contrast, the “no free-rider” approach is based on the notion that benefits should be shared among all vehicles since the future investment will continue because of the proposed rule. With the same case above, the no free-rider approach allows both MY 2021 and MY 2030 vehicles to share a portion of the benefits. Additional details on the methodology and derivation of benefits of these two approaches can be found in Chapter V of the PRIA prepared in support of this proposal.
Table VII–31 and Table VII–32 show the MY specific injury and property damage benefits (
The analysis estimates the lifetime benefits only for MYs 2021 to 2050 vehicles. For 2050 MY vehicles, its lifetime benefits would be realized from year 2040 to year 2086. As described in the annual benefit section, the annual benefits would be stabilized at the maximum level around year 2062. Furthermore, after MY 2050, vehicle sales were assumed to at the MY 2050 level. Therefore, the lifetime benefits for vehicles newer than MY 2050 would be stabilized at the MY 2050 level.
Under both approaches, the MY benefits were derived by dividing the annual benefits among all involved MY vehicles according to their survived volume and vehicle miles traveled. Afterwards, the annual benefits for that specific MY vehicles were discounted by multiplying them with an appropriate discounting factor. Finally, we summed the annual discounted benefits of that MY vehicles over their operational lifespan to derive the MY benefits. These benefits were discounted at a 3 percent and 7 percent discount rate to represent their present value. Table VII–35 and Table VII–36 presents the discounted MY benefits from MY 2021 to MY 2050 vehicles for every five MYs. As shown, the first MY vehicles (
At a seven percent discount rate, MY 2025 vehicles would prevent 18,321 to 65,517 crashes, save 42 to 145 lives, reduce 12,623 to 43,361 MAIS 1–5 injuries and eliminate 22,643 to 79,010 PDOVs. The MY 2050 vehicles would prevent 214,216 to 396,388 crashes, save 481 to 880 lives, reduce 148,741 to 268,906 MAIS 1–5 injuries, and eliminate up to 480,956 PDOVs.
Note that the range of benefits is due to the use of a range of effectiveness rates and the two MY benefit estimating approaches. The two benefit approaches, labeled as “free-rider” and “no free-rider” approaches, deployed a different treatment on the distribution of benefits from crashes involving different MY vehicles.
The agency developed the monetized benefits by applying the comprehensive cost for a fatality to the total equivalent lives saved (
Table VII–37 shows the comprehensive values and the relative fatality ratios for MAIS injuries and PDOVs that were used to derived the fatal equivalents.
Table VII–37 also shows the unit costs for congestion and property damage. These two costs are considered to be part of the comprehensive costs. The congestion and property damage costs are provided now for later use when calculating the net costs of the proposed rule. The net costs are defined as the total vehicle costs minus the savings from reducing property damage and crash related congestion.
Table VII–38 provides the undiscounted annual fatal equivalents, monetized benefits, and property damage and congestion savings of the proposed rule from the year 2021 to 2060. As shown, by Year 5 the proposed rule is estimated to save 129 to 169 fatal equivalents totaling approximately $1.3 to $1.6 billion annually. Approximately 12 percent of the monetized savings, $176 to $237 million, are from the estimated reduction of property damage and congestion. By the year 2060, with V2V fully deployed, the proposed rule is estimated to save approximately 5,631 to 7,613 fatal equivalents annually. Finally, the total associated monetized annual savings would range from $54.7 to $73.9 billion. Of these savings, $7.7 to $10.6 billion is estimated to be property damage and congestion savings.
The proposed rule would save a maximum of $54.7 to $74.0 billion annually after the full adoption of DSRC radios and the two safety apps. Of these amounts, $7.7 to $10.6 billion are the potential savings from reducing crash related congestion and vehicle property damage.
The range of the monetized benefits by vehicle model year (i.e., the lifetime benefits of a MY vehicles) represents the estimates from both the “free-rider” and “no free-rider” approaches. The lower bound of the range represents the low estimate from the “free-rider” approach and upper bound represents the high estimate of “no free-rider” approach. For each approach, the low and high estimates correspond to the low and high app effectiveness, respectively. Table VII–39 and Table VII–40 show the monetized MY benefits at a 3 percent and 7 percent discount rate, respectively.
As shown, at a three percent discount rate, MY 2022 vehicles would save 3 to 68 fatal equivalent and $33.8 to $659.0 million over their lifespan. MY 2050 vehicles would save a total 3,350 to 5,608 fatal equivalents and $32.5 to $54.5 billion. The property damage and congestion savings would range from $4.7 to $94.9 million for MY 2022 vehicles and $4.6 to $7.8 billion for 2050 MY vehicles.
At a seven percent discount rate, the MY 2022 vehicles would save 3 to 51 fatal equivalents and $31.8 to $497.0 million over their lifespan. MY 2050 vehicles would save a total 2,747 to 4,906 fatal equivalents and $26.7 to $47.6 billion. Of these monetized savings, the property damage and congestion savings are estimated to be $4.5 to $71.6 million for MY 2022 vehicles and $3.7 to $6.8 billion for 2050 MY vehicles.
The agency seeks comment on all aspects of the monetized benefits developed for this proposal. More specifically, the assumptions used for the benefits calculations which are the basis the estimates. Please provide any supporting data for the comments. If necessary, the agency has processes and procedures for submitting confidential business information.
As discussed above, the agency has only quantified potential benefits of this rule derived from the assumed adoption of IMA and LTA. Although this assumption allows the agency to provide a reasonable quantification of the potential benefits of this rulemaking, it does not account for many other potential benefits of V2V. The non-quantified benefits of the proposed rule can come from several sources: (1) The effects of enhancing vehicle-resident safety systems, (2) the incremental benefits over the current vehicle-resident safety systems, (3) the potential impact of the next generation V2V apps that would actively assist drivers to avoid crashes rather than simply issuing warnings, (4) the impact of enabling wide range deployment of V2P and V2I apps, and (5) the effects of adding V2V sensor input to other sensors utilized for automation. The agency does not quantify the potential impacts of these sources primarily due to lack of data (
For vehicles equipped with current on-board sensors, V2V can offer a fundamentally different, but complementary, source of information that can significantly enhance the reliability and accuracy of the information available. Instead of relying on each vehicle to sense its surroundings on its own, V2V enables surrounding vehicles to help each other by reporting safety information to each other. V2V communication can also detect threat vehicles that are not in the sensors' field of view, and can use a V2V signal to validate a return from a vehicle-based sensor. This added capability can potentially lead to improved warning timing and a reduction in the number of false warnings, thereby adding confidence to the overall safety system, and increasing consumer satisfaction and acceptance. The vehicle-resident FCW, LCM/BSW systems can be improved by BSMs. However, the agency could not quantify the benefit due to lack of the measurement of how BSM can improve the vehicle-resident systems.
Due to the sensing advantage of the V2V apps, the agency believes that these apps also have some incremental benefits over the vehicle-resident version of the systems. For example, V2V-based FCW and LCM might perform better than the vehicle-resident systems. However, benefits from these apps could accrue if they add a marginal effectiveness to the existing in-vehicle systems, or if they enable the installation of these apps in vehicles that do not voluntarily have these systems. This later effect would occur due to the significant marginal cost reduction for these apps that would result from V2V. However, we do not have sufficient data to determine the marginal effectiveness of V2V for these apps and the added installation rates. Therefore, we did not quantify this type of benefits.
The agency believes that the V2V apps will be evolved as did the vehicle-resident systems. The next generation V2V apps, we envision, can also actively assist drivers to avoid crashes as did the vehicle-resident crash avoidance systems (such as advance brake assist). Furthermore, the new apps might be applicable to motorcycle crashes. V2V could increase the adoption of these apps to lower incremental cost.
The V2V also is the foundation for the deployment V2P and V2I apps. For V2P, pedestrians can carry devices (such as mobile phones) with a V2V chip that can send out a safety signal to V2V devices in the vehicles and vice versa. Both the driver and the pedestrian could be warned if a possible conflict arises. Specifically, V2P can protect pedestrians in crosswalk and improve mobility. However, there are many issues to be resolved concerning V2P
The same communications technology that supports V2V apps could also enable a broader set of safety and mobility applications when combined with compatible roadway infrastructure. The potential V2I apps have been identified included: Red Light Violation Warning, Curve Speed Warning, Stop Sign Gap Assist, Reduced Speed Zone Warning, Spot Weather Information Warning, Stop Sign Violation Warning, Railroad Crossing Violation Warning, and Oversize Vehicle Warning.
We believe that V2X technology may be necessary to realize the full potential of vehicle automation (
The agency conducted a breakeven analysis of the proposed rule's estimated costs and benefits. The analysis is used to determine when the cumulative estimated benefits will recoup the investment made up to that year. In essence, this analysis determines the year that the total investment of the proposed rule will be paid back through the total realized benefits of the proposed rule. The total investment of the proposed rule for a year is the cumulative annual costs from the first year of implementation up to that year. Similarly, the total realized benefits would be the cumulative monetized annual benefits from the first year of implementation up to that year. All annual costs and monetized benefits used in this analysis are discounted back to 2021, the projected first year of implementation of the proposed rule. In determining the potential breakeven point, the agency needed to develop the undiscounted annual net benefits yielding the values shown in Table VII–41. As shown, undiscounted, the proposed rule would accrue a positive annual benefit around 2026 and 2027.
Table VII–42 and Table VII–43 show the discounted cumulative annual benefits, cumulative annual costs, cumulative annual net benefits, and breakeven year at a 3 and 7 percent rate, respectively. As shown, the proposed rule would be expected to break even between 2029 and 2031 for a 3 percent discount rate and 2030 to 2032 for a 7 percent discount rate.
Table VII–44 summarizes the breakeven year for the proposed rule based on the estimated costs and monetized benefits.
The cost-effectiveness analysis identifies the model year the agency estimates the net cost per fatal equivalent is no greater than the $9.7 million comprehensive cost of a fatality, indicating the point at which cost of the propose rule is lower than a fatal equivalent. For this analysis, the agency defines the net cost as the difference between a given MY cost and the congestion benefits and PDO savings (
For each discount rate, the range of fatal equivalents covers those from the two benefits estimating approaches discussed previously Section VII.D: Free-rider and no free-rider. The low fatal equivalent numbers represent the low benefit estimates from the free-rider approach and the high estimates represent the higher benefit estimates from the no free-rider approach. Additionally, the cost-related low and high values represent the two potential cost estimates that result from utilizing a one-radio or two-radio approach to DSRC implementation approach.
The agency utilizes the net cost per equivalent life saved to determine the cost-effectiveness for a given vehicle MY. The net cost defined in this analysis is the difference between the MY costs and the savings from reducing property damage and congestion. As described in Section VII.D.3, fatal equivalents are derived by translating the MAIS 1–5 injuries saved and the PDOVs prevented into fatalities using the calculated relative fatality ratios found in Table VII–37.
Table VII–45 and Table VII–46 present the factors used when determine cost-effectiveness, the net cost per fatal equivalent discounted at 3 percent and 7 percent, respectively, and when the agency estimates the proposed rule would become cost-effective. As shown in the tables, the agency estimates the proposed rule would become cost effective in MY 2024 to MY 2026 regardless of the discount rate. Note that the negative MY net cost shown in the tables means that the MY benefits outweigh its costs.
The lifetime net benefits for a specified MY vehicle (
Table VII–49 summarizes the MY vehicles that would be cost-effective.
In order to account for the inherent uncertainty in the assumptions underlying this cost-benefit analysis, the agency also conducted extensive uncertainty analysis to illustrate the variation in the rule's benefits and costs associated with different assumptions about the future number of accidents that could be prevented, the assumed adoption rates and estimated effectiveness of the two safety applications, and our assumptions about the costs of providing V2V communications capability. This analysis showed that the proposed rule would reach its breakeven year between 2030 and 2032 with 90 percent certainty, with even the most conservative scenario showing that the breakeven year would be five to six years later than the previously estimated years (2029–2032). Considering these same sources of uncertainty in the cost-effectiveness and net benefits analyses showed that the proposed rule would become cost-effective and would accrue positive net benefits between MY 2024 and MY 2027 with 90 percent certainty. This indicates that it is very likely to become cost-effectiveness at most one MY later than estimated in the primary analysis, and that even under the most conservative scenario, this would occur two to three model years later than the initial estimate of 2024–2026.
In the interest of ensuring the agency's proposed approach to regulating V2V technology is both fully informed and backed by a comprehensive regulatory analysis, the agency considered two potential alternative approaches for V2V deployment. The first alternative (Alternative 1) explores the concept going beyond this proposal's mandate for only the V2V communications equipment (radio), by also including a mandate for two safety warning applications: Intersection movement assist (IMA) and left turn across path (LTA). Alternative 2 is an “if-equipped” approach that would provide requirements for V2V communication as specified in this proposed rule but only applicable if the equipment is used in the vehicle fleet. These two alternatives represent a significant range of potential agency actions beyond the baseline and the proposal.
Alternative 1 shares the same three-year phase-in schedule (50%–75%–100%) for V2V equipment as the proposed rule but delays the same phase in rate by one year delay for safety application implementation (0%–50%–75%–100%). Alternative 2
Because of the aggressive app adoption, Alternative 1 would be expected to accrue more annual benefits than the proposed rule before the entire on-road fleet has been equipped with V2V (
Alternative 2 would accrue up to 6 percent of the maximum annual benefits of the proposed rule due to lower DSRC and app adoption rates. This alternative also has relatively lower annual costs than that of the proposed rule, since far fewer vehicles would be installed with DSRC. The annual cost of this alternative would range from $254 million to $1.3 billion, with an average annual cost about 26 percent of the cost of the proposed rule.
Alternative 1 would breakeven between 2027 and 2030 (combining 3 and 7 percent discount rates), two years ahead of the proposed rule. The first MY vehicles that would be cost-effective and that would accrue positive net benefits is expected to be between MY 2024 and MY 2026, also two years earlier than the proposed rule. In contrast, Alternative 2 would breakeven between 2037 and 2055, eight to twenty-three years behind the proposed rule. The first MY vehicles that would be cost-effective under Alternative 2 is expected to be between MY 2026 and MY 2031, two to five years later than the proposed rule. The first MY vehicles that would accrue positive net benefits is between MY 2026 and MY 2033, two to seven years later than the proposed rule. Table VII–52 and Table VII–53 compares these visually at three and seven percent discount rates.
Although mandating safety applications like IMA and LTA along with the V2V communication capability (
Additional details on the analysis of Alternative 1 and Alternative 2 can be found in the PRIA accompanying this proposal rule.
We request comment on the alternative cost and benefits analysis including the approach for the alternative? Do commenters agree with the costs assumptions used for developing and implementing safety applications? Why or why not? Please provide supporting data. Do commenters agree with our assessment that mandating applications would result in accruing benefits sooner? Do commenters have estimates for the potential costs that an earlier mandate (like, consumer rejection of tech, opportunity cost, etc.) that are not quantified or are not quantifiable but hold great importance? Do commenters have any information that could assist the agency in learning more about these and any other applications that may be useful in a potential agency decision to mandate V2V-enabled safety applications.
This section of the NPRM describes the proposed timing for implementing the requirements for new vehicles and aftermarket devices, and also describes our expectations of the availability of the national SCMS.
The agency proposes the following lead time and phase-in period for all new light vehicles sold in the U.S. to comply with this proposed rule.
We are proposing two years of lead time, with the two years starting on Sept. 1 following issuance of a final rule to this proposal. This approach would allow a minimum of two full calendars of lead time. New light vehicles manufactured for sale in the U.S. would not be required to comply until that time. NHTSA believes that a lead time period is necessary to allow for the development and production of automotive-grade V2V communications devices by the automotive supplier industry. While a quantity of DSRC devices were developed for the Safety Pilot Model Deployment in Ann Arbor, MI, these were mostly prototype aftermarket devices that were not designed to directly integrate into the vehicle's controller area network. Furthermore, the expected lifespan of these devices is only 3 to 5 years instead of the lifespan of a typical vehicle. Those devices, or ones based on their design, would therefore not be appropriate for meeting this proposed standard. At the time of issuance of this NPRM, we have limited information regarding the capability of automotive suppliers to produce the quantities of DSRC devices to equip all new light vehicles sold in the U.S. annually (approximately 15 million
Depending on when the final rule establishing DSRC FMVSS is issued, the agency concurs with the ITSA market study and its own regulatory experience that automotive suppliers with need some lead time to generate production-level devices in the quantities that would be required annually by automotive OEMs.
Lead time also allows the automotive OEMs time to integrate V2V communications devices into their product lines, as these devices are not currently part of any production vehicles sold in the U.S. This will minimize costs by allowing OEMs to incorporate the new technology into product cycle planning. Many OEMs conduct “refreshes” (
For these reasons, the agency is proposing a two year lead time after issuance of the final rule before manufacturers are required to begin complying with the requirements. Two years was chosen because it is approximately half the amount of time between average vehicle refreshes, allowing OEMs to integrate V2V technology into their existing product cycles. This will minimize the cost burden on the OEMs by not requiring concurrent redesigns of all production lines at the same time. We seek comment on whether this amount of lead time is necessary and appropriate. If commenters believe that additional lead time is needed, or that less lead time is needed, we ask that they support their comments as best as possible with specific information as to why.
While the agency understands that design changes may be required in order to integrate V2V communications devices into all light vehicles, since V2V technology is a cooperative system, the potential benefits associated with V2V devices depend on a high penetration rate of equipped vehicles. As such, the agency proposes an aggressive phase-in schedule after the conclusion of the lead time period. In addition to the proposed two years of lead time, NHTSA proposes a three year phase-in period. The three year phase-in schedule, which starts immediately after the conclusion of the lead time, would be as follows:
This proposed schedule allows a total of five years until all new vehicles would be required to comply with the final rule. This is consistent with a DOT-sponsored market study
The consensus from that research was that OEMs and suppliers will need approximately three to five years after the final rule in order for all new vehicles to comply with the regulation.
Finally, depending on the number of product lines and the timing of their redesigns, it may be economically advantageous for some OEMs to comply with the regulation prior to the proposed schedule. These OEMs will be able to capitalize on arriving to market earlier than their competitors, and the customers of these OEMs will realize safety, mobility, and environmental benefits earlier than others. As such, the agency does not envision granting credits for early compliance with this schedule as there are sufficient incentives already in place for OEMs to consider early compliance.
Based on market study research,
The agency believes aftermarket device suppliers would need to react to a newly issued FMVSS to capitalize on the large volume of light vehicles that will not be equipped with V2V communications devices. The prevailing view is the market for such aftermarket devices will exist only during the transition period between the issuance of the final rule and the turnover of the entire fleet. NHTSA typically assumes that the maximum life span of a light vehicle is 39 years. We would anticipate that the vast majority of the light vehicle fleet in the U.S. will be completely replaced in less than 20 years, and they will be capable of V2V communications. This gives the aftermarket device industry a relatively small window of time to sell aftermarket devices to light vehicles without V2V communications capabilities installed by the OEMs.
Additionally, based on research from the Safety Pilot Model Deployment and additional market research, we believe the aftermarket industry is capable of producing V2V communications devices that can meet the proposed performance requirements and could be installed by a qualified installer, if needed. These aftermarket devices do not need to be connected to the vehicle controller area network vehicle bus; however, an external GPS and V2V antenna will need to be installed as well as a connection to the in-vehicle power. Therefore, the agency expects that specially-trained installers should be able to install these devices in a similar manner to other devices such OnStar FMV, which is installed at major electronics retailers as well as at car dealerships. Therefore, these devices could deploy faster than OEM integrated as they do not require an OEM to integrate them into their vehicle build and testing processes. For these reasons, the agency believes it is technically possible that these devices could be available on the market within one to two years after this proposed FMVSS is finalized.
Based on this, the agency anticipates that aftermarket devices will be available for purchase and installation during the lead time period and prior to the start of the first year of the phase-in period (
The agency seeks comment on these lead time projections for both OEM and aftermarket devices. Specifically, do commenters believe the proposed lead times are reasonable? If so, why? If not, why? What type of adjustments, if any, should agency make? Do commenters agree with the agency's perspective on a “window of opportunity” for aftermarket devices? If so, why? If not, why? Please provide any supporting data for your response.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the Docket Number NHTSA–2016–0126 in your comments. Your comments must not be more than 15 pages long.
When submitting comments, please remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified in the
If you submit your comments by mail and wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you submit your comments through
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
In addition, you should submit a copy from which you have deleted the claimed confidential business information to the Docket by one of the methods set forth above.
NHTSA will consider all comments received before midnight E.S.T. on the comment closing date indicated above under
You may read the materials placed in the docket for this document (
You may also read the materials at the DOT Docket Management Facility by going to the street address given above under
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, Oct. 4, 1993), as amended by Executive Order 13563, “Improving Regulation and Regulatory Review” (76 FR 3821, Jan. 21, 2011), provides for making determinations whether a regulatory action is “significant” and therefore subject to OMB review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
• 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;
• Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
• Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
• Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The rulemaking proposed in this NPRM will be economically significant if adopted. Accordingly, OMB reviewed it under Executive Order 12866. The rule, if adopted, would also be significant within the meaning of the Department of Transportation's Regulatory Policies and Procedures.
The benefits and costs of this proposal are described above in Section VII of this preamble. Because the proposed rule would, if adopted, be economically significant under both the Department of Transportation's procedures and OMB guidelines, the agency has prepared a Preliminary Regulatory Impact Analysis (PRIA) and placed it in the docket and on the agency's Web site. Further, pursuant to Circular A–4, we have prepared a formal probabilistic uncertainty analysis for this proposal.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
NHTSA has considered the effects of this proposed rule under the Regulatory Flexibility Act. I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. The following is NHTSA's statement providing the
If adopted, the proposal would directly affect twenty large single stage motor vehicle manufacturers.
NHTSA has examined today's proposal pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking will not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal 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.”
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See
Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this proposal could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (
With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729; Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties file suit in court; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.
Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, 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
This notice is part of a rulemaking that is not expected to have a disproportionate health or safety impact on children. Consequently, no further analysis is required under Executive Order 13045.
Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There is no information collection requirement associated with this proposal. The proposal would require new vehicles to be capable of V2V communications, which would require a new aspect of performance where the vehicle broadcasts Basic Safety Messages (BSMs) during operation, which other vehicles could then receive and interpret as appropriate. BSMs include information about a vehicle's current location, heading, and speed, among other things—information that safety applications on other vehicles could interpret to determine whether a warning to the driver is needed for the driver to avoid a potential crash. The agency does not foresee any reporting requirements or PRA related impacts directly attributable to the proposed performance requirements in this proposal.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law (
Examples of organizations generally regarded as voluntary consensus standards bodies include ASTM International, SAE International (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.
This proposal would require new light vehicles to be capable of V2V communications. Section III.D.10 above discusses how voluntary consensus standards by SAE, IEEE, and ISO interact with the agency's proposed requirements for V2V communication. In summary, the voluntary consensus standards provide information that support both performance requirements and design specifications, and are the bridge for connecting the requirements to the specifications. In relation to this proposal, NHTSA's job is to identify and define performance requirements and verification tests that will indicate that V2V devices have been designed and implemented such that they will operate to provide V2V communications and security that will support crash avoidance applications. The voluntary consensus standards are building blocks for those requirements, but as they are not at the vehicle-level, they cannot be incorporated wholesale into the FMVSS. We seek comment on NHTSA's approach to inclusion of relevant voluntary consensus standards in the development of our proposed requirements.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires the agency 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 the 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 of why that alternative was not adopted.
As noted above, NHTSA has prepared a detailed economic assessment of this proposal in the PRIA. In that assessment, the agency analyzes the benefits and costs of requiring new light vehicles to be capable of V2V communications. NHTSA's preliminary analysis indicates that this proposal could result in private expenditures of between $2 and $5 billion annually.
The PRIA also analyzes the benefits and costs of a range of regulatory alternatives. While the “No Action” alternative would result in no costs, it would also result in no benefits. For the alternative that would include mandates for safety applications, NHTSA's preliminary analysis indicates that the costs would not be significantly different from the proposal, but that benefits would accrue faster, such that the alternative would be cost-effective and achieve positive net benefits two model years before the proposal would. The agency is proposing
Since the agency has estimated that this proposal could result in expenditures of over $1 billion annually, NHTSA has performed a probabilistic uncertainty analysis to examine the degree of uncertainty in its cost and benefit estimates and included that analysis in Chapter 12 of the PRIA.
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this proposed action will not have any significant impact on the quality of the human environment.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings,
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
If you have any responses to these questions, please include them in your comments on this proposal.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Motor vehicles, Motor vehicle safety.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95.
S1
S2
S3
S4
S5
S5.1
S5.1.1
S5.1.1.1 The Message ID must be the digit “2.”
S5.1.1.2 The Message Count must contain an integer between 0 and 127 that is 1 integer greater than the integer used in the last BSM transmitted by the
S5.1.1.3 The Temporary ID must be a randomly generated 4-digit number. The DSRC device must randomly generate a new 4-digit number every five minutes. However, if other temporary identifiers, such as pseudonym certificates, are used, the Temporary ID should be changed every time another identifier (such as a pseudonym certificate) is changed.
S5.1.2
S5.1.3
S5.1.3.1 Longitudinal and lateral location within 1.5 meters of the actual position at a Horizontal Dilution of Precision (HDOP) smaller than 5 within the 1 sigma absolute error; and
S5.1.3.2 Elevation location within 3 meters of the actual position at a Horizontal Dilution of Precision (HDOP) smaller than 5 within the 1 sigma absolute error.
S5.1.4
S5.1.4.1 Speed must be reported in increments of 0.02 m/s, within 1 km/h (0.28 m/s) of the vehicle's actual speed.
S5.1.4.2 Heading must be reported accurately to within 2 degrees when the vehicle speed is greater than 12.5 m/s (~28 mph); and to within 3 degrees when the vehicle speed is less than or equal to 12.5 m/s. Additionally, when the vehicle speed is below 1.11 m/s (~2.5 mph), the DSRC device must latch the current heading and transmit the last heading information prior to the speed dropping below 1.11 m/s. The device is to unlatch the latched heading when the vehicle speed exceeds 1.39 m/s (~3.1 mph) and transmit a heading within 3 degrees of its actual heading until the vehicle reaches a speed of 12.5 m/s where the heading must be transmitted at 2 degrees accuracy of its actual heading.
S5.1.4.3
S5.1.4.4
S5.1.5
S5.1.5.1
S5.1.5.1.1 Path History data frame requires a history of a vehicles past GNSS locations as dictated by GNSS data elements including UTC time, latitude, longitude, heading, elevation sampled at a periodic time interval of 100 ms and interpolated in-between by circular arcs, to represent the vehicle's recent movement over a limited period of time or distance.
S5.1.5.1.2 Path History points should be incorporated into the Path History data frame such that the perpendicular distance between any point on the vehicle path and the line connecting two consecutive PH points shall be less than 1 m.
S5.1.5.1.3 Minimum number of Path History points vehicles should report the minimum number of points so that the represented Path History distance (
S5.1.5.1.3 Path History data frame shall be populated with time-ordered Path History points, with the first Path History point being the closest in time to the current UTC time, and older points following in the order in which they were determined.
S5.1.5.2
S5.1.5.2.1 When a device is in steady state conditions over a range from 100 m to 2,500 m in magnitude, the subsystem will populate the Path Prediction data frame with a calculated radius that has less than 2% error from the actual radius. For the purposes of this performance requirement, steady state conditions are defined as those which occur when the vehicle is driving on a curve with a constant radius and where the average of the absolute value of the change of yaw rate over time is smaller than 0.5 deg/s
S5.1.5.2.2 After a transition from the original constant radius (R1) to the target constant radius (R2), the subsystem shall repopulate the Path Prediction data frame within four seconds under the maximum allowable error bound defined above.
S5.1.5.2.3 Path Prediction trajectories will be transmitted as a required BSM element at the operational frequency of the BSM transmission.
S5.1.5.3
S5.1.5.3.1 The Exterior Lights data element, if available, provides the status of all exterior lights on the vehicle, including parking lights, headlights (including low and high beam, and automatic light control), fog lights, daytime running lights, turn signal (right and left), and hazard signals.
S5.1.5.4
• ABS Activation: The system is activated for a period of time exceeding 100 ms in length and is currently active.
• Stability Control Activation: The system is activated for a period of time exceeding 100 ms in length and is currently active.
• Hard Braking: The vehicle has decelerated or is decelerating at a rate of greater than 0.4 g.
• Air Bag Deployment: At least one air bag has been deployed.
• Hazard Lights: The hazard lights are currently active.
• Stop Line Violation: The vehicle anticipates that it will pass the line without coming to a full stop before reaching it.
• Traction Control System Activation: The system is activated for a period of time exceeding 100 ms in length and is currently active.
• Flat Tire: The vehicle has determined that at least one tire has run flat.
• Disabled Vehicle: The vehicle considers itself to be disabled.
• Lights Changed: The status of the external lights on the vehicle has changed recently.
• Wipers Changed: The status of the front or rear wipers on the vehicle has changed recently.
• Emergency Response: The vehicle is a properly authorized public safety vehicle, is engaged in a service call, and is currently moving. Lights and/or sirens may not be evident.
• Hazardous Materials: The vehicle is known to be carrying hazardous materials and is labeled as such.
S5.1.6
S5.1.6.1 Transmission state must be reported as either “neutral,” “reverse,” or “forward” for any forward gear.
S5.1.6.2 Steering wheel angle must be reported accurately to 5 degrees.
S5.1.7
S5.1.9
S5.2
S5.3
S5.3.1
S5.3.2
S5.3.3
S5.3.4
S5.4 Signing the BSM. [Reserved for message signature requirement if needed]
S5.4.1 Rotating certificates. [Reserved for rotating certificate requirement if needed]
S5.5 Congestion Mitigation.
A DSRC device must transmit the BSM as follows under the following circumstances:
S5.5.1 Calculate Tracking Error.
This section specifies the set of steps that calculate the tracking error in the congestion control algorithm for the system. Note that the tracking error is communications-induced and independent of the positioning system tracking error. The system performs the following operations every 100 ms.
• The system estimates the position of the HV at the current time, defined as HV local estimator, per defined below.
1. First find Delta_time, the time since vehicle's last known position.
2. Do not perform position extrapolation in the following cases:
• If Delta_time_ms < 0, then there is a time-related error.
• If Delta_time_ms > 150 ms, then the vehicle has not received a position update for a very long time and its position is outdated.
3. If 50 ms <= Delta_time_ms <= 150 ms, then perform position extrapolation:
• Calculate the estimated distance traveled by the vehicle in Delta_time_ms.
• Ahead_distance_m = Speed_mps * Delta_time_ms/1000
• Across_distance_m = 0
4. Use ConvertXYtoLatLon function to find the vehicle's new position at time T′. ConvertXYtoLatLon(. . .)
5. For all future calculations, use the calculated New_Latitude and New_Longitude as vehicle's position, and current time.
• The system makes an assumption of the latest HV state information received by the RVs based on a Bernoulli trial corresponding to the quality of channel indicator as defined below:
Assumption of latest HV State Information at RVs
After each transmission, use a Bernoulli trial with the channel quality indicator Π
• Channel Quality Indicator (Π): The system calculates Π as an average of the PERs observed by the HV from all of the RVs within 100 m of the HV over an interval 5000 ms, and updated at the end of each 1000 ms sub-interval.
Let AVGPER be calculated as:
Next, Π is calculated by smoothening AVGPER to filter out temporal noise or disturbance in the measurement as follows:
1. If the outcome of this Bernoulli trial is positive, assume that the previous transmission by HV is successfully received by RVs. Update the latest information the RVs have about the HV as the state information contained in previous transmission.
2. If, however, the outcome of this Bernoulli trial is negative, treat the previous transmission by HV as a failure and do not update the latest HV state information as that received by RVs.
3. Count the number of Bernoulli trials with successive negative outcomes. If this count is greater than 3, set the previous transmission as successful and update the latest information the RVs have about the HV as the state information contained in the previous transmission.
The state information is defined:
Let
• Using the latest HV state information assumption at RVs, the system estimates the position of the HV at the current time, defined as HV remote estimator, using the estimator described above. This indicates where the HV believes the RVs “thinks” that the HV is located at the current time.
• The system then calculates the tracking error e(k), between where the HV believes its current position is and where the HV believes RVs think the HV is located at the current time. It is also known as the suspected, expected or estimated tracking error between the HV local estimator and the HV remote estimator.
Here (x
S5.5.2 Transmission power must vary depending on the following:
S5.5.2.1 If there is an Event Flag or a transmission decision is based on p(k), the BSM must be transmitted at maximum power despite the presence of any other conditions;
S5.5.2.2 If the channel busy ratio is below 50% (Umin) and the transmission is based on Max_Trans_Time, then the BSM must be transmitted at maximum power (20 dBm, P
S5.5.2.3 If the channel busy ratio is above 80% (Umax) and the transmission is based on Max_Trans_Time, then the BSM must be transmitted at minimum power (10 dBm, Pmin);
S5.5.2.4 If the channel busy ratio is between (c) and (b), then the BSM must be transmitted at a power based on a linear function that proportionally reduces the transmission power based on the channel busy ratio value during the previous transmission (U(k-1)) and the previous transmission power (P(k-1). Where the transmitted power (P(k)) is defined by:
S5.6
S5.6.1
S5.6.1.1 If a DSRC device detects a malfunctioning sensor which may cause misbehavior, the device must:
(a) Either transmit the BSM with the affected elements set to “Unavailable” if relevant standards allow the element to be set to “Unavailable”; or
(b) Cease BSM transmission if relevant standards do not allow the element to be set to “Unavailable.”
If either (a) or (b) is detected, [Reserved for requirement to report malfunctions if needed]
S5.6.1.2 [Reserved for requirement to report physical tampering]
S5.6.2
S5.6.2.1 The preliminary plausibility check must identify as an implausible message any BSM for which the components of the vehicle dynamic state (position, speed, acceleration, and yaw rate) are outside the following values:
(a) Speed greater than 70 m/s (252 km/h or 156 mph);
(b) Longitudinal acceleration of 0–100 km/h in fewer than 2.3 seconds (greater than 12 m/s
(c) Longitudinal deceleration of 100–0 km/h in fewer than 95 feet (greater than 12 m/s
(d) Lateral acceleration of greater than 11 m/s
(e) Yaw rate of greater than 1.5 radian/s
Additionally, a BSM must be identified as implausible if values within the BSM are not internally consistent given the formula V
S5.6.2.2 A DSRC device must be able to perform the plausibility checks described in S5.6.2.1 on at least 5,500 BSMs per second.
S5.6.2.3 [Reserved for requirement to report any failed plausibility check]
S5.6.2.4 A DSRC device must support the detection of other devices which are suspected of misbehaving, and at a minimum detect the following types of misbehavior:
(a) Proximity Plausibility: Instances are detected of two or more vehicles, either partially or wholly, occupying the same physical space based on the reported GPS positions.
(b) Motion Validation: Attempts to validate the reported position of a transmitting vehicle based on the previously-reported velocity and heading values of the vehicle.
(c) Content and Message Verification: Attempts to categorize BSMs as suspicious by checking the data validity of the BSM.
(d) Denial of Service Detection: Attempts to disrupt, limit, or alter the functionality of V2V device to meet the requirements through exhaustions of storage, computation, or other limited resources of the V2V device.
S5.6.3 [Reserved for requirements for sending misbehavior reports]
S5.7
S5.7.1 Malfunctions could include, but are not limited to, the following:
(a) Device components not operating properly;
(b) Input sensor data falling outside tolerance levels;
(c) On-board memory failures;
(d) GPS receiver failures;
(e) An inability to transmit or receive BSMs; or
(f) Any other failure that could prevent normal operation.
S5.7.2 The malfunction indication must be clearly presented to device users in the form of a telltale lamp or message.
S5.7.3 Owners' information for the device (or vehicle, if the DSRC device is installed as original equipment) must clearly describe the malfunction indication, potential causes, and when the device must be taken in for service (as needed).
S5.7.4 The malfunction indication must remain present and/or illuminated until the malfunction no longer exists and the DSRC device is returned to proper operation.
S5.8 [Reserved for requirement to communicate with the SCMS if needed].
S5.9
S5.10 [Reserved for hardware protection requirement].
S5.11
S5.11.1 Owners information for the device must include the statement set forth in Appendix A below.
S5.11.2 Manufacturers also must make the statement set forth in Appendix A easily accessible to the public, as by publishing it on an easily located Web site indexed by make, model, and year.
S6
S6.1
S6.1.1 The ambient temperature is between 0 °C (32 °F) and 40 °C (104 °F).
S6.1.2 The maximum wind speed is no greater than 10 m/s (22 mph) for passenger cars and 5 m/s (11 mph) for multipurpose passenger vehicles, trucks, and buses.
S6.2
S6.2.1 The tests are conducted on a dry, uniform, solid-paved surface. Surfaces with irregularities and undulations, such as dips and large cracks, are unsuitable.
S6.2.3 The test surface has a consistent slope between level and 1 percent.
S6.3
S6.3.2
S6.3.3
S7
S7.1
S7.1.1 Inflate the vehicles' tires to the cold tire inflation pressure(s) provided on the vehicle's placard or the tire inflation pressure label.
S7.1.2
S7.1.2.1 Measure vehicle length including any equipment installed on the vehicle when first sold.
S7.1.2.2 Measure vehicle width including any equipment installed on the vehicle when first sold.
S7.1.2.3 Measure vehicle height including any equipment installed on vehicle when first sold.
S7.1.2.4 Measure the V2V System GNSS Receiver Antenna.
S7.1.2.5 Measure the independent instrumented vehicle sensor coordinates.
S7.2
S7.2.1 Place the test vehicle on car wheel rollers and position the vehicle on the test track.
S7.2.2
S7.2.2.1 The device is 1.5 m above the test surface;
S7.2.2.2 The device is at a nominal distance of 300 m in front of the test vehicle.
S7.2.3
S7.2.3.1 The line originates at a point that is directly 1.5 m above the vehicle reference point.
S7.2.3.2 The line rises at a +10 degree angle from the test surface proceeding in the direction directly in front of the test vehicle.
S7.2.3.3 The line terminates at a point that is directly above the point used in S7.2.2.
S7.2.4
S7.2.4.1 The line originates at a point that is directly 1.5 m above the vehicle reference point.
S7.2.4.2 The line falls at a −6 degree angle from the test surface proceeding in the direction directly in front of the test vehicle.
S7.2.4.3 The line terminates at any point where it intersects the test surface.
S7.2.5 Configure the DSRC packet capture devices to log BSMs over-the-air (OTA); devices must have a receive sensitivity of −92 dBm.
S7.2.6 Activate the DSRC packet capture devices to log BSMs OTA.
S7.2.7 Activate the test vehicle starting system to initiate BSM transmission.
S7.2.7.1 Run the vehicle for 110 mins.
S7.2.7.2 Rotate the vehicle 90 degrees in the clockwise direction every 15 minutes until the time in S7.2.7.1 expires.
S7.2.8 Deactivate the test vehicle and DSRC packet capture devices.
S7.2.9 Retrieve and process the log files to determine compliance with S.5.
S7.2.10
S7.2.10.1 Using the transmission blocking water filled plastic blanket that will hold one gallon of water with a water width of 1 inch, cover the test vehicle GPS antenna to prevent it from receiving a valid GNSS signal.
S7.2.10.2 Connect GPS signal generator to the test vehicle OBE.
S7.2.10.3 Activate the test vehicle starting system to initiate BSM transmission.
S7.2.10.4 Activate the DSRC packet capture devices to log BSMs OTA.
S7.2.10.5 Using the GPS signal generator, inject a known fake GPS signal into the OBE.
S7.2.10.6 After 5 minutes, deactivate the test vehicle starting system and DSRC capture packet device.
S7.2.10.7 Retrieve and process the log files to determine compliance with the positional accuracy requirements.
S7.3
S7.3.1 Place the test vehicle on the test track.
S7.3.2 Position a DSRC packet capture device directly in front of the test vehicle with the following characteristics:
S7.3.2.1 The device is 1.5 m above the test surface;
S7.3.2.2 The device is at a nominal distance of 300 m in front of the test vehicle.
S7.3.3 Configure the DSRC packet capture device to log BSMs over-the-air (OTA); devices must have a receive sensitivity of −92 dBm.
S7.3.4
S7.3.4.1 Position a reference OBE device (
S7.3.4.2 Activate the DSRC packet capture device to log BSMs OTA.
S7.3.4.3 Activate the test vehicle starting system to initiate BSM transmission.
S7.3.4.3.1 Run the vehicle for 15 minutes.
S7.3.4.3.2 After 5 minutes, activate the reference OBE device in S7.3.4.1 to simulate a congested DSRC environment.
S7.3.4.3.3 After another 5 minute period, deactivate the reference OBE device in S7.3.4.1.
S7.3.4.3.4 After another 5 minute period, deactivate the test vehicle starting system.
S7.3.4.4 Retrieve and process the log files to determine compliance with the correct congestion mitigation strategy in S5.5.
S7.3.5
S7.3.5.1 Position a reference OBE device on the test track within a 300 m range of the test vehicle.
S7.3.5.2 Activate the DSRC packet capture device to log BSMs OTA.
S7.3.5.3 Activate the test vehicle starting system to initiate BSM transmission.
S7.3.5.4 Using the reference OBE device, transmit simulated misbehaving BSMs.
S7.3.5.4.1 After 10 mins, deactivate the reference OBE device.
S7.3.5.7 Retrieve and process the log files to determine compliance with the misbehavior detection requirement in S5.6.
S7.4
S7.4.1 Configure the test vehicle to send BSMs representing the best estimate of the BSM data parameters.
S7.4.2 Configure the test vehicle to send ground truth data (position, speed, heading, acceleration, yaw rate, and time) from independent sensors mounted on the test vehicle via non-DSRC wireless link.
S7.4.3 Configure the DSRC packet capture device to log BSMs over-the-air (OTA); devices must have a receive sensitivity of −92 dBm.
S7.4.4 Configure an RSE on the test track to receive the test vehicles' ground truth data.
S7.4.5
S7.4.5.1 Activate the test vehicle starting system to initiate BSM transmission.
S7.4.5.2 Activate the DSRC packet capture device to log BSMs OTA.
S7.4.5.3 Put the test vehicle transmission in “Drive” and accelerate the vehicle to 30 mph +/−1 mph.
S7.4.5.4 Apply the service brake to decelerate the vehicle 0.3 g, bring the vehicle to a stop.
S7.4.5.6 Shift the transmission to “Park” and cycle the ignition.
S7.4.5.7 Shift the transmission to “Drive” and accelerate the vehicle to 15 mph +/−mph.
S7.4.5.8 Proceed up an incline with a minimum rise of ? ft.
S7.4.5.9 Drive the test vehicle in a figure eight at 18 mph.
S7.4.5.10 Bring the test vehicle to a stop and shift the transmission to “Reverse”.
S7.4.5.11 Accelerate the test vehicle in the reverse direction.
S7.4.5.12 Decelerate the vehicle to a stop and shift the transmission to “Park”.
S7.4.5.13 Cycle the ignition.
S7.4.5.14 Deactivate the test vehicle starting system.
S7.4.5.15 Retrieve and process the log files to determine compliance with S5.
S7.4.6
S7.4.6.1 Configure a remote test vehicle (RV1) to offset its positional BSM data laterally into the left adjacent lane.
S7.4.6.2 Place RV1 on a two lane test track and position it in the right most lane.
S7.4.6.3 Activate the test vehicle starting system to initiate BSM transmission.
S7.4.6.4 Activate the DSRC packet capture device to log BSMs OTA.
S7.4.6.5 Drive the test vehicle [30 mph +/−1 mph] along the test track in the left lane and proceed past RV1.
S7.4.6.6 Repeat S7.4.6.5 three (3) times.
S7.4.6.7 Retrieve and process the log files to determine compliance with S5.6.
S7.4.6.8 Drive the test vehicle past the RSE at a constant [30 mph +/−1 mph].
S7.4.6.9 Bring the test vehicle to a stop.
S7.4.6.10 [Reserved for requirement to retrieve and process the log files to determine if a Misbehavior Report was sent to the SCMS].
S7.4.7 [Reserved for Misbehavior Detection Signature Failure testing requirement].
S7.5
S7.5.1 Start-up Self test:
S7.5.2 Position the test vehicle on the test platform.
S7.5.3 Position a DSRC packet capture device at a nominal distance of 300 m from the test device.
S7.5.4 Create a malfunction on the test vehicle.
S7.5.5 Activate the DSRC packet capture device to log BSMs over-the-air (OTA).
S7.5.6 Activate the test vehicle starting system to initiate BSM transmission.
S7.5.7 Retrieve and process the log files to determine compliance with S5.
S7.5.8 Cycle the test vehicle starting system.
S7.5.9 Deactivate the vehicle starting system.
S7.5.10 Correct the system malfunction.
S7.5.11 Reactivate the test vehicle starting system.
S7.5.12 Deactivate the test vehicle starting system.
S8
S8.1
S8.2
S8.3
S8.4
(a) For purposes of complying with S8.1, a manufacturer may count a vehicle if it is certified as complying with this standard and is manufactured on or after June 5, [1 year after issuance of a final rule], but before September 1, [3 years after issuance of a final rule].
(b) For purposes of complying with S8.2, a manufacturer may count a vehicle if it.
(1) Is certified as complying with this standard and is manufactured on or after June 5, [1 year after issuance of a final rule], but before September 1, [4 years after issuance of a final rule],
(2) Is certified as complying with this standard and is manufactured on or after September 1, [3 years after issuance of a final rule], but before September 1, [4 years after issuance of a final rule].
S8.5
S8.5.1 For the purpose of calculating average annual production of vehicles for each manufacturer and the number of vehicles manufactured by each manufacturer under S8.1 through S8.3, a vehicle produced by more than one manufacturer must be attributed to a single manufacturer as follows, subject to S8.5.2:
(a) A vehicle that is imported must be attributed to the importer.
(b) A vehicle manufactured in the United States by more than one manufacturer, one of which also markets the vehicle, must be attributed to the manufacturer that markets the vehicle.
S8.5.2 A vehicle produced by more than one manufacturer must be attributed to any one of the vehicle's manufacturers specified by an express written contract, reported to the National Highway Traffic Safety Administration under 49 CFR part 585, between the manufacturer so specified and the manufacturer to which the vehicle would otherwise be attributed under S8.5.1.
S8.6
S8.7
S9
S9.1 The agency is also recognizing that communications mediums other than DSRC may be capable of providing equal or better performance than DSRC. These alternative technologies would be permissible if and only if it satisfies all of the criteria set forth in this section:
S9.1.1
S9.1.1.1 Transmitting and receiving an established message with all other V2V devices, including DSRC devices, including BSM content data as specified in S5.1.2, S5.1.3, S5.1.4, S5.1.5, S5.1.6, and S5.1.7;
S9.1.1.2 Utilizing transmissions protocols that achieve at least the same level of performance as DSRC including S5.2, S5.3.1, S5.3.4, and S5.3.5; and
S9.1.1.3 Ensuring, at the minimum, the same robustness to incorrect or malicious incoming messages as DSRC as specified in the plausibility checks specified in S5.6.2.
S9.1.2
S9.1.2.1 A device that enables V2V communication, but does not use DSRC technology must perform at the same level as the requirements found in S5.2, S5.3, S5.4, S5.7–S5.10 for DSRC devices, except that it is not required to meet:
S9.1.2.2 Specific references to DSRC, where the technology meets all other requirements;
S9.1.2.3 The message packaging or protocol suite requirements found in S5.1.1.
S9.1.2.4 The required channel or data rate in S5.3.2 and S5.3.3; and
S9.1.2.5 The requirements associated with message congestion mitigation and misbehavior detection found in S5.5 and S5.6 except as specified in S5.6.2;
S9.1.3
S9.1.3.1 The test conditions for testing non-DSRC V2V devices shall be the same as those for DSRC devices in S6.
S9.1.3.2 The test procedures for testing non-DSRC V2V devices to determine whether they can send BSMs that are interoperable with DSRC devices shall be the same as those for DSRC devices in S7, minus any specific references to DSRC in the vehicle being tested, including but not limited to S7.3.4, S7.3.5, and S7.4.6.
S9.1.3.3 [Reserved for test procedures on receiving BSMs from a DSRC test device]
S9.1.3.4 [Reserved for test procedures on ensuring interoperability with other approved non-DSRC V2V devices]
(1) The National Highway Traffic Safety Administration (NHTSA) requires that your vehicle be equipped with a Vehicle-to-Vehicle (V2V) safety system. The V2V system is designed to give your vehicle a 360 degree awareness of the driving environment and warn you in the event of a pending crash, allowing you to take actions to avoid or mitigate the crash, if the manufacturer of your vehicle has installed V2V safety applications.
(2) Your V2V system periodically broadcasts and receives from all nearby vehicles a V2V message that contains important safety information, including vehicle position, speed, and direction. V2V messages are broadcast ten times per second in only the limited geographical range (approximately 300 meters) necessary to enable V2V safety application to warn drivers of pending crash events.
(3) To help protect driver privacy, V2V messages do not directly identify you or your vehicle (as through vehicle identification number or State motor vehicle registration), or contain data that is reasonably or, as a practical matter, linkable to you. For purposes of this statement, V2V data is “reasonably” or “as a practical matter” linkable to you if it can be used to trace V2V messages back to you personally for more than a temporary period of time (in other words, on a persistent basis) without unreasonable expense or effort, in real time or after the fact, given available data sources. Excluding reasonably linkable data from V2V messages helps protect consumer privacy, while still providing your V2V system with sufficient information to enable crash-avoidance safety applications.
(1) Your V2V system does not collect or store V2V messages except for a limited time needed to maintain awareness of nearby vehicles for safety purposes or in case of equipment malfunction. In the event of malfunction, the V2V system collects only those messages required, and keeps that information only for long enough to assess a V2V device's misbehavior and, if a product defect seems likely, to provide defect information to your vehicle's manufacturer.
(2) NHTSA does not regulate the collection or use of V2V communications or data beyond the specific use by motor vehicles and motor vehicle equipment for safety-related applications. That means that other individuals and entities may use specialized equipment to collect and aggregate (group together) V2V transmissions and use them for any purpose including applications such as motor vehicle and highway safety, mobility, environmental, governmental and commercial purposes. For example, States and localities may deploy roadside
(3) While V2V messages do not directly identify vehicles or their drivers, or contain data reasonably linkable to you on a persistent basis, the collection, storage and use of V2V data may have residual privacy impacts on private motor vehicle owners or drivers. Consumers who want additional information about privacy in the V2V system may review NHTSA's V2V Privacy Impact Assessment, published by The U.S. Department of Transportation at
(4) If you have concerns or questions about the privacy practices of vehicle manufacturers or third party service providers or applications, please contact the Federal Trade Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of 12-month finding.
We, NMFS, announce a 12-month finding and listing determination on a petition to list Alabama shad (
This finding was made on January 12, 2017.
The reference list associated with this determination is available by submitting a request to the Species Conservation Branch Chief, Protected Resources Division, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701–5505, Attn: Alabama shad 12-month finding. The reference list is also available electronically at:
Kelly Shotts, NMFS, Southeast Regional Office (727) 824–5312; or Marta Nammack, NMFS, Office of Protected Resources (301) 427–8469.
In 1997, we added Alabama shad to our Candidate Species List (62 FR 37562; July 14, 1997). At that time, a candidate species was defined as any species being considered by the Secretary of Commerce (Secretary) for listing as an endangered or a threatened species, but not yet the subject of a proposed rule (49 FR 38900; October 1, 1984). In 2004, we created the Species of Concern list (69 FR 19975; April 15, 2004) to encompass species for which we have some concerns regarding their status and threats, but for which insufficient information is available to indicate a need to list the species under the Endangered Species Act (ESA). Twenty-five candidate species, including the Alabama shad, were transferred to the Species of Concern list at that time because they were not being considered for ESA listing and were better suited for Species of Concern status due to some concerns and uncertainty regarding their biological status and threats. The Species of Concern status does not carry any procedural or substantive protections under the ESA.
On April 20, 2010, the Center for Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and the West Virginia Highlands Conservancy (petitioners) submitted a petition to the Secretaries of Interior and Commerce, as well as to the Regional Director of the Southeast Region of the U.S. Fish and Wildlife Service (USFWS), to list 404 aquatic, riparian, and wetland species from the southeastern United States as threatened or endangered under the ESA. The petitioners also requested that critical habitat be designated for all petitioned species. We notified the USFWS' Southeast Region by letter dated May 3, 2010, that the Alabama shad, one of the 404 petitioned species, would fall under NMFS' jurisdiction based on the August 1974 Memorandum of Understanding regarding jurisdictional responsibilities and listing procedures between the two agencies. We proposed to USFWS that we would evaluate the petition, for Alabama shad only, for the purpose of the 90-day finding and any required subsequent listing action. On May 14, 2010, we sent the petitioners confirmation we would be evaluating the petition for Alabama shad. On February 17, 2011, we published a negative 90-day finding in the
On April 28, 2011, in response to the negative 90-day finding, CBD filed a notice of intent to sue the Department of Commerce (DOC) and NMFS for alleged violations of the ESA in making its finding. CBD filed the lawsuit in the U.S. District Court for the District of Columbia on January 18, 2012. On June 21, 2013, CBD and DOC/NMFS settled the lawsuit. We agreed to reevaluate the original listing petition, as well as information in our files, including some additional information we acquired after the original 90-day finding published on February 17, 2011, and publish a new 90-day finding. On September 19, 2013, we published a 90-day finding with our determination that the petition presented substantial scientific and commercial information indicating that the petitioned action may be warranted (78 FR 57611).
Our 90-day finding requested scientific and commercial information from the public to inform a review of the status of the species. We requested information on the status of Alabama shad, including: (1) Historical and current distribution and abundance of this species throughout its range, including data addressing presence or absence at a riverine scale; (2) historical and current population sizes and trends; (3) biological information (life history, genetics, population connectivity, etc.); (4) landings and trade data; (5) management, regulatory, and enforcement information; (6) any current or planned activities that may adversely impact the species; and (7) ongoing or planned efforts to protect and restore the species and its habitat. We received information from the public in response to the 90-day finding, and we incorporated all relevant information into our review of the status of Alabama shad.
We are responsible for determining whether Alabama shad warrants listing as threatened or endangered under the ESA (16 U.S.C. 1531
Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any state or foreign nation to protect the species. Under section 4(a) of the ESA, we must determine whether any species is endangered or threatened due to any one or a combination of the following five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (Sections 4(a)(1)(A) through (E)).
We followed a stepwise approach in making this listing determination for Alabama shad. First we conducted a biological review of the species' taxonomy, distribution, abundance, life history, and biology. Next, using the best available information, we completed an extinction risk assessment using the general procedure of Wainwright and Kope (1999). Then, we assessed the threats affecting the status of each species using the five factors identified in section 4(a)(1) of the ESA.
In the next step, we evaluated the available information to determine whether there is a portion of the species' range that is “significant” in light of the use of the term in the definitions of threatened and endangered. We followed the final policy interpreting the phrase “significant portion of its range” (79 FR 37578; July 1, 2014). A portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range.
We describe each of the steps listed above in detail in the following sections of this finding.
We have identified the best available scientific and commercial information in order to conduct a comprehensive review of the status of Alabama shad. Unlike many of our other 12-month findings, we have not developed a separate status review report. Instead we present all available relevant information for Alabama shad in this
Alabama shad (
Alabama shad are considered a separate species from the closely related American shad based on mitochondrial DNA molecular data (Bowen 2005, 2008, Kreiser and Schaefer 2009), in addition to the physical differences. There is limited genetic difference and it is theorized that the two species have only recently diverged from a common ancestor. Alabama shad is its own monophyletic group (a group of organisms descended from a single ancestor) due to limited genetic differences among the Clupeidae family and allopatric speciation (speciation by geographic isolation, Bowen 2008). There has been no significant genetic differentiation among different stocks of Alabama shad geographically and there is no evidence of hybridization between any of the other
Alabama shad are likely generalist insect feeders. Mickle
Like many clupeids (the family of fish that include shad, herring, sardines, and menhaden), egg hatching period and growth of subsequent larvae varies by location and environmental factors. Mickle
Juvenile Alabama shad exhibit rapid growth, although the size of juveniles varies across the range of the species. Typical juvenile Alabama shad increase in size from about 4.7 centimeters total length (cm TL, the length of the fish measured from the tip of the snout to tip of the tail fin) to about 10.1 cm TL over the summer but variation can occur depending on the river drainage. For example, juvenile Alabama shad from the Apalachicola River grew faster than those in the Pascagoula River despite
In both the Apalachicola and Choctawhatchee Rivers, Florida, adult female shad were typically longer and heavier than the adult males (Laurence and Yerger 1967, Mills 1972, Mettee and O'Neil 2003). Age 1–3 males on average weigh 250 grams and age 1–4 females weigh around 650 grams before spawning (Mettee and O'Neil 2003, Ingram 2007).
Two studies have aged otoliths of Alabama shad but only one study has fit growth models to observed age data. In the Pascagoula River, maximum observed age was 6 years based on otoliths (Mettee and O'Neil 2003), while Ingram (2007) aged shad from the Apalachicola River to 4 years.
Alabama shad is a euryhaline (adapted to a wide range of salinities), anadromous fish species that migrates between the ocean and medium to large flowing rivers to spawn (reproduce) from the Mississippi River basin to the Suwannee River, Florida. Alabama shad spawn in February to April at lower latitudes in the south and May to June in more northern latitudes, usually over sandy bottoms, gravel shoals, or limestone outcrops (Laurence and Yerger 1967, Mills 1972, Barkuloo 1993, Kreiser and Schaefer 2009, Mickle
Spawning males range in age from 1 to 5 years and females from 2 to 6 years (Mickle
Because of the age range among the spawning fish, it is believed that individuals may spawn more than once in a lifetime (Laurence and Yerger 1967, Mettee and O'Neil 2003, Ingram 2007, Mickle
On the spectrum of life history strategies, Alabama shad tend to be “r strategists”, species that are typically short-lived, have small body size, reach sexual maturity at an early age, and have high natural mortality that is balanced by a high growth rate (Adams 1980). Species that are r strategists adapt to unstable, unpredictable environments by producing higher numbers of offspring as compared to k strategist species living in stable, predictable environments. Elliott and Quintino (2007) found that species living in unpredictable, variable, and even stressed environments are well-adapted to cope with these conditions without or with reduced adverse effects. Adapting to highly variable environments also produces high natural variability in r strategist populations. Adams (1980) noted that fisheries for r strategists can have very large catches some years, but are characterized by erratic, highly variable production levels overall. Most clupeoids (an order of soft-finned fishes that includes Alabama shad, other clupeids, and anchovies in the family engraulidae) have a short life span and show striking inter-annual or decadal variation in productivity and abundance (Mace
Sammons and Young (2012) noted that the population sizes of species in the
Alabama shad are found in the Gulf of Mexico, although there is very little information about their marine habitat use. Only six records of Alabama shad collected in marine waters exist. The Florida Museum of Natural History reports one specimen was captured in July 1957 approximately 80 miles (mi) or 129 kilometers (km) south of Choctawhatchee Bay, Florida, in about 100 meters of water (Fishnet2 2015, Catalogue #28671). The National Museum of Natural History, Smithsonian Institution, reports another Alabama shad was captured just off Dauphin Island, Alabama, in December 1960 in 15 meters of water (Fishnet2 2015, Catalogue #293755.5174309). Two Alabama shad were collected approximately 115 km southwest of Cape San Blas, Florida in November 2007 (Fishnet2 2015, Catalogue #20627). An Alabama shad was collected by the Texas A&M University Biodiversity Research and Teaching Collections in a trawl about 25 mi (40 km) offshore of Florida, between Tampa Bay and the Charlotte Harbor Estuary (Fishnet2 2016, Catalogue #14540.07). In March 2013, an adult female Alabama shad was collected during a fishery independent monitoring survey approximately 15 km south of the Pascagoula River just north of Petit Bois Island in Mississippi Sound and approximately 5 km east of Horn Island Pass, which leads to the open Gulf of Mexico (Mickle
As part of their anadromous life cycle, adult Alabama shad leave the Gulf of Mexico and move into rivers in the spring to spawn. First year (age-0) juveniles stay upriver in freshwater environments until late summer or fall and eventually migrate downstream to the Gulf of Mexico. Juveniles coming from natal rivers located at more northern latitudes (
Alabama shad prefer cooler river waters with high dissolved oxygen (DO) and pH levels (Mickle
Water velocity is also believed to be an important habitat feature, as this species is rarely found in the still or backwater portions of rivers. It is hypothesized that spring floods (increased river flows) are a vital environmental cue for spawning adults as well as an important aspect for successful hatching. Juveniles tend to occupy moderate to fast moving water (approximately 0.5–1.2 m per second) that is less than 1 m deep (Mickle 2010). Clear water with minimal benthic algal growth also appears to be preferred by this species (Buchanan
Smaller, younger shad tend to prefer the slightly shallower, more protected areas over sandbars, while the older, larger shad can be found in channel and bank habitats. Sandbars within the bends of rivers that are less than 2 m deep often support juveniles in the early summer (Mickle 2010). As the fish grow, they move to bank (greater than 2.5 m deep) and channel (1.5–2.5 m deep) habitats, although the shift is not always consistent (Mickle 2010). Presumably, this allows the juveniles to avoid predators, fulfill foraging needs, or access cooler temperatures that might be present in deeper waters (Bystrom 2003, Mickle
NMFS documented the current known distribution and abundance of Alabama shad in a technical memorandum published in August 2011 (Smith
Information on the historical and current distribution and abundance of Alabama shad is largely lacking. Alabama shad was never an economically important species, therefore information from fisheries statistics, such as landings data, is rare. Hildebrand (1963) noted that Alabama shad were considered unfit for human consumption, and the lack of demand produced no incentive to capture the species or record its presence and abundance. Very few directed research studies on Alabama shad have occurred, with the exception of recent studies in the Apalachicola Chattahoochee Flint (ACF) and Pascagoula River systems. The recent studies in the ACF River system have produced the only abundance estimates, either historical or current, for Alabama shad in any river system. The historical and current distribution of Alabama shad in other systems is based on capture data from general multi-species surveys, project monitoring, captures incidental to other research studies, and anecdotal information. Information received from state resource agencies (
Mettee and O'Neil (2003) note that low numbers of recorded Alabama shad individuals may be due, at least in part, to insufficient sampling effort during
In reviewing data provided by the Florida Fish and Wildlife Conservation Commission (FFWCC) during the public comment period on the positive 90-day finding (J. Wilcox, FFWCC, pers. comm. to K. Shotts, NMFS, November 12, 2013), less than 50 Alabama shad were reported since 1999. The shad were collected during multispecies surveys not specifically targeting Alabama shad. The research with positive reports of Alabama shad was conducted using otter trawls, seines, and electrofishing during winter (December, January, February), spring (May), summer (June, July, August), and fall (September, October, November) months between 2002 and 2011. It is notable that none of the FFWCC surveys were conducted in March or April, when the largest catches of Alabama shad have occurred during targeted research in the ACF River system (Kern 2016, Sammons 2013, 2014). Further, although FFWCC caught less than 50 Alabama shad from 2002–2011, researchers targeting Alabama shad in the ACF River system captured 128–1,497 Alabama shad per year during an overlapping time period (2005–2011; Young 2010, 2011). This demonstrates the importance of the sampling gear and time of year in interpreting available data and why short-term and/or non-targeted research is not always a good indicator of distribution and abundance.
Even studies designed to target Alabama shad have yielded difficulties in detecting the species. Researchers studying Alabama shad in the ACF River system noted they had great difficulty finding Alabama shad in portions of the Flint River and expressed their surprise at the difficulty, given the small size of the river (Kern 2016; S. Herrington, The Nature Conservancy, pers. comm. to K. Shotts, NMFS, Jim Woodruff Lock and Dam (JWLD) Fish Passage Year-End Summary Meeting, January 2014; S. Sammons, Auburn University, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, January 2015). Large gaps in detections of Alabama shad were observed in the Flint River (Kern 2016; S. Herrington, The Nature Conservancy, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, January 2014; S. Sammons, Auburn University, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, January 2015). Alabama shad were detected at upstream and downstream locations on acoustic receivers, but were not detected by receivers in between. Multiple methods were used with limited success to improve the detectability of Alabama shad, including passive (anchored receivers), boat, and airplane tracking of acoustically and radio-tagged shad (S. Sammons, Auburn University, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, January 2015). Kern (2016) believed a combination of behavioral and environmental factors reduced the detectability of Alabama shad. Kern (2016) notes there are many “blue hole” springs along the river's length that are substantially deeper than the surrounding river and it is possible that Alabama Shad may use these features as refugia during the spawning migration. High water conditions were also experienced during portions of the sampling period. Kern (2016) stated that increased water depth during periods of high river discharge, swimming depth of Alabama Shad, and the presence of significantly deeper habitats than what is available in the rest of the river could lead to decreased detection probability by exceeding the detection range of passive and manual receivers. Kern (2016) also noted that Alabama shad are capable of long, rapid migration runs and if those migration runs occur at night, Alabama shad will not be detected by manual tracking (from boats and airplanes) that occurs exclusively during the day. The same detection problems (gaps in Alabama shad detection at receivers between two positive detection points) were experienced during Alabama shad conservation locking studies in the Alabama River system (Kern 2016; S. Sammons, Auburn University, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, January 2015).
It is unknown to what degree the lack or low numbers of Alabama shad reported for many river systems accurately reflects the abundance in those systems or whether it is indicative of the lack of targeted studies or the detectability of this species.
Distribution and abundance information is summarized below by rivers, starting with the Apalachicola River where we have the most information regarding Alabama shad, then information is presented by rivers from west to east.
The Apalachicola River drainage is made up of the Apalachicola, Chattahoochee, and Flint Rivers and drains water from parts of Florida, Alabama, and Georgia. Alabama shad were known to have migrated from the Apalachicola River up the Chattahoochee River to Walter F. George Reservoir in the early 1970s (Smith
During the public comment period, the FFWCC reported collecting fewer than 50 Alabama shad in the lower Apalachicola River since 1999 (J. Wilcox, FFWCC, pers. comm. to K. Shotts, NMFS, November 12, 2013). In reviewing the data provided by FFWCC during the public comment period on the positive 90-day finding, the fewer than 50 Alabama shad reported since 1999 were collected during multispecies surveys (
The ACF River system likely contains the largest spawning population of Alabama shad within its range, although the population may be several orders of magnitude smaller than historical levels (Schaffler
In 2012, the “cooperator” organizations (USACE, USFWS, NMFS, Georgia DNR, FFWCC, and TNC) signed a Memorandum of Understanding (MOU) clarifying their commitments and responsibilities in the continued implementation of fish passage at JWLD. The contents of the MOU are described in more detail in the “Regulations on Dams” section in “
Population abundance estimates for Alabama shad in the ACF River system were determined through mark-recapture methods from 2005–2016. The estimated abundances for 2005–2016 are listed in the following table (the asterisks indicate years in which no conservation locking occurred due to maintenance and upgrades to the lock at JWLD). The table also shows the catch per unit effort (CPUE) of adult and juvenile Alabama shad during spring and fall sampling, respectively.
In the period of conservation locking, Alabama shad have been successfully passed through the navigational lock at the most downstream dam on the ACF, JWLD, providing upstream migration to higher quality spawning and juvenile rearing habitat, which has potentially improved recruitment and lead to population increases (Ely
Schaffler
In 2005, the population estimate in the ACF River system was about 26,000 individuals, but decreased to less than 10,000 in both 2006 and 2007 (Ely and Young 2008). In 2008 and 2009, mark-recapture methods yielded an Alabama shad population estimate of approximately 5,200–10,700. However, one of the researchers noted that the Alabama shad population estimates for 2008 and 2009 (5,253 and 10,753 shad, respectively) are likely underestimates of the actual population numbers based on the results of a companion electrofishing study by Clemson University (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, February 8, 2016). Based on a predictive model developed by Clemson, the 2008 and 2009 Alabama shad population estimates would be closer to 8,500 and 26,000 shad, respectively.
Young (2010) estimated the number of Alabama shad in the ACF River system at 98,469 in 2010, almost 4 times larger than the previous high estimate of 25,935 in 2005 (Ely
Within the ACF River system, the number of Alabama shad in 2011 was estimated at 26,193; this is lower than the 2010 value but slightly higher than the maximum abundance in the 2005–2009 period (Young 2011). The major difference between the 2010 and 2011 Alabama shad spawning runs was a lack of age-1 males in 2011. Ingram (2007) noted that fewer age classes and lower numbers of older, more mature, fish are indicative of a declining population. The 2011 run was dominated by older, larger adult females in excellent condition, a potential indicator of strong year classes in the future (Young 2011). Sammons and Young (2012) provided a report from the Apalachicola River, estimating the number of Alabama shad at 122,578 in 2012 (the largest since 2005). This spawning run was composed of many males presumed to be from the 2010 year class, as well as numerous older, larger adults of both sexes (presumably recruits from 2008 and 2009). In 2012, the abundance of 3- and 4-year-old fish made up the largest percentage of spawning Alabama shad, rather than 1- and 2-year-olds as in previous years (Ingram 2007), indicating a healthier population (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, June 6, 2016). Sammons and Young (2012) noted that a year of higher than average flows in 2009 may have contributed to spawning and recruitment successes in 2010 and 2012.
While conservation locking of Alabama shad at JWLD and monitoring of Alabama shad populations in the ACF River system continue to receive support and funding Alabama shad were not passed through the lock in 2013 and 2014 due to maintenance on the structure. However, 74 Alabama shad out of a total of 251 captured by researchers during 2013 were tagged and transported above JWLD and released (Kern 2016, Sammons 2013) in order to access habitat above the dam. Of the 74 tagged fish, 11 were verified as post-release mortalities, with another 3 suspected mortalities (Sammons 2013). It is unknown whether Alabama shad not captured by researchers successfully spawned at the shoal habitat below JWLD where they spawned prior to conservation locking (
Conservation locking appears to have enhanced spawning and recruitment of Alabama shad in the ACF River system (Young 2010, 2011, Sammons and Young 2012, Schaffler
The Alabama shad population sampled below JWLD during the 2013 spawning season was low compared to previous seasons (Sammons 2013). A total of 309 Alabama shad were captured below JWLD and of those fish, 87 fish were tagged and 1 was recaptured, resulting in a population estimate of 2,039 Alabama shad (Sammons 2013). Sammons (2013) noted that most Alabama shad collected below JWLD in 2013 were in poor physical condition, with visible wounds (this will be discussed further in “C. Disease and Predation”). The wounds were observed only on adult fish and not on younger fish, indicating the source may have occurred in the Gulf of Mexico (Sammons 2013). The wounds were also not observed on other anadromous species, indicating Alabama shad are either more susceptible to the source of the wounds or they are distributed in areas that the other species are not (Sammons 2013).
The Alabama shad captured below JWLD were tagged and/or released approximately 5 km above the dam (Sammons 2013). Most of the Alabama shad were relocated (detected again after release) in Lake Seminole just above the dam, but some fish were detected moving into the preferred spawning habitat in the Flint River (Sammons 2013). Although fewer fish were detected making a spawning run than in previous years, Alabama shad traveled greater distances from the area they were released in 2013 than in previous years (Sammons 2013).
Reasons for the lack of fish found below JWLD are unknown, but unusually cold water temperatures due to cooler weather patterns present throughout the Apalachicola River Basin in 2013 may have been a contributing factor (Sammons 2013). Water temperature serves as one of the main cues for Alabama shad to enter the ACF River system to spawn (Kern 2016, Sammons 2013). The researchers suspect that many Alabama shad had not yet entered the Apalachicola River to spawn during their sampling effort in the river, and this factored into the low numbers captured during 2013.
In 2014, 102 Alabama shad were captured below JWLD; 86 were tagged and released above JWLD (Sammons 2014). No fish were recaptured and a population estimate could not be calculated (Sammons 2014). Since conservation locking did not occur in 2013 or 2014 due to maintenance of the lock, Alabama shad likely did not pass upstream except for those transported by researchers. Sammons (2014) noted that the Alabama shad captured in 2014 were smaller than shad captured in the previous two years, but that the fish were in better condition and did not exhibit the wounds as the majority of the population did in 2013. Although few adult Alabama shad were captured in the spring 2014, juvenile Alabama shad were collected in the fall sampling above JWLD in 2014 (CPUE of 3.3 in the table above), indicating that adult Alabama shad had successfully passed upstream and spawned (P. Freeman, The Nature Conservancy, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, February 2016). Despite no abundance estimate being produced, juvenile CPUE in 2014 was higher than CPUEs in the 2 previous years.
Given the low numbers, Sammons (2014) believes that weak year classes were produced in 2013 and 2014. However, Sammons (2014) stated that water levels and temperature may have factored in to the low catches in 2014. Water levels and discharge were much higher during Alabama shad sampling in 2014 than in the previous 2 years and the mean catch rate of Alabama shad below JWLD was inversely correlated with mean daily discharge over the past 5 years (Sammons 2014). High water and discharge may have hindered catch rates, but spawning population size was also likely low (Sammons 2014). Reasons for the lack of fish found below JWLD are unknown, but may have also involved unusually cold water temperatures. As in 2013, water temperature was generally more than 2–4 °C cooler throughout the spawning season than in 2011 or 2012 (Sammons 2014). Abnormally low water temperatures in the Apalachicola River throughout the spring in 2013 and 2014 may have inhibited the usual spawning migration cues of this species, resulting in fewer fish migrating upstream (Sammons 2014). Sammons (2014) stated it is possible that a significant spawning population of this species persists in the Gulf of Mexico waiting for more normal spring conditions to return to the river before initiating their spawning run.
In 2015, conservation locking resumed, but the Alabama shad population estimate remained low (324 fish). Due to the lack of conservation locking in 2013 and 2014, and potentially the lack of successful spawning due to the poor condition of the Alabama shad observed in 2013 (Sammons 2013, 2014), it is probable that the actual number of returning adult Alabama shad in 2015 was low. Similar to the previous year, researchers noted factors that may have reduced their capture rates, such as high water levels and large amounts of debris in the river that hampered sampling, potentially leading to the low number of recaptures and the low population estimate (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, February 3, 2016).
In 2016, high water levels occurred early in the sampling season, but later returned to normal levels (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, June 6, 2016). No Alabama shad were captured in the Apalachicola River in 2016, and therefore an abundance estimate could not be produced for that year (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, June 6, 2016). However, Alabama shad were observed lower in the Apalachicola River by another researcher conducting striped bass surveys (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, June 6, 2016). The Alabama shad survey occurred about 2 km downstream of JWLD (Sammons 2014) and therefore would not have encountered Alabama shad occurring downstream of that location. The gill-netting survey conducted in Lake Seminole above JWLD to detect juvenile Alabama shad occurred in mid-December 2016 and produced 20 juvenile Alabama shad. Even though no adults were captured in the spring survey, the collection of juvenile shad above JWLD indicates that some adult Alabama shad did successfully pass through the lock and spawn in the ACF system in 2016 (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, December 15, 2016). At the time this 12-month determination was prepared, the researchers had not yet calculated the CPUE for the juvenile survey.
Funding levels and research effort may also have contributed to the differences in abundance estimates between 2013–2016 (low number of fish captured) and 2009–2012 (large number of fish captured). Funding levels were much higher in 2009–2012 and researchers were pursuing additional research questions beyond population estimates that required them to capture more fish (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, June 6, 2016). From 2009–2012, researchers logged more research time on the Apalachicola River and targeted higher numbers of Alabama shad, which produced robust population estimates. As noted, environmental conditions greatly hampered research efforts in 2013–2015. It is unknown whether catch rates were influenced by environmental factors in 2016 or were strictly a reflection of very low population numbers, but reduced funding further exacerbated researchers' ability to increase survey efforts to offset research difficulties or to opportunistically take advantage of improved environmental conditions when they occurred (T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, June 6, 2016). The differences in the trends in Alabama shad adult population estimates and the CPUE of adult Alabama shad between 2005–2016
As described above, low numbers of Alabama shad were captured in 2013–2015 and no adult Alabama shad were captured in 2016, producing low or no population estimates. From 2013–2016, the primary cause of low Alabama shad captures is likely that low numbers of Alabama shad returned to spawn in the ACF River system during those years (Sammons 2013, 2014, T. Ingram, Georgia DNR, pers. comm. to K. Shotts, NMFS, June 6, 2016). Conservation locking did not occur in 2013 and 2014 due to maintenance and improvements on the lock. Some Alabama shad captured by researchers were transported and released above JWLD, but the remaining fish in the population likely only had access to any downstream spawning habitat (Sammons 2013, 2014). However, while conservation locking appears to have significantly increased spawning and recruitment success of Alabama shad and expanded the species' access to additional habitat in the ACF River system, the ACF population has been the largest known population of Alabama shad for decades (Laurence and Yerger 1967) even before conservation locking occurred. The poor condition of Alabama shad in 2013, when most fish collected had unexplained external wounds (Sammons 2013, 2014), potentially led to poor spawning success and fewer returning spawners in the following years. The CPUE of juvenile Alabama shad in the Flint River in the fall of 2013 was low, although not the lowest observed and similar to the CPUE for 2012, which had the highest adult population estimate recorded since research commenced in 2005.
Environmental conditions may have affected both shad spawning activities and the ability of researchers to detect shad. Cold temperatures in 2013 and 2014 may have postponed the spring spawning runs until temperatures increased later in the season (and after Alabama shad research had already ceased), or the majority of Alabama shad may have forgone their annual spawning run and remained in their marine habitat (Sammons 2014). Water levels and discharge were much higher during Alabama shad sampling in 2014 than in the previous 2 years and may have hindered catch rates. The mean catch rate of Alabama shad below JWLD was inversely correlated with mean daily discharge over the past 5 years (Sammons 2014). This is similar to observations in other systems, and can mean high river discharge delayed or hindered spawning runs or affected the ability of researchers to capture shad. Kern (2016) found that the number of detections of tagged Alabama shad in 2013 and 2014, as well as the extent of upstream migration by shad, appeared to be influenced by river discharge, with the lowest number of detections and least amount of upstream movement occurring during years with relatively high river discharges. Sammons (2014; citing Holman and Barwick 2011, and Pierce
To further evaluate potential causes and effects of the low capture rates in the ACF River system in 2013–2016, we compared the adult population estimates and CPUEs from spring sampling with the CPUE of juveniles sampled above JWLD in the fall. The CPUE for juvenile shad is a metric derived from surveys designed to assess the recruitment success of Alabama shad upstream of JWLD. Given the growth rate of Alabama shad, surveys for juveniles upstream of JWLD in the fall would indicate success of the spring spawning that occurred earlier in the year. Trends in juvenile CPUE did not appear to follow trends in the adult population estimates or the adult CPUEs. Further, the trends in juvenile CPUE did not appear to reflect the trends in adult population estimates either 1 or 2 years later, when juveniles would be of spawning age. Recapture rates of tagged adult Alabama shad ranged from 0 to 2.2 percent per year for tagged shad. There was not a strong relationship (r = 0.33) between population size and CPUE, nor between population size and the number of recaptured fish (r = 0.21). However, there was a strong positive relationship between population size and the number of fish tagged (r = 0.82). Interestingly, there is a very poor fitting relationship between the number of fish tagged and the number of fish recaptured (r = 0.15), which indicates the results are potentially heavily influenced by variability in the number of recaptures in a given year. The researchers' ability to capture, but not as easily recapture fish, may provide some indication that difficulties in detecting Alabama shad during research efforts factored into the low population estimates in addition to the actual population size being low.
The low catch rates of Alabama shad in 2013–2016, although potentially influenced by environmental conditions, detection ability, and research effort, primarily indicate that Alabama shad populations were much lower during those years than in the previous years of research since 2005. However, for an r strategist species such as Alabama shad that is inherently prone to high levels of natural variability, it is very difficult to interpret a population trend from 11 years of population estimates, with no historical abundances available for comparison. The abundance estimates for Alabama shad in the ACF River System demonstrate that the abundance in the system for the 11-year period is highly variable, and no population trend is apparent. The confidence intervals around each of the abundance estimates in the table show the wide range of uncertainty inherent in the abundance data.
Based on the life history strategy of the species and the short period over which abundance estimates have been available, we cannot discern a pattern or trend in the Alabama shad population in the ACF River system. As an r strategist, Alabama shad have high natural mortality that is balanced by a high growth rate (Adams 1980). R strategist populations are well-adapted to cope with unstable, unpredictable environments, and this also produces high natural variability in their populations (Elliott and Quintino 2007). Adams (1980) noted that fisheries for r strategists are “boom or bust,” and although catches can be very large some years, they will be characterized by erratic production levels overall.
The studies in the ACF River system have produced the only abundance estimates, either historical or current, for Alabama shad in any river system. The following sections of the determination present the historical and current distribution of Alabama shad in other systems, which is primarily based on capture data from general multi-species surveys, project monitoring, captures incidental to other research studies, and anecdotal information.
The Mississippi River is the largest river basin in North America and drains portions of Montana, the Dakotas, Nebraska, Minnesota, Wisconsin, Iowa, Illinois, Indiana, Ohio, West Virginia, Pennsylvania, Colorado, Kansas, Missouri, Kentucky, Tennessee, Texas, Oklahoma, Arkansas, Mississippi, and Louisiana. Alabama shad were historically found in parts of the Mississippi River and its tributaries and several small spawning populations remain.
The Upper Mississippi River is the portion of the river upstream of Cairo, Illinois. In the Upper Mississippi River, Alabama shad were recorded in the 1994 Annual Status Report: “A Summary of Fish Data in Six Reaches of the Upper Mississippi River” (Gutreuter
The Missouri River is a major tributary of the Mississippi River and flows through Montana, North and South Dakota, Nebraska, Iowa, Kansas, and Missouri. The lower Missouri River and its tributaries, located in the center of Missouri, probably supported the greatest number of Alabama shad in the state, although the records are limited (Smith
The Meramec River is a tributary of the Mississippi River whose confluence is just south of the confluence of the Missouri River. The entire length of the river is contained within Missouri. Alabama shad were known to spawn in the Meramec River prior to 1978 (Mills
The Lower Mississippi River is the portion of the river downstream of Cairo, Illinois. Alabama shad historically used the Mississippi River as a means to reach many of its tributaries, but none have been found in the lower portion of the waterway in recent years. Surveys conducted by USACE on the Lower Mississippi River (north of Baton Rouge, Louisiana) in the early 1980s show a slow decline in the number of adult and juvenile Alabama shad (Pennington 1980, Conner 1983, Smith
The Ohio River is the largest tributary by volume of the Mississippi River and flows through Pennsylvania, Ohio, West Virginia, Kentucky, Indiana, and Illinois. Although the species was present and abundant enough to support a small and brief commercial fishery during the late 19th century and early 20th century in Ohio, by 1989 the majority of Alabama shad had been extirpated from the Ohio River (Pearson and Pearson 1989). The USGS has not collected any Alabama shad from the Ohio River since 1993 and the USFWS has no records of Alabama shad in its database (Smith
The Arkansas River is a major tributary of the Mississippi River that drains Colorado, Kansas, Oklahoma, and Arkansas. Alabama shad have not been collected in the Arkansas River since an 1892 collection of one specimen in the Mulberry River tributary (M. Oliver, Chief of Fisheries, Arkansas Fish and Game Commission, pers. comm. to K. Shotts, NMFS, November 5, 2013). A few specimens were captured from the Poteau River, a tributary of the Arkansas River, prior to the 1950s (Cross and Moore 1952), but Lindsey
The Red River, a major tributary of the Mississippi River, flows through Texas, Oklahoma, Arkansas, and Louisiana. The Washita, North Fork, Kiamichi, and Little Rivers, as well as Lake Texoma, are part of the Red River system. A compilation of 20 years of fish collection data from Arkansas riverine systems by Matthews and Robison (1988) indicated no records of Alabama shad in the Arkansas portion of the river. During a 6-year sampling period from 1996–2001, no Alabama shad were caught in the Red River (Buchanan
The Illinois and Marys Rivers are both minor tributaries of the Mississippi River contained solely within the state of Illinois. While there are historical records of shad within Illinois rivers (Smith
The White River is a minor tributary of the Mississippi River that flows through Missouri and Arkansas and was recently discovered to contain a spawning population of Alabama shad (Buchanan
The Ouachita River is a minor tributary of the Mississippi River and flows through Arkansas and Louisiana. The Ouachita River system includes the Little Missouri and Saline Rivers. The Ouachita and Little Missouri Rivers contain spawning populations of Alabama shad (Buchanan
Although the Saline River in Arkansas is the only free flowing river left in the state, there have been no recent reports of Alabama shad (Buchanan 1999). The Monroe Museum of Natural History at the University of Louisiana has 16 Alabama shad that were collected from the Saline River in 1972 (Buchanan
Alabama shad are only caught sporadically in the state of Louisiana, and there are limited data for the species in its rivers (Smith
Multispecies studies of the Pearl River were conducted by Tulane University from 1963–1988 (Gunning and Suttkus 1990). Gunning and Suttkus (1990) looked at the relative abundance of 84 species over the course of the 25-year study, with sampling occurring at multiple stations in Louisiana and Mississippi either on a quarterly or annual basis. At stations where quarterly sampling was conducted, the spring survey occurred in February in the Mississippi portion of the river and April in the Louisiana portion of the river. Approximately 30 minutes were spent at each station unless the river was flooded and water depth limited sampling ability. Records from the Gunning and Suttkus (1990) sampling surveys show a steady decline in catches of Alabama shad. Sampling occurred in 16.1 km of the river above and below Bogalusa, Louisiana, for 25 years; a 64.4 km section of the West Pearl River was sampled for 16 years; and, a 64.4 km portion of the East Pearl River was sampled for 16 years. Between 1963 and 1965, 384 Alabama shad were caught from all river segments combined. Between 1965 and 1979, only 33 Alabama shad were captured. One Alabama shad was captured in the Pearl River between 1979 and 1988 (Gunning and Suttkus 1990). Gunning and Suttkus (1990) attributed the declining catch of Alabama shad to declining abundance of the species.
In the Gunning and Suttkus (1990) study, only one 30-minute multispecies survey was conducted during the spring once per year at some of their Pearl River stations. The studies targeting Alabama shad in the ACF River system are conducted over a 3-month period each year to ensure their collections encompass the peak spawning migration of Alabama shad, which can vary from year to year based on factors such as temperatures and river discharge (Sammons 2013, 2014, Kern 2016). Gunning and Suttkus (1990) state that the consistency of their methodology and the length of their study are sufficient to accurately indicate relative abundance. Gunning and Suttkus (1990) does provide one of the few long-term studies available for this species. However, as noted previously, low numbers of recorded Alabama shad individuals may be due, at least in part, to insufficient sampling effort during appropriate times (
Smith
The Pascagoula River system, made up of the Pascagoula, Leaf, and Chickasawhay Rivers, is the only system within the state of Mississippi inhabited by Alabama shad (Mickle
The Mobile River basin spans Mississippi, Alabama, Georgia, and Tennessee. The Mobile River, which empties into Mobile Bay, branches upstream into the Alabama, Cahaba, Tallapoosa, Coosa, Tombigbee, and Black Warrior Rivers. The Alabama shad was first described as a species in 1896 in the Black Warrior River near Tuscaloosa, Alabama (Jordan and Evermann 1896). Alabama shad were once prevalent in the Mobile River basin (Evermann and Kendall 1897).
Numerous juvenile Alabama shad were recorded in the Alabama River in 1951, the late 1960s, and the early 1970s
Despite the existence of a thorough historical fisheries record of the Cahaba River system, no recent captures of Alabama shad from the upper reaches of the Cahaba River are documented. Both the Pierson
Mettee and O'Neil (2003) state that Alabama shad have not been found in the Tombigbee River since the 1901 construction of the Tombigbee lock system in the waterway. However, records provided by the Mississippi Museum of Natural Science during the public comment period on our 90-day finding showed that 5 Alabama shad were captured in the Tombigbee River in 1969 and one in 1971 (M. Roberts, Curator of Fishes, Mississippi Museum of Natural Science, pers. comm. to K. Shotts, NMFS, October 21, 2013). In the Black Warrior River of Alabama, where the species was first described in 1896, one Alabama shad was subsequently collected, over one hundred years later in 1998 (Mettee and O'Neil 2003).
Conservation locking, similar to efforts conducted in the ACF River system, was undertaken on the Alabama River at Claiborne Lock and Dam and Miller's Ferry Lock and Dam in 2009 by the Alabama Department of Conservation and Natural Resources, USACE, and Auburn University after USGS suggested the locks could be used as a means of fish passage (Simcox 2012). At that time, no efforts were made to quantify passage efficiency or even monitor which species may be passing upstream and downstream through the locks. Freeman
In 2014, a study was initiated to determine if conservation locking could be used to pass Alabama Shad upriver or downriver during spawning season through the navigation locks at Claiborne Lock and Dam and Miller's Ferry Lock and Dam. With support from the FFWCC and Georgia DNR, Alabama shad from the ACF River system were collected and tagged before being stocked in the Alabama River. Fifteen Alabama shad were tagged and released below Claiborne Lock and Dam, and an additional 38 Alabama shad were tagged and released above the dam. These fish were tracked both upstream and downstream of the dam. Of the Alabama shad released above the dam, 18 were later detected at 18 different locations, and 7 definite mortalities (no movement between successive locations) were eventually confirmed. The 7 confirmed mortalities occurred in the section of the Alabama River below Claiborne Lock and Dam to its confluence with the Tombigbee River. Kern and Sammons (2015) note that further research is necessary to determine whether Alabama shad found suitable spawning habitat in this location and halted downstream movements, or whether they died as a result of cumulative stress from handling and transport. One fish was detected approximately 53 mi (85 km) below Claiborne Lock and Dam, indicating successful downriver passage through the lock. Twenty fish were never detected. There were large areas where no tagged fish were detected, and some fish moved over 50 mi (80 km) in 2 days. “Leap-frogging” was also observed, with shad being detected at downstream and upstream locations, but escaping detection in between.
Of the 15 tagged fish released below Claiborne Lock and Dam, 3 were detected 93 times. One fish was detected 12 days after release below Gravine Island (just north of Mobile Bay) and was detected again upriver 6 days later, just below Claiborne Lock and Dam. This movement pattern indicated “fallback” (fish that move a great distance downriver shortly after stocking), but in this case, the fish eventually moved upriver. Another fish remained in the vicinity of Claiborne Lock and Dam for 9 days and was not detected thereafter. A third fish was detected several times moving downstream after release but not later. No tagged Alabama shad were detected above Claiborne Lock and Dam and researchers hypothesized this low number could have been due to high water events or mortalities.
In 2015, 27 Alabama shad from the ACF River system were tagged and stocked below Miller's Ferry Lock and Dam (and above Claiborne Lock and Dam). Detections of tagged fish were much higher in 2015 than 2014, likely due to higher river flows in 2014 (Kern and Sammons 2015), with 17 of the 27 fish detected for a total of 371 detections. Similar to 2014, large movements over short time periods were observed, with most of the movements being in a downstream direction. No fish were found to have successfully navigated upstream of Miller's Ferry Lock and Dam, although many of the fish passed downstream of Claiborne Lock and Dam.
The Conecuh River begins in Alabama and becomes the Escambia River at the Florida border. Alabama shad were documented in the Escambia/Conecuh River system as early as 1900 (Evermann and Kendall 1900). This system contains one of the known remaining Alabama shad spawning populations (Smith
The Choctawhatchee River begins in Alabama. As it flows south, it is joined by one of its tributaries, the Pea River, then continues through the Florida panhandle and into the Gulf of Mexico. Some studies indicate there are small spawning populations of Alabama shad in southern Alabama, including in the Choctawhatchee and Pea Rivers (Barkuloo 1993, Adams
Alabama shad were historically present in the Ochlockonee River, a fast running river that flows from Georgia into Florida. Smith
The Econfina River is a minor river draining part of the Big Bend region of Florida. It empties into Apalachee Bay. Historical data for Alabama shad are not available for this river, but, FFWCC reported during the public comment period that 1 Alabama shad was collected in the Econfina River in 2006 (J. Wilcox, FFWCC, pers. comm. to K. Shotts, NMFS, November 12, 2013).
The Suwannee River originates from the Okefenokee Swamp in Georgia and runs south through Florida. Historically, the Suwannee River has been the easternmost boundary of the Alabama shad's range (Herald and Strickland 1946). There is still a spawning population of Alabama shad in the Suwannee River (Smith
We estimated both the current extinction risk for Alabama shad and the anticipated risk in the foreseeable future. We defined the “foreseeable future” as the timeframe over which threats or the species' response to those threats can be reliably predicted to impact the biological status of the species. First, we evaluated demographic factors associated with population viability (abundance, productivity, spatial distribution, and diversity) and how they are contributing to the extinction risk of Alabama shad. We then performed a threats assessment using the factors listed in Section 4(a)(1) of the ESA by identifying the severity of threats that exist now and estimating their severity in the foreseeable future.
We used the methods developed by Wainwright and Kope (1999) to organize and summarize our findings on the contributions of the demographic factors and threats listed in ESA Section 4(a)(1) to the extinction risk of Alabama shad. This approach has been used in the review of many other species (Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, and black abalone, and foreign sawfishes) to summarize the status of the species according to demographic risk criteria. McElhany
Both “low” and “moderate” rankings require that the demographic factor or threat be considered alone, as well as in combination with other factors. In this determination, we first consider each of the demographic factors and threats independently, then evaluate how they may interact in combination to contribute to the extinction risk of Alabama shad. Our rankings of demographic factors and threats do not translate directly to extinction risk conclusions. Ranking simply describes how we considered the information. For instance, one or more demographic factors could be ranked as “highly likely” to be contributing to the extinction risk of a species without concluding that the species is threatened or endangered. For example, low abundance may be considered to present a moderate threat to the extinction risk of Alabama shad, but is offset by the species' high productivity and wide spatial distribution.
In some cases, there was not enough information or too much uncertainty in pending outcomes to rank a threat's contribution to the risk of extinction for Alabama shad using the categories established by Wainwright and Kope (1999). In those cases, we classify the contribution of the threat to the extinction risk of Alabama shad as being “unknown.” Even for threats we ultimately classify as unknown, we provide and evaluate whatever information is available, in some cases providing information on how related surrogate species (
We determined the extinction risk for the species as a whole by integrating the demographic risks and the threats assessment, including considerations of any uncertainty in the risks and threats. We made a determination as to whether the species warrants listing as threatened or endangered, or whether we believe listing is not warranted. Finally, we determined whether there was a significant portion of the species' range that may warrant listing as threatened or endangered.
Per NMFS' May 2016 revised listing guidance, the “foreseeable future” describes the extent to which the Secretary can, in making determinations about the future conservation status of the species, reasonably rely on predictions about the future (Department of the Interior Solicitor's Memorandum M–37021, “The Meaning of `Foreseeable Future' in Section 3(20) of the Endangered Species Act” (Jan. 16, 2009)). Those predictions can be in the form of extrapolation of population or threat trends, analysis of how threats will affect the status of the species, or assessment of future events that will have a significant new impact on the species. We believe that the appropriate period of time corresponding to the foreseeable future should account for the Alabama shad's life-history characteristics and the most significant threats facing the species.
The Alabama shad is an early-maturing species (Mickle
In defining the foreseeable future, we considered generation time, specifically defined here as the time it takes for a sexually mature Alabama shad to be replaced by offspring with the same spawning capacity. Age-2 to age-4 fish make up the majority of spawning Alabama shad; therefore, using our definition, the generation time for Alabama shad is 4–8 years. Generation time is inversely related to productivity and/or resilience. Highly productive species with short generation times are more resilient than less productive, long-lived species, as they are quickly able to take advantage of suitable conditions for reproduction (Mace
The foreseeable future timeframe is also a function of the reliability of available data regarding the identified threats and extends only as far as the data allow for making reasonable predictions about the species' response to those threats. In our extinction risk assessment, we determined the abundance of Alabama shad and the presence of dams are the highest ranked threats, both contributing a moderate level of risk to Alabama shad. The remaining threats are ranked as either contributing a low or unknown level of risk to Alabama shad, or being unlikely to contribute to the species extinction risk.
Small populations may have less of a buffer against threats than large populations (McElhany
We also consider the timeframe over which the effect of dams on Alabama shad populations can be predicted. Dams are believed to be the main cause of the initial decline of Alabama shad. Existing dams continue to block habitat and cause downstream effects today, but few new dams have been built since the mid-1980s (Graf 1999). The threat of dams to Alabama shad has not increased for the past 30 years, and is not expected to increase in the future due to the advent of environmental laws and public awareness that occurred after the era of big dam building (Doyle
It is unknown to what extent the implementation of fish passage, modifications to dam operations, or dam removal will occur in rivers inhabited by Alabama shad. The lack of new dam building in the past 30 years coupled with increased environmental regulation and public awareness makes it unlikely that the threat of dams to Alabama shad will increase and more likely that there could be a decrease of this threat to the species. However, we cannot predict where dam modifications or removal may occur, and how Alabama shad may be affected. Our ability to predict the response of Alabama shad populations to the threat is limited by the life history characteristics of the species (
In defining foreseeable future, we further considered the interaction of demographic characteristics (parameters describing the viability of a population, such as abundance and productivity) and the species' response to various threats, primarily dams. Smith
Threats to a species' long-term persistence are manifested demographically as risks to its abundance, population growth rate, spatial structure and connectivity, and genetic and ecological diversity. These demographic risks provide the most direct indices or proxies of extinction risk. A species at very low levels of abundance and with few populations will be less tolerant to environmental variation, catastrophic events, genetic processes, demographic stochasticity, ecological interactions, and other processes compared to large numbers in many populations (
A small population faces a host of risks intrinsic to its low abundance while large populations exhibit a greater degree of resilience (McElhany
No population estimates are available for other rivers, although several hundred Alabama shad have been captured in studies conducted in the past 15–20 years in the Pascagoula (Mississippi), Choctawhatchee (Florida/Alabama), and Ouachita (Arkansas/Louisiana) River systems. The annual Alabama shad population estimates in the ACF River system were developed through mark-recapture studies. The initial capture of less than a hundred to over 1,000 Alabama shad resulted in population estimates of thousands to over 100,000 Alabama shad. Mark-recapture can be used to produce abundance estimates without capturing every individual in the population because in addition to counting the number of individuals captured during the study, they estimate the detection probability of individuals (
Generally, the number of Alabama shad in rivers other than the ACF, Pascagoula, Choctawhatchee, and Ouachita is likely to be small. A multi-state, multi-agency report from 1994 (Gutreuter
Alabama shad was never an economically important species, and, therefore, information from fisheries statistics, such as landings data, is rare. Hildebrand (1963) noted that Alabama shad were considered unfit for human consumption, and the lack of demand produced no incentive to capture the species or record its presence and abundance. Most of the recent directed research studies on Alabama shad have occurred in the ACF and Pascagoula River systems. Capture data for other systems comes from general multi-species surveys, captures incidental to other research studies, and anecdotal information. Mettee and O'Neil (2003) note that low numbers of recorded Alabama shad individuals may be due, at least in part, to insufficient sampling effort during appropriate times (
The threshold abundance below which Alabama shad populations cannot rebound (quasi-extinction) is unknown. In conducting the PVA on Alabama shad from the ACF River system, Smith
Directed studies and current data on Alabama shad abundance are mostly lacking. The available population estimates for the ACF River system since 2005 are relatively large and highly variable. Ely
The only current population estimates available for Alabama shad are in the ACF River system. Because Alabama shad were never commercially or recreationally important, few historical records exist. There are no recorded historical population sizes in any river systems for comparison, although anecdotal information on observations and small, short-lived fisheries provide some historical context (
Declines have been estimated in other
Population sizes of Alabama shad and other
For comparison, the next highest ranking under Wainwright and Kope's (1999) classification system is for a threat that is presently low or moderate, but is likely to increase to high risk in the foreseeable future if present conditions continue. Although based largely on anecdotal information rather than population estimates and trends, we believe there is sufficient evidence to indicate that there have been declines in the abundance of Alabama shad and their low abundance could contribute significantly to their long-term risk of extinction. However, we do not have information suggesting that threats to Alabama shad populations are likely to lead to further decline to the point that their abundance would present a high risk to the species. The primary threat that led to the initial decline of the species was the installation of dams that block access to upriver spawning habitat (evaluated under Factor A of this listing determination). Although most dams are still in place and represent an obstacle to spawning Alabama shad, very few dams have been built in the last 30 years (Graf 1999). Few environmental laws were in existence when the dams were originally built, but the development and implementation of conservation measures in the last 20 years (Doyle
Population growth rate (productivity) and factors that affect productivity provide information on how well a population is responding in the habitats and environmental conditions it is exposed to during its life cycle (McElhany
Several life history traits make Alabama shad a relatively productive species (Smith
We also considered the number of Alabama shad spawning populations to assess the productivity of Alabama shad. The largest spawning population of Alabama shad is in the ACF River system, with smaller spawning populations believed to exist in the Missouri/Gasconade/Osage, Meramec, White, Ouachita/Little Missouri, Pascagoula/Leaf/Chickasawhay, Escambia/Conecuh, Choctawhatchee/Pea, and the Suwanee River systems. The life history traits of Alabama shad combined with the presence of multiple spawning populations contributes to the productivity potential of Alabama shad. Highly productive species with short generation times, like Alabama shad, are more resilient than less productive, long lived species, as they are quickly able to take advantage of suitable conditions for reproduction (Hutchings and Reynolds 2004, Mace
Alabama shad populations are generally believed to have declined in many areas where they were historically found. However, it is difficult to quantify any declines because of a lack of historical abundance data for most river systems and the lack of current population estimates for populations other than the ACF River system. Records of Alabama shad in the Pearl River are fairly complete and show a steady decline of the species. This decline was based on the total number of fish captured over time; it did not include estimating population numbers through the use of mark-recapture methods, like those used in the Apalachicola River. In the Pearl River, consistent sampling occurred in several sections of the river over 16–25 years: 384 fish captured 1963–1965; 33 captured 1965–1979; and 1 individual captured 1979–1988 (Gunning and Suttkus 1990). Since then no records of shad have been reported during annual fish surveys conducted by several of the state's universities in the Pearl River (Smith
Declines have been estimated in other
Attempts have been made to estimate past abundances of Alabama shad and habitat carrying capacity for conservation planning by using examples from other
In summary, we find the productivity potential for Alabama shad is relatively high, given its life history characteristics and the presence of multiple spawning populations within the species' range. This relatively high productivity potential of Alabama shad was confirmed in the ACF River system when population numbers greatly increased when access to historical spawning habitat was provided. Available data suggest a decline in abundance in many systems. Other
McElhany
Maps displaying the best available information on the historical and current range (presence) of Alabama shad by river, including where the species continues to spawn, can be found at:
In developing the maps reflecting the historical and current range of Alabama shad, we determined we would include positive reports of Alabama shad over the last 24 years. The 24-year time frame was selected because dams within the geographic range of Alabama shad were completed 30 or more years ago (mid-1980s; Graf 1999). Since dams have the ability to alter the range of shad within rivers, older/pre-dam studies reporting shad would not reflect any alterations of the species' distribution due to the dam. Further, any alterations in the distribution of Alabama shad may not happen immediately after construction of a dam. Therefore we considered the maximum age observed in Alabama shad (6 years; Mettee and O'Neil 2003). We only included reports of Alabama shad that occurred at least 6 years after the era of dam-building ended (
In some cases, such as the Mississippi River, Alabama shad are shown to inhabit a tributary but not the river mainstem. Although the mainstem is not included as part of the historical range, this does not necessarily indicate Alabama shad are not present in the mainstem, only that we did not find a positive report of their presence in the last 25 years. In the example of the Mississippi River, the river mainstems are often not the subject of research surveys as high river flows and high vessel traffic raise concerns for human safety. Also, as noted earlier in this determination, Alabama shad can be difficult to detect, in both non-targeted or targeted surveys. Positive reports in the tributaries without reports from the mainstem could indicate the presence of landlocked populations or it could simply indicate that shad were present in the mainstem, but not surveyed or detected. Given the pelagic nature of Alabama shad, and their migratory life style, we believe that Alabama shad likely inhabit the mainstem of the rivers adjacent to the tributaries where they were reported.
Spatial structure contributes to the resiliency of populations to various disturbances, which can occur across a range of spatial scales, from localized disturbances affecting a few miles of stream and therefore only a portion of a population, to regional impacts from events such as droughts that affect multiple populations (Williams
The current range of Alabama shad (the species' portfolio) encompasses a diverse array of habitats, which potentially contributes to population stability. Many Federal agencies and non-governmental organizations classify terrestrial and aquatic systems based on ecoregions, large areas of similar climate where ecosystems recur in predictable patterns (USFS 2016). Ecoregions are a widely recognized and applied geospatial unit for conservation planning, developed to represent the patterns of environmental and ecological variables known to influence the distribution of biodiversity features at broad scales (Abell
Under several widely used ecoregion classification systems, Alabama shad populations inhabit heterogeneous habitats across multiple diverse ecoregions. Alabama shad occupy six ecoregion “divisions” that the U.S. Forest Service classifies based on precipitation, temperature, and vegetation or other natural land cover. The Environmental Protection Agency (EPA) identified four levels of ecoregions by analyzing patterns of biotic and abiotic phenomena, both terrestrial and aquatic. These phenomena include geology, landforms, soils, vegetation, climate, land use, wildlife, and hydrology (EPA 2016). Even at the coarsest level, the EPA's Level I ecoregion, which highlights major ecological areas, Alabama shad populations occupy 2 of the 12 ecoregions in the continental United States: The Eastern Temperate Forests and the Great Plains. The species occupies 4 of the 25 Level II ecoregions, and 14 of the 105 Level III ecoregions. The Nature Conservancy (TNC) uses a terrestrial ecoregion classification system similar to the EPA Level III ecoregions. Alabama shad populations occupy nine TNC terrestrial ecoregions.
TNC also uses freshwater ecoregions with boundaries describing broad patterns of species composition and associated ecological and evolutionary processes (Abell
Compared to other ecoregions, Alabama shad experience different climatic conditions in the Central Prairie, which has hot continental summers and cold winters, with periodic arctic blasts. Most of the streams and rivers in the ecoregion are meandering with low to moderate flow. The diversity of species in this ecoregion is high relative to adjacent ecoregions due to the presence of diverse habitats that were not interrupted during glacial periods. The Ozark Highlands ecoregion is part of the western Mississippi River drainage but is distinctive because of its relative biogeographical isolation. It is a region of high gradient headwater streams surrounded by coastal plains and prairie. The Ozark Highlands contain a diversity of freshwater habitats, including fens, sinkholes and springs, which feed the clear headwaters of larger, free-flowing streams. Many of these habitats served as refugia during periods of glacial maximas. The Ozarks are home to a unique assemblage of species. Like the Ozark Highlands, the Ouachita Highlands ecoregion is distinguished by its relative biogeographic isolation. The ecoregion is a source area for several larger streams and is an area of high-gradient and spring-fed springs, and can almost be considered an island surrounded by the Great Plains, coastal plains, and prairie. The ecoregion is characterized by oak-hickory-pine forests, which are some of the best developed in the United States.
Habitat heterogeneity is considered to be important for the stability of populations, and Oliver
We also considered the spatial structure of the spawning populations of Alabama shad. In assessing the viability of salmonid populations, which are anadromous and exhibit homing tendencies like Alabama shad, McElhany
The historical range of Alabama shad has contracted and this species is believed to be extirpated from some river systems. Few targeted research studies were conducted since the time a majority of dams may have altered Alabama shad's distribution, therefore we can rely only on anecdotal reports from monitoring activities and multispecies surveys from the last 24 years to determine their current range. However, the remaining spawning populations of the species appear to be geographically widespread. Their range appears to have become stable once dam building ended, and lost access to spawning habitat is likely to be restored through dam removal and fish passage, and protections under environmental laws have increased. Although spawning populations in some places are small, the species exists in multiple ecoregions, representing a diverse array of ecosystems that has the potential to buffer the species against environmental changes and promote population stability. Genetic studies (Kreiser and Schaefer 2009, Waters
In a spatially and temporally varying environment, genetic diversity is
Alabama shad are believed to be philopatric and generally return to the same rivers to spawn, which has resulted in slight genetic differences among river drainages (Meadows
Moyer (2012) evaluated the genome of Alabama shad collected from the ACF River system to assess the influence of genetic factors on their extinction risk, including whether the construction of JWLD blocking access to upstream spawning habitat affected their genetic diversity. Genetic diversity of Apalachicola River shad was calculated based on the average number of alleles (the possible forms in which a gene for a specific trait can occur), observed heterozygosity (having different alleles in regard to a specific trait), and expected heterozygosity. Moyer (2012) found no evidence of fine-scale population structure in the ACF River system. The observed genetic variation found in Alabama shad was lower than expected based on other shad studies. These findings suggest that the genetic variation of Alabama shad in the ACF River system has been severely reduced by a bottleneck event. Moyer (2012) concluded that the bottleneck likely did not result from the construction of JWLD or from any other anthropogenic activity. Moyer (2012) stated the reduced genetic diversity appears to be the result of past events that occurred during the Pleistocene. Bowen
Loss of genetic diversity can reduce an organism's adaptive capacity to respond to differing environmental conditions and increase a species' extinction risk. However, population bottlenecks can also have positive outcomes on a species' genetic diversity, fitness, and extinction risk (Bouzat 2010). Moyer (2012) noted that populations or species that have undergone population bottlenecks throughout their evolutionary history may have reduced genetic load. Genetic load is the combination of harmful genes that are hidden in the genetic make-up of a population and may be transmitted to descendants. The genetic load of a population reduces the fitness of that population relative to a population composed entirely of individuals having optimal genotypes. Hedrick (2001) stated that a population with reduced genetic load resulting from a bottleneck may have increased viability and be more likely to recover from near-extinction than a population that has not experienced such an evolutionary bottleneck.
Modeling conducted by Moyer (2012) indicated that the Pleistocene bottleneck for Alabama shad was intense. The maintenance of genetic variability in a finite population can be understood through the concept of effective population size, which is not an actual abundance estimate but an estimate of the number of individuals in an ideal population that would give the same rate of random genetic drift (change in the frequency of a gene variant) as in the actual population (Lande 1988). The effective population size for Alabama shad during the bottleneck was estimated to be between 76 and 398, meaning 76–398 individuals is the population size during the Pleistocene estimated to have been necessary to result in the relatively low genetic diversity observed in members of the species today. Moyer (2012) also noted that the bottleneck event was prolonged (145–987 shad generations) and he concluded that it may have purged much of the species' genetic load, making the population less prone to fitness decreases in the event of another bottleneck. Moyer (2012) concluded the risk of population decline and extinction in Alabama shad from the ACF River basin due to reduced genetic diversity appears to be low and is not of immediate importance to the short- or long-term persistence of Alabama shad in the ACF River system.
In summary, we found no significant genetic differences between Alabama shad from different river populations, based primarily on information provided in Kreiser and Schaefer (2009) and Moyer (2012). A genetic evaluation of Alabama shad from the ACF River system (Moyer 2012) showed genetic diversity is low, likely resulting from a bottleneck that occurred during the Pleistocene rather than any recent anthropogenic factors. Moyer (2012) stated that the reduced genetic diversity resulting from the Pleistocene bottleneck potentially reduced the genetic load of Alabama shad, which decreases their extinction risk and increases their viability and chances of recovery. We ranked diversity, on its own, to be at low risk of contributing significantly to the current and foreseeable risk of extinction for Alabama shad.
Next we consider whether any of the five factors specified in section 4(a)(1) of the ESA are contributing to the extinction risk of Alabama shad.
Effects to Alabama shad's riverine habitat are contributing to the species' extinction risk now, and are likely to continue into the foreseeable future. The primary cause for declines in Alabama shad populations is believed to be the presence of dams, which can block access to upstream spawning habitats (NMFS
The construction of dams that block access to upstream habitat has long been considered the primary reason for declines of Alabama shad and other anadromous fish species (NMFS
Within the state of Iowa there are 10 locks and dams on the Upper Mississippi River (north of the confluence with the Ohio River) and an additional 7 locks and dams to the south that could prevent Alabama shad from reaching historical spawning grounds (Steuck
Dams have been constructed at or below the fall line in many river systems along the Gulf Coast and prevent spawning migrations into the Piedmont (NMFS
Legislation focused on flood control, navigation, and hydropower passed in the late 1920s through the mid-1940s resulted in the development and construction of over a dozen major impoundments on the mainstem Missouri River, but there are approximately 17,200 minor dams and reservoirs on the river and its tributaries, most of which are small, local irrigation structures (USACE 2006). Alabama shad spawn in the Missouri River, as well as two of its tributaries, the Gasconade and Osage Rivers (Smith
The Elba-Pea River Dam was constructed for power generation on the Pea River tributary of the Choctawhatchee River in the early 1900s. Studies indicate there are small spawning populations of Alabama shad in the Choctawhatchee and Pea Rivers (Barkuloo 1993, Adams
Dams are believed to be the primary reason for declines in all three of the anadromous species native to the Gulf
Spawning populations of Alabama shad inhabit the Meramec, Gasconade, Suwannee, and Pascagoula River systems, all of which are free-flowing systems unmodified by dams (Heise
While dams are known to impede upstream access to habitat, access may still be possible under certain conditions. Fish may be able to pass upstream and downstream during high water conditions at “low head” dams, which are low vertical structures that have been constructed across rivers or streams to raise the water level, normally producing vertical water surface drops of one to several feet. Fish may also pass through navigation locks when they are open for vessel traffic. Coker (1929) noted lack of observation in locks. However, Zigler
Zigler
USFWS (2012) conducted a 2-year study starting in 2010 to determine whether Lock and Dam #1 (a low head dam) creates a barrier to fish passage on the Osage River, which supports a spawning population of Alabama shad. USFWS (2012) determined through captures of pallid and hybrid sturgeon marked in other studies that Lock and Dam #1 was passable at certain flows, but presented a barrier at others. Fish passage upstream of Lock and Dam #1 was detected by USFWS (2012). Passage was determined through collection of fish above and below the dam, rather than by acoustically or radio tracking fish. Therefore it is unknown whether upstream passage was achieved by fish swimming over the dam or passing through the lock. However, since upstream passage is typically more difficult for fish due to swimming against the river current, it is likely that downstream passage is also possible since upstream passage was documented to occur. USFWS (2012) also noted that the 115-year-old dam was unstable and would need to be removed or repaired in the very near future.
While dams are believed to be the main cause of the initial decline of Alabama shad, and continue to block habitat and cause downstream effects today, few new dams are being built (Graf 1999). Some dams in the United States date back centuries. The greatest rate of increase in reservoir storage occurred from the late 1950s to the late 1970s, with more dams (and some of the largest) built in the 1960s than in any
By 2020, an estimated 85 percent of the dams in the United States will be near the end of their operational lives (Doyle
Besides dam removal, various designs of fishways or fish ladders have been developed to enable fish to pass upstream of barrier dams. The recognized need to pass fish upstream of dams and other obstacles inspired many seminal studies on fish swimming performance, energetics, and biomechanics (Castro-Santos
River restoration will play an increasing role in environmental management and policy decisions, and has even become a highly profitable business (Bernhardt
In summary, dams have impacted anadromous species populations and are believed to be the primary cause for the observed decline of Alabama shad. Existing dams continue to block access to upstream spawning habitat, although few new dams are being built today. The current diminished abundance of Alabama shad is a reflection of historical effects of the dams over decades, although the threat to Alabama shad from existing dams may be reduced with effective fish passage, conservation locking, dam removal, and other forms of river restoration. We believe that the presence of dams is contributing a moderate level of risk to the overall current extinction risk of Alabama shad, but could decrease in the foreseeable future with the increasing focus on restoring access to fish habitat blocked by dams.
Changes in water quality parameters (turbidity, flow, oxygen content, and pollutants) are a potential threat to Alabama shad. The presence of dams, dredging, and watershed activities can alter water quality in riverine and coastal habitat used by Alabama shad. In addition to blocking access to habitat, dams can degrade spawning, nursery, and foraging habitat downstream by altering flow, water temperature, and oxygen levels. Mettee
Dredging can also affect water quality. Several decades ago, when vessel traffic on the Apalachicola River was much greater, the USACE frequently dredged the river to maintain depth of the navigation channel. The dredged material was placed along the river banks and eventually became re-suspended in the river. The dredged material (finer sands and clays) settled on the river bottom and filled in spaces between grains of the coarser sands and gravel that served as spawning habitat for Alabama shad (Mills 1972). McBride (2000) reports that dredging affected
Alabama shad and their habitat are also exposed to sediment and pollutants introduced from land-based activities. Agriculture, silviculture, and industrial, commercial, and residential development in the watershed contribute to degraded water quality in rivers and coastal waters inhabited by Alabama shad. Wastewater treatment, municipal stormwater, industrial discharges, land clearing, and construction of impervious surfaces are examples of activities that increase runoff into the watershed, introduce sediment and pollutants, and lead to low DO. There are no specific data linking exposure to altered water quality parameters with responses in Alabama shad populations. However, McBride (2000) noted that the effects of declining water quality from low DO and industrial discharges were seen in other
States are required to report water quality conditions to the EPA under Sections 305(b) and 303(d) of the Clean Water Act. We reviewed the water quality assessment reports (available at
We reviewed the water quality assessment reports for the following river systems: (1) ACF; (2) the Missouri/Gasconade/Osage; (3) Meramec; (4) White; (5) Ouachita/Little Missouri; (6) Pascagoula/Leaf/Chickasawhay; (7) Mobile/Alabama; (8) Escambia/Conecuh; (9) Choctawhatchee/Pea; and (10) the Suwanee. Of the approximately 4,500 combined river mi in these systems, water quality was deemed good for 2,150 or 48 percent of the assessed mi. Approximately 2,100 mi (47 percent) were designated as impaired based on one or more factors, and 275 mi were not assessed. Within each river system, between 6 percent and 100 percent of the river mi assessed were deemed to be impaired (too polluted or otherwise degraded to meet water quality standards) for one or more factors.
With the exception of the Meramec and White Rivers, all or portions of every other river system we looked at were impaired due to mercury levels. The EPA states that coal-burning power plants are the largest human-caused source of mercury emissions into the air within the United States, accounting for over 50 percent of all domestic human-caused mercury emissions (EPA 2014a). Mercury in the air may settle into rivers, lakes, or estuaries, where it can be transferred to methylmercury through microbial activity. Methylmercury can accumulate in fish at levels that may harm the fish and the other animals that eat them (EPA 2014b). Other heavy metals (copper, zinc, and lead) were found in impaired waters in the Meramec and Ouachita/Little Missouri River systems. There are no known studies on the effects to Alabama shad from exposure to, or accumulation of, mercury and other heavy metals.
All river systems we evaluated, with the exception of the Meramec and the Pascagoula/Leaf/Chicksawhay River systems, had some impaired river segments due to low DO. Low DO can cause lethal and sublethal (metabolic, growth, feeding) effects in fish. Different species have different oxygen requirements. For instance, sturgeon species, considered to be benthic species, are known to be more highly sensitive to low DO (less than 5 milligrams per liter (mg/L)) than other fish species (Niklitschek and Secor 2009a, 2009b). DO is often lowest at the benthos compared to the water column. Tagatz (1961) found that juvenile American shad (an
Segments of several river systems inhabited by Alabama shad were designated as impaired due to biota. The water quality assessment reports define this category as “the community of aquatic animals (fish, reptiles, amphibians, aquatic insects or others) normally expected in a healthy waterway is unhealthy, reduced, or absent, and the exact cause of the problem is unknown.” The Chattahoochee River was designated impaired based on fish biota. Georgia DNR (2008) reported to the EPA that studies completed during 1998–2003 showed modification of the fish community in the Chattahoochee River. The general cause was determined to be the lack of fish habitat due to stream sedimentation. Even with access to the Chattahoochee River restored as a result of conservation locking at JWLD, Alabama shad preferentially spawn in the Flint River over the Chattahoochee River. Sammons (2014) conducted a study to determine habitat usage by Alabama shad in the Flint and Chattahoochee Rivers and did not find a single shad in the Chattahoochee during 4 years of tracking. The Flint and Osage Rivers are designated impaired due to benthic and aquatic macroinvertebrates, respectively. The Leaf River is also designated impaired due to biological impairment. It is unknown whether these conditions affect Alabama shad.
Sedimentation was listed as a potential threat to Alabama shad (Mettee and O'Neil 2003). Segments of the White, Leaf, and Conecuh Rivers were designated as impaired due to sedimentation. Other causes of
We also reviewed the National Coastal Condition Report (NCCR) published by the EPA to gauge the recent water quality conditions experienced by Alabama shad in coastal waters. The NCCR IV (EPA 2012) graded the overall conditions of the Gulf Coast region as “fair,” with an overall condition score of 2.4 out of a possible 5.0. Comparatively, the overall condition of the nation's coastal waters was also rated “fair,” with an overall condition score of 3.0. Using 2003–2006 data, the water quality index (based on parameters such as dissolved nitrogen, phosphorus, and oxygen, chlorophyll
In summary, water quality has been cited by multiple studies as a threat to Alabama shad (
Water allocation issues are a growing concern in the southeastern United States. Transferring water from one river basin to another can fundamentally and irreversibly alter natural water flows in both the originating and receiving basins, and exacerbate any existing water quality issues. Reallocation of water between river basins can affect DO levels, temperature, and the ability of the basin of origin to assimilate pollutants (Georgia Water Coalition 2006).
Water allocation issues have traditionally occurred primarily in the Western United States, but they are also occurring in the Southeast, with one of the biggest interstate allocation disputes occurring between Alabama, Florida, and Georgia (SELC 2015a, Ruhl 2003). These three states have fought over the future allocation of water in the ACF and Alabama/Coosa/Tallapoosa (ACT) River basins for decades (SELC 2015a) as population growth is driving competing water demands for urban, agricultural, and ecological uses. A 2006 study by the Congressional Budget Office (CBO 2006) reported that Georgia had the sixth highest population growth (26.4 percent) in the nation, followed by Florida (23.5 percent). The per capita water use in Georgia has been estimated to be 8 to 10 percent greater than the national average, and 17 percent higher than per capita use in neighboring states (UGA 2002). Georgia needs water to supply the large metro Atlanta area; Alabama needs its water supply for power generation, municipal uses, and fisheries; and Florida seeks to maintain its shellfish industry in Apalachicola Bay (SELC 2015a). Water shortages have already occurred and are expected to continue due to the rapid population growth anticipated over the next 50 years (Cummings
It is not known how much water is already being removed from rivers used by Alabama shad because there is little information concerning actual withdrawals and virtually no information concerning water discharges. This is particularly the case for municipal and industrial uses because water use permits are not required in Georgia for withdrawals less than 100,000 gallons per day (Cummings
Large withdrawals of water (such as those for municipal and agricultural use) from rivers result in reduced water quantity and quality (altered flows, higher temperatures, and lowered DO). Florida and Georgia have developed water management plans in attempts to provide comprehensive basin-wide strategies for management of the water resources; Alabama is also developing a plan. Many cost-effective methods for water conservation in cities already exist, and new technologies are constantly evolving that will enable even greater efficiencies, reducing the amount of water that needs to be extracted from rivers (Richter and Thomas 2007).
It is unclear whether Alabama shad in the ACF system have been affected by these ongoing water allocation issues. The Georgia Ecological Services Office of the USFWS (2015) states that several species of snails and mussels have gone extinct in the ACT and ACF systems
Changes in temperature, precipitation, drought, flooding, and sea level due to climate change could further exacerbate existing water quality and quantity issues in rivers and coastal areas used by Alabama shad. The Intergovernmental Panel on Climate Change (IPCC) in its fifth and most recent assessment report (IPCC AR5 2014) presented four Representative Concentration Pathways (RCPs) to assess future climate changes, risks, and impacts. The RCPs describe four possible 21st century pathways of greenhouse gas emissions and atmospheric concentrations, air pollutant emissions, and land use. The IPCC did not identify any scenario as being more likely to occur than any other. Because we cannot predict whether and how climate conditions may change, it is our policy to assume climate conditions will be similar to the status quo in making ESA listing determinations (memorandum from D. Wieting, Director of the Office of Protected Resources, to E. Sobeck, Assistant Administrator for Fisheries, regarding guidance for treatment of climate change in NMFS ESA decisions, January 4, 2016). In this listing determination, we use a baseline scenario, which is one without additional efforts to constrain emissions of greenhouse gases, leading to the RCP8.5 pathway, a scenario with very high greenhouse gas emissions (IPCC AR5 2014), in evaluating potential climate effects to Alabama shad.
The southern distributional limit for all
Precipitation can affect riverine habitat used by Alabama shad through increased runoff and introduction of sediment and pollutants. While precipitation is generally expected to increase for the northern portion of North America, little to no change in the annual average precipitation over the average recorded for 1986–2005 is predicted to occur in the Southeast by the mid-21st century (2046–2065) under RCP8.5 (IPCC AR5 2014). This is also the prediction for the late 21st century (2081–2100) for most of the Alabama shad's range. A small portion of the species' western range is in an area where greater than or equal to 66 percent of the prediction models for the late 21st century indicated changes in annual precipitation would occur, although the models could not predict whether precipitation would increase or decrease.
Similar to increased precipitation, increased flooding can also affect riverine habitat used by Alabama shad through increased runoff and introduction of sediment and pollutants. Conversely, increased periods of drought that result in lower than normal river flows can restrict access to habitat areas, expose previously submerged habitats, interrupt spawning cues, reduce thermal refugia, and exacerbate water quality issues, such as water temperature, reduced DO, nutrient levels, and contaminants. IPCC AR5 (2014) states that changes in the magnitude or frequency of flood events have not been attributed to climate change, as floods are generated by multiple mechanisms (
Sea level rise resulting from climate change is projected to continue during the 21st century, at a rate faster than observed from 1971 to 2010. The projected increase in sea level for the period 2081–2100, relative to 1986–2005, is 0.45 to 0.82 meters with medium confidence under the scenario RCP8.5 (IPCC AR5 2014). Sea level rise is expected to occur in more than 95 percent of the ocean area by the end of the 21st century, although it will not be uniform across regions (IPCC AR5 2014). About 70 percent of the coastlines worldwide are projected to experience a sea level change within ±20 percent of the global mean (IPCC AR5 2014). A rise in sea level will likely create more estuarine areas and push the salt wedge farther upstream; this will likely impact any water intake structures located in the newly estuarine areas and may also increase the potential for salt water to enter aquifers (U.S. Global Research Group 2004). Saltwater intrusion will stress the availability of water in the southeast. The IPCC AR5 (2014) states that in the Southeast, ecosystems and irrigation are projected to be particularly stressed by decreases in water availability due to the combination of climate change, growing water demand, and water transfers to urban and industrial users. Existing water allocation issues could be exacerbated, potentially stressing water quality. However, it is unknown how Alabama shad may be affected by sea level rise in the future.
Most observations of climate change responses in species involve alterations in phenology (Parmesan 2006). Phenology is the study of how seasonal and interannual variations in the environment affect the timing of critical stages and events in a species' life cycle (Anderson
For marine species, climate-driven changes in temperature can modify the phenology of annual migrations to spawning grounds (Pörtner and Peck 2010). Seasonal temperature increases have been shown to correlate with changes in the timing of fish movement, with shifts towards earlier migrations of anadromous fish (Quinn and Adams 1996, Juanes
Ellis and Vokoun (2009) compared temperature records with fish surveys for anadromous alewives in several southern New England streams back to
Aprahamian
Quinn and Adams (1996) identified shifts in spawning migrations in another
The differences in the environmental cues triggering spawning migration, as well as the life history differences, between shad and salmon highlight how species may be affected differently by climate change. A species with close links between the environments experienced by spawning adults and their offspring (
Climate change may also disrupt the timing between the life cycles of predators and prey (Parmesan 2006). The presence of both the predators of Alabama shad and their prey sources may be shifted temporally or spatially due to climate change. Also, changes in water temperature could impact prey production, with greater production in warmer years (Aprahamian
In summary, under the RCP8.5 scenario, there could be a 2.6–4.8 °C temperature increase by the end of the 21st century (2081–2100) relative to 1986–2005. However, current temperature trends indicate that warming has been less pronounced and less robust in the Southeast United States. Within North America, the Southeast United States is predicted to have the smallest changes in mean annual temperature (IPCC AR5 2014). Little to no changes in precipitation that could increase runoff are predicted within the range of Alabama shad. Sea level rise resulting from climate change is projected to continue during the 21st century, at a rate faster than observed from 1971 to 2010. However, it is unknown how Alabama shad may be affected by sea level rise in the future. The IPCC AR5 (2014) states that in the Southeast, ecosystems and irrigation are projected to be particularly stressed by decreases in water availability due to the combination of climate change, growing water demand, and water transfers to urban and industrial users. Existing water allocation issues could be further exacerbated, potentially stressing water quality. Most observations of climate change responses in species involve alterations in phenology, the study of how seasonal and interannual variations in the environment affect the timing of critical stages and events in a species' life cycle (Parmesan 2006, Anderson
On April 20, 2010, while working on an exploratory well in the Gulf of Mexico (approximately 50 mi southeast of the Mississippi River Delta, Louisiana, and 87 mi south of Dauphin Island, Alabama), the semi-submersible DWH drilling rig experienced an explosion and fire. The rig subsequently sank, and oil and natural gas began leaking into the Gulf of Mexico. The well was temporarily capped on July 15, 2010, which significantly reduced the amount of leaking oil, but the well was not ultimately sealed and declared “effectively dead” until September 19, 2010. Estimates on the amount of released oil varied widely and over time, but final official estimates indicated 53,000–62,000 barrels were released per day as a result of the event; the total amount of oil released into the Gulf of Mexico was estimated at 4.9 million barrels (780,000 m
There have been no studies of the effects of the DWH spill on Alabama shad and no reports or collections of shad affected by the spill. Chakrabarty
Fish exposed to oil can be impacted directly through uptake by the gills, ingestion of oil or oiled prey, effects on egg and larval survival, or changes in the ecosystem that support the fish (USFWS 2010). Adult fish may experience reduced growth, enlarged livers, changes in heart and respiration rates, fin erosion, and reproductive impairment when exposed to oil (USFWS 2010, Snyder
There have been no studies on the effects of the DWH spill on Alabama shad. Based on their life history, it is likely that the earliest and most vulnerable life stages (eggs and larvae) were not exposed to oil and dispersants. The oil spill occurred in April when females are upriver, releasing their eggs at spawning sites. Over the summer, as oil recovery and cleanup was occurring, the newly spawned Alabama shad larvae were in their riverine habitats maturing. Alabama shad from northern rivers start the downstream migration toward marine waters in late summer. In comparison, shad from Gulf Coast river systems have been observed to stay upriver as late as December. Therefore, it is likely some juvenile and non-spawning adult Alabama shad were exposed to oil and dispersants associated with the DWH spill, but not the actively spawning adults and early life stages.
Polycyclic aromatic hydrocarbons (PAH) are considered the most toxic component of crude oil to marine life and are ubiquitous pollutants in the marine environment (Snyder
Despite widespread contamination of offshore waters by the DWH spill and to a lesser extent, coastal waters, the results of a study by Moody
Little is known about Alabama shad in the marine environment, even though the species spends the majority of its life there. We considered the potential for effects to the species from the DWH spill by looking at studies of other offshore species. Rooker
In summary, there are no data indicating Alabama shad were directly affected by the DWH spill. The spill occurred in April when the most vulnerable early life stages of Alabama shad were in riverine areas and it is unlikely they were directly exposed. The older juveniles and adults that entered coastal and nearshore waters in late summer through winter may have been exposed to toxins from the DWH spill, but studies of other coastal species indicate recovery occurred the following year. It is likely that the worst acute effects of DWH were experienced further offshore in the marine environment. Although we have almost no information on the marine portion of Alabama shad's life cycle, it is doubtful this smaller anadromous species spends a significant portion of its life cycle far offshore like the large oceanic species (
Small commercial fisheries for Alabama shad once existed in Alabama, Arkansas, Kentucky, Indiana, Ohio, and Iowa (Adams
Most of the Alabama shad collected during research and monitoring associated with JWLD conservation locking activities in 2013 had large, open sores or gash-like wounds, in some cases exposing organs and bone (Sammons 2013; S. Herrington, The Nature Conservancy, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, January 2014). These sores or wounds were not observed on other fish species collected (
Little information is available regarding predation on Alabama shad in freshwater systems and no information regarding predation in marine environments (NMFS
The harvest or collection of Alabama shad is not regulated in Federal waters, although the legal authority exists, and regulations could be implemented as necessary through the Magnuson-Stevens Fishery conservation and Management Act. A variety of protective regulations exist in the states within the species' historical range (NMFS
Although there are no restrictions on the harvest of Alabama shad in marine waters, virtually nothing is known about the life history of the species in the marine environment and only 5 specimens have ever been recorded from marine waters. It is highly unlikely that fishermen or researchers would be able to successfully target the species in the marine environment. Harvest and collection of Alabama shad is restricted to varying degrees in Louisiana, Alabama, Georgia, and Florida, while no restrictions are in place in Mississippi, Arkansas, or Missouri. Under “Overutilization for Commercial, Recreational, Scientific, or Educational Purposes” (Factor B), we determined that it is unlikely that past or present collection or harvest (utilization) of Alabama shad has contributed significantly to the species' extinction risk. We also determined under Factor B that, given the lack of the sizeable harvest in the past, we do not anticipate the development of new fisheries or that directed harvest levels will otherwise increase in the future. Therefore, although harvest and collection of Alabama shad is regulated in some areas where the species occurs, but not in others, we believe that the existing laws are adequate to regulate the low levels of harvest and collection and are unlikely contributing to the extinction risk of Alabama shad.
The Federal Power Act (FPA) (16 U.S.C. 791–828), as amended, provides for protecting, mitigating damages to, and enhancing fish and wildlife resources (including anadromous fish) impacted by hydroelectric facilities regulated by FERC. FERC must consult with state and Federal resource agencies on proposed hydroelectric projects and implement recommendations concerning fish and wildlife and their habitat,
The presence of dams that block Alabama shad from accessing upstream spawning habitat is believed to be the primary cause of their decline in some river systems (NMFS
FERC licenses have a term of 30 to 50 years, so NMFS' involvement in the licensing process to ensure the protection and accessibility of upstream habitat, and to improve habitat degraded by changes in water flow and quality from dam operations, may only occur 2–3 times a century for a particular project. However, an estimated 85 percent of the dams in the United States will be near the end of their operational lives by 2020 (Doyle
The FPA does not apply to non-hydropower dams, such as those operated by USACE for navigation purposes. However, under Section 7(a)(2) of the ESA, Federal agencies are required to consult with NMFS or USFWS on activities that may affect listed species. Dam maintenance, repairs, and operational changes may require ESA Section 7 consultation and allow conservation measures benefitting listed species to be recommended or required. Alabama shad may also benefit from the conservation measures implemented for other species with similar needs or in similar habitats. USFWS (2007) completed a biological opinion under Section 7 of the ESA on USACE's drought operations for the Interim Operating Plan for JWLD in the ACF system. While that biological opinion did not evaluate Alabama shad it did analyze effects to Gulf sturgeon and three species of mussels (fat threeridge, purple bankclimber, and Chipola slabshell). USFWS (2007) determined that while there were likely to be some adverse effects to the mussels, the drought operations are not likely to jeopardize the continued existence of any of the species or destroy their critical habitat. Because Alabama shad have similar water quality and quantity requirements to Gulf sturgeon, the conservation efforts for the sturgeon likely benefit shad. Federal agencies may also choose to use their authorities and resources for the conservation of species.
In two river systems inhabited by Alabama shad, the ACF and Alabama River systems, USACE has voluntarily cooperated with state and Federal agencies to implement conservation locking for Alabama shad and other anadromous species. In 2012, the “cooperator” organizations (USACE, USFWS, NMFS, Georgia DNR, FFWCC, and TNC) signed a Memorandum of Understanding (MOU) clarifying their commitments and responsibilities in the continued implementation of fish passage at JWLD. In Part B. of the MOU, “Statement of Mutual Benefit and Interests”, the cooperator organizations agree to: (1) Provide mutual assistance, share information and technology, and coordinate efforts for fish passage, (2) discuss a strategy for providing passage at JWLD for the conservation and restoration of migratory fishes in the ACF River Basin, consistent with authorized project purposes, (3) initiate and participate in a JWLD Fish Passage Partnership and discuss yearly fish passage operation for migratory fishes at JWLD. Collaborate, assist, and support research, monitoring, outreach, and related activities for determining the effects of fish passage on migratory fish populations and habitats at JWLD and the ACF River Basin, (4) foster partnerships that support the passage of migratory fishes in Georgia and Florida among state agencies, federal agencies, and the public within the ACF River Basin, and (5) designate a Partnership Coordinator from one of the cooperators in order to facilitate the partnership and fulfill the purpose of the MOU. The Partnership Coordinator shall provide a report of the annual fish passage operations, results, and related activities to all cooperators.
In fulfillment of the cooperation outlined in the MOU, an annual meeting to discuss the issues and outcomes from the previous spring conservation locking cycle is held, usually in the early part of the following year (
Although the MOU does not require implementation of conservation locking at JWLD, USACE had demonstrated a commitment to continuing conservation locking. The current operations considered in developing alternatives for the updated USACE Master Water Control Manual (FEIS; December 2016) includes standard operating procedures for conservation locking at the JWLD to benefit Alabama shad. All alternatives considered in the FEIS included conservation locking. The FEIS indicates that in most years since the spring of 2005, USACE has operated the lock at JWLD between March and May to facilitate downstream-to-upstream passage of Alabama shad in cooperation with pertinent state and federal agencies. In general two fish locking
The presence of dams that block Alabama shad from accessing upstream spawning habitat is believed to be the primary cause of their decline in some river systems. The purpose of the original FPA of 1920 was the regulation of energy production, distribution, and availability, and the promotion of hydropower, and dams were built with little or no regard for the environmental consequences. The adverse environmental effects, including effects to anadromous fish species, were largely unaddressed until the 1970s with the enactment of several major environmental laws. However, the FPA itself was amended by the ECPA in 1986, which directed FERC to give equal consideration to environmental issues. The FPA, through Section 18 and 10(j), provides opportunities to implement conservation measures at existing dams. Although some dams are not subject to the FPA, other mechanisms exist to achieve conservation measures in addition to fish passage at non-FPA dams (Section 7 consultation and voluntary efforts such as conservation locking). Therefore, we ranked the inadequacy of existing dam regulations as having a low risk of contributing significantly to the current and foreseeable risk of extinction for Alabama shad.
The Federal Water Pollution Control Act, and amendments (FWPCA) (33 U.S.C. 1251–1376), also called the “Clean Water Act,” mandates Federal protection of water quality. The law also provides for assessment of injury, destruction, or loss of natural resources caused by discharge of pollutants. Section 404 of the FWPCA prohibits the discharge of dredged or fill material into navigable waters without a permit. The main responsibility for water quality management resides with the states in the implementation of water quality standards, the administration of the National Pollutant Discharge Elimination System (NPDES) program (where the state has received EPA approval to do so), and the management of non-point sources of pollution. Section 303(d) of the Clean Water Act requires states to identify waters that do not meet or are not expected to meet water quality standards. Each state develops Total Maximum Daily Loads (TMDLs) for its water quality-limited waters. A TMDL is a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that load among the various point and non-point sources of that pollutant. Section 402 of the Clean Water Act created a system for permitting wastewater discharges. Collectively the NPDES sets specific limits on discharge of various types of pollutants from point-source outfalls. A non-point source control program focuses primarily on the reduction of agricultural siltation and chemical pollution resulting from rain runoff into streams. Efforts to reduce non-point pollution currently rely on the use of land management practices to reduce surface runoff through programs administered primarily by the Department of Agriculture.
Water quality has been cited as a threat to Alabama shad (Mettee and O'Neil 2003, Mettee
Greenhouse gas emissions are regulated through multi-state and international agreements, and through statutes and regulations, at the national, state, or provincial level. One of the key international agreements relevant to attempts to control greenhouse gas emissions, the Copenhagen Accord, was developed in 2009 by the Conference of Parties to the United Nations Framework Convention on Climate Change. The Copenhagen Accord identifies specific information provided by Parties on quantified economy-wide emissions targets for 2020 and on nationally appropriate mitigation actions to help achieve the goal of capping increasing average global temperature at 2 °C above pre-industrial levels. The last conference of the Parties to the United National Framework Convention on Climate Change was held in Lima, Peru, in December 2014. The resulting decisions from the meeting were primarily to continue ongoing efforts to reach a new agreement for emissions reductions to be adopted at the 2015 meeting in Paris, France, and to have those implemented by 2020. The new agreement would maintain the same overall goal as the Copenhagen Accord, to cap additional warming at 2 °C.
Within the United States, President Barack Obama released the President's Climate Action Plan in June 2013. The plan is three-pronged, including proposed actions for mitigation, adaptation, and international leadership. The actions listed for mitigation include completing carbon pollution standards for new and existing power plants, accelerating clean energy permitting, increasing funding for clean energy innovation and technology, increasing fuel economy standards, increasing energy efficiency in homes, businesses, and factories, and reducing other greenhouse gas emissions including hydrofluorocarbons and methane. The plan states that the United States is still committed to reducing greenhouse gas emissions 17 percent below 2005 levels by 2020 if all other major economies agree to similar reductions. Additional efforts made domestically related to climate change are more focused on facilitating adaptation to the impending changes to the environment due to climate change in order to maintain the country's natural and economic resources, but do not directly address the emission of greenhouse gas.
National and international efforts to limit climate change are ambitious, but their success is uncertain since major agreements are still being formulated, and the outcomes of ongoing activities are not yet known. Likewise, the effects of climate change on Alabama shad and their habitat are also not yet known. However, climate change predictions by the IPCC (IPCC AR5 2014) suggest that temperature increases throughout the range of Alabama shad of 1.5–2.5 °C by the mid-21st century may be less than other areas in North America (2.5–4 °C by the mid-21st century), even with no additional efforts to constrain
It is unknown whether water allocation issues contribute to Alabama shad's extinction risk. Regulations associated with water allocation are both an intra- and inter-state issue. Within a state's borders, state laws determine rights to use water (CBO 2006). In the East, water rights are formed under riparian doctrine, meaning ownership of land adjacent to a body of water (riparian land) conveys the right to use the water in a way that is reasonable (Ruhl 2003, CBO 2006). Determining what is reasonable involves consideration of the purpose of the use, the suitability of the use to the body of water, economic and social values of the use, the extent of harm caused, the practicality of avoiding any harm by adjusting the methods or quantities of use, and the fairness of making the user who causes harm bear losses (CBO 2006). In practice today, owners of riparian land must obtain permits from a state agency to use water. Permits may also be available to others who do not own riparian land. The charters incorporating most cities give them power to procure water for public purposes and to supply the domestic needs of their residents, and states have modified the riparian doctrine by introducing exceptions that allow municipal uses (CBO 2006).
In Georgia, the 15-county Metropolitan North Georgia Water Planning District was created through legislation to manage the water supply and its consumption for economic, environmental, and social well-being. The Metropolitan North Georgia Water Planning District prohibits the inter-basin transfers of water from outside the district to meet water supply demands within the district (Cole and Carver 2011). The Metropolitan North Georgia Water Planning District encompasses the Atlanta metropolitan area, the most populous area in Georgia and the ninth largest metro area in the U.S. Therefore, regulations that limit inter-basin transfers would benefit Alabama shad by limiting the amount of water removed from rivers within their range. Georgia's Board of Natural Resources adopted an instream flow policy in 2001 that ensures the minimum flows required to protect aquatic habitat, such as that for Alabama shad, are maintained downstream of new water withdrawals (Cole and Carver 2011). In Florida, when determining whether the public interest is served by a transfer of groundwater from one water district to another, or surface water from one county to another, the governing board or department must consider an array of factors, including the potential environmental impacts (Cole and Carver 2011). The State of Florida statutes require local governments to consult with water suppliers to ensure that adequate water supplies will be in place and available to serve a new development by the time the local government issues the development's certificate of occupancy (Cole and Carver 2011). In addition to state laws governing water allocation, many states within the range of Alabama shad also have state water plans that are intended to be comprehensive strategies for the long-term management of water resources on a watershed basis. Georgia, Florida, Missouri, and Arkansas have state water plans in place, and Alabama and Louisiana have draft plans. The state plans vary in detail and goals, but generally attempt to balance economic, public health, and environmental needs. Water planning that considers environmental needs, such as downstream habitat for fish, are likely to benefit Alabama shad because it increases the likelihood that adequate water flows will be available.
When water allocation issues arise between states, there are generally three ways to resolve the issue. States can enter into a compact agreeing to a division of resources, which would then require congressional approval (Ruhl 2003). Second, the commerce clause of the Constitution gives Congress the authority to allocate interstate waters to serve the national interest, even if doing so means overriding state law (Ruhl 2003, CBO 2006). The third option is for states to take their dispute to the U.S. Supreme Court, which can exercise its jurisdiction to arrive at an equitable apportionment of the water (Ruhl 2003).
The major water allocation issues affecting Alabama shad are between Alabama, Georgia, and Florida over use of water in the ACT and ACF River basins. SELC (2015b) documented the following history of the dispute, which ensued in 1989 after USACE recommended reallocation of water from reservoirs in the ACT and ACF basins to supply the Atlanta, Georgia, metro area. Alabama sued USACE, stating they had ignored environmental impacts on the downstream states and breached their duty to benefit all downstream users. Florida intervened on the side of Alabama, and Georgia and metro Atlanta municipalities intervened or initiated their own lawsuits against USACE for not allowing the reservoirs to serve current and future water supply needs. The lawsuit was put on hold to allow the three states and USACE to negotiate a resolution, conduct comprehensive studies, and create a structure that would allow the states to work together. Each state passed a compact, and they were ratified by Congress in 1997. However, agreement could not be reached, the compacts expired without resolution in 2003 and 2004, and the states went back to court. The litigation continued for over a decade. In 2009, a judge ruled that Lake Lanier (part of the ACF basin) was not authorized to supply water to metro Atlanta. The ruling was reversed by the 11th Circuit Court of Appeals and after the U.S. Supreme Court subsequently declined to hear the case, the litigation was temporarily suspended. Currently at the U.S. Supreme Court is a case brought by Florida against Georgia alleging harm to Apalachicola Bay resulting from Georgia's disproportionate use of water from the ACF River system.
We evaluated water allocation issues under the “Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range” (Factor A). Transferring water from one river basin to another can alter natural water flows in both the originating and receiving basins, and exacerbate any existing water quality issues. It is not known how much water is already being removed and transferred from rivers used by Alabama shad. The biggest interstate allocation dispute is occurring in Alabama, Florida, and Georgia over the future allocation of water in the ACF and ACT River basins. While the outcomes of water allocation and the regulatory mechanisms governing it are unknown, the Alabama shad population in the ACF continues to be the largest known spawning population, and
Other ESA listings and critical habitat designations for species within the range of Alabama shad may also promote the conservation of Alabama shad. For instance, Gulf sturgeon, listed under the ESA as threatened in 1991 (56 FR 49653), inhabit many of the same rivers along the Gulf of Mexico as Alabama shad. Critical habitat for Gulf sturgeon was designated in 2003 (68 FR 13370). The primary constituent elements of Gulf sturgeon critical habitat include habitat elements that are also important for shad (
Alabama shad in the ACF River system have been found to be the host for the larvae of an ESA-listed freshwater mussel (S. Herrington, The Nature Conservancy, pers. comm. to K. Shotts, NMFS, JWLD Fish Passage Year-End Summary Meeting, January 2014). The purple bankclimber, a freshwater mussel listed as threatened under the ESA (63 FR 12664), is potentially one of the species using Alabama shad to transport larvae upstream. Critical habitat for the purple bankclimber and other listed freshwater mussels has been designated in the ACF River system (72 FR 64286), and the primary constituent elements include a geomorphically stable stream channel, stream substrate with low to moderate amounts of silt and clay, permanently flowing water, water quality, and fish hosts that support the larval life stages of the seven mussels. Conservation actions to benefit the purple bankclimber mussel could potentially protect both the Alabama shad and its habitat. For example when the USFWS consulted on the drought operations for the Interim Operating Plan for JWLD in 2007, they considered effects to the purple bankclimber. Reasonable and prudent measures required by USFWS (2007) during drought operations that may benefit Alabama shad include (1) adaptively managing operation of the system using information collected on species and their habitats, upstream water use, and climatic conditions, (2) increasing the lower threshold for reservoir storage from 8,000 to 10,000 cubic feet per second (
Thus, other ESA listings and critical habitat designations, are unlikely contributing to the extinction risk of Alabama shad. Overall, harvest and collection of Alabama shad are adequately controlled through the state regulations. Regulatory mechanisms governing water quality appear to be having success, although water quality is still impaired in some areas throughout the Alabama shad's range. The outcomes of state, Federal, and international laws governing dams, water allocation, and climate change, and their adequacy in protecting Alabama shad and their habitat, are unknown. Therefore, we ranked the inadequacy of regulatory mechanisms overall as having a low risk of contributing significantly to the current and foreseeable risk of extinction for Alabama shad.
Bycatch, the incidental catch of a species in fisheries targeting another species, is a potential threat to Alabama shad in the marine environment. Although there are no reports of Alabama shad being taken as bycatch in fisheries, many fisheries lack comprehensive bycatch monitoring (Harrington
The presence of dams throughout the Alabama shad's range blocks access to upstream spawning sites in many rivers and is believed to be the primary cause of population decline in the species. While there are little historical or current data quantifying declines in Alabama shad, we believe that the species' abundance is reduced from historical levels. We believe both low abundance and the presence of dams are the greatest threats to Alabama shad and ranked both as posing moderate risks to the species. We noted these factors could, in combination with other factors, contribute significantly to their risk of extinction. In this section, we consider these factors in combination with other relevant demographic factors and threats to determine whether synergistic effects would result in a significantly greater extinction risk for Alabama shad to the extent that the species' persistence is at risk.
The abundance of Alabama shad in many river systems is considered to be low. However, we have estimates of current abundance from only one river system and we do not have any historical abundance estimates of Alabama shad, which can be indicative of abundance levels associated with low extinction risk. However, populations may also be at low risk of extinction at abundance levels below historical levels, and accurate estimates of historical abundance are not essential for evaluating extinction risk. Whether a species qualifies for listing under the ESA depends on whether the species is in danger of extinction or likely to become so within the foreseeable future as a result of one or more of the factors described in section 4(a)(1) of the ESA. If a species is viable at its current population levels into the foreseeable future, it is irrelevant whether that population level is or is not close to its historical levels. We believe the low abundance of Alabama shad is offset by the high productivity and spatial distribution of the species, which is believed to be stable. We ranked productivity and spatial distribution as having a low probability of posing an extinction risk to the species. Alabama shad are highly productive, reaching spawning age at 1–2 years, and spawning multiple times during a single spawning season, as well as potentially throughout their lifetime. The nine known Alabama shad spawning populations are widely distributed, ranging from Gulf Coast rivers and their tributaries, from the Suwannee River, Florida, to the Mississippi River, including Lower Mississippi tributaries in the Midwest.
Although some of these spawning populations are small, this wide geographic distribution of spawning populations increases the resiliency of the species, reducing its vulnerability to catastrophic events such as storms, disease, or manmade threats, which usually occur at smaller scales. The short generation time for the species also adds to its resiliency, allowing it to take advantage of suitable habitat conditions for reproduction. The spawning success of Alabama shad in the ACF River system illustrates this ability to take advantage of newly available spawning habitat made accessible through conservation locking at JWLD.
Alabama shad are anadromous and generally return to their natal rivers to spawn. While the genetic diversity of Alabama shad is low, likely due to natural bottleneck events that occurred during the Pleistocene, we ranked diversity as having a low probability of posing an extinction risk to the species. The bottleneck is believed to have reduced their genetic load (presence of harmful genes) and genetic analyses indicate the species strays into other river systems to spawn at a greater rate than most anadromous species. This higher rate of straying into other river systems, combined with the species' high productivity and ability to take advantage of suitable environmental conditions, along with the wide spatial distribution of the spawning populations increases the species resilience and could allow individuals to enhance smaller river populations and repopulate river systems that have experienced declines or extirpations.
Existing dams continue to block access by Alabama shad to upstream habitat, although few new dams are being built today. Under “Inadequacy of Existing Regulatory Mechanisms” (Factor D), we ranked the inadequacy of regulatory mechanisms regulating dams, primarily the FPA and ESA, as posing a low risk of extinction to the species. The FPA provides for protecting, mitigating damages to, and enhancing fish and wildlife resources, including anadromous fish, impacted by hydroelectric facilities regulated by the FERC. The FPA does not apply to non-hydropower dams, such as those operated by USACE for navigation purposes, but maintenance, repairs, and operational changes may require ESA section 7 consultation and allow conservation measures benefitting Alabama shad and other species to be recommended or required. In two river systems inhabited by Alabama shad (the ACF and Alabama River systems), USACE has voluntarily cooperated with state and Federal agencies to implement conservation locking for Alabama shad and other anadromous species. Conservation locking in the Alabama River, occurring since 2009, has only been coupled with stocking and monitoring since 2014, and any benefits to the species are not expected to be evident for a few years. Conservation locking in the ACF River system has had success. The abundance of Alabama Shad in the ACF has been variable, but higher in many of the years, since locking began. Also, a study by Schaffler
We also evaluated water quality and the adequacy of regulations governing water quality in combination with the moderate threats of low abundance and the presence of dams, because water quality is often cited as a concern for Alabama shad and dams may affect water quality. Dredging and land-based activities (agriculture, silviculture, and industrial, commercial, and residential development) can also result in degraded water quality in rivers and coastal waters inhabited by Alabama shad. We looked at state water quality reports, required by Sections 305(b) and 303(d) of the Clean Water Act, for river systems inhabited by Alabama shad spawning populations. Of the assessed river mi, about half were deemed to have good water quality and half were impaired. Low DO, mercury, impaired biota, and sedimentation were listed as the primary impairments, although there are no known studies linking these impairments to effects in Alabama shad or indicating that the species is susceptible to effects from these impairments. We reviewed the EPA's NCCR I–IV reports, which show that the overall condition of the Gulf Coast
Other known threats ranked as posing an unknown, unlikely, or low risk of extinction to Alabama shad include climate change, direct harvest, bycatch, and the regulatory mechanisms governing these and other threats. National and international efforts to stem climate change are ambitious, but their success is uncertain since major agreements are still being formulated, and the outcomes of ongoing activities are not yet known. The effects of climate change on Alabama shad and their habitat are also uncertain, although based on the species' life history and evidence from responses by other
We were unable to rank the contribution of water allocation and the adequacy of regulatory mechanisms governing it, DWH, and disease and predation to the extinction risk of Alabama shad. Water allocation issues are a growing concern in the Southeast United States. One of the biggest interstate allocation disputes is ongoing between Alabama, Florida, and Georgia over the future allocation of water in the ACF and ACT River basins. The complexity of the issue, the length of time (more than 25 years) that the water allocation issue remains unresolved, and the inability of the major stakeholders to come to agreement or final decision, as well as the fact that we do not know whether or how Alabama shad may be affected by water allocation issues, leads to great uncertainty about the adequacy of regulatory mechanisms for managing water allocation in Alabama shad's riverine habitat. While the outcomes of water allocation and the adequacy of the regulatory mechanisms governing it are unknown, the Alabama shad population in the ACF continues to be the largest known spawning population, and conservation locking is occurring in both the ACF and ACT basins to alleviate the effects of dams, the primary threat to the species in both systems. There is no evidence that Alabama shad were affected immediately after the DWH oil spill. Given that the spill occurred in April when the most vulnerable early life stages were in riverine areas, it is unlikely they were directly exposed. The more mature Alabama shad that entered coastal and nearshore waters following the DWH spill in late summer through winter may have been exposed to toxins from the DWH spill, but studies of other coastal species affected by the spill show that most recovered by the following year. It is likely that the worst acute effects were experienced further offshore in the marine environment and more studies will be necessary to determine any long-term, chronic impacts from the DWH spill. There are few data on disease and predation in relation to Alabama shad and it is unknown whether either factor is contributing to the species' extinction risk.
In summary, we did not identify any demographic factors or threats that are likely or highly likely to contribute significantly to the Alabama shad's risk of extinction. We conclude that the greatest threats to Alabama shad, low abundance and the presence of dams, pose a moderate threat to the species. However, these threats, alone and in combination with other factors, do not pose a significant risk of extinction. Other demographic factors that pose a low likelihood of contributing to extinction risk, and potentially offset the threats of low abundance and dams, include the species' high productivity, wide spatial distribution, and genetic evidence that the presence of harmful genes has been reduced and genetic transfer between spawning populations is likely occurring at a greater rate than for most anadromous species. While dams originally led to declines in Alabama shad, the lack of new dam construction, the adequacy of regulations governing new and existing dams, and ongoing conservation efforts also reduce the effects of dams on Alabama shad. We believe water quality, climate change, direct harvest, bycatch, and the inadequacy of the regulatory mechanisms governing these and other threats are not contributing, alone or in combination, to the extinction risk of Alabama shad. We evaluated other threats (water allocation issues, DWH, disease, and predation), but found there was not enough information or too much uncertainty in pending outcomes, to determine their contribution to the extinction risk of Alabama shad. Based on these conclusions, we find that the Alabama shad is at low risk of extinction throughout all of its range, now and in the foreseeable future.
The ESA definitions of “endangered” and “threatened” species refer to two spatial scales: A species' entire range or a significant portion of its range. We initially evaluated the extinction risk of Alabama shad throughout its entire range and found it to be low. So we must consider if a “significant portion of its range” is at higher risk, such that it elevates the entire species' status to endangered or threatened. However, this evaluation can only be conducted if a “significant portion of its range” where the species' status is more imperiled can be identified.
The USFWS and NMFS have jointly finalized a policy interpreting the phrase “significant portion of its range” (SPOIR) (79 FR 37578; July 1, 2014). The SPOIR policy provides that: (1) If a species is found to be endangered or threatened in only a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the ESA's protections apply across the species' entire range; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout its range, and the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction or likely to become so in the foreseeable future, throughout all of its range; and (3) the range of a species is considered to be the general geographical area within which that species can be found at the time we make any particular status determination. We evaluated
We reviewed the best available information on Alabama shad and considered several relevant factors in identifying whether portions of the species' range may be significant: (1) Population abundance, (2) contributions to other populations, and (3) concentration and acuteness of threats. Based on these criteria, we initially identified only one population, the Alabama shad that spawn in the ACF River system, as potentially constituting a SPOIR. First, we considered population abundance. The Alabama shad population spawning in the ACF is believed to be one to several orders of magnitude larger than other spawning populations. Next we considered the potential contribution of the ACF spawning population to other populations. Genetic analyses indicate that Alabama shad spawn in systems other than their natal system at a rate of about 10 migrants per year. Because the spawning population in the ACF River system is large relative to other systems, migrants from the ACF may make greater contributions as compared to shad from smaller populations. The loss of the largest spawning population of Alabama shad would leave only smaller populations of Alabama shad and could make the species as a whole less resilient to environmental perturbations, including catastrophic events. Finally, we looked at concentration and acuteness of threats. While the majority of threats to Alabama shad are neither concentrated nor acute in specific portions of the species' range, the ACF River system is one of two river systems within the range of Alabama shad that we identified as being threatened by water allocation issues.
We initially identified the spawning population of Alabama shad in the ACF River system as being potentially significant under the SPOIR policy because (1) it is believed to be the largest spawning population by one to several orders of magnitude, (2) it could contribute to the viability of the species as a whole because of its large relative size and potential role in enhancing other river populations through outmigration, and (3) the threat of water allocation issues is concentrated in the ACF River system. We did not identify any other SPOIRs since (1) we do not have abundance estimates for any other Alabama shad populations, although they are believed to be at least one order of magnitude smaller than the ACF population, (2) we do not have information that another population is making significant contributions to other populations, and (3) we did not identify any other populations that were differentially experiencing concentrated nor acute threats compared to other populations.
Following the SPOIR policy, we next evaluated whether the species occupying this portion of the range may be in danger of extinction or likely to become so within the foreseeable future. In our evaluation of the status of the species range-wide, we determined that none of the demographic risks or threats contribute, alone or in combination, to extinction risk for Alabama shad to the extent that the species' persistence is at risk. We believe this conclusion also applies to the Alabama shad in the ACF River system. We did identify the threat of water allocation as being concentrated in the ACF River system. As with the range-wide evaluation, we were unable to rank the contribution of water allocation, as we do not have information that water allocation is affecting Alabama shad, or the adequacy of regulatory mechanisms governing it to the extinction risk of Alabama shad in ACF, due to the complexity of the issue, the length of time (more than 25 years) that the water allocation issue remains unresolved, and the inability of the major stakeholders to come to agreement or final decision. While the outcomes of water allocation and the regulatory mechanisms governing it are unknown, upstream water withdrawals for public use have been occurring for over 25 years during which time the Alabama shad population in the ACF has persisted. The ACF population of Alabama shad continues to be the largest known spawning population. The abundance of Alabama shad in the ACF has been variable, but generally higher since conservation locking was undertaken, alleviating the effects of dams, the primary threat to the species in the system. The genetic study by Schaffler
We were able to model and quantify the resilience of Alabama shad from the ACF River system since it is the most studied population with the most available data, including the only population abundance estimate. Smith
Using a sex-specific (females only), age-structured model, Smith
In most scenarios (15 out of 20), the PVA revealed positive proportional change in mean abundance from initial abundance and averaged about 250 percent for these positive scenarios (Smith
While Smith
Section 4(b)(1) of the ESA requires that NMFS make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any state or foreign nation, or political subdivision thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information on Alabama shad, including the petition, public comments submitted on our 90-day finding, and other published and unpublished information. We considered each of the section 4(a)(1) factors to determine whether it presented an extinction risk to the species. We found that the risk of extinction to Alabama shad throughout its entire range was low. We could not identify a SPOIR that was both significant and where the species' status is threatened or endangered. Therefore, our determination is based on a synthesis and integration of the foregoing information, factors, and considerations, and their effects on the status of the species throughout its entire range. We conclude that the Alabama shad is not presently in danger of extinction, nor is it likely to become so in the foreseeable future, throughout all or a significant portion of its range, and that listing as threatened or endangered is not warranted.
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106–554) is intended to enhance the quality and credibility of the Federal government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of our review of the status of Alabama shad, including our extinction risk analysis. Three independent specialists were selected from the academic and scientific community, Federal and state agencies, and the private sector for this review. All peer reviewer comments were addressed prior to dissemination of the publication of this 12-month determination. The peer review comments can be found at:
A complete list of all references cited herein is available at:
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Federal Emergency Management Agency, DHS.
Supplemental advance notice of proposed rulemaking.
The Federal Emergency Management Agency (FEMA) is considering implementing a Public Assistance deductible that would condition States' receipt of FEMA reimbursement for the repair and replacement of public infrastructure damaged by a disaster event. The primary intent of the deductible concept is to incentivize greater State resilience to future disasters, thereby reducing future disaster costs nationally. On January 20, 2016, FEMA (the Agency) published an Advance Notice of Proposed Rulemaking (ANPRM) seeking comment on a Public Assistance deductible concept. The ANPRM provided a general description of the concept that many commenters found insufficient to provide meaningful comment. In an effort to offer the public a more detailed deductible concept upon which to provide additional feedback, the Agency is issuing a supplemental ANPRM (SANPRM) that presents a conceptual deductible program, including a methodology for calculating deductible amounts based on a combination of each State's fiscal capacity and disaster risk, a proposed credit structure to reward States for undertaking resilience-building activities, and a description of how FEMA could consider implementing the program. At this stage of the rulemaking process, the deductible remains only something that FEMA is considering. The policy conceived of in this document is not a proposal. In this document, FEMA is providing what is merely a description of a direction FEMA could take in future rulemaking in an effort to solicit further feedback from the public. After considering the comments it receives, or as a result of other factors, FEMA may expand on or redevelop this concept.
Comments must be submitted by April 12, 2017.
You may submit comments, identified by Docket ID FEMA–2016–0003, by one of the following methods:
Jotham Allen, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, 202–646–1957.
We encourage you to participate in this rulemaking by submitting comments and related materials. We will consider all comments and material received during the comment period.
If you submit a comment, identify the agency name and the docket ID for this rulemaking, indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by electronic means, mail, or delivery to the address under the
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal e-Rulemaking Portal at
On January 20, 2016, FEMA published an Advance Notice of Proposed Rulemaking (ANPRM), 81 FR 3082, seeking comment on a concept that would incorporate a deductible requirement into the Public Assistance program. The ANPRM provided a general description of this concept, followed by a list of questions for the public, the answers to which would help FEMA assess all aspects of the deductible concept, including how to calculate the deductible, the scope of the deductible, how to satisfy the deductible, how this concept could influence change, implementation considerations and an estimated impact. With input received from the ANPRM, FEMA has developed a more detailed potential deductible concept and seeks further public comment via this SANPRM. The goal of this SANPRM is to gather additional public comment about the specific aspects of a programmatic approach that the Agency recognizes would represent a change to the existing Federal disaster support system.
The Public Assistance deductible would condition the States' receipt of FEMA reimbursement for the permanent repair and replacement of public infrastructure damaged by a disaster event. FEMA believes the deductible requirement could incentivize State risk reduction efforts, mitigate future disaster impacts, and lower recovery costs for the whole community. In addition, the deductible requirement addresses concerns raised by Members of Congress, the Government Accountability Office (GAO), and the Department of Homeland Security's Office of the Inspector General (DHS OIG) over the last several years, and potentially addresses concerns that the current disaster declaration process inadequately assesses State capacity to respond to and recover from a disaster without Federal assistance.
In this SANPRM, FEMA is presenting a model, or potential, deductible program to provide more specifics of what the deductible requirement may entail for detailed public feedback. Detailed public comments on this potential program, in particular on the methodologies for calculating each State's deductible and the estimates for each State's projected credits, could assist FEMA in the development of a future proposed rule.
Under the deductible concept, each State would be expected to expend a predetermined, annual amount of its own funds on emergency management and disaster costs before FEMA would provide Public Assistance for the repair and replacement of public infrastructure damaged by a disaster event. This annually predetermined amount is the State's deductible. However, satisfying the deductible would not be required before FEMA would provide assistance for other types of assistance, such as debris removal or emergency protective measures. Importantly, States may
FEMA could
To offset the deductible requirement, FEMA could provide each State with an opportunity to apply for credits. The credits could incentivize States to dedicate resources on activities that are demonstrated to promote and support readiness, preparedness, mitigation, and resilience. Such activities could include adopting and enforcing building codes that promote disaster resilience, funding mitigation projects, or investing in disaster relief, insurance, and emergency management programs. FEMA believes that every State is already undertaking activities that would qualify them for credits and reduce their deductible requirement, such as investing in mitigation projects or granting tax incentives for projects that reduce risk. Based on FEMA's projection of possible credits for activities each State is presently engaged
Under the deductible concept, FEMA would continue to recommend whether a State should receive a major disaster declaration pursuant to the current factors outlined in Federal policy (44 CFR 206.48(a)). If a State receives a major disaster declaration authorizing Public Assistance reimbursement, the State would then be required to first satisfy its annual deductible requirement (as adjusted by credits) before FEMA would provide reimbursement for Public Assistance permanent work. If a State has not fully satisfied its deductible through earned credits, following a major disaster declaration the State would then identify one or more permanent work projects proposed under the disaster declaration to satisfy the remaining deductible amount (
FEMA could implement the deductible program by regulation, supplemented by a guidance document and annual notices. The regulation could set forth broadly that FEMA will annually calculate deductible and credit amounts and could describe how a deductible requirement could be applied post-declaration. The guidance document could set forth more specifically the annual schedule, and how FEMA will calculate deductible and credit amounts, and the annual notice could provide FEMA's determination on State deductible amounts for the following year. A draft guidance document and example annual notice are included in the docket for this rulemaking at
Under this concept, FEMA would condition the provision of grant assistance for the permanent repair and replacement of building infrastructure that is damaged by a major disaster upon the State's meeting a Public Assistance deductible. It would not apply to any other form of FEMA assistance, including emergency assistance, Individual Assistance, or the Hazard Mitigation Grant Program. Since the Public Assistance deductible would condition States' receipt of FEMA funds, it would not apply to Indian Tribes, the District of Columbia, or US territories. The deductible would not change the official disaster declaration request process, or the factors that FEMA considers when making disaster declaration recommendations to the President.
A deductible program could leverage FEMA's Public Assistance program to reward States for investing in readiness, preparedness, mitigation, and resilience, thereby increasing the nation's ability to reduce disaster impacts and costs for all levels of government, individuals, and the private sector. FEMA seeks comment on all details of this concept, especially regarding how the deductible could be calculated and the types and amounts of deductible credit that could be granted.
Although the Federal government has been providing supplemental disaster relief to States and localities since the early 1800s, the Disaster Relief Act of 1974,
Pursuant to this system, the Federal government provides various forms of financial and direct assistance following disasters. One of the primary types of support FEMA provides to affected jurisdictions is repair, restoration, and replacement assistance through the Public Assistance program.
On average, FEMA has distributed approximately $4.6 billion in grants each year through the Public Assistance program over the past decade. Of the nearly $60 billion awarded through the Public Assistance program between 2005 and 2014, over 65 percent was for eligible recovery projects termed “permanent work” and for project management costs. Permanent work includes expenses for repair, restoration, and replacement that are not related to debris removal or emergency protective measures.
Before an affected jurisdiction can receive funding through the Public Assistance program, the President of the United States must authorize it.
When considering a jurisdiction's request for a major disaster declaration authorizing the Public Assistance program, FEMA considers six factors.
1. Estimated cost of the assistance;
2. Localized impacts;
3. Insurance coverage in force;
4. Hazard mitigation;
5. Recent multiple disasters;
6. Programs of other Federal assistance.
Under the current system, if a State demonstrates that an incident has caused a certain level of damage to a State to address the damage caused, FEMA would likely recommend that the President declare a major disaster. A major disaster indicates that the President has determined that the incident has caused “damage of sufficient severity and magnitude to warrant major disaster assistance under [the Stafford Act] to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.”
Conversely, if the President does not issue a major disaster declaration, the amount of damage is presumed to be within the capabilities of the affected jurisdictions and any supporting disaster relief organizations. In that case, the affected State is responsible for all of the costs of the incident, although the State will often pass many of the costs on to local jurisdictions. For example, under current regulations FEMA may determine a particular State based on its population is able to independently handle up to $1,000,000 in damage without the need for supplemental Federal assistance. Under the current approach, an incident need only identify damage at that amount to suggest that supplemental Federal assistance is needed. If the governor of that State requests a major disaster declaration for an incident causing $999,999 in damage, it is likely that
Since 1986, FEMA has used a per capita indicator to compare the estimated cost of the incident and the capabilities of the requesting jurisdiction.
FEMA publishes the updated per capita indicator in the
FEMA has established, through regulation, a 1,000,000 minimum for any major disaster, regardless of the calculated indicator.
Since the per capita indicator was initially adopted in 1986, it has lost its relation to both of the metrics upon which it was first calculated. In 1986, PCPI in the United States was 11,687.
A retrospective analysis conducted by FEMA suggests that if the per capita indicator had kept pace with PCPI, 70 percent of the major disasters between 2005 and 2014 would not have been declared. This would have transferred all of the costs for 408 disasters to the 49 States that would likely have each had at least one less major disaster declared. As an example, Missouri and Oklahoma would have each have had 19 fewer major disasters declared.
Overall, Public Assistance grants would have been reduced by 10 percent had these 408 major disasters not been declared, resulting in 5 billion dollars less in Federal disaster assistance to the States.
Table 3 presents a State-by-State retrospective synopsis of the likely impacts a PCPI-adjusted per capita indicator would have had on declared major disasters between 2005 and 2014. To conduct this analysis, FEMA adjusted the per capita indicator for each year by multiplying the previous year's national per capita personal income value for each State by 0.0001. This maintains the 0.01% ratio of the per capita indicator to per capita personal income that FEMA noted when it established the original per capita indicator.
The Public Assistance per capita indicator has also fallen short of keeping pace with State general fund expenditures. According to the National Association of State Budget Officers (NASBO), State general fund spending in 2015 totaled 759.4 billion.
The failure of the per capita indicator to keep pace with changing economic conditions and the increasing frequency and costs of disasters has led to criticism of the per capita indicator. Those critiques have emphasized that the per capita indicator is artificially low. Many have called for FEMA to find ways to decrease the frequency of disaster declarations and Federal disaster costs, by increasing the per capita indicator to transfer costs back to State and local jurisdictions. These have included recommendations from GAO,
Concluding that the per capita indicator is artificially low,
As FEMA considered these observations and recommendations, FEMA was finalizing its 2014–2018 Strategic Plan
FEMA also considered the President's emphasis on advancing national resilience. The President issued three related Executive Orders in the past two years to build resilience through (1) establishing a Federal flood risk management standard,
In early 2014, FEMA began to explore the possibility of introducing a deductible to the Public Assistance program as a way to leverage the program to encourage resilience and address some of the concerns raised by GAO. Accordingly, FEMA convened a working group of subject-matter experts from within the agency. During the ensuing months, the working group extensively explored the declaration process, the policies and workings of the Public Assistance program, the applicable legal authorities and limitations, and many other areas that would be necessary to inform the development of a deductible concept.
In the course of this research, FEMA reviewed a related rulemaking effort that was a contemporary to the 1986 development of the per capita indicator. FEMA had proposed a regulation that sought to establish (1) “capability indicators” for the major disaster declaration decision-making process, (2) a requirement for Governors to make commitments on behalf of their States and local governments to assume a portion of the Public Assistance costs, and (3) a sliding cost-share based on the capability indicators.
1. FEMA did not recognize the efforts and expenditures that States were already committing to disaster response and recovery; and
2. FEMA did not offer sufficient engagement with key stakeholders during the developmental process.
Considering this background, the FEMA working group developed three guiding principles that were designed to control and direct the impact of the deductible concept:
1. Encourage and incentivize risk-informed mitigation strategies on a broad scale, while also recognizing current State activities;
2. Incentivize consistent fiscal planning by all States for disasters and establish mechanisms to better assess State fiscal capacity to respond to disasters; and
3. Ensure the supplemental nature of FEMA assistance.
Through these guiding principles, the working group designed an initial deductible concept that could leverage the Public Assistance program to recognize risk reduction investments that the States were already undertaking and to incentivize risk reduction best practices nationwide as a means to reduce future disaster impacts and costs for the whole community rather than simply transferring response and recovery costs from the Federal government to State and local jurisdictions. The working group also determined further exploration of the deductible concept should be cognizant of the two primary criticisms of FEMA's proposed 1986 rulemaking: The failure to recognize the efforts and expenditures that States were already committing to disaster response and recovery and the insufficient engagement with key stakeholders.
In its 2015 updated response to the GAO recommendations, FEMA presented three options that it planned to continue investigating:
1. Adjust the per capita indicator to better reflect current national and State-specific economic conditions;
2. Develop an improved methodology for considering factors in addition to the per capita indicator; and
3. Implement a State-specific deductible concept for States to satisfy before qualifying for Public Assistance.
After further investigation and consideration of the alternatives, FEMA decided to further develop the deductible concept because of its relationship to Strategic Priority 4 and its potential for reducing risk and disaster costs for the whole community through incentivizing targeted investments. Moving forward, FEMA plans to pursue closeout of the GAO recommendation through development of the deductible concept for the Public Assistance program. However, FEMA will continue to consider alternatives to the deductible concept going forward, including the GAO's recommendation to significantly increase the current per capita indicator as described in Sections III and VI(A).
FEMA issued the ANPRM to introduce the deductible concept with the emergency management community and the public. The ANPRM consisted of basic background information concerning the declarations process and a very high-level overview of a deductible concept. In keeping with the preliminary and developmental state of the concept at that time, the ANPRM offered few specifics concerning the
In all, FEMA received approximately 150 comments on the ANPRM.
FEMA reviewed the comments that were received and incorporated the concerns and suggestions into the potential deductible program presented in this SANPRM. FEMA noted many concerns in the comments regarding how the deductible could be applied, or the burdens, either financial or administrative, that it could create for the States. FEMA addressed these concerns in the design concept. In other cases, it was clear that FEMA had not provided enough background information for commenters to offer practicable suggestions. Some comments may have benefited from FEMA providing additional explanation of the current disaster declaration processes, more specificity regarding the Public Assistance program, and a more expansive description of the deductible concept itself. FEMA concluded that it had not offered sufficient information in the ANPRM to enable the public to fully participate in commenting on all aspects of the concept. Consequently, FEMA is providing the public more detail on its concept for a deductible program in this SANPRM.
Notwithstanding the limitations on specificity in the ANPRM, FEMA received support for the concept as a means by which to achieve the goals of reducing disaster impacts and costs through improved preparedness activities and expanded investments in mitigation and risk reduction. Many commenters pointed out that the deductible program could be a preferred outcome compared to increasing the per capita indicator and the potential transfer of financial responsibility to State and local governments that would result. Some commenters found merit in the deductible concept as a way through which to reduce costs, but also to improve disaster resiliency by investing before an incident and incurring reduced costs related to response and recovery over the long term.
In addition to seeking comment via the ANPRM, FEMA continued to conduct research to inform the design of the deductible concept. FEMA recognizes that establishing the methodology for calculating the deductible in an equitable, accurate, and transparent way is essential to any future deductible proposal. Further, for any approach to sustain the rigors of analytic and economic review, FEMA recognized that it would benefit from leveraging external expertise to better develop a methodology that was defensible and reproducible.
With the assistance of the Department of Homeland Security (DHS) Science and Technology Directorate's Office of University Programs, FEMA contracted with the Center for Risk and the Economic Analysis of Terrorism Events (CREATE), a DHS Center of Excellence, to support development of the deductible calculation. CREATE is known for its experience in hazard assessment research, as well as statistical and economic modeling capabilities. CREATE dedicated a team of research and academic experts to develop a reliable methodology for calculating a deductible that is cognizant of the principles established by the FEMA working group; namely that the proposed formula be reflective of the individual capabilities and risks unique to each State and that the calculus function in a transparent and replicable way utilizing publically available information and data.
FEMA also contracted with a leading emergency management consulting firm to conduct additional research pertinent to developing the deductible. With the assistance of the National Emergency Management Association, this firm reached out to nine States on FEMA's behalf to assist those States with identifying information pertinent to the development of the deductible concept.
Specifically, the consulting firm assisted FEMA with understanding the methods and strategies currently used by these nine States to pay for the costs of emergency management programs, mitigation initiatives, and disaster response and recovery. The firm also researched innovative preparedness programs that the nine States have developed to further encourage planning and resiliency-building, such as tax credit incentive programs for individuals, localities, and State entities.
FEMA primarily used the information it obtained from the consulting firm to estimate baselines of current State investments that FEMA then used to set initial credit approvals at levels likely to encourage additional investment and program growth. FEMA also leveraged the information to assist in preparing targeted outreach efforts during the comment period of the ANRPM, such as those held with the National Governor's Association, the National Association of Counties, the National Emergency Management Association, Big City Emergency Managers, National League of Cities, and the International Association of Emergency Managers. These targeted engagements enabled FEMA to draw attention to the ANPRM, explain the purpose and background of the deductible concept with key stakeholders, and to solicit additional details that could be particularly pertinent to informing FEMA's deductible design considerations.
Following closure of the ANPRM comment period, FEMA compiled the comments received, the research performed by CREATE, and the research on State disaster funding and incentive programs and formulated the potential deductible program concept described in this SANPRM.
FEMA believes that this deductible concept is capable of meaningfully reducing the nation's overall risk profile over time. Calculating a deductible is, however, complex. FEMA also
There is innate uncertainty in the likelihood of disaster events that prevents perfection in a deductible concept and complicates a complete understanding of the complex disaster environment within which the deductible program would operate. However, not unlike the commercial insurance markets, these uncertainties can be quantified and analyzed over geographic areas and over long periods of time with increasing precision. These calculations could be used to approximate the relative exposure of certain regions, in this case the States, to future disaster costs. These estimates could then be reflected in the relative value of a State's deductible.
Arriving at a calculation methodology is thus one of the most critical aspects of moving the deductible program beyond the conceptual stage and requires public comment. FEMA believes that the methodology should be transparent, reproducible, defensible, and equitable. Additionally, FEMA believes that the approach should reflect fundamental purposes of the Stafford Act, namely that the Federal government support those States that are overwhelmed by the response to and recovery from a natural disaster. Therefore, it is most appropriate to calculate each State's deductible based upon the aspects of fiscal capacity and disaster risk that are unique to the State. FEMA could do this through a four-step process: (1) Establishing the base deductible, (2) calculating the fiscal capacity index, (3) calculating the risk index, and (4) normalizing the deductible amounts. FEMA has included a step-by-step table in the rulemaking docket that demonstrates how each State's starting deductible amount was calculated for purposes of this SANPRM. That table and those deductible amounts are included only as an example of how the deductible concept may function. If implemented, the actual deductible amounts will be dictated by the parameters of the proposal ultimately adopted.
As with the rest of the SANPRM all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
FEMA begins its conceptual methodology by establishing an annual base deductible that would be shared nationwide (
As developed by FEMA, the base deductible utilized in this conceptual model is the median average amount of Public Assistance received across all 50 States in the past 17 years.
FEMA believes that this may be a reasonable approach to establishing a base deductible because it would leverage approximately 25 percent of the average amount that FEMA awards in Public Assistance each year to incentivize reducing risk. Based on comments received in response to the ANPRM, FEMA believes that States are already making investments that would offset a portion of this amount through credits. By adjusting each State's base deductible amount to account for its individual risk and fiscal capacity, as described in the subsequent subsections, this approach could yield a meaningful deductible amount for each State, while still providing the greatest incentive to States that have the greatest potential for effectively reducing risk and future disaster costs. FEMA believes this could balance the potential benefits of the disaster deductible program with the need to continue supporting our State partners when disasters exceed their capabilities. See Table 4 for a breakdown of the cumulative and average amount of Public Assistance that each State received from 1999 through 2015.
After establishing this base deductible that is shared by every State, FEMA differentiated the States and ascribed individual deductibles according to each State's relative fiscal capacity and unique disaster risk profile. Fiscal capacity is important because the intent of FEMA's Stafford Act programs, including Public Assistance, is to supplement the capabilities of State and local jurisdictions. Disaster risk is important because it is the primary driver of Public Assistance expenditures and its reduction is the primary purpose of the deductible concept.
Because FEMA is seeking to reduce risk through the deductible, and it is precisely through this risk reduction that the nation could realize the promise of the deductible program in decreasing disaster impacts and costs, FEMA has considered in this calculation prioritizing the risk portion of the deductible calculation by a ratio of 3:1 compared to the fiscal capacity portion. In other words, when a State's base deductible is adjusted, 75 percent of the adjustment results from the State's relative risk profile and the remaining 25 percent stems from the State's relative fiscal capacity.
As with the rest of the SANPRM all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
To calculate a State's relative fiscal capacity, FEMA, with the assistance of CREATE, developed a composite of four individual fiscal capacity indices. FEMA and CREATE considered multiple potential indicators of fiscal capacity. The four indicators selected to
TTR is an annual measure of fiscal capacity calculated by the United States Department of Treasury.
The surplus/deficit and the reserve fund indices operate in similar fashion. In each case, the State's value (surplus/deficit or reserve) is divided by the State's population. That amount is then compared with the per capita value of the median State. This creates indices of relative strength for each.
The surplus/deficit index is built using data provided by the Annual Survey of State Government Finances provided by the United States Census Bureau of the Department of Commerce.
Finally, the bond rating index is similarly calculated by dividing the State's bond rating by the median State's bond rating. In this model, FEMA calculates the bond rating index based upon data provided by the Pew Charitable Trusts from Standard & Poor's State Credit Ratings.
FEMA averaged these four indices of relative fiscal strength into a consolidated fiscal capacity index, each factor being equally weighted. This index accounts for 25 percent of a State's base deductible adjustment. However, FEMA also realized that, due to diversity in economic drivers and varying population sizes, some States may demonstrate a particular fiscal capacity indicator that is a statistical outlier compared with its other factors and the indicators of other States. To minimize the impact of these outliers on the disaster deductible formula, FEMA capped the impact of any individual fiscal capacity indicator at five times the median State's relative strength. In other words, if the median State's per capita reserve fund is $100 and is ascribed a value of 1.0 on the index, a State with an outlier per capita reserve fund value of $800 could be imputed the maximum per capita reserve fund value of $500, and therefore still receive an index value of 5.0, instead of the 8.0 index value that could otherwise be warranted. FEMA capped each fiscal capacity indicators in this way to contain the variability of the overall index and smooth the impact on outlier States.
As with the rest of the SANPRM, all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
FEMA explored multiple leading alternatives for predicting disaster losses. For the model described in this SANPRM, FEMA used an Average Annualized Loss (AAL) methodology for calculating each State's relative disaster risk level.
AAL is a proxy for risk commonly used in risk modeling that considers the expected losses from a particular hazard per year when averaged over many years. Generally, AAL is calculated by multiplying the likelihood of the hazard occurring in a particular year by the likely cost of the event if it does occur. For example, if the likelihood of a hazard occurring is 0.2 percent, such as for a 500-year event, and the likely loss generated by that level of event is $1 billion, the AAL for the hazard in the vulnerable area would be $2 million ($1B x 0.002).
There are numerous sources of AAL data for hazards. Proprietary catastrophic risk models developed by companies such as AIR Worldwide (AIR), Risk Management Solutions (RMS), and CoreLogic (EQECAT) are three primary sources of AAL and risk information used by the reinsurance industry.
Hazus is a nationally applicable standardized methodology that contains models for estimating potential losses from earthquakes, floods, and hurricanes. Hazus uses Geographic Information Systems (GIS) technology to estimate physical, economic, and social impacts of disasters.
FEMA used the Hazus-based AAL estimates to create a simplified risk index for each State. Specifically, FEMA summed the most recently available AAL estimates
FEMA created a composite risk index around the median cumulative AAL. FEMA arranged each State's cumulative AAL (the sum of the State's earthquake, flooding, and hurricane AALs) in order from the largest cumulative AAL to the smallest. Because there is an even number of States, FEMA averaged the cumulative AALs of the States in the 25th and 26th positions to determine the overall median cumulative AAL. FEMA assigned this amount a value of 1.0 and indexed each State's relative cumulative AAL to determine the State's risk index score.
For example, consider a State with the following Hazus-based AALs:
If the median cumulative AAL across all of the States is $1.45 billion, that would be ascribed a score of 1.0 on the risk index, the hypothetical State above would receive a risk index score of 2.0 because its cumulative AAL is twice as large as the median cumulative AAL ($2.9 billion versus $1.45 billion, respectively). For purposes of calculating the State's Public Assistance deductible, the State could be considered to have twice the risk of the median State.
The AALs produced using Hazus vary from State to State depending upon the types of hazards that each State is prone to and the levels of loss that those hazards have the ability to create in those States. Consequently, the per capita cumulative AALs are not evenly distributed across the States and a few States have higher risk index scores because of that. Every State should be assigned a deductible that is reasonable and achievable. In this model, FEMA capped the composite risk index values in a manner similar to the way FEMA capped the components of the fiscal capacity index.
FEMA capped the fiscal capacity components at a value of 5.0. This means that FEMA ignored any computed fiscal capacity that is greater than five times the median State's fiscal capacity for that factor. Because of the overall emphasis on risk, and similar to the deductible formula ratio of 3:1 risk to fiscal capacity, FEMA capped a State's risk index at a score of 15.0. In other words, FEMA ignored any calculated risk that is in excess of 15 times the risk of the median State.
As with the rest of the SANPRM, all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
FEMA used the base deductible, composite risk index, and fiscal capacity index established above to calculate the post-indexed deductible value for each State. As explained previously, 75 percent of the total index adjustment to the base deductible is determined by the State's relative risk profile and the remaining 25 percent is determined by the State's relative fiscal capacity. For the final step in the deductible calculation process, FEMA normalized the post-indexed values to establish each State's final deductible amount. Normalization is a statistical term that can mean different things in different contexts. In the case of the deductible, FEMA uses normalization to mean adjusting the post-indexed values to equal the pre-indexed values overall.
Specifically, FEMA multiplied the base deductible that it established in the first step by 50 to establish the overall deductible ceiling for the 50 States. FEMA then summed all of the post-indexed deductible values of each State. If the sum of these post-indexed values exceeded the deductible ceiling established by the base deductible, FEMA made a downward adjustment to each State's post-indexed deductible so that its final amount remained the same relative to every other State, but so that the sum of all of the States' post-indexed deductibles equaled the base deductible ceiling.
For example, assume that the base deductible is calculated to be $25 million. This is the amount that each State begins with prior to the application of the fiscal capacity index and risk index. FEMA multiplies the base deductible ($25 million) by 50 to calculate the cumulative deductible ceiling for that year. In this case the deductible ceiling would be $1.25 billion for the year ($25 million × 50 = $1.25 billion).
If, after applying the indices to each State's base deductible, the sum of all of the resulting, post-indexed deductibles exceeded the $1.25 billion dollar ceiling, FEMA would normalize the deductible amounts so that the sum of all of them equals $1.25 billion. This would decrease the final deductible amounts of every State, but each State would remain in the same position relative to every other State. If a State had a post-indexed deductible that was twice that of another State that State would still have a final deductible that was twice the deductible of the other State, but both final deductibles would be lower.
Normalization is a common statistical approach for addressing variations that occur when adjustments are made to values through indices of relativity, which both the fiscal capacity and risk index are. This important step could ensure that the Public Assistance deductibles remain rooted in their nexus to the Public Assistance program. This final step, normalization, will establish the Starting Deductible for each state.
As with the rest of the SANPRM, all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
As summarized above, the base deductible will be multiplied by the sum of: 0.75 multiplied by the State's Composite Risk Index and 0.25 multiplied by the State's Composite Fiscal Capacity Index. That calculation establishes an adjusted deductible for each State. FEMA will then normalize the adjusted deductibles to ensure that the total sum of all of the adjusted deductibles equals the sum of the base deductibles. This methodology yields
These deductibles represent FEMA's assessment of each State's fiscal capacity and risk profile as of 2016. FEMA has included a table in the rulemaking docket for this SANPRM that shows every step for each State with regard to how these notional deductibles were calculated for purposes of this concept. These deductibles would be reduced by any credits that FEMA approves for the State pursuant to the annual deductible credit menu. The following section will detail the types of credits that FEMA expects to initially offer.
As with the rest of the SANPRM all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
A potential credit structure could offer States the ability to partially or fully satisfy their deductible in advance of a major disaster declaration. While simply raising the per capita indicator to qualify for Public Assistance would reduce Federal costs, a potential credit structure, if successful, could eventually deliver the true benefits of reduced risk and realized disaster response and recovery cost savings nationwide. FEMA's goal is to design a model credit structure that would create financial and economic incentives for meaningful State investments in preparedness and risk-reduction measures.
FEMA believes that the model credit structure described in this SANPRM would allow every State to earn credits for activities that each would already be undertaking, and also improve risk reduction and resilience building for States that choose to expand those activities. To that end, the deductible model described in this SANPRM includes seven potential categories of credits.
Due to the differences among the credit categories and their likely effects upon reducing risk, each category offers a unique credit-to-cost ratio, and a few have caps to provide States with an opportunity to develop a potentially diverse portfolio of risk reduction strategies.
FEMA would monitor which credits States elect to earn and would continue to refine its credit offerings each year. FEMA would provide an annual notice of credit offerings so that States would have ample opportunity to carefully consider all of their options. FEMA would also continue to engage with the States and with key intergovernmental organizations to ensure that the credit structure is calibrated to provide the right levels of reward to incentivize continuous improvement for each State in the disaster resilience and emergency management contexts.
FEMA recognizes that any additional program could create some additional administrative burden to State and Federal governments. However, FEMA is committed to limiting that burden to successfully carry out the program and ensure that it is applied effectively. The following sections detail the administrative steps and timelines currently envisioned for the program. FEMA has carefully considered both the likely burden and the likely benefit underlying each of the seven credit categories and believes that each category represents potential activities worth pursuing and incentivizing. Each of the seven credit categories received generally favorable support from those who commented on the ANPRM. FEMA seeks additional public input on these categories and on the potential administrative burdens of assembling the supporting information.
A State that has planned for and taken fiscal steps to address the financial impacts of potential disasters ahead of time is better prepared to immediately respond to and to rapidly recover from a major disaster. FEMA recognizes that States use multiple strategies for addressing the financial consequences of a disaster, including: Supplemental State appropriations, issuing recovery bonds, diverting funding from other State programs or cutting State agency operating budgets, and imposing special tax assessments to raise recovery resources. FEMA, however, has also observed that the time required to enact many of these ad-hoc funding strategies can significantly delay a State's ability to rapidly respond to a disaster.
FEMA believes that response and recovery efforts could be improved if the affected States maintain dedicated disaster relief funds. By having this funding available, these States also could potentially obviate the need to reduce or eliminate other planned State services to divert funding to disaster operations and infrastructure repair. For example, a State could divert funding for summer roadway maintenance or improvements to cover debris removal costs following a hurricane or snow removal costs following a major winter storm. States that maintain a dedicated disaster relief fund may be able to more rapidly ameliorate disaster consequences, leverage supplemental Federal assistance programs, and repair public buildings and infrastructure, without diverting funding from other important initiatives.
Furthermore, States without dedicated disaster relief funds could find themselves in the position of incurring new public obligations, or in some cases debt, while simultaneously suffering from the tax losses of disaster-
In order to incentivize States to take the proactive step of establishing and funding a dedicated disaster relief fund in advance, this potential model credit structure includes $1.00 in deductible credit for every $1.00 of State funding that the State has appropriated and deposited in a qualifying disaster relief fund during the course of the previous year. This credit may account for up to 20 percent of the State's annual deductible. Funds that are carried over or that expire and are reappropriated for the same limited purpose could still qualify for the credit.
FEMA received multiple comments during the ANPRM comment period that emphasized that FEMA does not fully understand or appreciate the amount of investment that States already make in emergency management and disaster recovery. Commenters pointed out that for every major disaster declared, that there are multiple smaller incidents that do not rise to the level of warranting supplemental Federal assistance, but nonetheless exceed local capabilities and often require State funding support for response and recovery activities. FEMA seeks to encourage States to continue providing State-level assistance to overwhelmed localities, even when Federal assistance may be unavailable.
Commenters also noted that counties and cities often lack the independent ability to raise the necessary financial resources to address the costs of significant localized impacts. In these cases, the support provide by their State partners is invaluable to ensuring that adequate funding is available to support the response and recovery operations necessary to assist the affected localities and survivors. Additionally, commenters explained that, even following a major disaster declaration, supplemental Federal assistance is typically only made available to the most severely impacted jurisdictions within the affected State. However, there are other communities that are not designated, but nonetheless have experienced damage resulting from the same incident. The commenters postulated that the damage experienced within these non-declared jurisdictions may nevertheless still exceed their individual capacities to effectively respond and recover, necessitating additional support from their State partners. This is, the commenters offered, an additional burden upon the State that the current system of Public Assistance does not recognize or incentivize.
FEMA seeks to preserve and strengthen this important State-local relationship and to incentivize States to continue providing assistance when jurisdictional capabilities are exceeded, regardless of the availability of supplemental Federal assistance. In order to do so, this potential deductible model includes $1.00 in deductible credit for every $1.00 of annual State funding that the State expends to respond and/or recover from an incident that either: (1) Does not receive a Stafford Act declaration or, (2) affects a locality not designated for Public Assistance by a major disaster declaration. In either case, the Governor of the State would be required to declare a State of emergency, or issue a similar proclamation, pursuant to applicable State law. In this model, this credit could account for up to 20 percent of the State's annual deductible.
Integral to any effort to lessen the risks associated with and consequences of disaster is effective mitigation. Mitigation is the act of lessening or avoiding the impacts of a hazard, typically through engineered solutions. The linkage between advanced mitigation and lowering disaster impacts and costs has been demonstrated many times, both through academia and research, and also in practical application.
FEMA provides funding assistance for mitigation projects through several programs, including the Hazard Mitigation Grant Program and the Pre-Disaster Mitigation Grant Program, as well as to mitigation-enhanced restoration projects through the Public Assistance program authorized by Section 406 of the Stafford Act.
This model includes $3.00 in deductible credit for every $1.00 in State spending on qualifying mitigation activities. FEMA will not count State matching funds toward the calculation of the credit, so therefore these State expenditures must be either independent of any other Federal assistance program or must be in excess of the minimum cost-share requirement of any applicable Federal assistance program. For purposes of this credit, FEMA defined qualifying mitigation activities as it does under FEMA's Hazard Mitigation Assistance Guidance.
Due to the importance of incentivizing mitigation activities to the success of the deductible program in reducing future disaster impacts and costs nationwide, FEMA is not currently considering capping the potential mitigation credit that may be earned in this model. In other words, a State could fully satisfy its annual deductible by investing at least one-third of its deductible amount in qualifying mitigation activities each year. This could not only fully satisfy the State's deductible well in advance of any declaration activity, thereby eliminating application of the deductible in the State for that year, but could also deliver the State future savings by reducing the severity or consequences of forthcoming disasters. FEMA also seeks comment specifically on whether incentivizing further spending by State governments using credit mechanisms of mitigation expenditure credits and non-Stafford expenditure credits could potentially dampen or crowd out private mitigation expenditures.
States have choices when it comes to how they elect to address their disaster risks. Some States have chosen to establish dedicated disaster relief funds that can be leveraged to address the costs of disasters without jeopardizing other services and operations. Other States have elected to purchase third-party insurance to cover some of those costs, while others have established self-insurance risk pools to better distribute the risk. Regardless of the choice that is made, FEMA may choose to encourage pre-disaster financial preparedness through the deductible program.
The model FEMA is currently contemplating includes percentage deductible credits for States that elect to utilize insurance policies as a means to address future disaster costs. To qualify for credit, the insurance policy must cover costs related to losses that would otherwise qualify for reimbursement
This model includes credit based on the aggregate limits of applicable State policies, rather than on the premiums paid for coverage. Consequently, FEMA believes that States choosing to insure against future disaster risk would have very large overall limits, even though a particular incident would likely only affect a fraction of the total insured property. For example, if a State maintains $1M policies on 10 facilities across the State, the aggregate limit of the policy coverage is $10M, even though it is unlikely that all 10 facilities will suffer an insured loss at the same time. FEMA believes this could be a reasonable and equitable approach because both the deductible and insurance coverage levels should largely be driven by each State's individual risk profile.
This model includes a potential three-tier incentive structure for insurance coverage based upon multiples of each State's annual deductible amount as follows:
For example, if a State has an annual deductible of $30 million and carries insurance policies on public facilities with an aggregate limit of $3.6 billion, the State could receive a credit equal to 10 percent of its initial deductible, or $3 million. This is because $3.6 billion is 120 times the amount of the State's deductible ($30 million) and is within the range of 100 to 150 times the deductible that FEMA suggests should receive a 10 percent credit. This outcome could be the same whether the State chose to purchase its insurance through third-party insurers or reinsurers or chose to self-insure and self-manage the risk. FEMA could confirm coverage level through the insurance contract or, for self-insurance, through the appropriate State official that the self-insurance fund is actuarially sound up to the $3.6 billion limit. Given the specific goal of incentivizing mitigation, FEMA seeks comment on the inclusion of insurance coverage credits in the deductible model.
The Insurance Services Office, Inc. (ISO), a leading provider of information concerning risk assessment and property and casualty insurance, has explored the relationship of building codes to risk reduction. According to a recent ISO report:
[M]odel building codes have most clearly addressed the hazards associated with wind, earthquake, and fire. Experts maintain that buildings constructed according to the requirements of model building codes suffer fewer losses from those perils. If municipalities adopt and rigorously enforce up-to-date codes, losses from other risks (including man-made perils) may also decrease.
This model includes an escalating credit structure that provides moderate incentive to simply participate in ISO's Building Code Effectiveness Grading Schedule (BCEGS®) program and increasing incentives as States reach higher levels of adoption and enforcement. ISO provides BCEGS® scores for both residential and commercial codes and enforcement, each on an improving scale from 10 to 1. In 2015, over 60 percent of States had BCEGS® scores of 4 or 5 in each category.
The following model incentive structure is based on each State's annual BCEGS® score for both residential and commercial building codes:
This structure could allow States to earn between 4 percent and 40 percent credits based upon their residential and commercial BCEGS® scores. As of 2015, 45 States participate in the BCEGS® program and could have received, at a minimum, the 4 percent credit for doing so under this structure. Based on 2015 scores, the average participating State could receive a 16 percent reduction to their deductible amount. The smallest credit would have been 7 percent and the largest would have been 24 percent. The following chart depicts the number of States per credit level in 2015.
FEMA recognizes that the most effective ways to reduce risk across the entire nation employ a whole-community approach that involves every level of government, the private sector, and the citizenry in taking steps to promote and increase resilience. With that in mind, FEMA included in this model credit to States for tax-incentive programs designed to encourage preparedness or mitigation activities.
For example, a State may offer an income tax credit for elevating homes or host a sales-tax holiday for personal preparedness supplies. FEMA would defer to the States to decide what types of programs would be most successful and appropriate given each State's unique considerations and risks, however the program would still need to maintain a clear nexus with preparedness, mitigation, or resilience building. In some cases, a State may offer a program that incentivizes general preparedness, or it may decide to target a program to a specific hazard, such as the installation of hurricane straps or seismic retrofits to existing building foundations.
Regardless, this model includes credits to States for these types of innovative tax incentive programs. FEMA would allow States to request credit for both the direct costs of the program (administration, advertising, etc.), and for the indirect costs, such as forgone tax revenue. In both cases, FEMA would approve $2.00 in deductible credit for every $1.00 in State funding expended or foregone.
Because FEMA sees this credit as a type of whole-community risk reduction, in this model FEMA is not currently including a cap on this particular credit. In other words, a State with a large enough tax incentivize program(s) could largely offset its deductible by annually foregoing tax revenue, through credits/deductions offered to businesses and/or citizens, equal to half of its deductible amount. FEMA specifically requests comment on the types of tax incentive programs that have a nexus to preparedness and disaster risk reduction and their effectiveness, both in terms of cost effectiveness and outcome effectiveness.
Perhaps the most visible factor in a State's ability to address disasters in the broad sense is the quality of its emergency management program. States have organized their emergency management function in a number of different ways. In some States, emergency management is a standalone office, whereas in other States the function is embedded in a broader public safety or military organization.
The Federal government provides numerous types of assistance to States to develop, maintain, and implement their emergency management programs. At FEMA, assistance is generally available through the Emergency Management Performance Grant Program,
In order to further incentivize States to allocate their own resources to their emergency management enterprises, this model includes a deductible credit for annual State expenditures supporting State emergency management programs beyond any cost-share required by a Federal assistance program or grant. FEMA solicits comments on what types of emergency management enterprises and activities could be eligible for deductible credit within this category and information relating to the current level of State investment in these enterprises and activities.
FEMA includes in this model $1.00 in deductible credit for every $1.00 that a State invests in emergency management beyond the cost-share required by a Federal program. A State could satisfy up to 20 percent of its annual Public Assistance deductible through this credit.
The Emergency Management Accreditation Program (EMAP®) is an independent non-profit organization
This model includes a credit enhancement to States that voluntarily seek and achieve provisional or full EMAP® accreditation. FEMA could increase the credit amount by 5 percent for three credit types for EMAP® accreditation, but specifically seeks comment on the appropriate value of this credit amount. These three credits could be:
1. Dedicated funding for emergency response and recovery activities;
2. expenditures for non-Stafford Act response and recovery activities; and
3. expenditures on State emergency management programs.
Specifically, instead of offering $1.00 in deductible credit for each $1.00 in qualifying State funding and expenditures, FEMA would instead approve $1.05 for each $1.00 in qualifying State funding and expenditures for States maintaining current EMAP® provisional or full accreditation. The credit caps applicable to each credit category would remain unchanged. FEMA believes that applying the credit enhancement in this manner could encourage States to seek and/or maintain EMAP® accreditation and that by doing so, could demonstrate improved readiness to confront the consequences of disasters.
Table 8 provides an overview of the credits that FEMA is envisioning, the amount of credit that could be approved, any cap that FEMA envisions applying, and whether an enhancement is available to the credit.
Based upon the preliminary research discussed above and interviews with key stakeholders and subject matter experts, FEMA believes that every State would receive deductible credit under the preceding credit structure for activities and investments that each State is already undertaking; however, there may be some States that have been able to undertake more credit-qualifying activities than others.
As with the rest of the SANPRM, all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
FEMA has used the information that it has available to estimate the amount of credit that each State might qualify for initially. In many cases, however, FEMA anticipates offering credit for activities for which there is very little information readily available. Where information is lacking, FEMA attempted to use assumptions as to current State activities. For instance, FEMA was unable to identify annual amounts of forgone revenue from a State tax incentive program and thus assumed an amount equal to 1 percent of a State's starting deductible.
Overall, based on this analysis, FEMA anticipates that the average State would receive initial credits worth approximately 40 percent of its first deductible without making any changes to its current spending or activities. Across the States, FEMA expects that these initial credits would range from a minimum of approximately 6 percent to a maximum of approximately 85 percent. Table 9 depicts FEMA's estimates for each State under this model. Specifically, Table 9 indicates each State's applicable model starting deductible, the credit amount from each of the seven categories of credits, the total estimated credits (shown both as a dollar value and percentage of the starting deductible amount), and the model final deductible amount that the State would carry into the new year.
This potential final deductible amount represents what each State would potentially need to satisfy if it experiences a disaster that results in disaster damages that exceed the amount of credits that FEMA has approved. It is the remaining amount that is not offset by the credits that a State has earned.
FEMA is committed to developing a Public Assistance deductible program that is effective, but that also minimizes the cost and administrative burden required of our State partners. FEMA expects to request the minimum amount of information and reporting necessary for the program to be successful. To do this, FEMA's model concept could follow a strict and consistent programmatic schedule throughout the year so that States could have a clear understanding of current and upcoming expectations. FEMA designed this potential model schedule to operate on the calendar year to provide simplicity and standardization across jurisdictions that operate on various iterations of the fiscal year.
As with the rest of the SANPRM all numbers, figures, criteria, timeframes, and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
On August 1 of each year, FEMA could issue an Annual Notice of Public Assistance Deductible Amounts (Annual Notice). This notice could be published in the
Contemporaneously with the issuance of the Annual Notice, FEMA would publish in the
Credit applications could be due to FEMA by September 1 of each year. Because there might be a limited period of about one month to complete the application for deductible credits, it would be important that States assess and account for their past year's activities before the Annual Notice is published or quickly thereafter.
The actual application could be minimal compared to other Federal applications, grant applications in particular. FEMA envisions a simple form in which a State could request the appropriate amount of credit for each credit category, include a brief description of the activity for which the credit is requested, provide the contact information for a subject matter expert that can answer questions about the activity, and affix the signatures of the appropriate State officials.
For example, a State may request $1.5 million in credit for spending $500,000 moving a fire station out of a flood hazard area (mitigation would be credited $3.00:$1.00). Likewise, a State may request a 16 percent reduction for maintaining BCEGS® scores of 5 for both the commercial and residential building code categories. Generally, the State would not need to submit any additional information or supporting documentation to support its request.
FEMA would review the State's submission and make a determination of the amount of deductible credit to be approved. FEMA could actively reach out to the State-identified subject matter expert if any additional information would be needed for purposes of determining whether the activity would qualify for credit. If the activity appeared to qualify, either from the face of the credit application or after consulting with the State subject matter expert, FEMA would approve the appropriate amount of credit up to the credit category cap (for the categories to which a cap applies).
FEMA envisions notifying each State individually by October 1 of the amount of credit approved and the remaining deductible, if any, that would apply during the subsequent calendar year. If FEMA approved any less credit than what the State requested, FEMA would include an explanation of the rationale for the discrepancy. In the case that FEMA did not fully approve the State's credit request, the State could be able to appeal the determination to FEMA. For this model timeline, FEMA envisions appeals of credit determinations would be due by December 1.
Once FEMA has adjudicated any appeals and all credit has been approved, FEMA could issue a notice in the
FEMA believes it is important that for every major disaster, the States receive assistance for emergency protective measures and debris removal. FEMA does not want to delay those essential activities in the immediate aftermath of a disaster incident. Under FEMA's deductible concept, FEMA assistance for debris removal and emergency protective measure projects could follow the normal procedures and receive funding at the applicable cost share for that disaster.
FEMA envisions applying the deductible amount (
If in a given year the affected State has not fully satisfied its annual Public Assistance deductible with the credits that it earned and a major disaster is declared, after the declaration the State would be asked to identify projects that have a preliminary cost estimate (Federal and non-Federal share combined) equal to the unsatisfied deductible amount. With agreement by FEMA as to the preliminary cost estimate, those projects the State selects to satisfy the remaining deductible would be deemed ineligible under Section 406 of the Stafford Act.
After the State satisfies its deductible in any major disaster event, any remaining eligible repair and replacement projects resulting from disasters declared in that year could receive supplemental Federal assistance in accordance with the standard procedures of the Public Assistance program. If there are insufficient projects to satisfy the full remaining deductible requirement, the unsatisfied portion of the deductible could be carried forward to any additional major disasters declared within the State that year. Any deductible that is remaining unsatisfied at the end of the year would expire. Each year could start the deductible cycle anew with regards to the starting deductibles, credits earned, and final deductibles.
If a State has an unsatisfied deductible requirement remaining after a major disaster, and it receives a second major disaster declaration that year, pursuant to this initial version of the deductible concept, the State would be required to identify a project or grouping of projects that have a preliminary cost estimate (Federal and non-Federal share combined) equal to the unsatisfied deductible requirement. With agreement by FEMA as to the preliminary cost estimate, these projects would be deemed ineligible costs pursuant to Section 406 of the Stafford Act. Once the State has satisfied its annual deductible requirement, all eligible costs in subsequent disaster declarations could be processed for reimbursement through standard Public Assistance program procedures.
Consider a State that has a starting deductible of $25 million and has earned credits of $15 million. The State's final deductible would be $10 million. This is the amount that the State would need to satisfy before it can receive permanent repair and replacement assistance. Suppose the State experiences a major disaster that requires $3 million in debris removal and causes $8 million in damage to public infrastructure. FEMA would document the debris removal costs on Project Worksheets and process all of those eligible costs for reimbursement assistance at the applicable disaster cost share, typically 75 percent Federal. The State could be responsible for paying for all of the permanent work repairs because the $8 million in damage is less than the State's $10 million final deductible for that calendar year.
If the State receives a second major disaster declaration in the same calendar year, the State would need to identify $2 million in permanent work to satisfy the deductible remaining after the first disaster. After the deductible is fully met, all additional eligible costs could be documented on Project Worksheets and processed for reimbursement assistance pursuant to the applicable cost share and standard rules and procedures of FEMA's Public Assistance program.
Any deductible amount remaining unsatisfied due to lack of eligible disaster costs at the end of a year would be canceled. For example, consider a State with a starting deductible of $30 million. The State then requests and is granted credits worth $20 million. FEMA notifies the State on January 1 that it has a final deductible amount of $10 million for the following calendar year. The State does not experience any incidents during the calendar year for which the President declares a major disaster. The $10 million final deductible could expire and be cancelled at the end of the calendar year and the State could receive a new final deductible amount for the next year.
FEMA desires for the deductible program to recognize, reward, and incentivize mitigation and resilience building best practices.
As with the rest of the SANPRM all numbers, figures, criteria and processes detailed in this section are notional. They are intended to aid the public in understanding how a potential deductible program could operate and to spur discussion and feedback.
In order to ensure that the program is both effective in truly incentivizing risk reduction and is being continually improved, FEMA would seek to validate a portion of the credits that States are approved each year.
FEMA believes that its analysis will ultimately show that reviewing a sample of credit approvals would be sufficient to ensure the fidelity of the approvals and ultimately, confidence in the credibility of the deductible program. FEMA solicits comment on this
During the validation process, FEMA would review the records and documentation that States maintain to support their credit requests. Every State would likely have different standards for documentation and each credit may require a different type of documentation, none of which FEMA plans to prescribe; however, each State would be responsible for maintaining and providing, upon FEMA's notice of intent to validate a credit, sufficient documentation to reasonably and objectively substantiate the credit approval. FEMA anticipates that States would have to maintain the relevant documentation for at least 5 years. FEMA requests comment from States regarding the capital and startup costs that may be involved in this recordkeeping requirement as well as suggestions for how FEMA may minimize the burden on States to keep this information.
In the event that FEMA is unable to validate a credit award, either because the underlying State activity did not actually qualify for deductible credit or because the State was unable to produce sufficient documentation to objectively validate the credit approval, FEMA would notify the State of its failure to validate the credit. FEMA would detail the applicable requirements of the deductible credit that was approved and specifically why FEMA was unable to validate it.
Once FEMA notifies the State that FEMA was unable to validate a credit, FEMA could permit the State 60 days to appeal the determination. If the State's appeal is denied, FEMA would add any credit approval that could not be validated to the applicable State's deductible amount in the next year. If FEMA was able to validate the credit on appeal, the credit approval would stand and FEMA would make no further inquiry or take any other adverse action. FEMA seeks comment on whether and when further action could be appropriate in the case of a State which has submitted consistently unverifiable credits.
For example, consider a State that has received a credit approval of $3 million for a tax incentive program that allows consumers to purchase hurricane preparedness supplies without paying sales tax during the first weekend of hurricane season each year. In this case, this particular credit has been included within the sample of credit approvals selected for validation. FEMA notifies the State of its intent to validate the credit and requests the necessary supporting documentation. The State is able to produce documentation for $100,000 of qualifying advertising costs and $1.1 million worth of foregone sales tax receipts. Because the credit concept offers a deductible credit at a ratio of $2.00:$1.00 for this credit, FEMA would be able to validate $2.4 million worth of credit. FEMA notifies the State of its failure to validate $600,000 of credit and of FEMA's intent to increase the State's next annual deductible by $600,000 to compensate for the amount of the previous credit approval that FEMA was unable to validate.
In this case, the State appeals the approval and is able to produce documentation of an additional $600,000 in forgone tax receipts from the sales tax holiday. FEMA is now able to validate the entire credit approval and would not add any additional amount to the State's next deductible.
FEMA will gather the suggestions and concerns that have been expressed through the ANPRM and SANPRM and use them to determine whether it can design a deductible concept that achieves FEMA's overall guiding principles, but does so in a way that is both appreciative of and responsive to the needs and concerns of its emergency management partners, particularly the States to which it would apply. If FEMA decides the deductible program has continued merit, FEMA would issue a Notice of Proposed Rulemaking (NPRM) before possibly issuing a final rule. No aspect of the deductible concept would be implemented prior to publishing a final rule in the
Even if a final rule is published, FEMA also recognizes that implementing such a fundamental change would require sufficient time to enable all parties to thoughtfully and strategically adapt to the new structure in the form best befitting each.
Consequently, FEMA would likely not apply any deductible for at least one year following publication of a final rule. Thereafter, FEMA's concept envisions a phased implementation strategy that would make most States responsible for only a partial deductible amount in the beginning of the program and delaying full application of the deductible requirement for most States over a scheduled implementation period.
Specifically, FEMA is considering capping the first year deductible at each State's then-current per capita indicator as determined by FEMA pursuant to 44 CFR 206.48(a)(1). FEMA could then increase each State's deductible by a share of the unapplied deductible, which for the purposes of this model is 50 percent, each year thereafter until the State reaches the full deductible amount. FEMA could recalculate the full deductible amount annually based on the fiscal capacity and risk index methodology described above. Through this method and based on the model FEMA provides in this SANPRM, half of the States could reach their full deductible within 4 years and all of the States could reach their full deductible within 9 years. Two States, Illinois and Colorado, could potentially reach their full deductible in the first year because the contemplated deductible methodology produces deductibles below their current Public Assistance per capita indicators. Figure 2 depicts the application of this implementation strategy over the first 3 years of the deductible program. Figure 3 depicts the number of States that are forecast to reach their full deductible, as calculated in this model, in each year. Table 11 depicts the model starting deductibles for each State in each year based on current calculations.
FEMA believes that this approach would allow States the opportunity to adapt to the deductible concept and to take steps that would earn additional credits and begin to address their future disaster risk, without applying deductibles at levels that would be punitive.
Similar to the phased implementation of the deductible amounts, FEMA envisions a phased application of credits in lockstep to each State's deductible amount. This would be done by applying the credits earned each year in the same proportion of the State's capped deductible to its full deductible. For example, if a State's starting deductible is equal to its full deductible in a given year, FEMA would apply all of the credits earned in that year. However, if because of phased implementation the starting deductible is a lesser amount, for example 25 percent of the full deductible, FEMA would apply the same percentage as a cap to the credits earned, or in this case 25 percent.
Table 12 depicts each State's notional starting deductible for the first 9 years of the deductible program. It also depicts the model final deductibles that FEMA expects would be applied in each year. As described above, these model final deductibles are the model starting deductibles minus the amount of credits that each State earns in that particular year. For the purposes of this model, FEMA has estimated the amount of credit that each State might earn in the first year based on activities that FEMA believes every State is already undertaking. These amounts were depicted in Table 9. To extrapolate into the out years, FEMA assumed that each State would increase the amount of credit earned by 5 percent year-over-year. FEMA then deducted that amount, in proportion of the starting deductible to full deductible as described above, to calculate the model projected final deductible amounts for each State in each of the first 9 years.
These amounts are only estimates, however, and will be affected by many factors, including changes to the base deductible, changes to each State's relative risk or fiscal capacity, the amount of credit each State earns in the first year for activities already underway, and changes to those activities that result in more or less than 5 percent year-over-year credit increases. All shaded values are capped.
Over the course of developing this deductible model, FEMA has considered many alternatives, and selected the attributes that FEMA believes could best achieve the intended outcomes of the program, adhere to the program's guiding principles, and minimize administrative burdens. The options that FEMA has considered included alternatives to specific aspects of the program, such as which credits could be offered or the value that FEMA could approve for those credits, but also included alternatives to the entire deductible concept itself. FEMA believes that the deductible program has the potential to improve the nation's resilience and reduce disaster risk and costs on a broad scale, but FEMA welcomes comment on alternative methodologies for achieving these results.
The following subsections detail a few of the alternatives and options that FEMA is considering in developing its potential deductible program concept. FEMA did not use these alternatives in the model described in this SANPRM, but believes that they demonstrated enough promise that including a brief discussion of each could facilitate improved engagement and transparency in this process.
FEMA has not made a final determination regarding the most appropriate approach moving forward. In addition to the potential deductible model described in this SANPRM, FEMA is still considering the alternatives described below and may consider and pursue other alternatives that may not necessarily be a logical outgrowth of this SANPRM.
FEMA originally began consideration of the deductible concept in the context of repeated calls—by the GAO, DHS OIG, Congress, and others—to change the Public Assistance per capita indicator.
However, recognizing that the status quo is unsustainable in the long term, FEMA has seriously considered adjusting the per capita indicator and may still do so in the future. Increasing the per capita indicator, to include an additional consideration of State fiscal capacity, is the only viable alternative to a deductible that FEMA has identified at this time.
As was explained earlier in this SANPRM, the Public Assistance per capita indicator was initially set in 1986 at $1.00 based upon PCPI. At the time, that amount represented approximately one-hundredth of one percent (0.01% or 0.0001) of PCPI. Had FEMA adjusted the per capita indicator each year so that it maintained its ratio to rising PCPI, more than 70 percent of major disasters between 2005 and 2014 would not have been declared. Additionally, the per capita indicator would have risen to $4.81 for 2016.
Under this alternative FEMA has explored also adjusting the PCPI-adjusted per capita indicator value by the current TTR index for each State.
FEMA believes that the deductible concept has the potential to result in a better outcome for the nation than increasing the per capita indicator as it promotes State investment in risk reduction that will ultimately reduce the financial impact of future disasters.
Compared with the alternative option of linking the Public Assistance per capita indicator to PCPI, the deductible model could deliver financial advantages to the States. These financial advantages could be even greater in the preliminary years over which the full deductible amount is phased in. Table 14 indicates the differences that FEMA expects might occur with each option.
FEMA
In developing this potential deductible concept, FEMA is considering many variations, including simpler ways to calculate the deductible amount, additional fiscal capacity indicators, alternative methodologies to determine relative risk among the States, altering the threshold, and additional possible activities that could be incentivized through the credit structure.
There are many different methods by which FEMA could determine a State's deductible amount, and FEMA has considered the advantages and disadvantages of many options as it developed the potential deductible program. One of the simplest approaches would be to tie each State's Public Assistance deductible amount to its current per capita Public Assistance indicator in some way. Many commenters to the ANPRM remarked that they appreciated the simplicity, understandability, stability, and predictability of the current per capita indicator.
While FEMA appreciates these values, the deductible concept, to be successful, must incentivize greater State resilience to future disasters. It is important, therefore, that the deductible amounts truly represent the States' individual characteristics that are relevant in the disaster context. Overall, FEMA believes that assessing fiscal capacity and relative risk is a better strategy for calculating deductibles than utilizing the current per capita indicator that lacks relevance to either of those gauges.
FEMA considered two additional financial indicators before selecting the four contained in the fiscal capacity index included in this model. Those additional indicators included Total Actual Revenue (TAR),
FEMA believes that TTR, with its broad consideration of potential State revenue resources, was the best of these three indicators. FEMA also appreciated that TTR, as a measure of potential, does not suffer from complications of political choice in TAR or GDP that result from differences between States in State tax obligations and the services for which tax dollars are allocated. Since all three measures were so highly correlated, FEMA selected to include TTR as the preferred metric from this group. The other three fiscal capacity indicators used in the model were less correlated with one another and, consequently, represent a unique measure of State fiscal capacity that FEMA believes should be considered to inform that portion of the deductible calculation.
The model methodology for establishing the risk index utilizes AAL values produced from Hazus to evaluate each State's relative risk level. One feature of the AAL approach is that AAL reflects the total amount of the loss caused by the hazard. This includes losses by individuals, businesses, economic drivers, and insured losses. However, because of limitations in the types of assistance that FEMA provides through the Public Assistance program, there is inherent variability between Hazus-based AAL estimates of overall disaster losses and any impact that reducing these broader disaster losses would have on Public Assistance costs.
FEMA is willing to accept this attribute, however, because the intent of the deductible program is to reduce risk and build resilience to disasters overall. FEMA considers the non-Public Assistance cost reductions that would occur as a result of a deductible program to be ancillary benefits of the program. This is no less true if the indirect Public Assistance reduction benefits are just a fraction of the overall deductible improvements through reduced AALs. FEMA seeks comment on this approach.
One shortcoming of the AAL methodology, at least at present, is that Hazus does not currently produce loss estimates of any kind for severe storms or tornadoes. Overall, these types of incidents account for the most frequently declared major disasters and count for approximately 20 percent of Public Assistance obligations between 2005 and 2014. However, looking below the surface of the classification, FEMA has found that a significant amount of the damage that occurs in a major disaster declared for severe storms is actually caused by flooding. Consequently, just a small percentage of major disasters are actually issued for damage from storms that do not include some flooding. These would include damage resulting from wind (tornado, derecho, microburst, etc.), hail, or winter storms.
Nevertheless, it is likely that the AAL-based approach to calculating the risk index will somewhat undervalue the risk to locals that are particularly prone to these types of incidents, such as the Midwest for tornadoes and the Northeast for snow and ice storms. FEMA plans to continue seeking ways to improve the Hazus model and expand the modeling capabilities through AAL estimates, but it also acknowledges this particular limitation of the current approach. FEMA is soliciting comment on ways to potentially overcome these limitations in the Hazus model.
FEMA also considered a completely different approach to assessing a State's relative risk that looks specifically at the likelihood that a State will require Public Assistance and the amount of assistance that will likely be needed. FEMA engaged CREATE to assist in the statistical and economic aspects of designing the deductible concept. CREATE produced an alternative approach for modeling risk using historical Public Assistance obligations to estimate States' risk. Essentially, CREATE has developed a methodology for modeling the likely amounts of Public Assistance that every State will require by leveraging historical Public Assistance levels to forecast potential future need.
Specifically, the CREATE model utilizes Public Assistance data from 1999 to 2015 (the broadest range for which reliable data is available). CREATE's model assumes that both the magnitude and frequency of disasters are random variables while
CREATE's approach advanced FEMA's ability to forecast Public Assistance requirements. However, FEMA is considering using the Hazus-based AAL methodology for establishing each State's score on the risk index instead for a number of reasons.
First, FEMA was concerned with the small quantity of data that it was able to offer to CREATE and upon which CREATE relied to build its model. FEMA could only provide reliable data for 17 years' worth of Public Assistance. FEMA was concerned that this dataset was of insufficient length to form the basis for establishing long-term forecast trends for the Public Assistance program. Some types of disasters, in some areas occur on 100-year, 500-year, 1,000-year, or even longer cycles. It is likely that FEMA's 17-year dataset is insufficient to capture these types of events. This is particularly true of rare but devastating hazards, such as major earthquakes. Conversely, States that have happened to experience a major disaster in the past 17 years may have their relative risk overstated by this dataset compared to what may be expected from a longer-term trend.
Likewise, it is also likely that the Public Assistance dataset will include incidents that are unlikely to occur again in the near future and that may be skewing the data. The costs associated with Hurricane Katrina is an example of this possibility. While the chances of the Gulf Coast being struck by a moderate to major hurricane in the coming years are reasonable, the likelihood that it will cause the level of destruction as Hurricane Katrina is much lower. This is because a significant portion of the costs from Katrina stemmed from the flooding that resulted from failure of the water management and levee systems in New Orleans, Louisiana. Following extensive improvements to those systems over the past decade, a hurricane of similar intensity to Katrina might not cause the same level of damage to public facilities and infrastructure today.
FEMA was also concerned that because the CREATE approach is novel, it might not engender the same level of public confidence as the AAL-based methodology. AAL estimates are used by many organizations within the risk management and insurance industries and are generally accepted and defensible approaches to modeling future hazard costs. Additionally, FEMA expects that many within the emergency management community will be familiar with Hazus and the capabilities of that platform. Hazus data is openly available and FEMA values the transparency and reproducibility that use of the existing Hazus platform offers to the deductible methodology.
Finally, FEMA believes that utilizing Hazus-based AALs will offer benefits to other programs as well by creating a significant use of the Hazus platform. FEMA will enjoy an efficiency by leveraging an existing platform instead of designing and constructing a new one. Additionally, because the deductible program has the potential to become a major consumer of Hazus outputs, it increases the value of the Hazus platform to FEMA and to the nation. This likely would lead to future updates and improvements to Hazus capabilities that would benefit not only the deductible program, but also all other users of Hazus products. However, FEMA certainly welcomes comment on the use of Hazus data, and AALs generally, and their application to formulating a risk-informed deductible calculation.
In deciding between the Hazus-based AAL approach and the CREATE historical Public Assistance approach, FEMA decided that the former was the better option to incorporate as the risk index into the broader potential deductible formula. FEMA believes that the advantages of using the Hazus-based AAL approach described above outweigh the disadvantages of slightly lessening the risk assessment portion of the deductible methodology's strict nexus to the Public Assistance program. In other words, FEMA believes that taking a more expansive view of risk through use of Hazus-based AALs, which include costs not typically associated with the Public Assistance program, is acceptable given the intent of the deductible concept is to reduce risk nationally.
FEMA carefully considered the credits included in the model described in this SANPRM. FEMA attempted to offer a menu of credits that cover a range of activities and that would support a diversified approach to risk reduction and improved preparedness. FEMA intended each model credit to independently contribute to those outcomes, but also to work within the broader system to create a cohesive structure of achievable progress for all States.
When developing the model credit offerings, FEMA considered other credits as well. These credits were not ultimately selected for the model for a variety of reasons. In some cases, the credit was too complicated or could create an unreasonable burden upon the State or FEMA to administer. In other cases, the ability of the credit to actually reduce risk or improve resilience was dubious. Ultimately, FEMA believes it included in the model the best mix of credits available from what it considered.
One credit in particular that FEMA considered at length would have been tied to FEMA's Community Rating System (CRS). Many of the comments that FEMA received from stakeholders when it published the ANPRM suggested that FEMA should offer deductible credit for CRS participation. CRS is a program administered by FEMA's National Flood Insurance Program (NFIP). The NFIP provides federally-backed flood insurance within communities that enact and enforce floodplain regulations. FEMA recognizes that CRS is an important program that incentivizes important floodplain management activities, many of which mirror or support activities that FEMA is looking to incentivize through deductible credits, and that inclusion as a separate credit could further incentivize those activities. At this point, however, as discussed below, FEMA does not believe that inclusion of CRS as a credit is appropriate at this time.
A structure must be located within an NFIP community to be eligible for federally-backed NFIP coverage. NFIP communities may also elect to participate in the CRS program to receive a percentile reduction to the premiums for every NFIP policy within the community. As of October 2015, 1,368 of the 21,600 NFIP communities have chosen to participate in the CRS program. This provides discounted flood insurance premiums to nearly 3.8 million policyholders.
The CRS classifies each participating community on a scale from 10 to 1 based on multiple scoring criteria relating to floodplain management, investments, and enforcement. Each CRS class receives a corresponding percentile reduction to the premiums of all of the NFIP flood insurance policies covering property within those communities. The lower the community's CRS class, the larger the
As of October 2015, more than 50 percent of CRS communities were assigned to either class 8 or 9. Less than 1 percent of CRS communities have reached beyond class 5. Figure 4 depicts the number of communities in each CRS class (as of October 2015).
FEMA examined multiple ways by which it could potentially include such a credit in the deductible model. The major problem with creating a deductible credit in this instance is that the CRS program is administered exclusively at the community level, and FEMA has never produced statewide CRS scores. FEMA would need to be able to translate participating community classes into statewide scores for purposes of the deductible. In considering the credit, FEMA developed a basic framework for how this process might work.
FEMA has considered calculating statewide CRS scores by utilizing population-weighted averages of the participating communities' CRS classes compared to the statewide population. FEMA would multiply the population of each CRS community by its assigned CRS class. FEMA would then add all of those values together and divide by the population of the State. The resulting number would then be subtracted from 9, the lowest class for which credit would be offered, to derive the statewide CRS score.
Consider for example the State of Iowa. As of October 2015, Iowa had seven CRS communities. Those communities are as follows:
FEMA
Ultimately, FEMA decided not to include a model CRS deductible credit in this SANPRM for three reasons. First, FEMA believes that the flood insurance premium reductions should sufficiently incentivize NFIP communities to participate or better their standing within the CRS program. Second, FEMA would need to develop a new methodology for creating statewide CRS classes. This would be a novel undertaking for FEMA and the agency seeks comment from its State partners and the public regarding this endeavor. Furthermore, creating such a methodology is complicated because CRS communities are not necessarily the same as census-based communities, meaning that population numbers will need to be validated on a community-by-community basis for the calculation. Finally, even if FEMA does create a methodology for statewide CRS scores, FEMA is concerned that doing so would be confusing to stakeholders because FEMA would not be offering any NFIP insurance premium discounts for those scores. In other words, if a statewide score is better than a particular NFIP community's CRS class, there may be an expectation that FEMA would use the statewide score in place of the community's CRS Class. In fact, FEMA would not be willing to use the statewide score in lieu of the community score for purposes of granting NFIP premium discounts and FEMA believes that the creation of statewide CRS scores solely for the purposes of the deductible program would be confusing, and ultimately disappointing, to some CRS communities and NFIP policyholders.
FEMA administers the Public Assistance program pursuant to the President's statutory authority conferred in Section 406 of the Stafford Act to “make contributions—(A) to a State or local government for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster and for associated expenses incurred by the government.”
“Eligible” is a term of qualification indicating that not all resultant costs are automatically reimbursable. Because the Stafford Act does not define “eligible costs” within the text of the law itself, it is within FEMA's discretion to define the term for purposes of its programs authorized pursuant to that provision. FEMA has, through regulation and policy, leveraged its discretion to determine which disaster costs are “eligible.” For purposes of the deductible program, FEMA is considering revising its regulations and policies to reflect a determination that disaster costs that cumulatively fall below the amount of the State's annual deductible, as adjusted by its earned credits, are not “eligible costs” as defined by the Stafford Act.
The concept for a deductible program responds to calls for FEMA to address the increasing frequency of disaster declarations, particularly smaller events that should be within the capacity of State and local governments, and to decrease Federal disaster costs. While increasing the per capita indicator is one way to accomplish this, solely through the transfer of costs from the Federal government to State and local jurisdictions, FEMA believes that doing so would miss a valuable opportunity to increase the nation's overall disaster resilience, thereby reducing costs for all stakeholders.
While FEMA seeks comment on all aspects of the deductible concept, in particular FEMA seeks detailed comment and supporting data on the methodology for calculating each State's deductible amount, including how FEMA should consider each State's individual risk and fiscal capacity; and on whether FEMA's estimates of projected credits for each State are accurate. Detailed stakeholder comment and supporting data are crucial to FEMA's development of a fair and transparent means to calculate deductible amounts and creation of an effective and efficient deductible program.
Office of Inspector General (OIG), HHS.
Final rule.
This final rule amends the regulations relating to exclusion authorities under the authority of the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS or the Department). The final rule incorporates statutory changes, early reinstatement provisions, and policy changes, and clarifies existing regulatory provisions.
These regulations are effective on February 13, 2017.
Patrice Drew, Office of Regulatory Affairs, 202–619–1368; Susan Gillin, Office of Counsel to the Inspector General, 202–619–1306.
The Affordable Care Act of 2010 (the Patient Protection and Affordable Care Act, Public Law 111–148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111–152, 124 Stat. 1029 (2010)) (ACA) expanded the Secretary's authority to exclude various individuals and entities from participation in Federal health care programs under section 1128 of the Social Security Act (Act). The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) amended the Secretary's authority to waive certain exclusions under section 1128 of the Act. The Secretary's authority under section 1128 of the Act has been delegated to the Department's Office of Inspector General. The changes in this Final Rule were proposed at 79
The legal authority for this regulatory action is found in the Act, as amended by MMA and ACA. The legal authority for the proposed changes is listed by the parts of Title 42 of the Code of Federal Regulations (CFR) that we propose to modify:
On May 9, 2014, we published a proposed rule (79 FR 26810) addressing new and revised exclusion authorities in accordance with ACA and MMA, as well as a number of proposed technical, policy, and clarifying changes to 42 CFR 1000, 1001, 1002, and 1006. We received 19 comments on the May 9, 2014, proposed rule. Commenters included industry associations and organizations, beneficiary and other advocacy groups, and health insurance plans. The commenters generally supported our proposals. Set forth below is a brief summary of the regulatory provisions contained in that proposed rule.
The proposed regulation made a number of technical changes to the definitions found in section 1000.10 of the regulations. These included changes to the definitions of “Directly,” “Furnished,” and “Indirectly” that would more clearly incorporate newer payment methodologies into these definitions. The proposed regulation also moved numerous definitions from parts 1001 and 1003 into part 1000 to make them applicable to the entire subchapter and to consolidate the definitions in the subchapter. Lastly, it removed definitions that were specific to Medicare and Medicaid from sections 1000.20 and 1000.30 because those definitions are not applicable to OIG's authorities.
The proposed regulation reflected the expansion of OIG's exclusion authority in MMA and ACA and also proposed numerous technical and policy changes. First, ACA expanded the permissive exclusion authority found in section 1128(b)(2) of the Act to reach all individuals and entities who were convicted for the interference with or obstruction of both investigations and audits related to the use of funds received from a Federal health care program. Next, the proposal reflected an expansion of the permissive exclusion authority found in section 1128(b)(11) of the Act. After ACA, section 1128(b)(11) of the Act provides for exclusion of any individual or entity furnishing, ordering,
Third, ACA added a permissive exclusion authority at section 1128(b)(16) of the Act for knowingly making or causing to be made any false statement, omission, or misrepresentation of material fact in any application, agreement, bid, or contract to participate or enroll as a provider of services or supplier under a Federal health care program. The proposed regulation corresponding to this authority, at § 1001.1751 (in the final rule as § 1001.1552), proposed to describe the sources OIG will consider in determining whether section 1128(b)(16) of the Act applies, including information from the Centers for Medicare and Medicaid Services, State Medicaid agencies, fiscal agents or contractors, private insurance companies, State or local licensing or certification authorities, and law enforcement agencies.
Lastly, in § 1001.1801 the proposal reflected the expansion of OIG's authority to grant waivers of certain exclusions in accordance with ACA and MMA. MMA amended the Act to allow waiver requests to come from administrators of Federal health care programs, rather than just State health care programs, and to apply OIG's waiver authority to sections 1128(a)(3) and (a)(4) of the Act as well as section 1128(a)(1) of the Act. ACA further amended section 1128 of the Act to allow an administrator to request a waiver if the administrator determines that the exclusion would impose a hardship on any beneficiary. The proposal reflected both MMA's and ACA's changes.
The proposed regulation also included numerous changes that reflect OIG's policies and practices. We proposed to narrow the scope of providers excluded under sections 1128(a)(4) and (b)(3) for convictions related to controlled substances to those who were convicted for offenses that occurred during the time they were employed in the health care industry.
We also proposed to add a process for early reinstatement where a health care license has been lost and has not been reinstated, which included numerous factors that OIG would consider under such a process. We proposed to include a provision at § 1001.901(c) stating that no period of limitations exists with respect to exclusions under section 1128(b)(7) of the Act. We proposed to add loan repayment programs as the bases for exclusions under section 1128(b)(14) of the Act. We proposed to expand the “pay the first claim rule” to Parts C and D of Medicare. We proposed to give individuals and entities excluded under new section 1128(b)(16) of the Act the right to an oral argument in front of an OIG official prior to exclusion, and we proposed to remove the requirement that OIG send a notice of intent to exclude in cases under section 1128(b)(7) of the Act.
The proposed regulation also made numerous technical and clarifying changes. We proposed reorganizing § 1001.1001 to clarify the authority and to move all the definitions in § 1001.1001 to § 1001.2. This proposal would also create a new definition of “ownership or control interest,” which mirrors existing regulatory language at § 1001.1001(a)(1)(ii). Next, we proposed separating the two concepts in the aggravating factor related to “Other Offenses and Adverse Actions” to clarify that the first portion relates to additional convictions, and the second portion relates to adverse actions by government agencies and boards.
We also proposed revising the language requiring that individuals convicted of previous offenses be excluded for a longer minimum period to reflect the statutory language, which considers “previous” convictions instead of “other” convictions. We proposed to revise the language related to immediate access requirements to include technical clarifications and access to electronically stored documents under the Inspector General Reform Act of 2008.
Lastly, we proposed a clarification to the regulation pertaining to exclusions under section 1128(b)(15) of the Act that would state that the length of an individual's exclusion under section 1128(b)(15) of the Act is the same length as the exclusion of an excluded entity on which the individual's exclusion is based.
The proposed rule included several clarifying and technical changes, including clarifying Medicaid agencies' right to refuse to enter into a provider agreement because of a criminal conviction related to any Federal health care program, renumbering certain sections, changing headings, adding clarifying language to the section describing payment prohibitions, and clarifying circumstances for exclusion of managed care entities that are related to sanctioned entities.
Consistent with ACA, the proposed regulation reflected OIG's new authority to issue testimonial subpoenas in investigations of potential cases involving the exclusions statute.
In response to the Notice of Proposed Rulemaking, OIG received 19 filed public comments from various health care providers and organizations, professional medical societies and organizations, and other interested parties. In the next section below, we address the comments we received to particular proposals. The final rule makes certain non-substantive technical changes that were not included in the proposed rule. First, the final rule implements a reorganization of certain subparts of part 1001. Specifically, § 1001.1051, which corresponds to the exclusion authority found at section 1128(b)(15) of the Act, is moved to new § 1001.1551, after § 1001.1501. The new exclusion authority in section 1128(b)(16), which was proposed at § 1001.1751, is moved to new § 1001.1552. These changes were made to put the regulatory authorities in the same order as the underlying exclusion authorities in section 1128 of the Act. Because of the non-substantive nature of these changes, we believe it is appropriate to include them in this final rule.
Next, the final rule moves the definition of “Federal health care program” from § 1001.2 to § 1000.10. The final rule also modifies the definition slightly to mirror the statutory definition in section 1128B(f) of the Act. While these changes were not proposed, they are technical corrections only and do not change the meaning or effect of the regulations. The final rule's definition of Federal health care program mirrors the statutory definition of the phrase and varies only grammatically from the prior regulatory definition (we changed “providing health care benefits” to “provides health benefits” and, because we believe our regulatory definition unintentionally did not mirror the statutory definition, we changed it from “whether directly through insurance or otherwise” to “whether directly, through insurance, or otherwise”). OIG has always interpreted this phrase according to the statutory definition at section 1128B(f) of the Act.
The reason we are moving the definition of Federal health care program from part 1001 to part 1000 is to reflect the statute and OIG's existing regulatory interpretation that this definition applies throughout Chapter V of Title 42, wherever the term may appear. The term “Federal health care program” appears only in parts 1001 and 1003. Part 1003 sometimes refers to the statutory definition (see § 1003.101), and sometimes does not (see § 1003.102(a)(3), (a)(15)). The move clarifies that one definition, mirroring the statute, applies to both part 1001 and part 1003, but does not change the meaning of any provision in Chapter V.
The final rule also spells out “civil money penalties” in § 1001.1001(a)(2), replacing an instance of the term “CMPs.” This change does not affect the substance of § 1001.1001.
Others highlighted that although the preamble discussed this proposal with respect to all exclusions under section 1128(b)(7) of the Act, the proposed regulatory text only included this language for exclusions pursued under 42 CFR 1001.901 and not for those pursued under 42 CFR 1001.951. Some commenters were concerned that the proposed clarification regarding the limitations period would create an administrative burden because they felt
The proposal was based on the plain language and purpose of section 1128 of the Act and its interaction with the False Claims Act (FCA), the Federal Government's primary civil remedy for health care fraud. Section 1128, which includes no period of limitations, authorizes exclusions as prospective remedial actions to protect Federal health care programs and their beneficiaries from untrustworthy individuals and entities. Almost every Federal health care program fraud actionable under the FCA can also form the basis for exclusion under section 1128(b)(7) of the Act. Because of the volume of health care FCA cases, most of which are qui tam matters initiated by private parties on behalf of the Government, most section 1128(b)(7) matters considered by OIG are related to FCA cases. The FCA allows for complaints to be filed up to 10 years after the conduct. The filing of the qui tam complaint stops the running of the FCA statute of limitations and allows the Government to investigate the FCA allegations without the risk of losing any civil claims based on time. OIG closely coordinates with DOJ and generally considers and resolves exclusions in conjunction with FCA settlements. Because many FCA cases are not resolved until many years after the claims at issue, any limitations period on section 1128(b)(7) exclusions may force OIG to either initiate administrative proceedings while the FCA matter is proceeding or lose the ability to protect the programs and beneficiaries through an exclusion. Litigating FCA and exclusion actions on parallel tracks wastes Government (both administrative and judicial) and private resources.
We believe we should administer the section 1128(b)(7) exclusion authority in a way that protects the programs and beneficiaries while reducing the risk of wasting resources. We also recognize that older conduct is less relevant to current trustworthiness. We have balanced the commenters' concerns with our policy goal of protecting Federal health care programs and beneficiaries and OIG's experience administering the exclusion statute. We have chosen to adopt a 10-year limitations period for exclusions initiated under 42 CFR 1001.901 or 42 CFR 1001.951.
The 10-year limitations period addresses the commenters' concerns about administrative burden and courts' historical favoring of an enumerated limitations period. Providing for a 10-year limitations period for exclusion under section 1128(b)(7) of the Act will better align the resolution of FCA and section 1128(b)(7) remedies. The FCA allows the filing of an action up to 10 years after the conduct. Once an FCA action is filed by a qui tam relator or the Government, the FCA statute of limitations is tolled while the Government investigates the matter through any resulting litigation. Based on past experience, we expect to still confront situations in which FCA litigation is ongoing as we are forced to either initiate an exclusion or lose the ability to bring such an action; such situations will be less frequent with a 10-year period than with a shorter period. The 10-year period is grounded in the FCA period of limitations, provides certainty to the industry, and better protects OIG's ability to protect the programs and individuals from untrustworthy persons identified in FCA cases or otherwise.
When determining whether to seek exclusion of a defendant in an FCA case, OIG considers factors that cannot be determined until the case is resolved. In litigated FCA cases, OIG is in the best position to consider exclusion after there is a judgment, which will either provide a strong basis for exclusion (if the judgment is in favor of the Government) or make an exclusion case difficult or impossible (if the judgment is in favor of the defendant). When a case settles, OIG can consider all the relevant factors, including the defendant's willingness to agree to appropriate compliance terms, when determining whether to seek exclusion. A longer limitations period will better allow OIG to consider all of the relevant factors before making an exclusion decision and expand the number of cases in which resolution of an FCA matter will not occur after OIG's period of limitations has ended. The 10-year limitations period will also reduce the risk of OIG litigating an exclusion action while FCA litigation is pending. In OIG's experience, it is difficult for all parties when two sets of concurrent litigation are ongoing. A 10-year limitations period will allow for conservation of both Government and private resources in these instances.
We believe that recent acts are more indicative of trustworthiness than acts in the distant past. However, in our experience, exclusion can be necessary to protect the Federal health care programs even when the conduct is up to 10 years old. We intend to exercise this authority to preserve our ability to protect the programs when it is impracticable for OIG to pursue exclusion closer in time to the fraudulent conduct. A 10-year limitations period balances the need to provide the defendant certainty and also allow OIG to adequately evaluate exclusion in light of the fraudulent conduct.
As commenters noted, OIG provided notice of the relevant changes to exclusions under 1128(b)(7) of the Act but inadvertently provided only a text change for 42 CFR 1001.901. We have updated the final rule to add the relevant language to both 42 CFR 1001.901 and 42 CFR 1001.951. Commenters' concerns about the length of the limitations period in 42 CFR 1001.901 are equally applicable to 42 CFR 1001.951, and we have considered those concerns in the context of both sections.
Some commenters suggested that OIG toll its statute of limitations in situations where certain conduct would lead to exclusion but OIG has not learned of the conduct until years after the conduct. We have used tolling agreements in certain appropriate matters and will continue to do so where it is needed to preserve our ability to protect the Federal health care programs. However, we do not believe that OIG seeking a tolling agreement in specific cases is an efficient way to preserve OIG's authorities in these cases. As mentioned above, the Government's FCA remedies are tolled with the filing of a complaint. The complaint does not toll OIG's exclusion remedy. Given the volume of FCA complaints that are being investigated at any point in time, it would be inefficient for OIG to seek to negotiate a tolling agreement in each of these cases. In addition, a defendant who is litigating with the United States is unlikely to agree to toll OIG's authorities. A defendant's refusal to agree to toll the statute of limitations leaves OIG in the position of having to choose between (i) filing a concurrent action while the United States is in FCA litigation or (ii) losing the ability to protect the programs and beneficiaries through an exclusion. Therefore, we do not believe that seeking individual tolling agreements applicable to
We believe the plain meaning of the words “request” and “receive” can be applied in this context without undue confusion. Funds are requested and received in many different forms from Federal health care programs, and the breadth of these terms is necessary to include current and potential future payment methodologies.
The terms include payment methodologies that have been implemented in the years since the regulations were last amended. By way of example only, some new payment models involve Federal health care programs issuing shared savings payments or performance-based payments (
Over time, more Federal health care program payments for items and services furnished to its beneficiaries are not directly connected to submitted fee-for-service claims. The regulation should clearly encompass such circumstances within the reach of the exclusion remedy. In applying its authorities, OIG carefully considers all relevant facts and circumstances in each case before taking action.
We referenced the False Claims Act's broad definition of “claim” to illustrate that other sections of the United States Code recognize that payment from the Federal Government is requested in many different ways. The statutory intent of recent amendments to that act apply its penalties without limitations imposed by changing payment methodologies. The FCA now extends to a broader category of payment methodologies and fraud schemes than it did prior to its amendment. Because the underlying conduct triggering an exclusion action is comparable to that pursued under the FCA, it would be incongruous to limit the exclusion statute's reach to outdated payment methodologies and not extend it to newer fraud schemes.
We did not receive comments on this proposal, which would have removed the aggravating and mitigating factors related to exclusions imposed under sections 1128(b)(4) and 1128(b)(5) of the Act. The reasoning for the proposal was that the lengths of these exclusions are consistent with the periods of suspension or exclusion by the licensing boards and health care programs. However, we have reconsidered this proposal and now believe that it is appropriate, in some cases, for OIG to impose longer or shorter periods of exclusion than the license suspension or revocation periods, or the health care program exclusions, based on aggravating and mitigating factors that may be present. For this reason, we are not including this proposal in the final rule.
While unlicensed individuals employed in health care settings can have a significant impact on the programs and beneficiaries, we believe that, if all the other factors weigh in favor of reinstatement, 3 years is a sufficient presumption given the 3-year benchmark exclusion period for some other permissive exclusions, including those based on criminal convictions.
We proposed numerous factors related to OIG's consideration of the facts surrounding the action or lack of action by a second licensing authority, and this additional factor is consistent with these proposed factors. Moreover, OIG already has the discretion to consider the primary place of practice of an applicant based on other factors in the regulation, such as the benefits and risks to the programs of early reinstatement, evidence that the second licensing authority was aware of the circumstances surrounding the basis for the exclusion, and the circumstances that formed the basis for the exclusion. Therefore, the addition of this factor does not change what OIG is already able to consider under the regulations, but instead provides transparency for members of the public who may want to apply for early reinstatement.
All Federal agencies, including OIG, are required by the Federal Information Security Management Act of 2002 (FISMA; 44 U.S.C. 3541
The nature and circumstances of the false statement are facts that OIG would necessarily consider in determining whether the conduct had actual or potential repercussions. Under this new factor, OIG will consider, among other things, how, when, why, to whom, and by whom the statement was made.
The second new factor, whether any payments were requested or received, similarly informs whether there were actual or potential repercussions of the conduct; if no payments were made, a shorter exclusion length may be appropriate.
However, we do not agree that the commenter's other suggested factors are
We do not believe that the amount of control a provider had over a third party in the enrollment process is relevant to the length of the exclusion. Whether a provider had control over the actions of a third party engaged to assist in completing an enrollment application, agreement, bid, or contract to participate in a Federal health care program will inform the analysis of whether the false statement was made knowingly. OIG will carefully consider all the circumstances surrounding the false statement before taking action under section 1128(b)(16).
Lastly, we will not consider whether the provider furnished medically necessary services, because it is not relevant to the misconduct of making a false statement on an enrollment application. We instead focus on the egregiousness of the conduct, relevant past behavior, and the potential impact of the false statement.
We provide the following list of factors, which closely track and respond to comments we received.
(d) Length of exclusion. In determining the length of an exclusion imposed in accordance with this section, the OIG will consider the following factors:
(1) The nature and circumstances surrounding the false statement;
(2) Whether and to what extent payments were requested or received from the Federal health care program under the application, agreement, bid, or contract on which the false statement, omission, or misrepresentation was made; and
(3) Whether the individual or entity has a documented history of criminal, civil, or administrative wrongdoing.
We have made some clarifying changes in the final rule from the proposal. The regulations require that three notices be sent to potential defendants: a notice of intent to exclude under § 1001.2001, a notice of exclusion under § 1001.2002, and a notice of proposal to exclude under § 1001.2003. The final rule removes the requirements for both the notice of intent to exclude and the notice of exclusion.
This change eliminates an ambiguity as to when an exclusion goes into effect under these notice requirements. Specifically, § 1001.2003(a) states that an exclusion under section 1128(b)(7) of the Act goes into effect 60 days after the receipt of the notice of proposal to exclude unless appealed. Section 1001.2003(b)(1), however, also requires OIG to send a notice of exclusion as described in § 1001.2002 if the individual or entity does not request a hearing within 60 days. The regulations under § 1001.2002 indicate that an exclusion will go into effect 20 days from the date of the notice of exclusion. Although our longstanding policy has been to read these regulations together so that the exclusion, if it was not appealed, goes into effect on the earlier of the two dates, the final rule clarifies the language to state that a proposed exclusion under section 1128(b)(7) of the Act becomes effective, if not appealed, 60 days of the date of the Notice of Proposal to Exclude.
In addition, as we stated in the proposed rule, it has been and remains OIG's practice and policy to send notices under part 1001 by regular mail.
We have examined the impact of this final rule as required by Executive Order 12866, the Regulatory Flexibility Act (RFA) of 1980; the Unfunded Mandates Reform Act of 1995; and Executive Order 13132.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulations are necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866. A regulatory impact analysis must be prepared for major rules with economically significant effects,
This final rule will implement new statutory provisions, including new exclusion authorities. It is also designed to clarify the intent of existing statutory requirements and promote transparency by publishing OIG policies. The vast majority of providers and Federal health care programs will be minimally impacted, if at all, by these revisions. The changes to the exclusion regulations will have little economic impact. On average, OIG excludes approximately 3,500 health care providers per year. Historically, fewer than 10 waivers of exclusion have been granted in any given year, and fewer than two formal proceedings for affirmative exclusion cases have been initiated. Thus, we believe that any aggregate economic effect of the exclusion regulatory provisions will be minimal. Additionally, over the past 3 fiscal years, OIG has on average returned approximately $16.6 million per year to the Medicare Trust Fund. This return falls under the $100 million threshold. Accordingly, we believe that the likely aggregate economic effect of these regulations will be significantly less than $100 million.
The RFA and the Small Business Regulatory Enforcement and Fairness Act of 1996, which amended the RFA, require agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and Government agencies. Most providers are considered small entities by having revenues of $5 million to $25 million or less in any 1 year. For purposes of the RFA, most physicians and suppliers are considered small entities.
The aggregate economic impact of the exclusion provisions on small entities will be minimal. The rule directly impacts small entities that may be excluded by clarifying how OIG determines exclusion lengths, waivers, reinstatement, and affirmative exclusion. It also codifies exclusion authorities added to section 1128 of the Act by MMA and ACA, adding clarity for members of the health care community regarding the scope of OIG's actions. Because the rule adds transparency to OIG's process and implements exclusion authorities designed to protect Federal health care programs and their beneficiaries from untrustworthy individuals and entities, we believe any resulting impact will be a positive one on the health care community. In summary, we have concluded that this final rule will not have a significant impact on the operations of a substantial number of small providers and that a regulatory flexibility analysis is not required for this rulemaking.
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104–4, requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditures in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million or more. As indicated above, these proposed revisions comport with statutory amendments and clarify existing law. As a result, we believe that the regulations would not impose any mandates on State, local, or tribal governments or the private sector that will result in expenditures of $110 million or more (adjusted for inflation) per year and that a full analysis under the Unfunded Mandates Reform Act is not necessary.
Executive Order 13132, Federalism, establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirements or costs on State and local governments, preempts State law, or otherwise has Federalism implications. In reviewing this rule under the threshold criteria of Executive Order 13132, we have determined that this final rule would not significantly affect the rights, roles, and responsibilities of State or local governments.
These changes to parts 1000, 1001, 1002, and 1006 impose no new reporting requirements or collections of information. Therefore, a Paperwork Reduction Act review is not required.
Administrative practice and procedure, Grant programs—health, Health facilities, Health professions, Medicaid, Medicare.
Administrative practice and procedure, Fraud, Grant programs—health, Health facilities, Health professions, Maternal and child health, Medicaid, Medicare.
Fraud, Grant programs—health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping.
Administrative practice and procedure, Fraud, Investigations, Penalties.
Accordingly, 42 CFR parts 1000, 1001, 1002, and 1006 are amended as set forth below:
42 U.S.C. 1320 and 1395hh.
In this chapter, unless the context indicates otherwise—
(1) A State plan approved under Title XIX of the Act (Medicaid),
(2) Any program receiving funds under Title V of the Act or from an allotment to a State under such title (Maternal and Child Health Services Block Grant program),
(3) Any program receiving funds under subtitle A of Title XX of the Act or from any allotment to a State under such subtitle (Block Grants to States for Social Services), or
(4) A State child health plan approved under Title XXI (Children's Health Insurance Program).
42 U.S.C. 1302; 1320a–7; 1320a–7b; 1395u(j); 1395u(k); 1395w–104(e)(6), 1395y(d); 1395y(e); 1395cc(b)(2)(D), (E), and (F); 1395hh; 1842(j)(1)(D)(iv), 1842(k)(1), and sec. 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. 6101 note).
For purposes of this part:
(1) The capital, the stock, or the profits of the entity, or
(2) Any mortgage, deed, trust or note, or other obligation secured in whole or in part by the property or assets of the entity.
(1) Has a direct or an indirect ownership interest (or any combination thereof) of 5 percent or more in the entity;
(2) Is the owner of a whole or part interest in any mortgage, deed of trust, note, or other obligation secured (in whole or in part) by the entity or any of the property assets thereof, if such interest is equal to or exceeds 5 percent of the total property and assets of the entity;
(3) Is an officer or a director of the entity;
(4) Is a partner in the entity if the entity is organized as a partnership;
(5) Is an agent of the entity; or
(6) Is a managing employee of the entity.
(d) * * *
(1) Is, or has ever been, a health care practitioner, provider, or supplier or furnished or furnishes items or services;
(2) Holds, or has held, a direct or an indirect ownership or control interest in an entity that furnished or furnishes items or services or is, or has ever been, an officer, director, agent, or managing employee of such an entity; or
The revisions to read as follows:
(b) * * *
(1) The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more other entities of $50,000 or more. (The entire amount of financial loss to such government agencies or programs or to other entities, including any amounts resulting from similar acts not adjudicated, will be considered regardless of whether full or partial restitution has been made);
(7) The individual or entity has previously been convicted of a criminal offense involving the same or similar circumstances;
(8) The individual or entity has been convicted of other offenses besides those that formed the basis for the exclusion; or
(9) The individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.
(c) * * *
(1) In the case of an exclusion under § 1001.101(a), whether the individual or entity was convicted of three or fewer misdemeanor offenses and the entire amount of financial loss (both actual loss and intended loss) to Medicare or any other Federal, State, or local governmental health care program due to the acts that resulted in the conviction, and similar acts, is less than $5,000;
(d) In the case of an exclusion under this subpart, based on a conviction occurring on or after August 5, 1997, an exclusion will be—
(1) For not less than 10 years if the individual has been convicted on one previous occasion of one or more offenses for which an exclusion may be effected under section 1128(a) of the Act. (The aggravating and mitigating factors in paragraphs (b) and (c) of this section can be used to impose a period of time in excess of the 10-year mandatory exclusion); or
(2) Permanent if the individual has been convicted on two or more previous occasions of one or more offenses for which an exclusion may be effected under section 1128(a) of the Act.
The revisions and addition to read as follows:
(b) * * *
(2) * * *
(i) The acts resulting in the conviction, or similar acts, caused or reasonably could have been expected to cause, a financial loss of $50,000 or more to a government agency or program or to one or more other entities or had a significant financial impact on program beneficiaries or other individuals. (The entire amount of financial loss will be considered, including any amounts resulting from similar acts not adjudicated, regardless of whether full or partial restitution has been made);
(vi) Whether the individual or entity has been convicted of other offenses besides those that formed the basis for the exclusion; or
(vii) Whether the individual or entity has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.
(3) * * *
(i) The individual or entity was convicted of three or fewer offenses, and the entire amount of financial loss (both actual loss and reasonably expected loss) to a government agency or program or to other individuals or entities due to the acts that resulted in the conviction and similar acts is less than $5,000;
(ii) The record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition, before or during the commission of the offense, that reduced the individual's culpability; or
The revisions and additions to read as follows:
(a)
(1) Any offense described in §§ 1001.101 or 1001.201; or
(2) The use of funds received, directly or indirectly, from any Federal health care program.
(b)
(2) * * *
(i) The interference or obstruction caused the expenditure of significant additional time or resources;
(ii) The interference or obstruction had a significant adverse physical or mental impact on one or more program beneficiaries or other individuals;
(vi) Whether the individual or entity has been convicted of other offenses besides those that formed the basis for the exclusion;
(vii) Whether the individual or entity has been the subject of any other adverse action by any Federal, State or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion; or
(viii) The acts resulting in the conviction, or similar acts, caused, or reasonably could have been expected to cause, a financial loss of $50,000 or more to a government agency or program or to one or more other entities or had a significant financial impact on program beneficiaries or other individuals. (The entire amount of financial loss or intended loss identified in the investigation or audit will be considered, including any amounts resulting from similar acts not adjudicated, regardless of whether full or partial restitution has been made).
(3) * * *
(i) The record of the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional, or physical condition, before or during the commission of the offense, that reduced the individual's culpability; or
The revisions and addition to read as follows:
(a)
(1) Is, or has ever been, a health care practitioner, provider, or supplier or furnished or furnishes items or services;
(2) Holds, or held, a direct or indirect ownership or control interest in an entity that furnished or furnishes items or services or is or has ever been an officer, director, agent, or managing employee of such an entity; or
(c)
(2) Any of the following factors may be considered to be aggravating and to be a basis for lengthening the period of exclusion—
(iv) Whether the individual or entity has a documented history of criminal, civil, or administrative wrongdoing;
(v) Whether the individual or entity has been convicted of other offenses besides those that formed the basis for the exclusion; or
(vi) Whether the individual or entity has been the subject of any other adverse action by any Federal, State, or local government agency or board if the adverse action is based on the same set of circumstances that serves as the basis for the imposition of the exclusion.
(3) Only the following factor may be considered to be mitigating and to be a basis for shortening the period of exclusion: The individual's or entity's cooperation with Federal or State officials resulted in—
(i) Others being convicted or excluded from Medicare, Medicaid, and any other Federal health care program;
(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses; or
(iii) The imposition of a civil money penalty against others.
(b) * * *
(1) Except as provided in paragraph (b)(2) of this section, an exclusion imposed in accordance with this section will not be for a period of time less than the period during which an individual's or entity's license is revoked, suspended, or otherwise not in effect as a result of, or in connection with, a State licensing agency action.
(3) Only if any of the aggravating factors listed in paragraph (b)(2) of this section justifies a longer exclusion may a mitigating factor be considered as a basis for reducing the period of exclusion to a period not less than that set forth in paragraph (b)(1) of this section. Only the following factor may be considered mitigating: The individual's or entity's cooperation with a State licensing authority resulted in—
(i) The sanctioning of other individuals or entities, or
(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses.
(4) When an individual or entity has been excluded under this section, the OIG will consider a request for reinstatement in accordance with § 1001.3001 if:
(i) The individual or entity obtains the license in the State where the license was originally revoked, suspended, surrendered, or otherwise lost or
(ii) The individual meets the conditions for early reinstatement set forth in paragraph (c) of this section.
(c)
(i) The circumstances that formed the basis for the exclusion;
(ii) Whether the second licensing authority is in a state that is not the individual's primary place of practice;
(iii) Evidence that the second licensing authority was aware of the circumstances surrounding the action that formed the basis for the exclusion;
(iv) Whether the individual has demonstrated that he or she has satisfactorily resolved any underlying problem that caused or contributed to the basis for the initial licensing action;
(v) The benefits to the Federal health care programs and program beneficiaries of early reinstatement;
(vi) The risks to the Federal health care programs and program beneficiaries of early reinstatement;
(vii) Any additional or pending license actions in any State;
(viii) Any ongoing investigations involving the individual; and
(ix) All the factors set forth in § 1001.3002(b).
(2) If an exclusion has been imposed under this section and the individual does not have a valid health care license of any kind in any State, that individual may request the OIG to consider whether he or she may be eligible for early reinstatement. The OIG will consider the following factors in determining whether a request for early reinstatement under this paragraph (c)(2) will be granted:
(i) The length of time the individual has been excluded. The OIG will apply a presumption against early reinstatement under paragraph (c)(2) of this section if the person has been excluded for less than 3 years; however, if the revocation or suspension on which the exclusion is based was for a set period longer than 3 years, the presumption against early reinstatement will be coterminous with the period set by the licensing board;
(ii) The circumstances that formed the basis for the exclusion;
(iii) Whether the individual has demonstrated that he or she has satisfactorily resolved any underlying problem that caused or contributed to the basis for the initial licensing action;
(iv) The benefits to the Federal health care programs and program beneficiaries of early reinstatement;
(v) The risks to the Federal health care programs and program beneficiaries of early reinstatement;
(vi) Any additional or pending license actions in any State;
(vii) Any ongoing investigations involving the individual; and
(viii) All the factors set forth in § 1001.3002(b).
(3) Notwithstanding paragraphs (c)(1) and (2) of this section, if an individual's license revocation or suspension was for reasons related to patient abuse or neglect, the OIG will not consider an application for early reinstatement.
(4) Except for § 1001.3002(a)(1)(i), all the provisions of Subpart F (§§ 1001.3001 through 1001.3005) apply to early reinstatements under this section.
(b) * * *
(3) Only if any of the aggravating factors listed in paragraph (b)(2) of this section justifies a longer exclusion may a mitigating factor be considered as a basis for reducing the period of exclusion to a period not less than that set forth in paragraph (b)(1) of this section. Only the following factor may be considered mitigating: The individual's or entity's cooperation with Federal or State officials resulted in—
(i) The sanctioning of other individuals or entities, or
(ii) Additional cases being investigated or reports being issued by the appropriate law enforcement agency identifying program vulnerabilities or weaknesses.
(4) If the individual or entity is eligible to apply for reinstatement in accordance with § 1001.3001 and the sole reason why the State or Federal health care program denied reinstatement to that program is the existing exclusion imposed by the OIG as a result of the original State or Federal health care program action, the OIG will consider a request for reinstatement.
(a)
(c)
(d) * * *
(2) * * *
(iv) The violation resulted in financial loss to Medicare, Medicaid, or any other Federal health care program of $15,000 or more; or
(3) Only the following factor may be considered mitigating and a basis for reducing the period of exclusion: Whether there were few violations and they occurred over a short period of time.
The revision to read as follows:
(a)
(c)
(b) * * *
(2) It will be considered a mitigating factor if—
(i) The individual had a documented mental, emotional, or physical condition before or during the commission of the prohibited act(s) that reduced the individual's culpability for the acts in question; or
(ii) The individual's or entity's cooperation with Federal or State officials resulted in the—
(A) Sanctioning of other individuals or entities, or
(B) Imposition of a civil money penalty against others.
(c)
(a)
(1) If a person with a relationship with such entity—
(i) Has been convicted of a criminal offense as described in sections 1128(a) and 1128(b)(1), (2), or (3) of the Act;
(ii) Has had civil money penalties or assessments imposed under section 1128A of the Act; or
(iii) Has been excluded from participation in Medicare or any State health care program, and
(2) Such a person has a direct or indirect ownership or control interest in the entity, or formerly held an ownership or control interest in the entity but no longer holds an ownership or control interest because of a transfer of the interest to an immediate family member or a member of the person's household in anticipation of or following a conviction, imposition of a civil money penalty or assessment under section 1128A of the Act, or imposition of an exclusion.
The revisions read as follows:
(b) * * *
(4) Any other facts that bear on the nature or seriousness of the conduct; and
The revisions to read as follows:
(a)
(b) * * *
(3) The amount of the payments at issue; and
(4) Whether the individual or entity has a documented history of criminal, civil, or administrative wrongdoing. (The lack of any prior record is to be considered neutral).
(a) * * *
(1) * * *
(iii) The OIG for reviewing records, documents, and other material or data in any medium (including electronically stored information and any tangible thing) necessary to the OIG's statutory functions; or
(3) For purposes of paragraphs (a)(1)(iii) and (a)(1)(iv) of this section, the term—
(i) The failure to produce or make available for inspection and copying the requested material upon reasonable request, or to provide a compelling reason why they cannot be produced, within 24 hours of such request, except when the OIG or State Medicaid Fraud Control Unit (MFCU) reasonably believes that the requested material is about to be altered or destroyed, or
(ii) When the OIG or MFCU has reason to believe that the requested material is about to be altered or destroyed, the failure to provide access to the requested material at the time the request is made.
(a) * * * (1) Except as provided in paragraph (a)(4) of this section, the OIG may exclude any individual that the administrator of the health education loan, scholarship, or loan repayment program determines is in default on repayments of scholarship obligations or loans, or the obligations of any loan repayment program, in connection with health professions education made or secured in whole or in part by the Secretary.
(2) Before imposing an exclusion in accordance with paragraph (a)(1) of this section, the OIG must determine that the administrator of the health education loan, scholarship, or loan repayment program has taken all reasonable administrative steps to secure repayment of the loans or obligations. When an individual has been offered a Medicare offset arrangement as required by section 1892 of the Act, the OIG will find that all reasonable steps have been taken.
(b)
(c) * * *
(1) If the entity has been excluded, the length of the individual's exclusion will be for the same period as that of the sanctioned entity.
(a)
(b)
(c)
(1) CMS;
(2) Medicaid State agencies;
(3) Fiscal agents or contractors or private insurance companies;
(4) Law enforcement agencies;
(5) State or local licensing or certification authorities;
(6) State or local professional societies; or
(7) Any other sources deemed appropriate by the OIG.
(d)
(1) The nature and circumstances surrounding the false statement;
(2) Whether and to what extent payments were requested or received from the Federal health care program under the application, agreement, bid, or contract on which the false statement, omission, or misrepresentation was made; and
(3) Whether the individual or entity has a documented history of criminal, civil, or administrative wrongdoing.
The republications and revisions to read as follows:
(b) * * *
(1) In determining the length of an exclusion in accordance with this section, the OIG will consider the following factors:
(iii) The amount of the charges that were in excess of the maximum allowable charges; and
(iv) Whether the physician has a documented history of criminal, civil, or administrative wrongdoing (the lack of any prior record is to be considered neutral).
The republications and revisions to read as follows:
(c) * * *
(1) In determining the length of an exclusion in accordance with this section, the OIG will consider the following factors:
(iv) Whether approval for the use of an assistant was requested from the QIO or carrier; and
(v) Whether the physician has a documented history of criminal, civil, or administrative wrongdoing (the lack of any prior record is to be considered neutral).
(a) The OIG has the authority to grant or deny a request from the administrator of a Federal health care program (as defined in section 1128B(f) of the Act) that an exclusion from that program be waived with respect to an individual or entity, except that no waiver may be granted with respect to an exclusion under § 1001.101(b). The request must be in writing and from an individual directly responsible for administering the Federal health care program.
(b) With respect to exclusions under § 1001.101(a), (c), or (d), a request from a Federal health care program for a waiver of the exclusion will be considered only if the Federal health care program administrator determines that—
(1) The individual or entity is the sole community physician or the sole source of essential specialized services in a community; and
(2) The exclusion would impose a hardship on beneficiaries (as defined in section 1128A(i)(5) of the Act) of that program.
(b)
(i) By an excluded individual or entity; or
(ii) At the medical direction or on the prescription of a physician or an authorized individual who is excluded when the person furnishing such item or service knew, or had reason to know, of the exclusion.
(2) This section applies regardless of whether an individual or entity has obtained a program provider number or equivalent, either as an individual or as a member of a group, prior to being reinstated.
(3) An excluded individual or entity may not take assignment of an enrollee's claim on or after the effective date of exclusion.
(4) An excluded individual or entity that submits, or causes to be submitted, claims for items or services furnished during the exclusion period is subject to civil money penalty liability under section 1128A(a)(1)(D) of the Act and criminal liability under section 1128B(a)(3) of the Act and other provisions. In addition, submitting claims, or causing claims to be submitted or payments to be made, for items or services furnished, ordered, or prescribed, including administrative and management services or salary, may serve as the basis for denying reinstatement to the programs.
(b) If the OIG intends to exclude an individual or entity under the provisions of § 1001.701, § 1001.801, or § 1001.1552, in conjunction with the submission of documentary evidence and written argument, an individual or entity may request an opportunity to present oral argument to an OIG official.
(c)
(a) Except as provided in paragraph (c) of this section, if the OIG proposes to exclude an individual or entity in accordance with § 1001.901, § 1001.951, § 1001.1601, or § 1001.1701, it will send a written notice of proposal to exclude to the affected individual or entity. The written notice will provide the same information set forth in § 1001.2002(c). If an entity has a provider agreement under section 1866 of the Act, and the OIG also proposes to terminate that agreement in accordance with section 1866(b)(2)(C) of the Act, the notice will so indicate. The exclusion will be effective 60 days after the receipt of the notice (as defined in § 1005.2 of this chapter) unless, within that period, the individual or entity files a written request for a hearing in accordance with part 1005 of this chapter. Such request must set forth—
(1) The specific issues or statements in the notice with which the individual or entity disagrees;
(2) The basis for that disagreement;
(3) The defenses on which reliance is intended;
(4) Any reasons why the proposed length of exclusion should be modified; and
(5) Reasons why the health or safety of individuals receiving services under Medicare or any of the State health care programs does not warrant the exclusion going into effect prior to the completion of an administrative law judge (ALJ) proceeding in accordance with part 1005 of this chapter.
(b) If the individual or entity makes a timely written request for a hearing and the OIG has determined that the health or safety of individuals receiving services under Medicare or any of the State health care programs does not warrant immediate exclusion, an exclusion will only go into effect as of the date of the ALJ's decision, if the ALJ upholds the decision to exclude.
(a)(1) Except as provided in paragraph (a)(2) of this section or in § 1001.501(b)(2), § 1001.501(c), or § 1001.601(b)(4), an excluded individual or entity (other than those excluded in accordance with § 1001.1001 and § 1001.1501) may submit a written request for reinstatement to the OIG only after the date specified in the notice of exclusion. Obtaining a program provider number or equivalent does not reinstate eligibility.
(2) An entity excluded under § 1001.1001 may apply for reinstatement prior to the date specified in the notice of exclusion by submitting a written request for reinstatement that includes documentation demonstrating that the standards set forth in § 1001.3002(c) have been met.
(a) The OIG will authorize reinstatement if it determines that—
(1) The period of exclusion has expired;
(2) There are reasonable assurances that the types of actions that formed the basis for the original exclusion have not recurred and will not recur; and
(3) There is no additional basis under sections 1128(a) or (b) or 1128A of the Act for continuation of the exclusion.
(b) In making the reinstatement determination described in paragraph (a) of this section, the OIG will consider—
(1) Conduct of the individual or entity occurring prior to the date of the notice of exclusion, if not known to the OIG at the time of the exclusion;
(2) Conduct of the individual or entity after the date of the notice of exclusion;
(3) Whether all fines and all debts due and owing (including overpayments) to any Federal, State, or local government that relate to Medicare, Medicaid, and all other Federal health care programs have been paid or satisfactory arrangements have been made to fulfill obligations;
(4) Whether CMS has determined that the individual or entity complies with, or has made satisfactory arrangements to fulfill, all the applicable conditions of participation or supplier conditions for coverage under the statutes and regulations;
(5) Whether the individual or entity has, during the period of exclusion, submitted claims, or caused claims to be submitted or payment to be made by any Federal health care program, for items or services the excluded party furnished, ordered, or prescribed, including health care administrative services. This section applies regardless of whether an individual or entity has obtained a program provider number or equivalent, either as an individual or as a member of a group, prior to being reinstated; and
(c) If the OIG determines that the criteria in paragraphs (a)(2) and (3) of this section have been met, an entity excluded in accordance with § 1001.1001 will be reinstated upon a determination by the OIG that the individual whose conviction, exclusion, or civil money penalty was the basis for the entity's exclusion—
(a) An exclusion will be withdrawn and an individual or entity will be reinstated into Medicare, Medicaid, and other Federal health care programs retroactive to the effective date of the exclusion when such exclusion is based on—
42 U.S.C. 1302, 1320a–3, 1320a–5, 1320a–7, 1396(a)(4)(A), 1396a(p), 1396a(a)(39), 1396a(a)(41), and 1396b(i)(2).
(a)
(1) Under authority of section 1902(a)(4) of the Act, this part sets forth methods of administration and procedures the State agency must follow to exclude a provider from participation in the State Medicaid program. State-initiated exclusion from Medicaid may lead to OIG exclusion from all Federal health care programs.
(2) Under authority of sections 1124 and 1126 of the Act, this part requires the Medicaid agency to obtain and disclose to the OIG certain provider ownership and control information, along with actions taken on a provider's application to participate in the program.
(3) Under authority of sections 1902(a)(41) and 1128 of the Act, this part requires the State agency to notify the OIG of sanctions and other actions the State takes to limit a provider's participation in Medicaid.
(4) Section 1902(p) of the Act permits the State to exclude an individual or entity from Medicaid for any reason the
(5) Sections 1902(a)(39) and 1903(i)(2) of the Act prohibit State payments to providers and deny Federal financial participation (FFP) in State expenditures for items or services furnished by an individual or entity that has been excluded by the OIG from participation in Federal health care programs.
(b)
(a) Part 455, subpart B, of this title sets forth requirements for disclosure of ownership and control information to the State Medicaid agency by providers and fiscal agents.
(b) Part 438, subpart J, of this title sets forth payment and exclusion requirements specific to Medicaid managed care organizations.
(a) In addition to any other authority it may have, a State may exclude an individual or entity from participation in the Medicaid program for any reason for which the Secretary could exclude that individual or entity from participation in Federal health care programs under sections 1128, 1128A, or 1866(b)(2) of the Act.
(c) * * *
(1) The Medicaid agency may refuse to enter into or renew an agreement with a provider if any person who has an ownership or control interest, or who is an agent or managing employee of the provider, in the provider has been convicted of a criminal offense related to that person's involvement in any program established under Medicare, Medicaid, Title V, Title XX, or Title XXI of the Act.
(a)
(1) By an individual or entity excluded by the OIG or
(2) At the medical direction or on the prescription of a physician or other authorized individual who is excluded by the OIG when a person furnishing such item or service knew, or had reason to know, of the exclusion.
(b)
(a) The State agency, in order to receive FFP, must provide that it will exclude from participation
(1) Has a prohibited ownership or control relationship with any individual or entity that could subject the managed care organization or entity to exclusion under § 1001.1001 or § 1001.1551 of this chapter or
(2) Has, directly or indirectly, a substantial contractual relationship with an individual or entity that could be excluded under § 1001.1001 or § 1001.1551 of this chapter.
42 U.S.C. 405(d), 405(e), 1302, 1320a–7, and 1320a–7a.
(a) The provisions in this part govern subpoenas issued by the Inspector General, or his or her delegates, in accordance with sections 205(d), 1128A(j), and 1128(f)(4) of the Act and require the attendance and testimony of witnesses and the production of any other evidence at an investigational inquiry.
(b) Such subpoenas may be issued in investigations under section 1128 or 1128A of the Act or under any other section of the Act that incorporates the provisions of sections 1128(f)(4) or 1128A(j).
Department of State.
Proposed rule.
The U.S. Department of State (Department) proposes to amend existing regulations to provide new program requirements for the Summer Work Travel category of the Exchange Visitor Program. This rulemaking strategy is informed by the Department's comprehensive and ongoing review of the Summer Work Travel program that began in mid-2010.
With this proposed rulemaking, the Department proposes to: Specify general program administration requirements for sponsors and their third parties; enhance transparency in the recruitment of exchange visitors; limit exchange visitor repeat participation to a total of three visits; require all exchange visitors to be placed in advance of the exchange visitor's arrival in the United States; outline additional sponsor responsibilities for use and vetting of host entities; and specify host entity requirements for program participation.
In addition, the proposed rule limits the number of late night and early morning hours during which exchange visitors may work; adds a section regulating placements in door-to-door sales; explains new processes for exchange visitor housing; and introduces Form DS–7007 (Host Placement Certification). The proposed rule also specifies more exactly pre-departure orientation and documentation requirements, including with respect to bicycle safety; ensures that sponsors and host entities provide exchange visitors with cross-cultural activities; and outlines processes for sponsor use and vetting of domestic and foreign third parties.
The Department of State will accept comments on this proposed rule until February 27, 2017.
You may submit comments by any of the following methods:
•
• Persons with access to the Internet also may view this notice and provide comments by going to the regulations.gov Web site at:
•
• All comments should include the commenter's name, the organization the commenter represents, if applicable, and the commenter's address. If the Department is unable to receive or understand your comment for any reason, and cannot contact you for clarification, the Department may not be able to consider your comment. After the conclusion of the comment period, the Department will publish a final rule (in which it will address relevant comments) as expeditiously as possible.
Keri Lowry, Deputy Assistant Secretary of State, Office of Private Sector Exchange, Bureau of Educational and Cultural Affairs, U.S. Department of State, SA–5, Floor 5, 2200 C Street NW., Washington, DC 20522–0505; Email:
For the past fifty years, the Summer Work Travel program has served as one of the most popular exchange opportunities for foreign post-secondary school students to visit and learn about the United States. It is also one of the Department's largest avenues to influence the opinion and attitudes of foreign post-secondary students toward the United States through people-to-people diplomacy. The program also helps these students improve their English language proficiency. In 2015, the Summer Work Travel Program provided students from approximately 125 countries the opportunity to earn money to help defray some expenses of a short stay in the United States by working in seasonal or temporary host placements that require minimal training.
The Summer Work Travel program links university students from every region of the world to the people of the United States. In the past decade alone, approximately one million foreign post-secondary school students have visited the United States, improved their English language skills, developed ties with U.S. persons, and experienced U.S. culture while sharing their own cultures with those they meet. They have returned to their home countries and, after graduation, have begun careers in nearly every field. They remain lifelong ambassadors between their home countries and the United States.
The Department views Summer Work Travel as an important and uniquely effective mechanism for establishing cross-cultural communication and contributing to English language proficiency globally. The program represents the largest Department exchange opportunity for young adults; most exchange visitors are between the ages of 18 and 30. The program reaches diverse exchange audiences, including those from non-traditional sending countries and cities and towns outside national capitals. Such characteristics make the program important to the United States because people-to-people exchanges, and especially exchanges for young adults, are one of the most effective ways the U.S. forges ties with other nations.
The decision for exchange visitors to participate in the Summer Work Travel program is a significant one involving an adventurous spirit, since exchange visitors must live and work in a potentially unfamiliar environment in the United States. The decision also involves a significant investment of time and money on the part of these exchange visitors. It is, therefore, essential that sponsors—and host entities and third parties working with sponsors—take all necessary steps to ensure that every exchange visitor enjoys a safe, rewarding, enjoyable, and memorable U.S. exchange experience.
Sponsors and host entities play vital roles in the success of the program. This proposed rulemaking is intended to promulgate new minimum standards, clearly articulate program requirements, and advance consistency throughout the program.
The Department's insight from its monitoring role, as well as from complaints, incidents, and lessons learned, informs the contents of this rulemaking. The Department has interviewed thousands of exchange visitors and host entities taking part in the SWT program and interacts regularly with program sponsors. The proposed rule's provisions are intended to improve the program as, first and foremost, a cultural exchange and public diplomacy program of the highest quality. As a private sector exchange model, the program's success is based on creating standards of practice common across all sponsors. In many cases, the proposed requirements are actions already being taken by some sponsors. In others, the Department views the requirement as essential to protect the program and/or the exchange visitor.
As a public diplomacy program, exchange visitors' successful experience with this program will create lifelong ambassadors of goodwill between the United States and other countries. As
Sponsors must ensure that all parties involved in this exchange commit to its success.
First,
Second, sponsors must ensure that the
And third, sponsors must set expectations for the
In order to strengthen the Summer Work Travel program, the Department reviewed its implementation of the program beginning in mid-2010. Between 2010 and 2012, the Department identified a number of regulatory changes needed to better protect the health, safety, and welfare of exchange visitors, enhance the program's cross-cultural component, and strengthen overall program administration. The Department published an interim final rule (IFR) with a request for comment on April 26, 2011 (RIN 1400–AC79; see 76 FR 23177) (2011 IFR). Then, after further monitoring program implementation, the Department published an IFR with a request for comment on May 11, 2012 (RIN 1400–AD14); see 77 FR 27593) (2012 IFR). This rule addressed public comments submitted to the 2011 IFR and became effective immediately, with the exception of one provision regarding prohibited placements, which became effective on November 2, 2012 (see also 77 FR 31724).
In promulgating this and previous rulemakings, the Department continues to advance a comprehensive rulemaking strategy to: (i) Protect the health, safety, and welfare of exchange visitors on this important program; (ii) respond to issues identified during monitoring and ongoing oversight; (iii) articulate consistent and robust minimum standards for program administration; (iv) prioritize the quality of the exchange visitor experience; and (v) fortify the program's purpose as an important U.S. public diplomacy tool.
The Department reviewed, analyzed, and fully considered the comments submitted for both the 2011 and 2012 IFRs. Comments received in response to the 2011 IFR were analyzed and addressed in the 2012 IFR (see 77 FR 27598–27600, 27602–27604), which responded to emerging program issues requiring monitoring and enforcement. Comments received in response to the 2012 IFR are addressed below. The 2012 IFR strengthened protections for exchange visitors and reemphasized the cross-cultural component of the program, consistent with the requirements of the Mutual Educational and Cultural Exchange Act of 1961, as amended (Pub. L. 87–256) (22 U.S.C. 2451,
The Department received comments on the 2012 IFR from 171 parties, including: 102 former exchange visitors previously hosted in mobile concession businesses; 21 leaders of different local, county, and state fairs; ten organizations representing and/or advocating for trafficking victims, low- to-middle-income, migrant and guest workers, unions, and/or civil rights; nine mobile concession business owners that have employed exchange visitors; eight businesses associated with the mobile amusement industry; seven trade associations representing the mobile amusement industry and/or mobile concessionaires; one trade association representing seafood processors; a membership association of many of the largest international educational and cultural exchange organizations in the United States; eight Department-designated Summer Work Travel program sponsors; two private U.S. persons; one foreign entity working with sponsors; and a commercial printing business that has hosted exchange visitors.
The Department received public comment on the following 2012 IFR provisions, all in 22 CFR part 62:
The Department currently conducts a regular review of country-specific program start- and end-dates and believes that this review addresses these comments by allowing sufficiently for amendment of program dates. The Department is always open to hearing
The Department does not agree with these comments. In order for sponsors to ensure that an exchange visitor is physically located at the site of program placement, as is required by the Department of Homeland Security, and in order that sponsors may monitor the health, safety, and welfare of that exchange visitor at the placement site, sponsors must know that the exchange visitor is indeed present there. This requires the exchange visitor to report his or her arrival, as well as any subsequent sites of activity, for example, if the exchange visitor changes host entities.
Sponsors can enhance the timeliness of exchange visitor reporting by giving them an effective pre-arrival orientation about the necessity of and usable methods for reporting U.S arrival to their sponsor. Sponsors must explain to exchange visitors as part of their orientation that site of activity notification in SEVIS is a Department of Homeland Security requirement and that the sponsor is also authorized under § 62.40(a)(3) to terminate exchange visitors who violate the Exchange Visitor Program regulations and sponsors' rules governing the program. Exchange visitors are assigned by their sponsors to report to their initial assignment on the date they are expected to report and then have ten days to notify their sponsor that they have arrived. In addition, exchange visitors have this same period of time to notify their sponsor to update their contact information each time they undergo a host entity or housing change, which the Department believes is a sufficient time-period for such notification. This provision has not changed in this proposed rule.
The Department maintains its strong belief that an organized cross-cultural component is necessary for the fulfillment of the Summer Work Travel category's purpose as a cultural and educational exchange and U.S. public diplomacy program. Following the publication of the 2012 IFR, the Department provided all sponsors with a guide to cross-cultural programming, and the Department has consistently sought and highlighted examples of successful cross-cultural programming to share with the sponsor community. The Department requires sponsors and their host entities to create opportunities to provide cross-cultural programming for exchange visitors. In the proposed rule, this requirement has been set at a minimum of once per month in order to more clearly define the requirement and respond to sponsor inquiries since publication of the 2012 IFR about what was an adequate amount of cross-cultural programming. The Department will continue to work with sponsors to facilitate successful implementation of cross-cultural programming requirements, including by issuing guidance outlining best practices.
Since the 2012 IFR went into effect, many sponsors (approximately 42 percent according to Department records) have already put policies in place to implement, either directly or through host entities, cross-cultural activities for exchange visitors. Organizing a cross-cultural activity for exchange visitors is not especially complex; there are many possible activities that can make use of local resources and community events and that are not especially costly. Some examples organized by either sponsors or host entities over the last year of the Summer Work Travel program are noted under point 16 of the proposed rule discussion below.
The Department agrees to propose a change to the vetting deadline to three business days, as provided in proposed paragraph § 62.32(h)(1). Sponsors have systems in place for vetting host entities, and the Department believes that three days are sufficient for the sponsor to check a host entity's location and suitability and conduct a background check on that entity, so that the exchange visitor can begin his or her new placement as soon as possible thereafter.
One commenter expressed support for the requirement that sponsors assist exchange visitors to ensure appropriate housing and suitable local transportation. However, others disagreed. One commenting party explained that sponsor assistance should be limited in scope to informing exchange visitors of their rights, explaining types of housing and local transportation, reasonably investigating allegations of unsafe or inadequate housing, and offering additional assistance and guidance as appropriate. Other commenters worried about increased costs if sponsors are required to provide exchange visitors with suitable housing. Some noted that sponsors may have to put down deposits to secure housing even before knowing whether exchange visitors have received visas. Still other commenters stated that exchange visitors are not minors and may willingly choose substandard housing to save money unless the Department imposes penalties on exchange visitors who choose to do so.
The Department continues to respond to serious concerns about housing and local transportation. The Department maintains that a placement is appropriate only if it includes safe and affordable housing accommodation, as well as readily available local transportation. Host entities are a resource for identifying both housing and local transportation options. Due to the reality that poor housing and lack of local transportation may prove disastrous to an exchange visitor's experience or well-being, sponsors must only approve placements for exchange visitors that include an identification of safe and affordable housing that is within reasonable distance from the exchange visitor's host entity(ies), in a location that is neither isolated nor difficult to access, and in reasonable proximity to commercial infrastructure and necessities. Sponsors or their host entities must identify, but are not obligated to fund, such housing and local transportation as part of the placement selection. Sponsors placing exchange visitors in remote national park, summer camp, or resort locations must document the host entity's written arrangement for transportation for those exchange visitors during their off hours and in case of emergency. At times, exchange visitors will identify housing themselves. Sponsors must verify that any housing option selected is safe, affordable, and otherwise appropriate, including from a local transportation perspective.
The Department proposes a number of changes to better ensure access to appropriate housing and local transportation, as set forth in proposed paragraph 62.32(l) and discussed later in this section.
In the Department's view, prohibiting exchange visitors, on behalf of their host entity, from driving or operating vehicles on public roads for which a driver's license is required, however incidental this driving activity may be, helps mitigate the risk to the health, safety and welfare of the exchange visitors. Moreover, should an exchange visitor collide with another driver or a pedestrian while driving or be hit by another vehicle on a public road, the exchange visitor may become involved with insurance companies and/or law enforcement, leading to potentially serious consequences for the exchange visitor. (See proposed paragraph 62.32(k)(10)).
One of the primary goals of the 2012 IFR was to mitigate risks to the health, safety and welfare of exchange visitors. The Department believes that, regardless of the fact that most exchange visitors are not minors, the Secretary of Labor's list provides a sensible, easy-to-use directory of host placements that are potentially dangerous and are thus inappropriate for post-secondary students working in the United States on a cultural and educational exchange program. Proposed paragraph 62.32(k)(13) continues to refer to the Secretary of Labor's list at 29 CFR part 570 (
Commenters argued that the prohibition of host placements in an entire industry because of the actions of a few businesses within that industry is unfair; that the traveling nature of such host placements provides excellent cross-cultural experiences; that modern technology and the submittal of the businesses' itineraries make it possible for exchange visitors to be accurately tracked in SEVIS; that fairs' charitable, technological and agricultural contributions depend on mobile concessionaires and that this relationship could be damaged by the provisions of the 2012 IFR; and that the timing of the 2012 IFR's effective date was unnecessarily and unacceptably disruptive. Commenters also argued that every host placement comes with risks, and that the 2012 IFR's prohibitions were overreactions to negative press.
The Department respectfully disagrees with these comments. The purpose of the Exchange Visitor Program, including the Summer Work Travel category, is not to satisfy the labor needs of any industry. The Department also has received and cannot ignore serious complaints about substandard housing and other related inadequacies associated with almost all host placements in the mobile amusement and mobile concession industries. In addition, placement in these industries entails frequent address changes that require exchange visitors and their sponsors to update SEVIS records frequently to ensure accuracy and maintain compliance with both Department of State and Department of Homeland Security regulations. Many sponsors' demonstrated lack of compliance with these SEVIS reporting requirements added to the Department's determination that these placements pose a sufficiently high risk to the health, safety, and welfare of exchange visitors. Finally, if a sponsor does not know where an exchange visitor is residing, security risks arise for both the exchange visitor and the general public. A prohibition is, therefore, appropriate (see proposed paragraph 62.32(k)(17)). The Department does not propose substantial changes to this section in response to comments. It proposes only to change the term to identify this industry as “traveling fairs and itinerant concessionaires,” rather than “mobile amusement or mobile concessionaire industries.”
The Department wishes to ensure that exchange visitors on the Summer Work Travel program will be able to meet the financial obligations they incur as part of their exchange experience. The Department proposes to retain the requirement from the 2012 IFR, with slight editorial changes. Proposed paragraph 62.32(m)(1)(i) requires that sponsors must inform exchange visitors of federal, state, and local minimum wage requirements, and proposed paragraph 62.32(f)(6)(i)-(ii) requires that, in their host placement(s), exchange visitors receive pay and benefits commensurate with those offered to their U.S. counterparts and/or those on another class of nonimmigrant visa, as applicable, doing the same or similar work in the same work setting, and not less than the federal, state, or local minimum wage, whichever is highest, for all hours worked (including overtime) in conformance with federal, state, and local laws, including the Fair Labor Standards Act. Host entities may reasonably offer an exchange visitor wages commensurate with those of a qualified, experienced, or fully competent U.S. worker or worker on another visa class, only after considering the experience, education, and skill requirements of the position.
The Department agrees with the need to have exchange visitors' compensation and benefits be commensurate with those offered to their U.S. counterparts doing the same or similar work in the same work setting and having similar qualifications and experience (and that exchange visitors should receive the same compensation and benefits as those on another class of nonimmigrant visa if they are doing the same or similar work in the same work setting and have similar qualifications and experience), as well as providing for greater transparency in wages and work-related costs. See changes set forth in proposed paragraph 62.32(f)(6)(i) and (ii).
The Department has worked to engage Summer Work Travel stakeholders, listening to their views about program improvement and considering their comments in drafting this proposed rule. The Department was represented at annual international conferences attended by a large number of sponsors and foreign partners throughout the 2012–2016 period. It hosted sponsor conference calls in June and August 2012, and again in January 2013 and May 2014, for all Summer Work Travel program sponsors to discuss program administration improvements, best practices, host and housing placement concerns, and the Department's notional timeline of this proposed rulemaking. The Department held two dialogue meetings for Summer Work Travel sponsors in late summer and in early fall 2013, and another dialogue session in fall 2015.
Furthermore, the Department has observed a great variety of Summer Work Travel placements through a monitoring program that it instituted in 2012. Throughout summer 2012, the Department conducted 650 Summer Work Travel site visits in 31 U.S. states. In summer 2013, the Department visited 667 sites in 32 states. In summer 2014, the Department visited 676 sites in 33 states. In 2015, the Department visited 985 sites in 42 states and the District of Columbia. In summer 2016, the Department visited sites of activity hosting 1,246 Summer Work Travel participants in 36 states. Program
The Department invites public comment on the proposed regulatory changes set forth below. Provisions of the proposed regulation have been organized to follow the general sequence of administering the Summer Work Travel program. In your response, please number comments to coincide with the following topics:
1.
2.
The use of third parties may serve as an important benefit to a program; however, it represents some risk to sponsors, who are responsible for the actions of their third parties. A sponsor may use foreign third parties for recruitment, initial identification of host entities, and overseas orientation of exchange visitors. A sponsor may use domestic third parties for initial identification of host entities, implementation of cross-cultural activities for exchange visitors, providing a local point of contact or local orientation for exchange visitors, providing housing assistance, and offering transportation options for exchange visitors.
A host entity (
The Department reminds sponsors that third parties that work with sponsors in administering the program are always deemed to be acting on that sponsor's behalf when conducting aspects of the sponsor's exchange visitor program, and their actions are imputed to the sponsor as set forth in § 62.2 (Definitions;
3.
In addition, in the proposed rule, the Department addresses recurring issues regarding the lack of transparency in program costs, including fees charged to exchange visitors by sponsors, foreign and domestic third parties, and host entities, deductions from wages, and other program-related costs. The General Provisions (Subpart A) of 22 CFR part 62 create an initial requirement regarding fee transparency for the Exchange Visitor Program in general (as set forth in § 62.9(d)), and the Department proposes to create additional administrative requirements for the Summer Work Travel category. Exchange visitors recruited into the program must be made aware, at the time of their recruitment, what fees are charged by sponsors and any third party organizations with which sponsors work and estimated other costs the exchange visitor will likely incur. Proposed paragraph 62.32(d)(9), therefore, would require each sponsor to include in its recruiting material, and post on its main Web site (
4.
Repeat participation has both benefits and drawbacks. In seeking to create the appropriate balance, the Department proposes at § 62.32(e)(1)(iii) to limit to three the total number of times an exchange visitor is permitted to participate in the Summer Work Travel program during his or her post-secondary education career. The Department has observed the value of repeat participation, including solidifying a relationship between a host and exchange visitor, and enabling an exchange visitor to continue building skills while gaining exposure to an even greater diversity of U.S. culture, society and tourism. The Department also has observed the drawbacks of repeat participation, where some exchange visitors with more knowledge of the United States and the Summer Work Travel program have been encouraged to repeat their program participation in order to organize for host entities or other entities activities forbidden by regulation. In limiting participation in the program to three visits, the Department notes that the working holiday programs of 20 other countries, the programs that are most comparable to the Summer Work Travel program, restrict participation to a single work and travel visit. In several other countries, working holiday programs are restricted to two visits. The Department is interested in maximizing the number of individuals who gain exposure to the Summer Work Travel program, given its nature as an exchange program. Moreover, previous participation in the program will not limit exchange visitors from participating in other applicable categories of the Exchange Visitor Program.
The Summer Work Travel program permits exchange visitors to practice and enhance their English language skills; effectuates both the Department's public diplomacy goals and the legislative intent of the Fulbright-Hays Act, which enables the U.S. government to establish programs that promote mutual understanding between the people of the United States and people of other countries by means of educational and cultural exchange (22 U.S.C. 2451). The Department requires sponsors to review the applications of, interview, and select those applicants who have a level of English language proficiency that would enable them to be understood by co-workers and community members, discuss their personal backgrounds, and comprehend safety, work, housing, and transportation-related instructions. In addition, because participation in cross-cultural activities is a main purpose for the Summer Work Travel program, proposed paragraph 62.32(e)(1)(v) requires sponsors to select exchange visitors who evidence an intention, for example, in their written application or interview, to participate in such activities while in the United States. This requirement is important toward ensuring that exchange visitors participate in the program for the correct reasons, and will have the interest and prior learning experience necessary to succeed in the program to which they applied.
Proposed paragraph 62.32(e)(2) specifies that, prior to selecting exchange visitors, sponsors must conduct interviews with them in person or by video-conference and, upon request, facilitate videoconferences between exchange visitors and host entities in order that these parties can learn about one another prior to the exchange.
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For example, one observed best practice was a host entity that, rather than retain one individual solely on dishwashing, a task the host felt offered little interpersonal interaction, rotated restaurant staff and exchange visitors through this task in order to offer each person a variety of assignments. Additionally, the Department has no objection to exchange visitors working alongside foreign nationals in other visa categories, as long as the exchange visitors with similar qualifications and experience receive the same compensation and exchange visitor employment does not have an adverse effect on U.S. workers. The Summer Work Travel program serves to create long-term relationships between Americans and program participants, and working alongside U.S. workers is essential to the achievement of that goal.
Prior to July 15, 2011 (the effective date of the 2011 IFR), sponsors were required to allow no more than half of their Summer Work Travel exchange visitors to enter the United States without pre-arranged host placements. Since July 15, 2011, sponsors have been required to pre-place all exchange visitors except those from Visa Waiver Program countries. Requiring uniform pre-placement in positions with a vetted host placement prior to exchange visitor receipt of a Form DS–2019 will permit host entities and local communities to prepare for exchange visitor arrival, allow sponsors to ensure that each placement is with a host who has been oriented in advance and is committed to the goals of the program, and reduce the potential for temporary housing or overcrowding. Finally, requiring pre-placement will reduce the number of exchange visitors from Visa Waiver Program countries who never get host placements during their stay in the United States, estimated according to Department records to be around 10 percent of exchange visitors from all Visa Waiver Program countries. The Department also believes that a 100 percent pre-placement requirement will better ensure that proposed expanded host placement requirements are met.
The Department has monitored placements that are isolated, with little to no infrastructure nearby, and where a sponsor has not visited prior to the placement. The Department has concluded that sponsors should take great care when placing exchange visitors in locations that are far from commercial infrastructure and transportation options, and in those instances, host entities should assume responsibility for ensuring sufficient local transportation for the exchange visitor to meaningfully experience U.S. culture and cross-cultural activities.
The Department has seen successful placement of exchange visitors at summer camps and national parks, which may be a distance from commercial infrastructure. In those instances, the host entities made arrangements for cross-cultural outings, shopping excursions, emergency evacuation if needed, and so forth.
The ideal situation would be for exchange visitors to work 40-hour work weeks, as is common in the United States for full-time employees, but the Department also understands that seasonal employment ebbs and flows. In order to create appropriate standards and transparency, as well as protect exchange visitors who expend significant personal investment to
Over the years, the Department has been made aware that an exchange visitor's hours may decline over the course of the placement, causing exchange visitors to seek other unauthorized host placements. Should an exchange visitor's hours, averaged over a two-week period, fall below the 32-hour weekly minimum for longer than two weeks, the sponsor must assist the exchange visitor to increase his or her hours at the current host placement or find a re-placement or an additional placement to meet the required hour minimum. If the exchange visitor's hours averaged over a two-week period fall below the 32-hour weekly minimum, the exchange visitor also has the option to accept the below-minimum hours by indicating such to the sponsor in writing; the sponsor must acknowledge the communication.
Although the Department proposes at paragraph 62.32(f)(4) to require a minimum of 32-hours and a maximum of 65-hours per calendar week for authorized placements in the program, the Department does allow for some flexibility within that range in order to accommodate the special needs of seasonal placements. An exchange visitor's written consent is essential for work below or beyond previously agreed-upon hours. The importance of mutual agreement and clarity in hours and placement conditions is the motivation for an amended Form DS–7007.
Both the host entity and the exchange visitor will be subject to the requirement of two weeks' notice as set forth in proposed paragraph 62.32(f)(4)(iii)) and (iv) before changing central terms of the host placement agreement. The Department has learned that exchange visitor no-shows or abandonment of jobs are a major risk to the program, as host entities are counting on and have prepared for exchange visitor arrival. Likewise, the Department has too often been made aware of exchange visitors who arrive at the agreed placement only to be told that they have no job, or the job they are provided upon arrival is not the job to which they agreed. In order to instill greater commitment and, thus, higher quality exchange experiences, consequences for failure to fulfill requirements must exist on both sides.
An exchange visitor who abandons the placement, has a delayed arrival, or fails to arrive at the placement without first notifying the sponsor and gaining sponsor permission may be terminated from the program. Similarly, a sponsor may terminate from hosting exchange visitors any host entity that fails to provide the exchange visitor and sponsor two-weeks of notice before ending the placement, decreasing hours below the 32-hour weekly minimum, averaged over a two-week period, or otherwise significantly changing agreed-upon terms of the placement. The two-week notice provision does not apply to host entities in cases where the exchange visitor fails to report to work on a sustained basis (
In addition, once notified, the exchange visitor must be given at a minimum 72-hours to consider any significant additional requirements or changes that host entities wish to make to the exchange visitor's host placement, such as new duties, departmental relocation, or geographic relocation. An exchange visitor cannot be required to accept major program changes without consent. As set forth in proposed paragraph 62.32(m)(3), the sponsor must inform host entities and exchange visitors that, if an exchange visitor does not agree to such requirements or changes, he or she may continue with his or her previous host placement duties or, if this is not possible, request a re-placement by the sponsor. In the Department's experience, most sponsors are able to complete the re-placement vetting process for exchange visitors (
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Sponsors or host entities must compensate eligible exchange visitors for time spent in required training, including applicable overtime (if the exchange visitor is working more than 40-hours in a single work week), in accordance with all applicable federal, state, and local laws (see proposed paragraph 62.32(f)(6)(i) and (ii)). For trainings held in a city that is farther than 60 miles away from the exchange visitor's site of activity (see proposed paragraph 62.32(f)(11)), or where exchange visitors are required by the sponsor or host entity to stay overnight at the training site, the sponsor or host entity must compensate (either themselves pay or reimburse the exchange visitor) for related lodging during the training.
In addition, as set forth in proposed paragraph 62.32(f)(8), sponsors, in accordance with the Fair Labor Standards Act, must ensure that host entities provide exchange visitors, without charge or deposit, all uniforms, tools, supplies, and equipment needed to perform placement-required activities. Finally, because the Summer Work Travel Program is cultural and educational, and not a work program, and because exchange visitors are not in the United States for sufficient time to make use of union services, sponsors must reimburse exchange visitors any union dues that are required as part of their host placement.
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The Department thus requires in proposed paragraph 62.32(g) that sponsors placing exchange visitors in door-to-door sales positions execute an agreement with each exchange visitor in advance of the exchange visitor's acceptance of the host placement. This agreement must explain host placement duties and expectations, the geographical area the placement will encompass, how the purchase of any necessary state or local permits will be handled, how exchange visitors may access pre-arranged housing while traveling, and how, in accordance with the Fair Labor Standards Act, exchange visitors will be paid an hourly wage for time spent in their arrival orientation and be timely reimbursed for housing and other necessary business costs incurred while traveling on behalf of their host entity. Sponsors also must provide exchange visitors with an orientation containing information on safety considerations while selling door-to-door, how they will be supervised, how to react when faced with possible adverse situations (
Sponsors of exchange visitors working in door-to-door sales must ensure, as set forth in proposed paragraph 62.32(g)(2)(ii), that these exchange visitors earn in each calendar week of their program, averaged over a two-week period, the equivalent of the applicable federal, state, or local minimum wage per hour through hourly pay or sales profits, and receive pay and benefits commensurate with those offered to their U.S. counterparts and/or those on another class of nonimmigrant visa with similar qualifications and experience doing the same or similar work in the same work setting. The Department will allow a calculation over a two-week period to accommodate some fluctuation in sales profits week-by-week. Exchange visitors engaged in door-to-door sales must begin their sales calls no earlier than 9:00 a.m. and end their last sales call no later than 8:00 p.m. in their respective time zones.
In order to protect exchange visitors from a situation where they may be mistakenly taxed on funds collected for a host entity's business purposes, sponsors must ensure, as set forth in proposed paragraph 62.32(g)(2)(iii), that customers make all checks and other forms of payment directly payable to the host entity, not to the exchange visitor. In addition, proposed paragraph 62.32(g)(3) requires that sponsors honor an exchange visitor's reasonable request for re-placement at a non-door-to-door assignment.
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13. Exchange visitor housing and local transportation. Issues involving housing and local transportation (between place of residence and place of work) raise constant concerns both for
The Department proposes to require in paragraph 62.32(l)(1) that sponsors may only authorize placements that include options for safe and affordable housing accommodation and accessible modes of local transportation. Housing options must have reasonable proximity to the host entity and regular, safe, and affordable local transportation options leading to commercial infrastructure and to the host entity, unless the sponsor or host entity provides such transportation. Possible housing and local transportation options must be identified before the placement is approved as part of the sponsor's program. The specific conditions of the housing option selected for the exchange visitor by either the sponsor or sponsor's host entity, as applicable, must be reflected on the Housing Addendum to Form DS–7007 in accordance with proposed paragraph 62.32(m).
The Department proposes to retain the option for exchange visitors to self-identify housing, but both the sponsor and the exchange visitor must document such a selection in writing (proposed paragraph 62.32(l)(5)), and the sponsor may deny the housing if it does not include the characteristics set forth in proposed paragraph 62.32(l)(2). All housing, whether provided or found by the exchange visitor, must meet all applicable housing codes and ordinances. It also must be affordable for the exchange visitor; in a safe location; within reasonable distance from the exchange visitor's site of activity at the host entity(ies); in an area with regular, safe, and affordable transportation options; in a location that is neither isolated nor difficult to access; and in reasonable proximity to commercial infrastructure. Likewise, sponsors may not approve a placement if the associated housing option does not include those same characteristics.
Recent summers have seen an increased number of severe exchange visitor bicycle accidents. If an exchange visitor bicycles to and from the host entity or to reach commercial infrastructure, sponsors, in accordance with proposed paragraph 62.32(l)(7) must ensure that the exchange visitor is informed that he or she must wear a helmet and other appropriate protective gear and that he or she must check that the bicycle is in working order (
Sponsors placing exchange visitors in national parks, ski resorts, and summer camps must have on file, in accordance with paragraph 62.32(l)(3), the host entity's written arrangement for transportation for those exchange visitors in their off-duty hours or in case of emergency.
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Provision of Forms DS–7007 to exchange visitors will ensure that they are fully aware, before traveling to the United States, of the details of their individual Summer Work Travel program. As set forth in proposed paragraph 62.32(m)(1)(i), these details must include information about location and description of the host placement; number of employees and other exchange visitors on location; hours of work each week that will be offered the exchange visitor; duties, wages, and expectations of overtime; expected training period, if any; physical demands of the host placement; benefits each exchange visitor will receive from the host placement; total itemized fees and costs of the program charged by sponsors, host entities, and third parties (noting clearly which of those that are mandatory and those that are optional) that the exchange visitor will incur; itemized costs to each exchange visitor for benefits and mandatory and optional deductions (such deductions must be noted on the form); and any meals included at the host entity. Deductions taken from wages must be disclosed in advance to the exchange visitor.
The Department further proposes, in paragraph 62.32(m)(1)(i), to require sponsors to complete Form DS–7007 for every initial and subsequent host placement the exchange visitor accepts, and to update the form if the terms of the host placement(s) changes significantly. Sponsors must provide each signatory an executed copy of the Form DS–7007 (excluding the Housing Addendum) before the sponsor issues the exchange visitor a Form DS–2019 and the exchange visitor makes his or her visa application; and inform the exchange visitor that he or she must have his or her fully executed Form DS–7007 (excluding the Housing Addendum) available (along with his or her Form DS–2019) should it be requested during the visa interview.
In accordance with proposed paragraph 62.32 (m)(2), sponsors also must provide details about any sponsor- or host entity-arranged housing on the Housing Addendum to Form DS–7007, including the type of housing (house, apartment, dormitory, or other); distance to the exchange visitor's site of activity, and local transportation type and cost; cost of housing either weekly or monthly; need for an exchange visitor housing deposit; utilities covered in rent and those that the exchange visitor must pay separately; number of other tenants; housing features and description (including numbers of bedrooms and bathrooms); and type of housing contract, if any, that the exchange visitor must sign.
For protection of exchange visitors under proposed paragraph 62.32(m)(3), sponsors must give exchange visitors 72-hours to consider any significant additional requirements or changes proposed by the host entity to their host placement or housing after the DS–7007 or Housing Addendum is initially executed. If the exchange visitor disagrees in writing with the proposed
If the sponsor or host entity arranges housing for the exchange visitor, the Housing Addendum to Form DS–7007 must be completed and sent to the exchange visitor prior to the visitor's departure for the United States in accordance with proposed paragraph 62.32(m)(2). Sponsors must update the DS–7007 and/or Housing Addendum if exchange visitors move to other sponsor-provided (including host entity-provided) housing. If exchange visitors find their own housing or opt out of sponsor-provided housing (including host entity-provided), which they must do in writing, the sponsor need not complete the Housing Addendum, but must vet the housing address and its suitability before the exchange visitor can move in. Sponsors must keep the DS–7007 on file for three years, as set forth in proposed paragraph 62.32(m)(4).
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The orientation must additionally include information to exchange visitors on the process of monitoring and on their obligation to notify their sponsor within ten days of arrival in the United States and of any changes to the terms agreed to in Form DS–7007. Sponsors must describe the circumstances that may lead to termination of an exchange visitor's program under rules governing the program.
All of the proposed requirements for the pre-departure orientation are those that cover major aspects of the program, including the responsibilities of each party involved in the exchange; what reporting is required; necessary communications among the sponsor, host entity, and exchange visitor; workplace violations to which the exchange visitor should be alert; and what to do in case of emergencies. The Department is also aware that many parents of exchange visitors attend pre-departure orientation, although this is not a requirement, and believes that such information is also helpful for exchange visitors' families to know.
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Cross-cultural programming opportunities should provide exchange visitors on the Summer Work Travel program at least one of the following benefits. They should enable exchange visitors to: (1) Learn about U.S. society, higher education, and culture outside of their placement; (2) share their own culture, traditions, and views with U.S. residents; (3) experience the United States and its geographical diversity; (4) see the world or the United States from another perspective; (5) better understand the history and heritage of a diverse U.S. population; and/or (6) appreciate similarities that bring people of different nationalities and backgrounds together.
Cross-cultural activities can range from small and informal to large-scale and organized activities. A cultural activity does not need to be a trip to another city or a large or expensive event that takes weeks of planning. It can be something small and relatively spontaneous, making use of local resources. Some examples that occurred over the last program year were: Having the exchange visitor come to an already-planned staff picnic; organizing a potluck dinner at the supervisor's house with colleagues; going to a state fair; organizing a building-a-bonfire-on-the-beach event; having a group visit a natural resource, such as a cave or a federal, state, or local park nearby; playing softball with fellow employees; going with the exchange visitor to a local sporting event such as baseball (including having a contest about who can best describe the rules of baseball);
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Sponsors must document all efforts to resolve problematic placements and efforts to contact non-responsive exchange visitors before termination. Sponsors must conduct monitoring of their exchange visitors and facilitate Department oversight and visits to placement locations. In addition, sponsors should inform host entities about the Department's monitoring process. Sponsors must be prepared to incorporate additional monitoring steps at the suggestion of the Department in order to resolve efficiently any problems that come to the Department's attention regarding the Summer Work Travel program.
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Because the Summer Work Travel program is first and foremost a public diplomacy and cultural exchange program, if utilizing the services of foreign third parties, sponsors must, under proposed paragraph 62.32(q)(1), select only those that market the Summer Work Travel program as a cultural and educational program with a 32- to 65-hour per week work component rather than a labor program.
As proposed in paragraph 62.32(q)(1)(ii), sponsors must use only foreign third parties that have a fixed office address, employees with professional experience in the service(s) the foreign third party provides, an organizational mission applicable to cultural and educational exchange, and a secure system to collect, protect, and dispose of the personal data of potential and actual program exchange visitors (
As proposed in paragraph 62.32(q)(1)(iv), sponsors must ensure that their foreign third parties charge exchange visitors only fees and costs that are permissible under regulation, transparent, justifiable in terms of services provided, and legal. In accordance with proposed paragraph 62.32(d)(9), it is not permissible to require an exchange visitor to remit a portion of his or her income earned in the United States to an overseas business entity.
Sponsors must adequately orient their foreign third parties on the purpose and intent of the Exchange Visitor Program, as set forth in proposed paragraph 62.32(q)(3), as well as provide regulatory updates about the Exchange Visitor Program when these are announced by the Department. In addition, as proposed in paragraph 62.32(q)(4), sponsors must require, review and approve annually the marketing materials for exchange visitor programs marketed on the sponsor's behalf by each of their foreign third parties. These marketing materials must include updated itemized price lists that adhere to any Department-initiated template.
In order to promote transparency for potential exchange visitors, the Department proposes in paragraph 62.32(q)(6) that a sponsor place information about each of its foreign third parties on the sponsor's main Web site (
In accordance with § 62.2 and as provided in proposed paragraph 62.32(q)(8), failure by any foreign third party to comply with the regulations or with any additional terms and conditions governing administration of the Exchange Visitor Program will be imputed to the sponsor by the Department. And, pursuant to proposed paragraph 62.32(q)(8), sponsors are required to ensure that foreign third parties know and comply with all applicable Departmental regulations and guidance.
The Department proposes in paragraph 62.32(r) that sponsors thoroughly vet their foreign third parties. At a minimum, a sponsor must annually review current documentation for each of its foreign third parties as part of the vetting process to ensure that the third party is legally authorized to conduct business where it operates; is solvent, as determined through an examination of its recent financial statements; is reputable, as evidenced by references from business associates or partner organizations; does not have legal judgments against it or pending legal actions or complaints; and has staff all of whom have undergone criminal background checks. These are very important aspects for sponsors to consider as they select and vet foreign third parties. Such foreign third parties come into direct contact with exchange visitor program applicants and
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Sponsors will be required to supervise and monitor carefully their third parties' program-related activities to ensure that the third party is in compliance with the Exchange Visitor Program regulations. Sponsors must not refer any potential exchange visitor applicants to a domestic third party that is not covered by a written agreement. Sponsors that engage another designated sponsor as a third party do not need to vet that sponsor, but must require that the third party sponsor provide proof of current Department designation.
Sponsors must vet domestic third parties in accordance with the requirements set forth in proposed paragraph 62.32(t). These are very important aspects for sponsors to consider as they select and vet domestic third parties. Such domestic third parties may initially identify host entities where exchange visitors are placed, which placement will materially impact the exchange visitor's experience in the United States; implement cross-cultural activities for the exchange visitor, which is a central aspect of such a public diplomacy program; orient the exchange visitor on what is permitted and not permitted on the program; serve as a point of contact throughout that exchange visitor's time in the United States; or provide transportation for the exchange visitor. The experience of the exchange visitor and the reputation of the Summer Work Travel program are protected by assessing whether the third party, at a minimum, legally operates in the United States; has disclosed any bankruptcy, complaints, pending legal actions, or adverse judgments; and has liability insurance sufficient to cover the activities it provides in connection to the Summer Work Travel program.
Requiring sponsors to enter into a fully executed written agreement with both foreign and domestic third party entities (proposed paragraphs 62.32(q)(2) and (s)(2)) will provide more oversight than the previously informal agreements sponsors may have relied upon for such services, and will better protect the health, safety, and welfare of exchange visitors. It will also ensure that the sponsor acknowledges in writing that the third party is in a legal relationship with that sponsor in regard to that third party's contribution to the Exchange Visitor Program and what specific services that sponsor expects the third party to provide to exchange visitors.
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The Department of State is of the opinion that administration of the Exchange Visitor Program, including the Summer Work Travel program category, is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from Section 553 (Rulemaking) and Section 554 (Adjudications) of the Administrative Procedure Act (APA). As reflected in the Fulbright-Hays Act, the purpose of such programs is to increase “mutual understanding” between the people of the United States and those of other countries, “unite us with other nations,” and “promote international cooperation.” Pursuant to law, policy, and longstanding practice, the Department of State has supervised, either directly or through private sector program sponsors or grantee organizations, those foreign nationals who come to the United States as exchange visitors in exchange visitor programs, one of which is the Summer Work Travel Program. Exchange visitors in the Summer Work Travel Program come to the United States currently from approximately 125 countries. When problems occur in a program such as this, foreign governments often directly engage the Department of State regarding the treatment of their nationals, regardless of who is responsible for the problems.
A major purpose of this rulemaking is to put in place extra measures to protect the health, safety, and welfare of foreign nationals entering the United States to participate in the Summer Work Travel Program then returning to their countries of nationality or last legal permanent residence upon completion
The Department emphasizes that many provisions of this proposed rule—indeed, the majority—reflect careful consideration of public comments received on two previous Interim Final Rules issued on May 11, 2012, and April 26, 2011 (see the citations in the “Supplemental Information” section of this Notice, above). Members of the public submitted detailed comments, and this proposed rule has benefited from those comments. A number of provisions within this proposed rule are new, based on additional monitoring of the program that the Department has conducted and meetings with sponsors about their current experience in conducting this program.
Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule as a proposed rule, with a 45-day provision for public comment and without prejudice to its determination that the Exchange Visitor Program is a foreign affairs function.
This proposed rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
This proposed rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
Since the Department is of the opinion that this rule is exempt from 5 U.S.C. 553, the Department is also of the view that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601,
Of the 41 current designated sponsors in the Summer Work Travel category, 29 sponsors or 70 percent of the total had annual revenues of less than $7 million in 2015. These 29 small program sponsors accounted for approximately 26,000 exchange visitors on the Summer Work Travel program in 2015, or 28.8% of the average total number (90,000) of exchange visitors on the Summer Work Travel program (averaged over the past three calendar years (2013–2015)).
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The total cost of all regulatory provisions per small sponsor exchange visitor is $154; total cost of all new regulatory provisions per small sponsor exchange visitor is $98. Last calendar year, there were 13 small sponsors having fewer than 500 exchange visitors in the Summer Work Travel category. The largest of this number had permission from the Department to host 477 exchange visitors and would under the proposed regulation incur total costs of $73,458, and new costs of $46,746, or four percent of revenue. The smallest of this number had permission to host five exchange visitors and would under the proposed regulation incur total new costs of $490, or less than one percent of revenue.
Last calendar year, there were twelve sponsors with permission to host between 500 and 2,000 exchange visitors in the Summer Work Travel category. Of these, the largest had permission to host 1,934 exchange visitors and would under the proposed regulation incur a total cost of $297,836, and total new costs of $189,532, or around nine percent of revenue. The smallest sponsor in this group had permission to host 555 exchange visitors and under the proposed regulation would incur a total cost of $85,470 or around eight percent of revenue and new costs of $54,390, or around six percent of revenue.
Last calendar year, there were five sponsors with permission to host more than 2,000 exchange visitors. The largest of these were able to host 5,569 exchange visitors and would under the proposed regulation incur a total cost of $857,626, or eight percent of revenue and total new costs of $545,762, or six percent of revenue. The smallest of these were permitted to host 2,311 and would incur under the proposed regulation total costs of $355,894 and total new costs of $226,478.
The Department considered whether alternative approaches for small businesses could adequately protect the safety and welfare of exchange visitors while reducing costs to small entities. For example, the Department considered requiring cross-cultural activities less frequently for small sponsors and/or host entities. However, the Department has a mandate to ensure cross-cultural engagement for all visitors, and a monthly requirement provides a minimum level of cross-cultural engagement to meet the objectives of the Fulbright-Hays Act. The Department also considered the requirement to complete a DS–7007 on housing and host entity placement for small businesses and considered whether small entities could be given additional time for compliance. The Department decided against this proposal due to the need to provide adequate information about the host entity and housing available to all visitors to the United States. The requirements for the Summer Work Travel category, as well as all Exchange Visitor Program categories, are driven almost exclusively by considerations of the health and safety of the exchange visitor, and any impact on foreign relations with the visitor's home country. These considerations constrain the number of feasible alternatives to the requirements proposed in this Notice of Proposed Rulemaking. That said, the Department requests comment on other possible alternatives that would meet the objectives of this rulemaking in a less costly manner for small entities.
As discussed above, the Department is of the opinion that the subject of this rulemaking constitutes a foreign affairs function of the United States, and thus is exempt from the provisions of Executive Order 12866. The Department has nevertheless reviewed this rulemaking to ensure its consistency with the regulatory philosophy and principles set forth in Executive Orders 12866 and 13563. This rulemaking has been reviewed by the Office of Information and Regulatory Affairs, which has designated it a significant rule pursuant to Executive Order 12866.
In order to inform the public as to the costs and benefits of this rule, the Department presents the following information.
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Events that occurred prior to 2011 led the Department to enhance its scrutiny of the Summer Work Travel category and amend regulations to protect exchange visitors. Additionally, in recent years, the work component of the Summer Work Travel category has too often overshadowed the cultural component required by the Fulbright-Hays Act.
Accordingly, the Department issued the 2012 IFR to address issues most directly affecting the health, safety, and welfare of the exchange visitors and to reinforce the cultural exchange aspects of the program to promote mutual understanding in accordance with the purpose of the Fulbright-Hays Act. Changes made by 2012 IFR were intended to protect the health, safety, and welfare of exchange visitors by reducing the number of improper or unsafe job placements, fraudulent job offers, post-arrival job cancellations, inappropriate work hours, and problems regarding housing and transportation.
However, as the Department has increased its monitoring of the program and received additional sponsor input, it also has seen the need to make the proposed rule more specific than the 2012 IFR in certain sections, so that
For the reasons outlined above, the Department considers that the costs of this proposed rulemaking are outweighed by: (1) The benefits of increased protection and transparency for exchange visitors, enhancing both their experiences and U.S. foreign policy; and (2) closer adherence to the purpose of the Fulbright-Hays Act.
The Department of State has reviewed this proposed rule in light of Sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
This proposed regulation will not have 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. Therefore, it is determined that this proposed rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 12372, regarding intergovernmental consultation on federal programs and activities, does not apply to this regulation.
The information collection requirements contained in this proposed rule are pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501
Direct requests for additional information regarding the collection listed in this notice, including copies of the proposed collection instrument and supporting documents, to the U.S. Department of State, Office of Policy and Program Support, SA–5, 2200 C Street NW., Floor 5, Washington, DC 20522.
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department;
• Evaluate the accuracy of our estimates of the time and cost burden for this proposed collection;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that the comments submitted in response to this rule are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments from all interested individuals and organizations on this collection as it relates to proposed changes to 22 CFR 62.32. The purpose of this notice is to allow 45 days for public comment in the
The Department will accept comments from the public up to 45 days from February 27, 2017.
You may submit comments identified by any of the following methods:
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Direct requests for additional information regarding the collections listed in this notice, including copies of the proposed collection instruments and supporting documents, to the U.S. Department of State, Office of Policy and Program Support, SA–5, 2200 C Street NW., Floor 5, Washington, DC 20522.
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department;
• Evaluate the accuracy of our estimates of the time and cost burden for this proposed collection;
• Enhance the quality, utility, and clarity of the information to be collected;
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that the comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
A Host Placement Certification (Form DS–7007) is required for each Summer Work Travel participant. It will set forth: Location and description of the host placement; number of employees and other exchange visitors on location; hours of work each week that will be offered the exchange visitor; duties, wages, expected training period, if any; physical demands of the host placement; any placement-related benefits or amenities; total itemized fees and estimated costs of the program charged by sponsors, host entities, and third parties (noting those that are mandatory and optional), that that exchange visitor will incur; explanation of costs and deductions for benefits and mandatory and optional deductions (noting those that are mandatory and optional); and meals included at host entity. Form DS–7007 must be signed by the sponsor, the sponsor's host entity, and the exchange visitor.
The Housing Addendum will describe the housing and local transportation and cost (either weekly or monthly), distance to the site of activity at the host entity, need for an exchange visitor housing deposit; utilities covered in rent and those that the exchange visitor must pay separately; whether deductions for housing or local transportation will be taken from exchange visitors' wages, number of other tenants; housing features and description (including numbers of bedrooms and bathrooms); and whether there is a firm contract for the housing that the exchange visitor must sign for a fixed period of time. The Housing Addendum page must state the market value of housing and/or local transportation.
Upon request, Summer Work Travel applicants must present a fully executed Summer Work Travel Host Placement Certification (Form DS–7007) to any Consular Official interviewing them in connection with the issuance of a J–1 visa.
Cultural exchange programs, Reporting and recordkeeping requirements.
Accordingly, 22 CFR part 62 is proposed to be amended as follows:
8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431
(a)
(1) interact with U.S. persons and experience the culture and customs of the United States through authorized placements and cross-cultural activities;
(2) share their individual cultural experiences and background with U.S. friends, colleagues and communities;
(3) improve their command of the English language;
(4) earn funds to help defray a portion of their expenses by working in seasonal or temporary host placements that require minimal training; and
(5) travel in the United States.
(b)
(1)
(2)
(3)
(4)
(c)
(d)
(1) A sponsor is responsible for screening prospective exchange visitors as set forth in § 62.32(e); making the final selection of exchange visitors; placing (and re-placing, as necessary) exchange visitors; issuing Forms DS–7007 and DS–2019; providing an orientation for host entities; finding, approving, and verifying (as applicable) exchange visitor housing; and conducting monitoring of exchange visitors and their host placements within the United States. These activities must be conducted by employees of the sponsor.
(2) A sponsor must provide for a pre- and post-arrival orientation for exchange visitors. The pre-arrival orientation may be conducted by sponsor employees or through a foreign third party with which the sponsor has a written agreement (pursuant to § 62.32(q)(2)), or both. The post-arrival orientation may be conducted by sponsor employees or by the host entity, or both.
(3) A sponsor may use foreign third parties, in accordance with § 62.32(q), for recruitment and overseas orientation of exchange visitors, and initial identification of host entities.
(4) A sponsor may use domestic third parties, in accordance with § 62.32(s), to provide for initial identification of host entities, implementation of cross-cultural activities for exchange visitors, a local point of contact for exchange visitors, orientation of exchange visitors, housing assistance, and exchange visitor transportation.
(5) A sponsor's third party or host entity acts on a sponsor's behalf in the conduct of the sponsor's exchange visitor program, and failure by any third party or host entity to comply with the regulations set forth in this part will be imputed to the sponsor.
(6) A sponsor and its third parties shall not pay or otherwise provide financial incentive to host entities to accept exchange visitors for host placements.
(7) A sponsor must ensure that any fees it or its third parties charge are legal, justifiable, and permitted under this Part.
(8) Sponsor promotional materials must characterize the Summer Work Travel Program as a cultural and educational program with a work component.
(9) A sponsor must include in its recruiting material, and post on its main Web site, examples of the typical monthly budgets of exchange visitors placed in various regions of the United States to illustrate wages (based on the minimum-required 32 hours of work at a typical host placement) balanced against fees and estimated costs. A sponsor must itemize fees that it and its third parties will charge, or provide within the sponsor's fee list a specific link to a third party's fee list on the third party's Web site, and estimate other typical exchange visitor costs, including estimated housing costs and estimated costs for cultural activities, in its posting. Actual fees that should be itemized include the following, as applicable: Program fee (with an explanation of what this includes); fees for recruitment, interview and screening, placement, arrival/orientation services; vetting of re-placement or additional jobs; health insurance; expedited application review; document translation; and fees related to program administration and the Form DS–2019 (such as expedited form changes, program extensions within allowable program windows, health insurance extension during grace period, reinstatement, re-placement of lost Form DS–2019, SEVIS adjustments, and travel validation). No sponsor or third party may require an exchange visitor to remit a portion of his or her earnings in the United States to an overseas private entity.
(10) A sponsor must ensure that any host entity at which it places an exchange visitor hires, remunerates, and provides supervision for that exchange visitor and is willing and able to assist the exchange visitor in the absence of the sponsor in cases of emergency.
(11) A sponsor must ensure that an exchange visitor does not change his or her site of activity at the host entity, type of position within the current host placement, or residence without first notifying the sponsor.
(e)
(1) A sponsor must verify and document, prior to each exchange visitor's selection, that each exchange visitor:
(i) Will be at least 18 years of age by the program start date;
(ii) Is, at the time of application, a foreign national post-secondary student (including a student in his/her final year) who is enrolled in and actively pursuing a full-time course of study toward a degree at a classroom-based post-secondary academic institution that is physically located outside the United States and is ministerially-recognized within the national education system where the student is enrolled; applicants must have successfully completed at least one term, or equivalent, of post-secondary academic study at the time of application.
(iii) Has not participated in more than two previous Summer Work Travel program exchanges to the United States;
(iv) Has at a minimum a level of English language proficiency, verified in accordance with § 62.10(a)(2), that allows him or her to communicate
(v) Intends to participate in sponsor, host-entity, and/or self-initiated cross-cultural activities while in the United States.
(2) Prior to selecting an exchange visitor, a sponsor must conduct an interview with each prospective exchange visitor either in-person or by video-conference and, where requested by the host entity or exchange visitor, facilitate a video-conference between the host entity and the exchange visitor.
(3) A sponsor must communicate to prospective exchange visitors that they may not be accompanied by spouses and dependents unless these spouses and dependents secure the requisite immigration status. Spouses and dependents of an exchange visitor in the Summer Work Travel program category are not eligible for J–2 (derivative) status.
(f)
(1) Before issuing a Form DS–2019, a sponsor must secure for each prospective exchange visitor a host placement(s):
(i) That is seasonal or temporary in nature;
(ii) Requiring only minimal training;
(iii) Entailing daily interaction with, and work alongside, American guests, customers, co-workers, and supervisors, as an integral part of the host placement;
(iv) Providing the exchange visitor with hours of work numbering between the allowable minimum and maximum, in no more than two host placements in accordance with § 62.32(f)(4);
(v) Meeting the requirements for compensation in accordance with § 62.32(f)(6);
(vi) Provided by a host entity that has been vetted in accordance with § 62.32(i);
(vii) Provided by a host entity informed of its responsibilities pursuant to § 62.32(j);
(viii) Not on the program exclusions list set forth in § 62.32(k);
(ix) Satisfying the standard for exchange visitor housing and local transportation as set forth in § 62.32(l);
(x) Provided by a host entity that has been fully oriented by the sponsor about the public diplomacy purpose of the Exchange Visitor Program, federal regulations (including updates), and other requirements of the Exchange Visitor Program;
(xi) Provided by a host entity that accepts responsibility for the exchange visitor as necessary in case of emergency; and
(xii) Located where an employee of the sponsor can reach the exchange visitor in-person within eight hours through any reliable means of transportation.
(2) A sponsor must divulge to the Department where a partial or full ownership relationship exists between the sponsor and the host entity. In these instances, the sponsor must identify an individual who will act as an independent advocate for the exchange visitor, such as an ombudsperson.
(3) A sponsor must not place exchange visitors with host entities if there is a strike or lockout, at the placement site, or other labor dispute at the placement site that the sponsor reasonably believes would have a negative impact on the exchange visitor's program. If a strike, lockout, or other such labor dispute occurs at the host entity in the location where an exchange visitor's host placement has been finalized pending the arrival of the exchange visitor, or where an exchange visitor is currently carrying out the program, a sponsor must place the exchange visitor at a different host entity as soon as possible and no later than five business days after the occurrence of such dispute.
(4)
(i) A sponsor must place the exchange visitor only with one or two host entities that, taken together, commit to provide a total minimum of 32-hours and a total maximum of 65-hours of permissible work per exchange visitor per calendar week averaged over a two-week period, as accepted by the exchange visitor on Form DS–7007. Should the exchange visitor's hours fall below the required 32-hour minimum per week for longer than two weeks (except in cases where the exchange visitor is ill or otherwise has been authorized an absence), the sponsor must assist that exchange visitor within three business days to raise his/her placement hours at the host entity or be re-placed, or, if the exchange visitor does not already have two placements, an additional placement. Should the exchange visitor's hours increase beyond the 65-hour maximum for more than two weeks, the sponsor, in consultation with the host entity, must require the exchange visitor to reduce his or her hours. The exchange visitor may opt out of the 32-hour weekly minimum work requirement if requested in writing by the exchange visitor and acknowledged by the sponsor after consultation with the host entity.
(ii) A sponsor may place an exchange visitor with no more than two host entities at the same time to meet the 32-hour minimum and 65-hour maximum requirements; the two host placements must be located in close proximity to each other. An exchange visitor may, if he or she so desires, take on additional sponsor-authorized work placements above the 32-hour minimum and below the 65-hour maximum per week work requirement, that conform to all applicable requirements of this Part.
(iii) A sponsor must ensure that a host entity provides the exchange visitor two-weeks' notice if the exchange visitor's job placement will (A) conclude earlier than the end-date indicated on Form DS–7007 or (B) fall below a total of 32-hours per week averaged over a two-week period. The two-week notice provision does not apply to host entities in cases where the exchange visitor fails to report to work for a sustained period (
(iv) A sponsor must ensure that the exchange visitor gives the host entity two weeks' notice if the exchange visitor's host placement will (A) conclude earlier than the end-date indicated on Form DS–7007 or (B) fall below the 32-hour weekly minimum averaged over a two-week period (if the exchange visitor has not formally opted out of the 32-hour requirement). The two-week notice provision does not apply to exchange visitors in cases where the exchange visitor can credibly allege workplace abuse, sexual abuse, sexual harassment, bullying, exploitation, wage violations, criminal activity, and instances of retaliation against the exchange visitor for reporting problems in the workplace; a sponsor must inform the Department of such incident within 24-hours of its being notified.
(5)
(6)
(i) At not less than the federal, state, or local minimum wage, whichever is higher, for all hours worked (including overtime hours worked and applicable overtime wage), in conformance with applicable federal, state, and local laws, including the Fair Labor Standards Act; and
(ii) With pay and benefits commensurate with those offered to their U.S. counterparts and/or those on another class of nonimmigrant visa, as applicable, doing the same or similar work in the same work setting. Host entities may reasonably offer different wages to an employee commensurate with a qualified, experienced, or fully competent worker only after considering the experience, education, and skill requirements of the position.
(7) A sponsor must inform its host entities that, when hosting an exchange visitor, they are required by law to follow applicable employer recordkeeping requirements under federal, state, and local law, including the Fair Labor Standards Act and Department of Labor regulations (
(8) A sponsor must ensure that host entities provide exchange visitors, without charge or deposit, all uniforms, tools, supplies, and equipment needed to perform placement-required activities.
(9) Prior to placing an exchange visitor at a host entity, the sponsor must inquire whether the host entity has displaced or intends to displace a U.S. worker with an exchange visitor. Sponsors must ensure that host entities have not rejected qualified U.S. applicants for the same position within 90 days of the date on which the sponsor has confirmed the host entity's formal acceptance of that exchange visitor for the host placement as indicated on Form DS–7007.
(10) A sponsor must reimburse exchange visitors for any union dues required by their host placement.
(11) A sponsor must ensure that exchange visitors are not charged for any host entity promotional material used by the exchange visitor on the job, and must compensate, or ensure that the exchange visitor's host entity compensates, the exchange visitor for travel time from the site of activity to any training site, and for the time spent in training; if the sponsor or host entity holds the training in a city that is farther than 60 miles away from the exchange visitor's site of activity, or the sponsor or host entity requires the exchange visitor to stay overnight at the training site, then the sponsor or host entity must pay the exchange visitor for the cost of lodging.
(g)
(1) Fully execute an agreement that explains in detail the exchange visitor's placement duties and expectations, who will obtain and pay or reimburse the exchange visitor for any necessary state or local permits, the geographic area the host placement encompasses, and how exchange visitors, while traveling, may access housing that has been pre-arranged by the sponsor or host entity. The agreement must be included as an appendix to Form DS–7007 and must be accepted in writing by the exchange visitor before he or she receives a Form DS–2019.
(2) Ensure that:
(i) The host entity provides the exchange visitor with a post-arrival orientation that, at a minimum, includes information on safety considerations while selling door-to-door; how to contact a supervisor while traveling on duty; how to react when faced with possible adverse situations; how exchange visitors will be reimbursed for housing costs incurred while traveling on behalf of their host entity; and how products will be delivered to customers;
(ii) The exchange visitor in each calendar week of his or her program, averaged over a two-week period, earns not less than the equivalent of the applicable federal, state, or local minimum wage per hour through hourly pay or sales profits, in conformance with applicable federal, state, and local laws, including the Fair Labor Standards Act, and receives pay and benefits commensurate with those offered to his or her U.S. counterparts and/or those on another class of nonimmigrant visa doing the same or similar work in the same work setting and having similar qualifications and experience. Hours that an exchange visitor spends in orientation constitute hours worked;
(iii) Customers make all checks and other forms of payment directly payable to the host entity, not to the exchange visitor, for sponsor or host entity products; and
(iv) The exchange visitor begins selling door-to-door no earlier than 9:00 a.m. and finishes his/her last sales call no later than 8:00 p.m. in the time zone covering his or her location.
(3) Permit an exchange visitor's reasonable request for re-placement at a non-door-to-door assignment and issue the exchange visitor a new Form DS–7007.
(4) Pre-authorize and document on the appendix to the DS–7007 any additional types of exchange visitor sales activities.
(h)
(1) Find and fully vet a new host entity for the exchange visitor (
(2) Ensure that a host re-placement meets the requirements applicable to the original placement(s).
(3) Complete and secure the requisite signatures on a new Form DS–7007 prior to the exchange visitor's beginning work at a host re-placement.
(i)
(1) Exercise due diligence in vetting a host entity, its owners, and its managers and supervisors who work with exchange visitors. In conducting such vetting, a sponsor must confirm that a host entity is a legitimate and reputable business by taking, at a minimum, the following steps annually:
(i) Check, through direct contact in person or by telephone, the names of the entity's owner(s), and manager(s), names of the supervisor(s) for the exchange visitor, business telephone numbers, email addresses, street addresses, and professional activities;
(ii) Use publicly available information (
(iii) Record a potential host entity's Employer Identification Number (EIN) and obtain copies of its current business or professional license or permit, or certificate issued by the jurisdiction where the business operates, granting the host entity the right to operate in that jurisdiction;
(iv) Check whether the host entity will use any third parties (including staffing agencies) to conduct the exchange visitor program and verify using publicly available information (
(v) Verify that each potential host entity will have Workers' Compensation Insurance coverage or its equivalent, as applicable, in the appropriate U.S. state during the time when the exchange visitor will be placed there, or, if applicable, evidence of that state's exemption from requirement of such coverage;
(vi) Obtain verification at the beginning of each season that a host entity with which an exchange visitor is planned to be placed will not displace U.S. workers, has not experienced layoffs in the past 120 days, and does not have workers on lockout or strike; and
(vii) Review the U.S. Department of Labor Web site and state resources for judgments and debarments and revocations pertaining to the host entity or business owner.
(2) Discontinue cooperation with a host entity that fails to disclose information that may affect exchange visitor health, safety, or welfare, or bring the Exchange Visitor Program into notoriety or disrepute.
(j)
(1) A sponsor must inform a host entity and its relevant managers and supervisors of program regulations, regularly monitor the host entity's compliance with such regulations, and take action if it becomes aware of a violation.
(2) A sponsor must inform a host entity that it may be required to arrange cross-cultural activities for its exchange visitor, or that it must permit time for the exchange visitor to engage in sponsor-arranged cross-cultural activities, as defined in § 62.2.
(3) Failure by any host entity (or any disclosed or undisclosed third party) to follow the requirements governing administration of the Exchange Visitor Program will be imputed to the sponsor.
(4) A sponsor must require a host entity to notify it within 24-hours of the following events:
(i) The exchange visitor arrives at his/her site of activity to begin his/her program;
(ii) There are significant deviations in the host placement during an exchange visitor's program;
(iii) The exchange visitor is not meeting the requirements of his/her host placement as detailed on Form DS–7007;
(iv) The exchange visitor leaves his/her position ahead of the planned departure;
(v) There are serious incidents involving an exchange visitor, including any situations that have or could have the effect of endangering his or her health, safety, or welfare.
(5) No sponsor or host entity may prevent communication between an exchange visitor and his or her sponsor, family or friends, or any other person while the exchange visitor is not on duty;
(6) A sponsor shall terminate the participation of a host entity that is found to have, without the exchange visitor's advance written permission, held or withheld the exchange visitor's money, identification (including passport and social security card), cell-phone, flight tickets, or other personal property during his or her program; or held or withheld an exchange visitor's Forms DS–2019 or DS–7007. Any exchange visitor who wishes the sponsor or sponsor's host entity to retain important documents must make this request in writing, including an itemized list of the documents. The exchange visitor may revoke this authorization in writing at any time, whereupon such documents or property must be returned within 48-hours of the written revocation's documented submission to the sponsor.
(k)
(1) Inconsistent with U.S. law or that could bring notoriety or disrepute to the Department or to the Exchange Visitor Program, as determined by the Department;
(2) Lacking acceptable housing and local transportation, (as set forth in § 62.32(l)), including safe local transportation that is accessible during late night or early morning hours if the exchange visitor will work during such hours;
(3) Requiring more than four hours of work between 10:00 p.m. and 6:00 a.m.;
(4) In locations where telephone and Internet communication is not accessible;
(5) Requiring licensing of the exchange visitor;
(6) Compensating the exchange visitor on a “piece work basis” (
(7) Resulting in the exchange visitor being supervised by a staffing agency, unless the sponsor vets the staffing agency as well as the host entity where that agency places exchange visitors, and the staffing agency's role meets the following criteria:
(i) The staffing agency provides daily supervision and primary onsite monitoring of the exchange visitor's work environment at his or her host entity;
(ii) The exchange visitor is an employee of, and paid by, the staffing agency; and
(iii) The staffing agency effectively controls the host placement (
(8) Entailing domestic help in private homes (
(9) Requiring the exchange visitor to operate or drive a pedicab, rolling chair, or other vehicle powered by physical exercise;
(10) Requiring the exchange visitor to operate or drive a vehicle or vessel for which a driver's license is required, regardless of whether the vehicle carries passengers;
(11) Related to clinical care that involves physical contact with patients;
(12) In the adult entertainment industry or the commercial sex trade (
(13) Requiring the exchange visitor to engage in work that is declared hazardous to youth by the Secretary of Labor at Subpart E of 29 CFR part 570;
(14) Requiring sustained physical contact with other people (
(15) Requiring the exchange visitor to operate gaming, gambling, wagering, or betting activities;
(16) In chemical pest control, warehousing, or a catalogue/online order distribution center;
(17) In the mobile amusement and itinerant concessionaires industries;
(18) Meeting the criteria of another Exchange Visitor Program category (
(19) In the North American Industry Classification System's (NAICS) Goods-
(20) Employing the exchange visitor as a mover or in any position where the primary work duty is the movement of household or office goods;
(21) Employing the exchange visitor in a position requiring repetitive motion such as that found on an assembly line or in certain factory-like settings;
(22) Employing the exchange visitor in waste management, janitorial, or custodial positions, or in any position where more than five percent of the duties as defined by time spent involve waste management or keeping the premises of a building and supplementary machinery (
(23) In a position with a host entity that participates in the Summer Work Travel Program on a basis other than seasonal or temporary (
(24) In a position where an exchange visitor is solely responsible for the safety of others (
(25) In a position with a host entity that does not inform the exchange visitor about, and enforce the use of, applicable workplace health and safety laws (
(l)
(1) Every sponsor-approved placement must include identification of acceptable housing and local transportation before that sponsor approves the placement and issues a Form DS–2019. Housing must be fully and accurately described on the Housing Addendum of Form DS–7007 in accordance with § 62.32(m).
(2) Acceptable housing must meet all applicable housing codes and ordinances and be:
(i) Affordable for the exchange visitor;
(ii) provided in compliance with applicable federal, state, and local laws, including 29 CFR part 531 (if the host entity plans to deduct housing costs from the exchange visitor's wages);
(iii) in a safe location;
(iv) within a reasonable distance of the exchange visitor's site of activity at the host entity(ies);
(v) in an area with regular, safe and affordable local transportation options to commercial infrastructure and to his or her site of activity at the host entity; and
(vi) in a location that is neither isolated, nor difficult to access.
(3) The requirements in subparagraphs (iv), (v) and (vi) above are waived if the sponsor or host entity provides reliable, safe, and affordable local transportation to the exchange visitor during his/her on- and off-hours, and has a transportation plan in case of emergency. A sponsor placing an exchange visitor in a remote national park, ski or mountain resort, or summer camp must document the host entity's written arrangement for transportation for that exchange visitor during his/her off hours and in case of emergency.
(4) Neither a sponsor nor its host entity is permitted to require an exchange visitor to pay a separate fee to identify housing in excess of any fee charged for the exchange visitor's placement at the host entity.
(5) In the event that the exchange visitor chooses to secure his or her own housing, both the sponsor and the exchange visitor must document such choice in writing and the sponsor must verify compliance with the requirements of paragraph (2) prior to the exchange visitor's arrival in the United States, or the sponsor may deny the housing or the entire host placement.
(6) If either the sponsor or the Department determines that an exchange visitor's housing situation is unacceptable or otherwise problematic (
(7) If an exchange visitor bicycles to and from the host entity or to reach commercial infrastructure, his or her sponsor must ensure that the exchange visitor is informed that he or she must wear a helmet and other appropriate protective gear and that he or she must check that the bicycle is in working order (
(m)
(1) A sponsor must:
(i) Fully complete a Form DS–7007 for each exchange visitor placement, which must include: Location and description of the host entity; number of employees and other exchange visitors on location; hours of work each week that will be offered the exchange visitor; duties, wages (including expectations for overtime), expected training period, if any; physical demands of the host placement; any placement-related benefits or amenities; total itemized fees charged by sponsors, host entities, and third parties, that the exchange visitor will incur, identifying clearly which are mandatory and which are optional; other estimated costs to the exchange visitor of the placement at the host entity or for other aspects of the program (
(ii) Fully execute a Form DS–7007 (excluding Housing Addendum) before completing and signing a Form DS–2019 for each exchange visitor;
(iii) Provide each signatory an executed copy of the Form DS–7007 (excluding Housing Addendum) before
(iv) Inform the exchange visitor that he or she must have his or her fully-executed Form DS–7007 (excluding Housing Addendum) available (along with his or her Form DS–2019) for the visa interview.
(2) A sponsor must ensure that the Housing Addendum of the Form DS–7007 is completed (including by the host entity), if relevant, and that a copy is sent to the exchange visitor prior to the exchange visitor's departure to the United States and if the exchange visitor changes housing. A sponsor must include a description of the housing; information about local transportation type and cost, and distance to the host entity; cost of housing (either weekly or monthly); need for an exchange visitor housing deposit; utilities covered in rent and those that the exchange visitor must pay separately; whether deductions for housing or local transportation will be taken from exchange visitors' wages; number of other tenants; housing features and description (including numbers of bedrooms and bathrooms); and whether there is a firm contract for the housing that the exchange visitor must sign for a fixed period of time. The Housing Addendum page must state the market value of housing and/or local transportation. Deductions from wages may only be made in accordance with Fair Labor Standards Act regulations set forth at 29 CFR part 531.
(3) A sponsor must give each exchange visitor 72-hours to consider any substantive additional requirements or changes made by his or her host entity to the host placement after the DS–7007 or Housing Addendum is initially executed; a sponsor must require the exchange visitor and host entity to sign a new Form DS–7007 if the exchange visitor agrees to the changes. If an exchange visitor determines that he or she does not wish to add requirements or make changes, or is unresponsive, he or she must be allowed to continue to do those tasks at the host entity specified on his or her most recent DS–7007, unless the host entity makes a request to the sponsor that the exchange visitor be placed elsewhere, in which case, the exchange visitor must be given two-weeks' notice of program termination. An exception to the 72-hour rule may be made if such changes must be implemented before 72-hours to protect the health, safety, and welfare of the exchange visitor.
(4) A sponsor must keep each DS–7007 on file for three years.
(n)
(1) In addition to satisfying the requirements set forth at § 62.10(b)–(c), a sponsor must provide to each exchange visitor prior to departure from his or her home country, an orientation in-person, online, or a combination of both that includes the following information and documentation:
(i) An explanation of the sponsor's role during the program, including monitoring, and of host entity responsibilities;
(ii) The Department of State's Summer Work Travel Exchange Visitor Welcome Letter and Diversity Flyer;
(iii) The sponsor's 24/7 immediate (
(iv) A description of exchange visitor and host entity obligations and responsibilities, including a list of program obligations and responsibilities as set forth in subparagraph (2) below;
(v) Information explaining the cross-cultural component of the Summer Work Travel program, including the exchange visitor's obligation to participate in sponsor- and host entity-arranged cross-cultural activities, and how best to experience local or national U.S. culture;
(vi) Information on how to identify and report workplace abuse, sexual abuse, sexual harassment, bullying, exploitation, wage violations, housing violations, poor housing conditions, and instances of retaliation against the exchange visitor for reporting problems, including how to access whistleblower protection. The orientation also must include information for exchange visitors on the sponsor monitoring process, and inform exchange visitors that they must notify their sponsor within ten days of arrival in the United States and of any changes to the terms agreed to in Form DS–7007;
(vii) Information on general personal, pedestrian, and transportation safety, including bicycle safety information (
(viii) An identification card with a photo of the exchange visitor listing the exchange visitor's name, the sponsor's name, and main office and emergency telephone numbers, 911, the telephone number of the Department's J–1 visa toll-free emergency help line, the J–1 visa email address, and the name and policy number of the sponsor's health insurance provider, if applicable; and
(ix) Information on medical care in the United States (
(2) Information on exchange visitor and host entity obligations and responsibilities must include the following:
(i) The exchange visitor must notify his or her sponsor within ten days of arrival in the United States, as set forth in § 62.10(c)(9);
(ii) The exchange visitor must notify his or her sponsor of any changes to the terms agreed to in Form DS–7007, as set forth in § 62.32(m)(1)(i);
(iii) An exchange visitor must not change his or her host site of activity at the host entity, type of position within his or her current host placement, or residence without first notifying the sponsor, as set forth in § 62.32(d)(11);
(iv) The host entity must not permit an exchange visitor to begin working for an additional host entity, or at a different host entity, until the sponsor has vetted such host entity, as set forth at § 62.32(i), and provided the exchange visitor and host entity a fully executed Form DS–7007 for such a placement in accordance with paragraph (m);
(v) A description of the circumstances that may lead to termination of the exchange visitor's program under rules governing the program, including, but not limited to, the following: Engaging in more than three Summer Work Travel programs during the exchange visitor's academic career; failure of an exchange visitor to report to his or her sponsor within ten days of arrival in the United States; failure to appear timely at the initial host placement without notifying the sponsor in advance of any inability to appear on time; beginning employment at a non-vetted host entity or at a host placement on the program exclusions list set forth at paragraph (k); engaging in illegal activities (
(vi) The circumstances that may lead to program termination of the host entity; and
(vii) The exchange visitor is prohibited from engaging in any activities that could bring the Exchange Visitor Program into notoriety or disrepute.
(o)
(1) Ensure that the exchange visitor's placement at the host entity requires regular interaction with co-workers and customers and that the exchange visitor's host entity also facilitates the regular interaction of the exchange visitor with U.S. persons during the workday portion of their program;
(2) Plan and initiate cross-cultural activities, and/or act as a resource for host entities, domestic third parties, or local community groups in arranging cross-cultural activities that provide the exchange visitor exposure to U.S. culture and/or interaction with U.S. persons throughout his or her program;
(3) Ensure that, at a minimum, it or its host entity or entities arrange one cross-cultural activity within each calendar month for the exchange visitor; and
(4) Facilitate additional cross-cultural activities throughout the duration of the exchange visitor's program, and document such activities.
(p)
(1) Maintain, at a minimum, monthly personal contacts with the exchange visitor. Such sponsor contact is permitted to be in-person, by telephone, or via exchanges of email (communications via email and voicemail messages must elicit a response from the exchange visitor that provides information on the exchange visitor's well-being);
(2) Gauge the exchange visitor's overall health, safety, and welfare and appropriately address issues identified through monitoring that involve the suitability of employment, housing and transportation, and any other issues affecting, or that could affect, the exchange visitor's health, safety, and welfare;
(3) Be available to the exchange visitor as a facilitator, counselor, and information resource and provide appropriate assistance on an as-needed basis;
(4) Document all efforts to resolve any issue that could result in program termination, including problematic placements and inability to contact a non-responsive exchange visitor, before pursuing program termination;
(5) Prepare any host entity to facilitate Department oversight and visits to placement locations; and
(6) Incorporate additional monitoring steps at the suggestion of the Department in the case of Department-noted problems in the sponsor's Summer Work Travel program.
(q)
(1) Select only a foreign third party that:
(i) The sponsor has vetted in accordance with § 62.32(r);
(ii) has a fixed office address, employees with professional experience in the service(s) the foreign third party provides, an organizational mission applicable to cultural and educational exchange, and a secure system to collect, protect, and dispose of the personal data of potential and actual exchange visitors;
(iii) markets the Summer Work Travel program as a cultural and educational program with a work component;
(iv) has fees and other charges that are permissible under this Part, transparent, justifiable in terms of services provided, and legal;
and
(v) would not bring the Exchange Visitor Program into notoriety or dispute, or engage in actions that would endanger the health, safety or welfare of an exchange visitor;
(2) Fully execute a written agreement, with documented review every three years, with the foreign third party and work only with foreign third parties with which the sponsor has concluded such written agreements; agreements must specifically authorize the foreign third party to carry out certain program functions;
(3) Adequately orient any foreign third party it engages on the purpose of the Exchange Visitor Program and all applicable regulations in this Part and updates and related guidance;
(4) Require, review, and approve annually the third party's marketing materials, including updated price lists based on any Department-required template, for programs marketed on the sponsor's behalf. The price lists must include itemization of all fees charged to the exchange visitor and estimated costs the exchange visitor might incur, as set forth in § 62.9(d)(3);
(5) Ensure that the foreign third party does not permit the use of any other third party (including staffing or employment agencies or subcontractors) to work directly with any prospective or current exchange visitor for the purpose of programmatic planning, or otherwise cooperate or contract with any such other third party;
(6) Place information about each of its foreign third parties on the sponsor's main Web site, including the official name, headquarters address, and specific program functions performed;
(7) Establish and implement internal controls to ensure that each foreign third party complies with the terms of its agreement with the sponsor;
(8) Ensure the foreign third party knows and complies with all applicable provisions of these regulations. Failure by any foreign third party to comply with the regulations will be imputed to the sponsor; and
(9) Not use a foreign third party if the Department has determined and informed that sponsor that the third party does not meet the requirements of subparagraph (1).
(r)
(1) Ensure that any foreign third party it utilizes or intends to utilize is legitimate and employs only reputable individuals or organizations qualified to perform agreed program functions;
(2) At a minimum, review annually current documentation for each of its foreign third parties, including:
(i) Proof that it is legally authorized to conduct business in every location in which it operates;
(ii) Any bankruptcy filing, adverse legal judgment, or pending legal action or complaint against such foreign third party relevant to its conduct of the exchange visitor program;
(iii) Written references from three current business associates or partner organizations;
(iv) A criminal background-check report (including originals and English translations, as applicable) for each owner and officer of the foreign third party; and
(v) A copy of the foreign third party's recent financial statements certified by an independent public accountant.
(s)
A sponsor must, in addition to the description set forth in § 62.2 (definition of
(1) Select only a domestic third party that:
(i) The sponsor has vetted in accordance with § 62.32(t), unless the selected entity serving as a domestic third party is another designated sponsor; in that case, the sponsor must require that the domestic third party sponsor provide proof of current Department designation;
(ii) has a fixed office address, employees with professional experience in the service(s) the domestic third party provides, an organizational mission applicable to cultural and educational exchange, and a secure system to collect, protect, and dispose of the personal data of potential and actual exchange visitors;
(iii) has fees and other charges that are permissible under this Part, transparent,
(iv) would not bring the Exchange Visitor Program into notoriety or dispute, or engage in actions that would endanger the health, safety, or welfare of exchange visitors.
(2) Fully execute a written agreement, with documented review every three years, with the domestic third party and work only with domestic third parties with which the sponsor has concluded such written agreements;
(3) Orient adequately any domestic third party it engages on the purpose of the Exchange Visitor Program and all applicable regulations in this Part and updates and related guidance;
(4) Place information about each domestic third party it engages on the sponsor's main Web site, including its official name, headquarters address, and specific program functions performed;
(5) Establish and implement controls to ensure that the domestic third party complies with the terms of its agreement with the sponsor;
(6) Ensure the domestic third party knows and complies with all applicable provisions of these regulations. Failure by any domestic third party to comply with the regulations will be imputed to the sponsor; and
(7) Not use a domestic third party if the Department has determined and informed that sponsor that the third party does not meet the requirements of subparagraph(1).
(t)
(1) Ensure that any domestic third party it utilizes or intends to utilize is legitimate and employs only reputable individuals or organizations qualified to perform agreed program functions; and
(2) At a minimum, review annually current documentation for each of its domestic third parties:
(i) Proof that it is legally authorized to conduct business in every location in which it operates;
(ii) Any bankruptcy filing, adverse legal judgment, or pending legal action or complaint against such domestic third party relevant to its conduct of the exchange visitor program; and
(iii) Proof of sufficient liability insurance to cover the activities provided to the sponsor.
(u)
(1)
(2)