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Nuclear Regulatory Commission.
Direct final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending its spent fuel storage regulations by revising the NAC International (NAC or the applicant), MAGNASTOR® Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 7 to Certificate of Compliance (CoC) No. 1031. Amendment No. 7 provides a new Passive MAGNASTOR® Transfer Cask (PMTC) and associated Technical Specification (TS) changes in Appendices A and B, and updates Section 4.3.1(i) in Appendix A of the TSs to include revised seismic requirements. Clarifying (non-technical) changes were also made to Appendices A and B.
This direct final rule is effective August 21, 2017, unless significant adverse comments are received by July 6, 2017. If this direct final rule is withdrawn as a result of such comments, timely notice of the withdrawal will be published in the
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Keith McDaniel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–5252; email:
Please refer to Docket ID NRC–2017–0008 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC–2017–0008 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC
This rule is limited to the changes contained in Amendment No. 7 to CoC No. 1031 and does not include other aspects of the NAC MAGNASTOR® Cask System design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on August 21, 2017. However, if the NRC receives significant adverse comments on this direct final rule by July 6, 2017, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rule section of this issue of the
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TSs.
For detailed instructions on filing comments, please see the companion proposed rule published in the Proposed Rule section of this issue of the
Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”
To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of title 10 of the
By letter dated August 7, 2015, as supplemented on April 15, 2016, August 15, 2016, and September 7, 2016, NAC submitted a request to the NRC to amend CoC No. 1031. As documented in the Preliminary Safety Evaluation Report (PSER) for the NAC MAGNASTOR® Cask System, CoC No. 1031, and described in this direct final rule, the NRC staff performed a detailed safety evaluation of the proposed CoC Amendment No. 7 request. The NRC staff determined that Amendment No. 7 does not change the cask design requirements and it does not change the design or fabrication of the cask. The NRC staff found that the TS changes do not impact the casks ability to continue to safely store spent fuel in accordance with 10 CFR part 72 requirements.
This direct final rule revises the NAC MAGNASTOR® Cask System listing in 10 CFR 72.214 by adding Amendment No. 7 to CoC No. 1031. The amendment consists of the changes described in this section, as set forth in the revised CoC and TSs. The revised TSs are identified in the PSER.
Amendment No. 7 provides a new PMTC and associated TS changes in Appendices A and B. Clarifying (non-technical) changes were also made to Appendices A and B. The PMTC is a special lifting device that is used to hold the Transportable Storage Container (TSC) during onsite loading operations, transfer operations, and unloading operations. It is designed for use in high ambient temperatures and has a large gap between the loaded TSC and the cask inner shell to allow passive convective airflow to provide cooling equivalent to that provided by the concrete cask. The PMTC has two lifting trunnions, two sliding doors supported by rails that are welded to the bottom of the cask to allow TSC transfer, and a retaining ring bolted to the top of the cask to prevent an inadvertent lift of the TSC out of the PMTC.
The NRC staff reviewed the structural design features and design criteria, together with an evaluation of the applicant's analysis, to determine the structural adequacy of the PMTC. The NRC staff evaluated aspects of the dry storage system design and analysis related to structural performance under normal and off-normal operations, accident conditions, and natural phenomena events. Based on its review, as documented in the PSER, the NRC staff has reasonable assurance that the structural design of the PMTC is in compliance with 10 CFR part 72.
The NRC staff also performed a thermal review to ensure that the MAGNASTOR® Cask System components and fuel material temperatures will remain within the allowable values for normal conditions, and off-normal and accident events. The review of Amendment No. 7 focused on the thermal analysis of a new transfer cask design. This evaluation included confirmation that the temperatures of the fuel cladding will be within acceptable limits throughout the transfer and storage periods to protect the cladding against degradation, which could lead to gross rupture. The NRC staff concluded that the thermal design of the MAGNASTOR® Cask System, including the PMTC, is in compliance with 10 CFR part 72.
The NRC staff also reviewed the applicant's shielding analysis and dose
The structure, thermal, and shielding findings were reached on the basis of a review that considered the regulation itself, appropriate regulatory guides, applicable codes and standards, accepted engineering practices, and the statements and representations in the application.
Additionally, Amendment No. 7 updates Section 4.3.1(i) in Appendix A of the TSs to include revised seismic requirements for the MAGNASTOR® Cask System. The revised TS Section 4.3.1(i) states that “The maximum design basis earthquake acceleration of 0.37g in the horizontal direction (without cask sliding) and 0.25g in the vertical direction at the Independent Spent Fuel Storage Installation (ISFSI) pad top surface do not result in cask tip-over.” The NRC staff determined that the revised TS continues to allow the use of the MAGNASTOR® Cask System at a location where the site earthquake parameters are up to and greater than 0.37g in the horizontal direction and 0.25g in the vertical direction at the ISFSI pad top surface. Furthermore, the revised TS continues to require the user to demonstrate that no tip-over will result from an earthquake. The NRC staff concluded that the revision is acceptable and clarifies the provision under which the MAGNASTOR® Cask System may be reasonably implemented by general licensees given the specific earthquake acceleration parameters.
The amended NAC MAGNASTOR® Cask System design, when used under the conditions specified in the CoC, the TSs, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into the NAC MAGNASTOR® Cask System casks that meet the criteria of Amendment No. 7 to CoC No. 1031 under 10 CFR 72.212.
The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104–113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies, unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the NAC MAGNASTOR® Cask System design listed in 10 CFR 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The Plain Writing Act of 2010 (Pub. L. 111–274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The action is to amend 10 CFR 72.214 to revise the NAC MAGNASTOR® Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 7 to CoC No. 1031. Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.
This direct final rule amends the CoC for the NAC MAGNASTOR® Cask System design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. Specifically, Amendment No. 7 provides a new PMTC and associated TS changes in Appendices A and B, and updates Section 4.3.1(i) in Appendix A of the TSs to include revised seismic requirements. Clarifying (non-technical) changes were also made to Appendices A and B.
On July 18,1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 7 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act.
The NAC MAGNASTOR® Cask System is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an ISFSI, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.
Considering the specific design requirements for each accident condition, the design of the NAC MAGNASTOR® Cask System would prevent loss of confinement, shielding, and criticality control. If there is no loss of confinement, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. There are no significant changes to cask design requirements in the proposed CoC amendment. In addition, any resulting occupational exposure or offsite dose rates from the implementation of
The alternative to this action is to deny approval of Amendment No. 7 and end the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into the NAC MAGNASTOR® Cask System in accordance with the changes described in proposed Amendment No. 7 would have to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, an interested licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Therefore, the environmental impacts would be the same or less than the action.
Approval of Amendment No. 7 to CoC No. 1031 would result in no irreversible commitments of resources.
No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.
The environmental impacts of the action have been reviewed under the requirements in 10 CFR part 51. Based on the foregoing environmental assessment, the NRC concludes that this direct final rule entitled, “List of Approved Spent Fuel Storage Casks: NAC International, MAGNASTOR® Cask System, Certificate of Compliance No. 1031, Amendment No. 7,” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.
This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and NAC. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On November 21, 2008 (73 FR 70587), the NRC issued an amendment to 10 CFR part 72 that approved the NAC MAGNASTOR® Cask System design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214.
By letter dated August 7, 2015, as supplemented on April 15, 2016, August 15, 2016, and September 7, 2016, NAC submitted an application to amend the NAC MAGNASTOR® Cask System. This request is described in Section IV, “Discussion of Changes,” of this document.
The alternative to this action is to withhold approval of Amendment No. 7 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the NAC MAGNASTOR® Cask System under the changes described in Amendment No. 7 to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.
Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the PSER and the environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.
The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule and therefore, a backfit analysis is not required. This direct final rule revises CoC No. 1031 for the NAC MAGNASTOR® Cask System, as currently listed in 10 CFR 72.214, “List of approved spent fuel storage casks.” Amendment No. 7 provides a new PMTC and associated TS changes in Appendices A and B, and updates Section 4.3.1(i) in Appendix A of the TSs to include revised seismic requirements. Clarifying (non-technical) changes were also made to Appendices A and B.
Amendment No. 7 to CoC No. 1031 for the NAC MAGNASTOR® Cask System was initiated by NAC and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 7 applies only to new casks fabricated and used under Amendment No. 7. These changes do not affect existing users of the NAC MAGNASTOR® Cask System, and Amendment Nos. 1–3, Revisions 1, as well as Revision 1 of the Initial Certificate, and Amendments Nos. 4–6 continue to be effective for existing users. While current CoC users may comply with the new requirements in Amendment No. 7, this would be a voluntary decision on the part of current users. For these reasons, Amendment No. 7 to CoC No. 1031 does not constitute backfitting under 10 CFR 72.62, 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the
The OMB has not found this to be a major rule as defined in the Congressional Review Act.
The documents identified in the following table are available to interested persons as indicated.
The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at
Administrative practice and procedure, Criminal penalties, Hazardous waste, Indians, Intergovernmental relations, Manpower training programs, Nuclear energy, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72:
Atomic Energy Act of 1954, secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 223, 234, 274 (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2210e, 2232, 2233, 2234, 2236, 2237, 2238, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); National Environmental Policy Act of 1969 (42 U.S.C. 4332); Nuclear Waste Policy Act of 1982, secs. 117(a), 132, 133, 134, 135, 137, 141, 145(g), 148, 218(a) (42 U.S.C. 10137(a), 10152, 10153, 10154, 10155, 10157, 10161, 10165(g), 10168, 10198(a)); 44 U.S.C. 3504 note.
Certificate Number: 1031.
Initial Certificate Effective Date: February 4, 2009, superseded by Initial Certificate, Revision 1, on February 1, 2016.
Initial Certificate, Revision 1, Effective Date: February 1, 2016.
Amendment Number 1 Effective Date: August 30, 2010, superseded by Amendment Number 1, Revision 1, on February 1, 2016.
Amendment Number 1, Revision 1, Effective Date: February 1, 2016.
Amendment Number 2 Effective Date: January 30, 2012, superseded by Amendment Number 2, Revision 1, on February 1, 2016.
Amendment Number 2, Revision 1, Effective Date: February 1, 2016.
Amendment Number 3 Effective Date: July 25, 2013, superseded by Amendment Number 3, Revision 1, on February 1, 2016.
Amendment Number 3, Revision 1, Effective Date: February 1, 2016.
Amendment Number 4 Effective Date: April 14, 2015.
Amendment Number 5 Effective Date: June 29, 2015.
Amendment Number 6 Effective Date: December 21, 2016.
Amendment Number 7 Effective Date: August 21, 2017.
SAR Submitted by: NAC International, Inc.
SAR Title: Final Safety Analysis Report for the MAGNASTOR® System.
Docket Number: 72–1031.
Certificate Expiration Date: February 4, 2029.
Model Number: MAGNASTOR®.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus Model A318–111 and –112 airplanes; Model A319–111, –112, –113, –114, and –115 airplanes; Model A320–211, –212, and –214 airplanes; and Model A321–111, –112, –211, –212, and –213 airplanes. This AD was prompted by reports of cracks in certain pivot fittings of a CFM56 engine's thrust reverser (T/R). This AD requires repetitive inspections for cracking and corrosion of certain pivot fittings of a CFM56 engine's T/R, and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.
This AD is effective July 11, 2017.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 11, 2017.
For Airbus service information identified in this final rule, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
For Goodrich Aerostructures service information identified in this final rule, contact Goodrich Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910–2098; telephone 619–691–2719; email
You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221. It is also available on the Internet at
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1405; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A318–111 and –112 airplanes; Model A319–111, –112, –113, –114, and –115 airplanes; Model A320–211, –212, and –214 airplanes; and Model A321–111, –112, –211, –212, and –213 airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016–0076, dated April 18, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318–111 and –112 airplanes; Model A319–111, –112, –113, –114, and –115 airplanes; Model A320–211, –212, and –214 airplanes; and Model A321–111, –112, –211, –212, and –213 airplanes. The MCAI states:
Several operators reported finding cracks, during an unscheduled inspection, on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). Investigation results revealed that these cracks were caused by a combination of stress and fatigue effects. Further analysis determined that only aeroplanes fitted with CFM56–5A or CFM56–5B series engines could be affected by this issue.
This condition, if not detected and corrected, could lead to T/R malfunction and, in a case of rejected take off at V1 on a wet runway, a consequent runway excursion, possibly resulting in damage to the aeroplane and injury to occupants.
For the reasons described above, EASA issued AD 2016–0068, requiring repetitive inspections [for cracks and corrosion] of the T/R pivot fittings at the 3 o'clock and 9 o'clock positions and, depending on findings, accomplishment of applicable corrective action(s).
Since that [EASA] AD was issued, it was determined that the list of part numbers (P/N) of affected T/R pivot fitting, as identified in that [EASA] AD, was incomplete.
For the reason stated above, this [EASA] AD retains the requirements of EASA AD 2016–0068, which is superseded, but expands the list of affected fitting P/Ns.
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
American Airlines (AA) requested that we revise paragraph (g) of the proposed AD to change the proposed repetitive inspection interval for inspecting the T/R pivot fittings from 60 months to 10 years to match certain airworthiness limitation items (ALIs). AA stated that aligning the inspection interval with existing ALIs allows accomplishment of the inspection during a shop overhaul along with other ALIs. AA stated that this will significantly reduce the burden on operators. AA explained that changing this compliance time will not affect the likelihood of fatigue cracking, since fatigue effects are cycle-based and the same cycle-threshold is maintained.
We do not agree with AA's request. EASA, as the State of Design Authority for Airbus products, has determined
AA requested that we allow the use of later revisions of the service information for accomplishment of the actions specified in paragraph (g) of the proposed AD. AA asserted that future revisions of the referenced service information will have additional analysis and insight into the design and failure modes of the structure. Additionally, AA pointed out that the FAA will have an opportunity to object to any revisions the manufacturer proposes.
We do not agree with AA's request. We may not refer to any document in an AD that does not yet exist.
In general terms, we are required by the Office of the Federal Register (OFR) regulations to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as “referenced” material, in which case we may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for “incorporation by reference.” See 1 CFR part 51.
To allow operators to use later revisions of the referenced document (issued after publication of the AD), either we must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with this AD under the provisions of paragraph (l)(1) of this AD. We have not changed this AD in this regard.
AA requested that we revise the “Related Service Information under 1 CFR part 51” section of the preamble and paragraphs (g) and (j) of the proposed AD to correct the revision date specified for Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015. AA pointed out that in the NPRM the release date is stated as December 18, 2015, instead of December 28, 2015.
We agree to fix the typographical error. We have revised this final rule accordingly.
AA requested that we revise paragraphs (g) and (h) of the proposed AD to clarify that doing the actions in paragraph (g) of the proposed AD in the shop/off-wing requires only accomplishment of Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016. AA asserted that the actions specified in Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015, which provides open-up instructions for on-wing actions, are not necessary to comply with the proposed requirements.
We do not agree with AA's request to revise paragraphs (g) and (h) of this AD to clarify the required actions. However, we do agree to clarify the use of the phrase “as applicable” in paragraph (g) of this AD. The intent of using the phrase “as applicable” in paragraph (g) of this AD is not to authorize an operator to accomplish either Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015; or Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016. Operators must accomplish the actions in accordance with the applicable requirements in the Airbus service bulletin and the Goodrich Aerostructures service bulletin.
Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016, contains more detailed procedures for accomplishing certain required actions that are specified in Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015. Therefore, operators must use both service bulletins to accomplish the AD requirements.
We also note that Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015, contains Required for Compliance (RC) actions and specifies only paragraphs 3.C. and 3.D. are RC procedures. The “open-up instructions” in paragraph 3.B. of the Airbus service bulletin are not RC procedures. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC), provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. We have not changed this AD in this regard.
AA also requested that we revise paragraphs (k)(2)(i), (k)(2)(ii), and (k)(2)(iii) of the proposed AD to permit the use of any of the specified service information by adding the phrase “as applicable” following references to the service information. AA asserted that this revision would prevent any confusion regarding off-wing maintenance for which Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015, will not be needed since the T/R is not installed on an airplane. AA stated that this revision would align the wording in paragraph (k) of the proposed AD with the wording in the first sentence of paragraph (g) of the proposed AD.
We do not agree to add “as applicable” to paragraphs (k)(2)(i), (k)(2)(ii), and (k)(2)(iii) of this AD. If an operator wants to install a spare part, then they still need to perform Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015; and Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016. For example, if a spare met the 60-month threshold to qualify as serviceable then operators are still required to perform the operational test of the thrust reversers after installation of the fittings. We have not changed this AD in this regard.
AA requested that we revise paragraph (h)(2) of the proposed AD to clarify that the compliance time of 7,200 flight cycles accumulated applies to the T/R and not to the airplane.
We agree that clarification is necessary. The accumulated flight cycles are on the T/R, not the airplane. We have revised paragraph (h)(2) of this AD accordingly.
AA requested that we revise paragraph (j) of the proposed AD to remove the limitation of fixing the unsafe condition on T/Rs prior to installation, as of the effective date of this AD. Rather, AA requested that we revise the compliance times to those in paragraph (h) of the proposed AD if it is determined that, prior to installation, the T/R was removed as part of an
We do not agree with AA's request. Paragraph (j) of this AD does not require immediate corrective action for a T/R that is removed for any maintenance action, unless the T/R exceeds the thresholds specified in paragraph (j) of this AD. EASA has determined that the compliance time specified in paragraph (j) of this AD should be based on the severity of the failure, the likelihood of the failure's occurrence, and the overall safety risk to the fleet. The FAA and EASA worked with Airbus to ensure that all appropriate action(s) are taken at appropriate times to mitigate risk to the fleet. This determination took into consideration parts and special tool availability, and planning for accomplishment of any necessary corrective action. Airbus did not provide us any information related to a short supply of parts or tools required for accomplishment of this AD. In addition, it is the operator's responsibility to plan appropriately for actions to be taken to assure parts and equipment are available for AD compliance. Therefore, the FAA's expectation is that, as of the effective date of this AD, operators will not install a known unsafe part as specified in paragraph (j) of this AD. However, if the part is already installed and in-service, then operators may utilize the full compliance time as allowed by this AD. Operators have the option of proposing an alternative compliance time, with supportive data, in accordance with paragraph (l)(1) of this AD. We have not changed this AD in this regard.
AA requested that we revise the proposed AD to allow a minimum equipment list (MEL) provision to deactivate affected T/Rs for the allowable duration of that MEL item before accomplishing the corrective actions specified in the proposed AD. AA explained that this action would provide an equivalent level of safety since, during application of the MEL, the T/Rs are deactivated and there is never a possibility of T/R structural failure due to cracking.
We agree with AA's request. We have added paragraph (i)(3) to this AD to state that it is permissible to dispatch an airplane equipped with a T/R pivot fitting(s) having a part number specified in paragraph (g)(1) or (g)(2) of this AD, provided the limitations in Master Minimum Equipment List Item 78–30–01 (which provides for deactivation of the affected T/R) have been followed.
AA requested that the proposed AD be revised to include an allowance for special flight permits to allow the operator to operate the airplane to a location where the requirements of the proposed AD can be accomplished.
We acknowledge the potential need for a one-time ferry flight. Although not specifically stated in the proposed AD, there is no restriction prohibiting or limiting special flight permits, as described in Section 21.197 and Section 21.199 of the Code of Federal Regulations (14 CFR 21.197 and 21.199). Therefore, we have not changed this AD regarding this issue.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
Airbus has issued Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015. This service information describes procedures for doing inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R.
Goodrich Aerostructures has issued Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016. This service information describes procedures for doing inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R, and repair of corrosion.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 400 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that will enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 11, 2017.
None.
This AD applies to the Airbus airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(4) of this AD, all manufacturer serial numbers.
(1) Airbus Model A318–111 and –112 airplanes.
(2) Airbus Model A319–111, –112, –113, –114, and –115 airplanes.
(3) Airbus Model A320–211, –212, and –214 airplanes.
(4) Airbus Model A321–111, –112, –211, –212, and –213 airplanes.
Air Transport Association (ATA) of America Code 78, Engine exhaust.
This AD was prompted by reports of cracks on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). We are issuing this AD to detect and correct such cracking and corrosion, which could lead to T/R malfunction and, in a case of rejected takeoff at V
Comply with this AD within the compliance times specified, unless already done.
At the applicable compliance time specified in paragraph (h) of this AD: Do a high frequency eddy current (HFEC) inspection for cracking and corrosion of each T/R pivot fitting specified in paragraphs (g)(1) and (g)(2) of this AD, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015; and Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016; as applicable; except as required by paragraph (i) of this AD. Do all applicable corrective actions before further flight. Repeat the inspection of the T/R pivot fittings thereafter at intervals not to exceed 60 months or 12,000 flight cycles, whichever occurs first.
(1) The 3 o'clock position T/R pivot fittings having part numbers (P/N) that are provided in paragraphs (g)(1)(i) through (g)(1)(iv) of this AD.
(i) P/N 321–200–850–6.
(ii) P/N 321–200–851–6.
(iii) P/N 321–200–852–6.
(iv) P/N 321–200–853–6.
(2) The 9 o'clock position T/R pivot fittings having P/Ns that are provided in paragraphs (g)(2)(i) through (g)(2)(iv) of this AD.
(i) P/N 321–200–800–6.
(ii) P/N 321–200–801–6.
(iii) P/N 321–200–802–6.
(iv) P/N 321–200–803–6.
At the later of the times specified in paragraphs (h)(1) and (h)(2) of this AD, do the initial inspection specified in paragraph (g) of this AD. If maintenance records cannot conclusively determine the T/R flight cycles accumulated since first installation, or the time since new, do the initial inspection required by paragraph (g) of this AD at the compliance time specified in paragraph (h)(2) of this AD.
(1) Before exceeding 10 years or 24,000 total flight cycles accumulated by the T/R, whichever occurs first since first installation on an airplane.
(2) Within 36 months or 7,200 flight cycles accumulated by the T/R, whichever occurs first after the effective date of this AD.
(1) If any crack is found during any inspection required by this AD: Before further flight, repair using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).
(2) If any corrosion is found during any inspection required by this AD and Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016, specifies obtaining a damage disposition from Goodrich Aerostructures: Before further flight, repair using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA.
(3) Dispatch of an airplane equipped with a T/R pivot fitting(s) having a part number identified in paragraph (g)(1) or (g)(2) of this AD, as specified in Master Minimum Equipment List (MMEL) 78–30–01 (deactivation of the affected T/Rs), is permitted provided the limitations specified in MMEL 78–30–01 have been followed.
As of the effective date of this AD, no person may install on any airplane a T/R pivot fitting having a part number specified in paragraph (g)(1) or (g)(2) of this AD, unless it is determined, prior to installation, that the T/R pivot fitting has accumulated less than 10 years and fewer than 24,000 total flight cycles since its first installation on an airplane, or less than 60 months and fewer than 12,000 flight cycles after having passed an inspection, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015; and Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016.
(1) This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320–70–1003, dated May 7, 2014.
(2) This paragraph provides credit for actions specified in paragraph (j) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (k)(2)(i), (k)(2)(ii), or (k)(2)(iii) of this AD.
(i) Airbus Service Bulletin A320–70–1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078–137, dated April 29, 2014.
(ii) Airbus Service Bulletin A320–70–1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 1, dated January 26, 2015.
(iii) Airbus Service Bulletin A320–70–1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 2, dated December 2, 2015.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016–0076, dated April 18, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(3), (n)(4), and (n)(5) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A320–70–1003, Revision 01, dated December 28, 2015.
(ii) Goodrich Aerostructures Service Bulletin RA32078–137, Rev. 3, dated March 14, 2016.
(3) For Airbus service information identified in this AD, contact Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) For Goodrich Aerostructures service information identified in this AD, contact Goodrich Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910–2098; telephone 619–691–2719; email
(5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 98–13–14, for certain Airbus Model A320–211, –212, and –231 airplanes. AD 98–13–14 required repetitive inspections of certain fastener holes of the aft fuselage, and corrective action if necessary. This new AD continues to require the actions in AD 98–13–14, with revised inspection compliance times. This AD was prompted by identification of cracks in the fastener holes of the former junction of the aft fuselage, which occurred during a fatigue test; and a determination that certain compliance times specified in AD 98–13–14 must be reduced. We are issuing this AD to address the unsafe condition on these products.
This AD is effective July 11, 2017.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 11, 2017.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of July 30, 1998 (63 FR 34556, June 25, 1998).
For service information identified in this final rule, contact Airbus, Airworthiness Office–EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1405; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015–0084, dated May 13, 2015; corrected May 18, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”); to correct an unsafe condition for certain Airbus Model A320–211, –212, and –231 airplanes. The MCAI states:
During a fatigue test campaign, four cracks were identified in the fastener holes of the former junction at frame (FR) 68 between stringers 4 and 5.
This condition, if not detected and corrected, could lead to crack propagation, possibly resulting in reduced structural integrity of the fuselage.
To address this unsafe condition, DGAC [Direction générale de l'aviation civile] France issued * * * [an AD, which corresponds to FAA AD 98–13–14] to require repetitive inspections and, depending on findings, the accomplishment of an applicable repair solution.
That [DGAC] AD also provided modification of FR 68 [cold working of fastener and tooling holes] in accordance with Airbus Service Bulletin (SB) A320–53–1090 as optional terminating action.
Following new analyses, the thresholds and inspection intervals have been reviewed and adjusted.
For the reason described above, this [EASA] AD retains the requirements of DGAC France AD 96–298–093(B)R2 [
This [EASA] AD was republished to correct a typographical error in the Reason.
Repairs include doing applicable related investigative actions (
We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM and the FAA's response to the comment.
Airbus requested that Airbus Service Bulletin A320–53–1089, Revision 04, dated June 1, 2016, be referred to in the final rule. This service information replaces a certain nondestructive test manual (NTM) task, removes an eddy current inspection for a certain service bulletin task, and updates the service bulletin airplane effectivity.
We agree with the request and have revised paragraphs (h) and (i) of this AD to refer to Airbus Service Bulletin A320–53–1089, Revision 04, dated June 1, 2016. We have also added paragraph (k)(1)(iii) to this AD to provide credit for Airbus Service Bulletin A320–53–1089, Revision 03, dated March 18, 2015.
We have revised paragraphs (h)(2) and (h)(3) of this AD to remove references to the revision level and date of the service information that must be used for determining the compliance time, because operators might have used other versions for their most recent inspection. The number of affected U.S. registered airplanes has also been changed from 10 to 4. The total cost to operators has been changed accordingly.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed the following Airbus service information:
• Service Bulletin A320–53–1089, Revision 04, dated June 1, 2016. This service information describes procedures for a special detailed rototest inspection for fatigue cracking of the frame junction holes and the adjacent tooling hole, as applicable, of the right- and left-hand former junctions at FR 68, and repair, including doing applicable related investigative actions.
• Service Bulletin A320–53–1090, Revision 02, dated December 22, 1998. This service information describes procedures for modifying the airplane (cold working of fastener and tooling holes).
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 4 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary repairs that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these repairs:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 11, 2017.
This AD replaces AD 98–13–14, Amendment 39–10602 (63 FR 34556, June 25, 1998) (“AD 98–13–14”).
This AD applies to Airbus Model A320–211, –212, and –231 airplanes, certificated in any category, manufacturer serial numbers (S/Ns) 0001 through 0123 inclusive, except those that have embodied Airbus Modifications 21780 and 21781 in production.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by identification of four cracks in the fastener holes of the former junction at frame (FR) 68 between stringers 4 and 5, which occurred during a fatigue test, and a determination that certain compliance times specified in AD 98–13–14 must be reduced. We are issuing this AD to prevent fatigue cracks from occurring or propagating in certain structures, which could adversely affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (a) of AD 98–13–14, with additional methods of approving repairs. For Model A320 series airplanes, as listed in Airbus Service Bulletins A320–53–1089 and A320–53–1090, both dated November 22, 1995: Prior to the accumulation of 20,000 total flight cycles, or within 500 flight cycles after July 30, 1998 (the effective date of AD 98–13–14), whichever occurs later, perform a rotating probe inspection for fatigue cracking of the fastener holes and/or the adjacent tooling hole, as applicable, of the right- and left-hand former junctions at FR 68, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–53–1089, dated November 22, 1995. Accomplishing an inspection required by paragraph (h) of this AD terminates the actions required by this paragraph.
(1) If no crack is detected, accomplish either paragraph (g)(1)(i) or (g)(1)(ii) of this AD.
(i) Repeat the inspection thereafter at intervals not to exceed 20,000 flight cycles; or
(ii) Prior to further flight following the accomplishment of the inspection required by paragraph (g) of this AD, cold work the fastener holes and/or the adjacent tooling hole of the right- and left-hand former junctions at FR 68, as applicable, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–53–1090, dated November 22, 1995. Accomplishment of this cold working constitutes terminating action for the repetitive inspections required by paragraph (g)(1)(i) of this AD.
(2) If any crack is detected, prior to further flight, repair in accordance with a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).
Within the compliance time specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD, whichever occurs latest: Accomplish a special detailed rototest inspection for fatigue cracking of the frame junction holes and the adjacent tooling hole, as applicable, of the right- and left-hand former junctions at FR 68, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–53–1089, Revision 04, dated June 1, 2016. Repeat the inspection thereafter at intervals not to exceed 3,800 flight cycles or 7,600 flight hours, whichever occurs first, until a repair required by paragraph (i) of this AD is done or a modification specified in paragraph (j) of this AD is done. Accomplishing an inspection required by this paragraph terminates the inspections required by paragraph (g) of this AD.
(1) Within 28,700 flight cycles or 57,400 flight hours since airplane first flight, whichever occurs first.
(2) Within 3,800 flight cycles or 7,600 flight hours, whichever occurs first, since the most recent inspection done as specified in the Accomplishment Instructions of Airbus Service Bulletin A320–53–1089.
(3) Within 3,800 flight cycles or 7,600 flight hours after the effective date of this AD, whichever occurs first, without exceeding 20,000 flight cycles since the most recent inspection done as specified in the Accomplishment Instructions of Airbus Service Bulletin A320–53–1089.
If any crack is detected during any inspection required by paragraph (h) of this AD: Before further flight, repair, including doing all applicable related investigative actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–53–1089, Revision 04, dated June 1, 2016. Do all applicable related investigative actions before further flight. Repair of an airplane in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–53–1089, Revision 04, dated June 1, 2016, constitutes terminating action for the repetitive inspections required by paragraph (h) of this AD.
Modification of an airplane, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–53–1090, Revision 02, dated December 22, 1998, constitutes terminating action for the repetitive inspections required by paragraphs (g) and (h) of this AD, provided the modification is accomplished before further flight after accomplishing an inspection required by paragraph (h) of this AD and no cracks were detected.
(1) This paragraph provides credit for the actions required by paragraphs (h) and (i) of this AD, if those actions were performed before the effective date of this AD using the service information identified in paragraphs (k)(1)(i), (k)(1)(ii), or (k)(1)(iii) of this AD.
(i) Airbus Service Bulletin A320–53–1089, Revision 01, dated June 4, 1998.
(ii) Airbus Service Bulletin A320–53–1089, Revision 02, dated February 3, 2003.
(iii) Airbus Service Bulletin A320–53–1089, Revision 03, dated March 18, 2015.
(2) This paragraph provides credit for the actions required by paragraph (j) of this AD, if those actions were performed before the effective date of this AD using the service information identified in paragraphs (k)(2)(i) or (k)(2)(ii) of this AD.
(i) Airbus Service Bulletin A320–53–1090, dated November 22, 1995, which was incorporated by reference in AD 98–13–14, Amendment 39–10602 (63 FR 34556, June 25, 1998).
(ii) Airbus Service Bulletin A320–53–1090, Revision 1, dated June 10, 1998, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2015–0084, dated May 13, 2015; corrected May 18, 2015; for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Branch, ANM 116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1405; fax 425–227–1149.
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(5) and (n)(6) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on July 11, 2017.
(i) Airbus Service Bulletin A320–53–1089, Revision 04, dated June 1, 2016.
(ii) Airbus Service Bulletin A320–53–1090, Revision 02, dated December 22, 1998. Pages 1, 2, 7, 8, 9, 10, and 11 of this document are identified as Revision 1, dated June 10, 1998; and pages 3, 4, 5, and 6 of this document are identified as Revision 02, dated December 22, 1998.
(4) The following service information was approved for IBR on July 30, 1998, AD 98–13–14, Amendment 39–10602 (63 FR 34556, June 25, 1998).
(i) Airbus Service Bulletin A320–53–1089, dated November 22, 1995.
(ii) Airbus Service Bulletin A320–53–1090, dated November 22, 1995.
(5) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(6) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model BD–100–1A10 airplanes. This AD was prompted by several reports of nose wheel steering failures in service. This AD requires a part verification and replacement of certain steering manifolds. We are issuing this AD to address the unsafe condition on these products.
This AD is effective July 11, 2017.
The Director of the Federal Register approved the incorporation by reference
For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514–855–5000; fax 514–855–7401; email
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE–172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516–228–7301; fax 516–794–5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD–100–1A10 airplanes. The NPRM published in the
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF–2016–24, dated August 19, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD–100–1A10 airplanes. The MCAI states:
Several cases of nose wheel steering failures have been reported in service. In one case, the aeroplane experienced uncommanded nose wheel steering, resulting in a runway excursion.
Investigations found the presence of moisture inside the electrical stage of the electro-hydraulic servo valve (EHSV) unit, which resulted in low insulation resistance and corrosion. This condition, in combination with a steering selector valve failure, could result in uncommanded nose wheel steering, which could lead to a runway excursion at high speed.
This [Canadian] AD mandates the replacement of the steering manifold to provide better moisture ingress protection of the EHSV.
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Bombardier Service Bulletin 100–32–25, Revision 01, dated June 30, 2015. This service information describes procedures for a one-time verification of the steering manifold part number and replacement of the steering manifold and mod plate. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 161 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 11, 2017.
None.
This AD applies to Bombardier, Inc., Model BD–100–1A10 airplanes, certificated in any category, as identified in Bombardier Service Bulletin 100–32–25, Revision 01, dated June 30, 2015.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by several reports of nose wheel steering failures in service. We are issuing this AD to prevent moisture from entering the electrical stage of the electro-hydraulic servo valve (EHSV), which in combination with a steering selector valve failure, could lead to uncommanded nose wheel steering, and a consequent runway excursion at high speed.
Comply with this AD within the compliance times specified, unless already done.
Within 48 months after the effective date of this AD, do a one-time inspection to determine the part number of the steering manifold, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100–32–25, Revision 01, dated June 30, 2015.
(1) If the airplane has steering manifold part number (P/N) 40750–103, within 48 months after the effective date of this AD, write “SB100–32–018” on the nose landing gear (NLG) mod plate. If the mod plate is missing or full, within 48 months after the effective date of this AD, install a new plate, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100–32–25, Revision 01, dated June 30, 2015.
(2) If the airplane has steering manifold P/N 40750–101, within 48 months after the effective date of this AD, replace it in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100–32–25, Revision 01, dated June 30, 2015, and write “SB100–32–018” on the NLG mod plate. If the mod plate is missing or full, within 48 months after the effective date of this AD, install a new plate, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100–32–25, Revision 01, dated June 30, 2015.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 100–32–25, dated September 24, 2014.
As of the effective date of this AD, no person may install a steering manifold, P/N 40750–101, on the NLG assembly of any airplane.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF–2016–24, dated August 19, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE–172, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516–228–7301; fax 516–794–5531.
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (l)(3) and (l)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Bombardier Service Bulletin 100–32–25, Revision 01, dated June 30, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514–855–5000; fax 514–855–7401; email
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for NavWorx, Inc. (NavWorx), Automatic Dependent Surveillance Broadcast (ADS–B) Universal Access Transceiver Units (unit). This AD requires removing, disabling, or modifying the ADS–B unit. This AD was prompted by a design change that results in the unit communicating unreliable position information. The actions in this AD are intended to address an unsafe condition on these products.
This AD is effective July 11, 2017.
You may examine the AD docket on the Internet at
Kyle Cobble, Aviation Safety Engineer, Fort Worth Aircraft Certification Office (ACO), Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177, telephone (817) 222–5172, email
On October 20, 2016, at 81 FR 72552, the
We gave the public the opportunity to participate in developing this AD. We received approximately 200 comments, mostly from individuals but also from NavWorx and organizations such as the Aircraft Owners and Pilots Association (AOPA), the Experimental Aircraft Association (EAA), and the Aircraft Electronics Association (AEA). The following presents the comments received on the NPRM and the FAA's response to each comment.
Five individual commenters supported the NPRM.
Several commenters, including AOPA, requested that the FAA provide more information about the events that prompted this AD and the technical aspects surrounding the unsafe condition. We agree.
Some commenters requested the FAA explain why it approved NavWorx's ADS–B units at all if the internal, uncertified GPS source is objectionable. Many commenters stated the NavWorx ADS–B units meet the performance and accuracy/integrity standards of TSO C–154c; others noted that NavWorx has stated its testing showed the units meet the requirements to broadcast a SIL of
NavWorx's TSO–C154c authorization and STC were approved based on the P/N 200–0012 and 200–0013 units broadcasting a SIL of 0 when using the internal uncertified GPS position source. NavWorx documented this as a limitation in the Aircraft Flight Manual Supplement (AFMS) for NavWorx's STC for ADS600–B installations. Section 2.6 of the AFMS, titled “Uncertified GPS Receiver (P/N 200–0012 and 200–0013),” states:
The ADS600–B has an internal uncertified GPS WAAS receiver which does not meet the
While 14 CFR § 91.227 requires a SIL of 3, TSO–C154c (the TSO under which the affected units are produced) does not. Thus, when the affected units broadcast a SIL of 0, they are TSO-compliant. Until the performance requirements of 14 CFR § 91.227 become effective on January 1, 2020, the FAA does not find the internal uncertified GPS source objectionable, as long as the ADS–B unit is correctly broadcasting a SIL of 0. It is NavWorx's change of the SIL setting in these units to 3, without any qualification of the internal uncertified GPS position source to support broadcast of SIL 3, that the FAA finds unacceptable. In this condition, the units are transmitting to ATC and to nearby aircraft that they have 14 CFR § 91.227-compliant position source integrity, when their position source integrity is actually not compliant with that rule, or is unknown. We discuss the safety effects of this condition in greater detail below.
The unsafe condition relates to the potential for the NavWorx unit to incorrectly report its own position to other aircraft and to ATC, by 0.2 nautical miles (NM) or more, without providing an alert.
Although there have been no reported cases of a collision or safety incident resulting from an incorrect transmission by a NavWorx ADS–B unit to date, the potential for the unsafe condition exists as long as the units mislead ATC and nearby aircraft by broadcasting a SIL of 3 that they have not been shown to meet. This AD action addresses that potential unsafe condition.
The fact that commenters have made flight tests with satisfactory ADS–B performance monitor reports from the FAA, or that commenters' individual units have been operating successfully, does not negate the existence of an unsafe condition. Flight tests with the ADS–B performance monitor are designed primarily to show that the ADS–B equipment in an individual aircraft performs correctly as installed. These tests are of relatively short duration and occur in fault-free conditions. They are not engineering tests designed to evaluate the unit's ability to handle GPS signal-in-space errors and cannot be used to draw inferences about the unit's position source integrity.
Although the FAA recognizes the benefits of ADS–B equipage and understands that the NavWorx units may work a large percentage of the time for an individual user, the FAA must consider the effect on the entire NAS. Since failure is based on a statistical probability, the odds that a unit will have a failure increase as more units are introduced into the NAS and operate for a longer period of time. The probability of a failure also increases when there is a GPS satellite malfunction, which could affect many aircraft since the information is used by ATC and ADS–B In equipped aircraft for separation. Therefore, despite any benefit to individual owners when the unit works without failure, the FAA has determined that an unsafe condition with the NavWorx units exists and requires corrective action because of the hazard they pose to other users of the NAS.
In SBS–036C, we analyze safety risk as a composite of two factors: The potential “severity” or worst possible consequence or outcome of an adverse effect that is assumed to occur, and the “likelihood” of occurrence for that specific adverse event. We assess both factors independently and then enter each as separate inputs into a risk matrix, which yields an overall level of risk for the event as Low (acceptable), Medium (acceptable with mitigation), or High (unacceptable). The corrective action, if any, is driven by the assessed overall risk. Figure ES–1 of SBS–036C contains the risk matrix the FAA used for this AD.
The FAA considered an undetected position error event of 0.2 NM or more for a single aircraft as a “Position error outside containment bound for single aircraft undetected by airborne equipment/ground automation” hazard, which has a classified severity of “hazardous” per Table ES–1 and Appendix B of SBS–036C. Hazardous is defined in AC 23.1309–1E,
From Table ES–1 of SBS–036C, the likelihood of this failure for a properly functioning system was assessed as extremely improbable. Figure ES–1 in SBS–036C is a risk matrix that yields an overall risk based on the severity classification and the assessed likelihood of occurrence. A severity classification of “hazardous” and an assessed likelihood of “extremely improbable” yields an overall risk of “Low,” which is an acceptable risk.
However, the likelihood assessment of “extremely improbable” in Table ES–1 is based on the aircraft's GPS receiver having either fault detection or fault detection and exclusion, which is required in order to meet the ADS–B Out position integrity requirements of 14 CFR 91.227. A GPS receiver with fault detection detects a faulty satellite signal and provides an alert of the fault. If the GPS receiver has fault detection and exclusion, it additionally excludes the faulty satellite signal from the position computation. Because the GPS position source in the NavWorx ADS600–B units has no demonstrated fault detection or exclusion features, the FAA determined the appropriate likelihood should be based on the GPS constellation fault rate of 10
These determinations are documented in the meeting minutes from the FAA's Corrective Action Review Board (CARB) held on September 19, 2016. In accordance with FAA Order 8110.107A,
We disagree with delaying compliance until 2020. The FAA's ADS–B ground station network is already operational and in use by ATC nationwide, and ADS–B In is also widely used in general aviation aircraft for traffic awareness. Therefore, the fact that ADS–B Out will not be required equipment until 2020 does not negate the unsafe condition that exists from those units currently operating in the NAS.
After receiving NavWorx's design change, the FAA advised NavWorx that it could not manufacture the units as TSO C–154c units because NavWorx had not provided acceptable data to substantiate modifying the SIL value of the internal SiRF IV GPS to 3. Initially, NavWorx agreed to return the SIL to 0 and requested 60 days to effect this change. Instead, over two months later, NavWorx informed the FAA that it would not be returning the SIL value to 0 after all. The FAA continued to advise NavWorx, both verbally and in writing, that the SIL change rendered the units non-compliant with the TSO. The FAA also continued to request that NavWorx voluntarily return the SIL to 0, but NavWorx refused. The FAA met with NavWorx and explained the means of compliance in our existing guidance for certifying the SiRF IV GPS to broadcast a SIL of 3, as well as the process for submitting an alternate or equivalent means of compliance for approval. While NavWorx indicated its desire to initiate one of those processes, it did not. Instead, NavWorx continued to sell and ship the part-numbered 200–0012 and 200–0013 units with the unapproved design change, and continued to furnish product software upgrades through its Web site to existing owners that contained the unapproved design change. When the FAA repeatedly requested to conduct a routine inspection of NavWorx's facility, in part to review NavWorx's units and data supporting its design change, NavWorx refused.
After determining the situation created by NavWorx resulted in an unsafe condition, and without NavWorx's cooperation to correct the unsafe condition, the FAA found it necessary to issue an AD. Documentation of these events is available for review in Docket No. FAA–2016–9226.
We do not agree that an SAIB or SAFO would be an appropriate solution. These documents contain information and recommended actions that are voluntary and not regulatory. Moreover, an SAIB is issued only for airworthiness concerns that do not rise to the level of an unsafe condition.
The mission of the FAA is aviation safety. ADs are used by the FAA to correct known safety defects. It would be contrary to the intent of the FAA's mission and statutory authority to exclude certain aircraft when we have determined that a part installed on those aircraft has a safety problem.
The labor rate of $85 per hour is provided by the FAA Office of Aviation Policy and Plans for the FAA to use when estimating the labor costs of complying with AD requirements.
The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (RFA) establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The FAA did make such a determination for this AD. The basis for this determination is now discussed.
The FAA uses the Small Business Association (SBA) criteria for determining whether an affected entity is small. For aircraft manufacturers, aviation operators, and any business using an aircraft, the SBA criterion is 1,500 or fewer employees.
NavWorx is a small entity, and this AD could have an adverse impact on its business interests. Besides NavWorx, the largest number of affected small entities would most likely be operators of ADS600–B-equipped aircraft. Based on the estimated number of units in service, and assuming each unit is owned by a different small entity, the largest number of small entities affected is 800.
The FAA estimates that there is a total population of 210,000 general aviation and air taxi aircraft in the United States.
The FAA assumed all 70,300 commercial use aircraft are operated by small entities and that each small entity operates an average of 6 aircraft,
We also disagree that we are unfairly targeting NavWorx. We have determined an unsafe condition exists on a NavWorx product and we are requiring corrective action accordingly. If the FAA identifies similar problems and determines that an unsafe condition exists on other ADS–B products, whether manufactured by NavWorx or other companies, we would take appropriate action to correct the unsafe condition.
We also disagree with the contention that NavWorx initially submitted data to substantiate a SIL of 3. NavWorx's TSO-authorized design for its P/N 200–0012 and P/N 200–0013 ADS–B units has always identified the internal GPS source for those units as an uncertified SiRF IV GPS. The SiRF IV is not manufactured under an FAA TSO. The FAA approved this equipment and its installation to transmit a SIL of 0 because that is what is required by RTCA Document DO–282B (the performance standard for TSO–C154c and the NavWorx units) and AC 20–165B.
The commenters' request to provide TIS–B data to all aircraft, regardless of SIL, would not correct the unsafe condition. We did not change the AD based on these comments.
We have reviewed the relevant information, considered the comments received, and determined that an unsafe condition exists and is likely to exist or develop on other products of this same type design and that air safety and the public interest require adopting the AD requirements as proposed with the changes described previously. These changes are consistent with the intent of the proposals in the NPRM (81 FR 72552, October 20, 2016) and will not increase the economic burden on any operator nor increase the scope of the AD.
We reviewed NavWorx AFMS for ADS600–B as installed under STC No. SA11172SC, approved May 4, 2014; NavWorx Installation Manual for ADS600–B Part 23 AML STC 240–0021–00–07, Revision 7, dated May 4, 2014; and NavWorx STC Master Drawing List 240–0013–00, Revision 10, dated May 29, 2014. This service information identifies the internal GPS position source for the NavWorx Model ADS600–B P/N 200–0012 and P/N 200–0013 as uncertified and not compliant with 14 CFR 91.225 and 91.227.
We estimate that this AD affects approximately 800 ADS–B units installed on various aircraft of U.S. registry. Operators may incur the following costs in order to comply with this AD based on an average labor rate of $85 per work-hour. Removing the ADS–B unit, disabling the ADS–B unit, or revising the software of the ADS–B unit will take about 1 work-hour, for a total of $85 per aircraft. Coupling the ADS–B unit with an approved external GPS will take about 4 work-hours for a total of $340 per aircraft.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to the following NavWorx, Inc., Automatic Dependent Surveillance-Broadcast (ADS–B) Universal Access Transceiver units (unit) installed on aircraft certificated in any category, including experimental:
(1) Model ADS600–B part number (P/N) 200–0012;
(2) Model ADS600–B P/N 200–0013; and
(3) Model ADS600–EXP P/N 200–8013.
This AD defines the unsafe condition as an ADS–B unit incorrectly broadcasting a Source Integrity Level (SIL) of 3 instead of its authorized SIL of 0. This condition could result in the unit communicating unreliable position information to Air Traffic Control and nearby aircraft and a subsequent aircraft collision.
This AD becomes effective July 11, 2017.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 6 months, comply with either paragraph (e)(1)(i), (ii), (iii), or (iv) of this AD:
(i) Remove the ADS–B unit.
(ii) Disable and prohibit use of the ADS–B unit as follows:
(A) Pull and secure the circuit breaker and disconnect the internal GPS antenna connector from the ADS–B unit and secure.
(B) Install a placard in view of the pilot that states “USING THE ADS–B SYSTEM IS PROHIBITED.”
(C) Revise the Limitations section of the Aircraft Flight Manual supplement (AFMS) by inserting a copy of this AD or by making pen-and-ink changes to add the following: “USING THE ADS–B SYSTEM IS PROHIBITED.”
(iii) Revise the software so the ADS–B unit broadcasts a SIL of 0.
(iv) Couple the ADS–B unit with an approved external GPS as follows:
(A) Interface the ADS–B unit with an Accord NexNav mini LRU GPS Receiver P/N 21000.
(B) Revise the Limitations section of the AFMS by inserting a copy of this AD or by making pen-and-ink changes to add the following: “OPERATION USING THE INTERNAL POSITION SOURCE IS PROHIBITED. USE OF THE ACCORD NEXNAV MINI P/N 21000 EXTERNAL POSITION SOURCE IS REQUIRED.”
(2) After the effective date of this AD, do not install an ADS–B unit Model ADS600–B P/N 200–0012, Model ADS600–B P/N 200–0013, or Model ADS600–EXP P/N 200–8013 on any aircraft unless you have complied with the requirements of paragraph (e)(1)(ii), (e)(1)(iii), or (e)(1)(iv) of this AD.
(1) The Manager, Fort Worth Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Kyle Cobble, Aviation Safety Engineer, Fort Worth Aircraft Certification Office, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177, telephone (817) 222–5172, email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
NavWorx Airplane Flight Manual Supplement for ADS600–B as installed under Supplemental Type Certificate (STC) No. SA11172SC, approved May 4, 2014; NavWorx Installation Manual for ADS600–B Part 23 AML STC 240–0021–00–07, Revision 7, dated May 4, 2014; and NavWorx STC Master Drawing List 240–0013–00, Revision 10, dated May 29, 2014, which are not incorporated by reference, contain additional information about the subject of this AD. For service information identified in this AD, contact NavWorx Inc.; telephone (888) 628–9679; email:
Joint Aircraft Service Component (JASC) Code: 3452, ATC Transponder System.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding Airworthiness Directive (AD) 2011–26–03, which applied to certain The Boeing Company Model 777–200, –200LR, –300, and –300ER series airplanes. AD 2011–26–03 required installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks. This AD requires certain inspections for certain airplanes, corrective actions if necessary, and installation of Teflon sleeves under certain wire bundle clamps. This AD was prompted by a report indicating that additional airplanes are affected by the identified unsafe condition. We are issuing this AD to address the unsafe condition on these products.
This AD is effective July 11, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 11, 2017.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of January 20, 2011 (75 FR 78588, December 16, 2010).
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone: 562–797–1717; Internet:
You may examine the AD docket on the Internet at
Tak Kobayashi, Aerospace Engineer, Propulsion Branch, ANM–140S, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6499; fax: 425–917–6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011–26–03, Amendment 39–16893 (76 FR 78138, December 16, 2011) (“AD 2011–26–03”). AD 2011–26–03 applied to certain The Boeing Company Model 777–200, –200LR, –300, and –300ER series airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing requested that we withdraw the NPRM. The commenter stated that the actions proposed by the NPRM are no longer necessary, since the unsafe condition is adequately addressed by repetitive inspections required by the electrical wiring interconnection system (EWIS) enhanced zonal analysis procedure (EZAP) inspection program required by 14 CFR part 26. The commenter pointed out that, since the time this issue was determined to be a safety issue, the exposure assumed under the safety assessment has changed due to the inspection program. The commenter stated that the safety concern was that the failure of multiple protective design features for wiring installations could be a single cascading failure since the exposure was the life of the airplane. The commenter stated that since the implementation of the EWIS EZAP inspections, where the interval is now 6 years, this is no longer considered to be a single failure as the exposure has been reduced to where the wiring and installation is not expected to fail in this inspection interval and any potential wear would be detected and would be repaired or removed and replaced in accordance with maintenance activities.
We disagree to withdraw the NPRM. The EWIS EZAP repetitive inspection program is implemented by FAA operating rules (14 CFR 121.1111 or 14 CFR 129.111), which are applicable only to operators that are required to comply with those operating rules. The FAA is obligated to advise foreign airworthiness authorities of unsafe conditions identified in products manufactured in the United States, including Boeing airplanes, in accordance with bilateral airworthiness agreements with countries around the world. The issuance of ADs is the means by which the FAA satisfies this obligation. Even if the FAA agreed that the actions required by 14 CFR 121.1111 and 14 CFR 129.111 adequately addressed the unsafe condition, the FAA would still issue this AD to address airplanes that may
Boeing requested that we clarify the use of “unacceptable (failure) experience” in the Discussion section of the NPRM and that was used as a safety evaluation criterion under Special Federal Aviation Regulation No. 88 (SFAR 88). The commenter requested better definition of “unacceptable (failure) experience” or the addition of detailed guidance that defines how to identify an “unacceptable (failure) experience.” The commenter also indicated that Boeing airplanes at the time of design approval are intended to meet all applicable regulations including 14 CFR 25.601, which specifically prohibits hazardous or unreliable features.
We agree that clarification is necessary. To provide standardized policy for determining the need for mandatory action relative to the finding from the fuel system safety review required by SFAR 88, the FAA issued Memorandum 2003–112–15, SFAR 88—Mandatory Action Decision Criteria, dated February 25, 2003. One of the criteria provided in the policy memo is that, for any tank (either high or low flammability exposure time), all failures identified in service, that result in thermal or electrical energy dissipation into the fuel tank system, which could create an ignition hazard, or that make fuel tank safety protection devices inoperative (
Boeing requested that we revise paragraph (l) of the proposed AD so that it is clear that credit will be given for past work that has already been accomplished on other Boeing Model 777 airplanes. No justification was provided, however, the commenter stated that the NPRM is adding the missing airplanes and it uses the latest service information to reset the method of compliance.
We infer that the commenter is requesting clarification for taking credit for actions required by paragraph (g)(l) of this AD using earlier revisions of the service information. Paragraph (l)(1) of this AD provides credit for actions accomplished before January 20, 2011 (the effective date of AD 2010–24–12, Amendment 39–16531 (75 FR 78588, December 16, 2010) (“AD 2010–24–12”)), using service information revisions earlier than Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009, required by paragraph (g)(1) of AD 2010–24–12. Accomplishing the actions using Boeing Service Bulletin 777–57A0050, Revision 3, dated February 18, 2014, has been approved as an alternative method of compliance (AMOC) for paragraph (g)(l) of AD 2011–26–03, and AMOCs approved previously for AD 2011–26–03 are approved as AMOCs for the corresponding provisions of this AD as specified in paragraph (m)(4) of this AD. After the effective date of this AD, only Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015 is allowed for compliance with paragraph (g)(l) of this AD. Paragraphs (i) and (j) of this AD require actions for airplanes not covered in paragraph (g)(l) of this AD and also require additional actions for those airplanes that accomplished the actions required by paragraph (g)(l) of this AD using service bulletin revisions earlier than Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015. Therefore, no credit is provided for actions required by paragraphs (i) and (j) of this AD using service bulletin revisions earlier than Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015. We have not changed this AD in this regard.
Boeing requested that we revise paragraphs (i), (j), and (k) of the proposed AD to simplify the AD compliance implementation time frame. The commenter stated that the NPRM sets the requirements to be completed within 60 months of different revisions of different documents with an exception specified in paragraph (k) of the proposed AD, and that the proposed requirements were cumbersome and unclear. The commenter did not provide any explanation of how the paragraphs should be revised.
We agree that clarification is necessary. The NPRM proposed to supersede AD 2011–26–03 and added new requirements in paragraphs (i) and (j) of this AD. Paragraph (k) of this AD provides exceptions to the service information. For the new requirements in this AD, the FAA has determined that the compliance times are reasonable based on consideration of the risk level associated with the unsafe condition and the time necessary to perform the work. In addition, the compliance times in paragraphs (i) and (j) of this AD do not refer to any service documents (both paragraphs refer to Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, as the appropriate source of service information for accomplishing the actions in those paragraphs). Therefore, we have determined that the requirements of this AD are adequate and clear. We have not changed this AD in this regard.
Under the “Differences Between This Proposed AD and the Service Information” section of the NPRM, we noted that the corrections to group applicability for “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon Sleeve Installation,” Figure 3, and Figure 100 of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, were included in paragraphs (k)(1), (k)(2), and (k)(3) of the proposed AD. Paragraph (k)(1) of this AD specifies that WORK PACKAGE 21 applies to Groups 5 through 43 (including Configurations 1 and 2) to correct the error in Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, which only identifies Configuration 2 of Groups 5 through 43 as applicable. Paragraph (k)(1) of this AD, which is referenced by paragraph (j) of this AD, is intended to clarify the airplanes affected by the requirements specified in paragraph (j) of this AD. To further clarify this aspect, we have revised paragraph (j) of this AD to specifically reference Groups 5 through 43, Configurations 1 and 2 airplanes.
We have also revised paragraph (m)(4) of this AD to accept AMOCs approved previously for AD 2010–24–12 as
We have revised the Discussion section of this final rule and paragraph (e) of this AD to clarify that we are issuing this AD to address arcing inside the main and center fuel tanks in the event of a fault current or lightning strike, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015. The service information describes procedures for installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks. The service information also describes detailed inspections of certain wire bundle clamps, certain Teflon sleeves, and certain fasteners; corrective actions if necessary; and installation of Teflon sleeves under certain wire bundle clamps. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 182 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 11, 2017.
This AD replaces AD 2011–26–03, Amendment 39–16893 (76 FR 78138, December 16, 2011) (“AD 2011–26–03”).
This AD applies to The Boeing Company airplanes, certificated in any category, as identified in the applicable service information specified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD.
(1) For The Boeing Company Model 777–200, –200LR, –300, –300ER, and 777F airplanes: Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015.
(2) For The Boeing Company Model 777–200 and –300 airplanes: Boeing Alert Service Bulletin 777–57A0051, dated May 15, 2006.
(3) For The Boeing Company Model 777–200, –300, and –300ER airplanes: Boeing Alert Service Bulletin 777–57A0057, Revision 1, dated August 2, 2007.
(4) For The Boeing Company Model 777–200, –200LR, –300, and –300ER airplanes:
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent arcing inside the main and center fuel tanks in the event of a fault current or lightning strike, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2011–26–03, with revised service information. Within 60 months after January 20, 2011 (the effective date of AD 2010–24–12, Amendment 39–16531 (75 FR 78588, December 16, 2010) (“AD 2010–24–12”)), do the applicable actions specified in paragraph (g)(1), (g)(2), (g)(3), or (g)(4) of this AD, except as required by paragraph (k)(2) of this AD.
(1) For airplanes identified in Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009: Install Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009; or Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015. As of the effective date of this AD, only Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, may be used to accomplish the actions required by this paragraph.
(2) For airplanes identified in Boeing Alert Service Bulletin 777–57A0051, dated May 15, 2006: Cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0051, dated May 15, 2006.
(3) For airplanes identified in Boeing Alert Service Bulletin 777–57A0057, Revision 1, dated August 2, 2007: Do a general visual inspection to determine if certain fasteners are cap sealed, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0057, Revision 1, dated August 2, 2007. Do all applicable corrective actions before further flight.
(4) For Model 777–200, –300, and –300ER airplanes identified in Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008: Cap seal the fasteners in the center fuel tanks that were not sealed during production, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008.
This paragraph restates the requirements of paragraph (i) of AD 2011–26–03, with no changes. For Model 777–200LR airplanes identified in Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008: Within 60 months after January 3, 2012 (the effective date of AD 2011–26–03), cap seal the fasteners in the center fuel tanks that were not sealed during production, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008.
For Group 1, Configurations 2 through 4 airplanes; Groups 2 through 4, Configurations 3 through 5 airplanes; Groups 5 through 43, Configuration 1 airplanes; and Groups 44 and 45 airplanes; as identified in Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015: Within 60 months after the effective date of this AD, do the applicable actions specified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD, except as required by paragraph (k)(2) of this AD.
(1) For Group 1, Configurations 2 through 4 airplanes; Groups 2 through 4, Configurations 3 through 5 airplanes; Groups 5 through 43, Configuration 1 airplanes; and Groups 44 and 45 airplanes; as identified in Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for installation of Teflon sleeves under certain wire bundle clamps, as applicable; a detailed inspection to determine the type of wire bundle clamp; and all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.
(2) For Group 1, Configurations 2 through 4 airplanes; and Groups 2 through 4, Configurations 3 through 5 airplanes; as identified in Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for correct installation of certain Teflon sleeves, as applicable; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.
(3) For Group 1, Configurations 2 through 4 airplanes; and Groups 2 through 4, Configurations 3 through 5 airplanes; as identified in Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for cap sealing of certain fasteners, as applicable; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.
For Group 1, Configurations 2 through 5 airplanes; Groups 2 through 4, Configurations 3 through 6 airplanes; and Groups 5 through 43, Configurations 1 and 2 airplanes; as identified in Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015: Within 60 months after the effective date of this AD, install Teflon sleeves under certain wire bundle clamps, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, except as required by paragraphs (k)(1), (k)(2), and (k)(3) of this AD.
(1) Where “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation” of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, specifies “Groups 5 through 43, Configuration 2,” for this AD, “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation” of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, applies to all configurations of Groups 5 through 43 airplanes.
(2) Where Figure 3 of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, specifies “Groups 1 through 7, and 9 through 43,” for this AD, Figure 3 of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, applies to Groups 1 through 43 airplanes.
(3) Where Figure 100 of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, specifies “Groups 5 through 43, Configuration 2,” for this AD, Figure 100 of Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015, applies to all configurations of Groups 5 through 43 airplanes.
(1) This paragraph provides credit for the actions specified in paragraph (g)(1) of this AD, if those actions were performed before January 20, 2011 (the effective date of AD 2010–24–12), using Boeing Alert Service Bulletin 777–57A0050, dated January 26, 2006; or Boeing Alert Service Bulletin 777–57A0050, Revision 1, dated August 2, 2007; provided that the applicable additional work specified in Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009, is done within the compliance time specified in paragraph (g) of this AD. The additional work must be done in accordance with Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009.
(2) This paragraph provides credit for the actions specified in paragraph (g)(3) of this AD, if those actions were performed before January 20, 2011 (the effective date of AD 2010–24–12), using Boeing Alert Service Bulletin 777–57A0057, dated August 7, 2006.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously for AD 2011–26–03 and AD 2010–24–12 are approved as AMOCs for the corresponding provisions of this AD.
(1) For more information about this AD, contact Tak Kobayashi, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6499; fax: 425–917–6590; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(5) and (o)(6) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on July 11, 2017.
(i) Boeing Service Bulletin 777–57A0050, Revision 4, dated September 28, 2015.
(ii) Reserved.
(4) The following service information was approved for IBR on January 20, 2011 (75 FR 78588, December 16, 2010).
(i) Boeing Alert Service Bulletin 777–57A0051, dated May 15, 2006.
(ii) Boeing Alert Service Bulletin 777–57A0057, Revision 1, dated August 2, 2007.
(iii) Boeing Alert Service Bulletin 777–57A0059, dated October 30, 2008.
(iv) Boeing Service Bulletin 777–57A0050, Revision 2, dated May 14, 2009.
(5) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone: 562–797–1717; Internet:
(6) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule
This action amends Class E airspace at Bar Harbor, ME, by removing the part-time status of the Class E surface airspace at Hancock County-Bar Harbor Airport. The boundaries and operating requirements of these airspace areas remain the same. This action also updates the airport's geographic coordinates and corrects the airport name in the airspace designation.
Effective 0901 UTC, August 17, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Hancock County-Bar Harbor Airport, Bar Harbor, ME, to support IFR operations under standard instrument approach procedures at the airport.
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by removing the part-time status of the Class E surface airspace, and updating the geographic coordinates of Hancock County-Bar Harbor Airport, Bar Harbor, ME, to be in concert with the FAA's aeronautical database. Also, the airport's name was misspelled in the descriptor title. This action corrects that error.
This is an administrative change and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Within a 4.2-mile radius of Hancock County-Bar Harbor Airport, and within 2.7 miles each side of a 204° bearing from the airport, extending from the 4.2-mile radius to 6.2 miles southwest of the airport, and within 2.7 miles each side of a 024° bearing from the airport, extending from the 4.2-mile radius to 6.2 miles northeast of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Murray, KY, as the Calloway non-directional beacon (NDB) has been decommissioned, requiring airspace reconfiguration at Kyle-Oakley Field Airport. This action enhances the safety and airspace management of instrument flight rules (IFR) operations at the airport. This action also updates the geographic coordinates of the airport and updates the airspace designation header.
Effective 0901 UTC, August 17, 2017. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, GA 30320; telephone (404) 305–6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Kyle-Oakley Field Airport, Murray, KY, for continued safety and management of IFR operations at the airport.
The FAA published a notice of proposed rulemaking (NPRM in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of Kyle-Oakley Field Airport, Murray, KY, due to the decommissioning of the Calloway NDB and cancellation of the NDB approach. Therefore, these changes are necessary for continued safety and management of IFR operations at the airport. The geographic coordinates of the airport are amended to coincide with the FAAs aeronautical database, and the airport designation header, as noted in FAA Order 7400.11A, is updated to include the airport name.
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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5–6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7 mile radius of Kyle-Oakley Field Airport.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary regulated area during the inbound and outbound transit of the tall ships participating in the Festival of Sail to be held on the waters of Coos Bay. This action is necessary to safeguard participants and spectators from the hazards associated with the limited maneuverability of the tall ships and to ensure public safety during their transit. This regulation prohibits persons and vessels from being in the regulated area unless authorized by the patrol commander or a designated representative.
This rule is effective without actual notice from June 6, 2017 through June 5, 2017. For the purposes of enforcement, actual notice will be used from the date the rule was signed, May 31, 2017, through June 6, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Laura Springer, MSU Portland Waterways; 503–240–9319, email
On June 1, 2017, and again on June 5, 2017, several class A and B tall sailing ships will be transiting the waters of Coos Bay as part of the Festival of Sail Coos Bay. To provide for the safety of participants, spectators, support and transiting vessels, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulation; Coos Bay, North Bend, OR. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action. During the comment period that ended May 15, 2017, we received no comments.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Columbia River has determined that potential hazards exist with the limited maneuverability of tall sailing ships. Many other factors amplify the potential hazards of the situation, including: Large numbers of recreational and fishing vessels; a narrow channel; and, limited maneuverability of the tall ships. The purpose of this rule is to ensure safety of participants, spectators, support and transiting vessels during the inbound and outbound transits.
As noted above, we received no comments on our NPRM published April 13, 2017. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a temporary regulated area during the inbound and outbound transit of the tall sailing ships participating in the Festival of Sail to be held on the waters of Coos Bay. The regulated area will be all navigable waters of Coos Bay, from the sea buoy to the Ferndale Lower Range in North Bend, OR. The duration of the regulated area is intended to ensure the safety of participants, spectators, support and transiting vessels, during the tall ships' inbound and outbound transits. No vessel or person would be permitted to enter the regulated area without obtaining permission from the patrol commander or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-day of the regulated area. Although this proposal would prevent traffic from transiting portions of Coos Bay, the effect of this regulation would not be significant due to the limited duration that the regulated area will be in effect and the fact that the patrol commander may allow waterway users to enter or transit through the zone when deemed safe to do so. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF–FM marine channel 16 to notify mariners about the regulated area.
E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it.
As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771.
While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a Special Local Regulation for a regulated area lasting less than 3 hours during each transit period that will prohibit vessels from entering an area encompassing Coos Bay from the sea buoy to the Ferndale Lower Range unless given permission to do so by the on-scene patrol commander or his designated representative. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2–1 of Commandant Instruction M16475.1D. A Record of Environmental Consideration and Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(2) Entrance into the regulated area is prohibited unless authorized by the PATCOM. The PATCOM may control the movement of all vessels in the regulated area. When hailed or signaled to stop by an official patrol vessel, a vessel shall come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(3) All vessels permitted to transit the regulated area shall maintain a separation of at least 100 yards away from the participating tall sailing ships and a distance of at least 50 yards away while transiting in the vicinity of the McCullough Memorial Bridge and the Coos Bay railroad bridge.
(c)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Upper Mississippi River (UMR) between miles 846 and 847. This action is necessary to provide for the safety of life on these navigable waters near Minneapolis and St. Paul, MN during a rope pull event on June 10, 2017. This temporary safety zone is necessary to protect persons and property from potential damage and safety hazards during a rope pull event across the UMR. During the period of enforcement, entry into the safety zone is prohibited unless specifically authorized by the Captain of the Port Upper Mississippi River (COTP) or a designated representative.
This rule is effective from 10 a.m. to 3 p.m. on June 10, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rulemaking, call or email LCDR Sean Peterson, Chief of Prevention, U.S. Coast Guard; telephone 314–269–2332, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by June 10, 2017 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
During the hours of 10 a.m. to 3 p.m. on June 10, 2017, the sponsors of the “Pulling Together” event will be stretching a rope across the UMR from Minneapolis, MN to St. Paul, MN at river mile 846.5 for multiple tug-of-war competitions. After full review of the details for event, the Coast Guard determined action is needed to protect people and property from the safety hazards associated with the rope pull event across the UMR in Minneapolis and St. Paul, MN.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with the rope pull event will be a safety concern before, during, and after the event. The purpose of this rule is to ensure safety of vessels, people and property on the navigable waters in the safety zone before, during, and after the scheduled event.
This rule establishes a safety zone from 10 a.m. to 3 p.m. on June 10, 2017. The safety zone will cover all navigable waters between miles 846 and 847 on the Upper Mississippi River (UMR) in Minneapolis and St. Paul, MN. Exact times of the closures and any changes to the planned schedule will be communicated to mariners using Broadcast and Local Notice to Mariners. There are at least two planned intermissions to the event, during which an event boat will be tending the rope to allow for vessel traffic to pass through the area of the closure, thus limiting the impact to vessel traffic affected by the closure. The safety zone is intended to ensure the safety of vessels on these navigable waters before, during and after the rope pull event. No vessel or person will be permitted to enter the safety zone without obtaining permission from the Captain of the Port Upper Mississippi River (COTP) or a designated representative.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. These rules have not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, they have not been reviewed by the Office of Management and Budget.
This temporary final rule establishes a safety zone impacting a one mile area on the UMR for a limited time period of five hours. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Based on the location, limited safety zone area, and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of the safety zone or any changes in the planned schedule will be made via Broadcast and Local Notice to Mariners. Entry into this safety zone may be requested from the COTP or other designated representative and will be considered on a case-by-case basis.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104–121), we want to assist small entities in understanding these rules. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting five hours that will prohibit entry from mile 846 to 847 on the UMR on June 10, 2017. It is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. A Record of Environmental Consideration are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security Measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative via VHF–FM channel 16, or through Coast Guard Sector Upper Mississippi River at 314–269–2332. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the subject safety zone for the PUSH Beaver County/Beaver County Boom Fireworks on the Ohio River. The zone is needed to protect vessels transiting the area and event spectators from the hazards associated with the PUSH Beaver County/Beaver County Boom barge-based firework display. During the enforcement period, entry into, transiting, or anchoring in the safety zone is prohibited to all vessels not registered with the sponsor as participants or official patrol vessels, unless specifically authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative.
The regulations in Table 1 in 33 CFR 165.801, No. 45, will be enforced from 8:30 p.m. until 10:30 p.m., on June 24, 2017.
If you have questions about this notice of enforcement, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone 412–221–0807, email
The Coast Guard will enforce the safety zone for the annual PUSH Beaver County/Beaver County Boom Fireworks listed in the regulations in Table 1 in 33 CFR 165.801, No. 45, from 8:30 p.m. to 10:30 p.m. on June 24, 2017. The safety zone extends the entire width of the Ohio River from mile 25.2 to 25.6. The zone is needed to protect vessels transiting the area and event spectators from the hazards associated with the PUSH Beaver County/Beaver County Boom barge-based firework display. Entry into the safety zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or passage through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.
This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the
Coast Guard, DHS.
Final rule.
The Coast Guard is amending and updating its safety zones regulations that take place in the Coast Guard Sector Ohio Valley area. This informs the public of regularly scheduled events that require additional safety measures through the establishing of a safety zone. Through this rulemaking the current list of recurring safety zones is updated with revisions, additional events, and removal of events that no longer take place in Sector Ohio Valley's AOR. When these safety zones are enforced, certain restrictions are placed on marine traffic in specified areas.
This rule is effective June 6, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer James Robinson, Sector Ohio Valley, U.S. Coast Guard; telephone (502) 779–5347, email
The Captain of the Port Ohio Valley (COTP) is establishing, amending, and updating 33 CFR 165.801 to update our regulations for annual fireworks displays and other events in the Eighth Coast Guard District requiring safety zones with respect to those in Sector Ohio Valley. These events include air shows, fireworks displays, and other marine related events requiring a limited access area restricting vessel traffic for safety purposes.
On March 30, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled, “Sector Ohio Valley Annual and Recurring Safety Zones Update” (82 FR 15666). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to those recurring safety zones. The public comment period ended on May 1, 2017. During the comment period, we did not receive any comments.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard's authority for establishing a safety zone is contained at 33 U.S.C. 1231. The Coast Guard is amending and updating the safety zones under 33 CFR part 165 to include the most up to date list of recurring safety zones for events held on or around navigable waters within the Sector Ohio Valley AOR. These events include fireworks displays, air shows, and others. The current list in 33 CFR 165.801 requires amending to provide new information on existing safety zones, include new safety zones expected to recur annually or biannually, and to remove safety zones that are no longer required. Issuing individual regulations for each new safety zone, amendment, or removal of an existing safety zone creates unnecessary administrative costs and burdens. This rulemaking reduces administrative overhead and provides the public with notice through publication in the
As noted above, we received no comments on our NPRM published on March 30, 2017. There are no changes in the regulatory text of this rule from the proposed rule on the NPRM.
This rule amends and updates part 165 or 33 CFR by revising the current table for Sector Ohio Valley, and by adding 5 new recurring safety zones and removing 1 safety zone as desired in the NPRM. Vessels intending to transit the designated waterway through the safety zone will only be allowed to transit the area when the COTP, or a designated representative, has deemed it safe to do so or at the completion of the event.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
The Coast Guard expects the economic impact of this rule to be minimal, and therefore a full regulatory evaluation is unnecessary. This rule establishes safety zones limiting access to certain areas under 33 CFR part 165 within Sector Ohio Valley's AOR. The effect of this rulemaking will not be significant because these safety zones are limited in scope and duration. Additionally, the public is given advance notification through local forms of notice, the
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this rule will not have a significant economic impact on any vessel owner or operator. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2–1, paragraph 34(g) of the Instruction because it involves the establishment of safety zones. A Record of Environmental Consideration (REC) is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
Environmental Protection Agency (EPA).
Final rule; correction.
The Environmental Protection Agency (EPA) published a final rule in the
This rule is effective on June 30, 2017.
Bob McConnell, Environmental Engineer, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05–02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109–3912; (617) 918–1046;
EPA published a direct final rule on May 1, 2017 (82 FR 20262) approving two Connecticut state orders, and also approving the state's request to withdraw seven previously approved orders from the Connecticut state implementation plan. In this approval, EPA incorrectly identified in the amendatory instructions a paragraph to be added to 40 CFR 52.370 as paragraph (c)(55)(i)(B). This paragraph should have been identified as (c)(55)(i)(C). Therefore, the amendatory instruction is being corrected to reflect the correct CFR reference.
In the direct final rule published in the
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving: Negative declarations for commercial and industrial solid waste incinerators for the State of Connecticut, the State of New Hampshire, the State of Rhode Island, and the State of Vermont; negative declarations for hospital/medical/infectious waste incinerators for the State of Rhode Island; and revisions to the state plan for existing large and small municipal waste combustors for the State of New Hampshire. This action is being made in accordance with sections 111 and 129 of the Clean Air Act (CAA).
This direct final rule is effective August 7, 2017, unless EPA receives adverse comments by July 6, 2017. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R01–OAR–2017–0202 at
Patrick Bird, Air Permits, Toxics, & Indoor Programs Unit, Air Programs Branch, Office of Ecosystem Protection, U.S. Environmental Protection Agency,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Organization of this document. The following outline is provided to aid in locating information in this preamble.
Section 129 of the CAA requires EPA to establish performance standards and emission guidelines for various types of new and existing solid waste incineration units. These rulemakings establish emission standards for certain air pollutants, including organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, and mercury), hydrogen chloride, sulfur dioxide, nitrogen oxides, and particulate matter (which includes opacity).
Section 129(b)(2) requires states to submit to EPA for approval section 111(d)/129 plans that implement and enforce the promulgated emission guidelines. Section 129(b)(3) requires EPA to promulgate a federal plan within two years from the date on which the emission guidelines, or revision to the emission guidelines, is promulgated. The federal plan is applicable to affected facilities when the state has failed to receive EPA approval of the section 111(d)/129 plan. The federal plan remains in effect until the state submits and receives EPA approval of its section 111(d)/129 state plan.
State plans submitted pursuant to CAA sections 111(d) and 129 must be consistent with the relevant emission guidelines. If a state has no existing sources for the relevant emission guideline, a state may submit a negative declaration in lieu of a state plan for that particular type of existing source solid waste incineration unit.
Performance standards for new stationary source commercial and industrial solid waste incinerators (CISWI) and emission guidelines for existing source CISWI were originally promulgated on December 1, 2000 (65 FR 75338). These rulemakings underwent a number of revisions and amendments throughout the 2000s, with the most recent amendments being finalized on June 23, 2016 (81 FR 40956). Due to significant changes to applicability in the March 21, 2011 CISWI rulemaking, EPA required states to resubmit state plans for existing source CISWI.
Connecticut Department of Energy & Environmental Protection (CT DEEP) submitted a negative declaration on September 1, 2015 certifying no existing source CISWI units operate within the State of Connecticut. CT DEEP noted the energy recovery incinerator located at Pfizer, Inc. in Groton, Connecticut ceased operation in 2008. The unit's permits were revoked, and the incinerator was rendered inoperable.
The New Hampshire Department of Environmental Services (NH DES) submitted a negative declaration on September 25, 2013 certifying no existing source CISWI units operate within the State of New Hampshire. NH DES noted that an existing source CISWI unit located at D.D. Bean & Sons Co. in Jaffrey, New Hampshire ceased operating in January 2005. The unit was completely dismantled in August 2005. NH DES has requested its state plan for existing source CISWI, approved by EPA on February 10, 2003 (68 FR 6635), be withdrawn and the negative declaration be approved in its stead.
The Rhode Island Department of Environmental Management (RI DEM) submitted a negative declaration on August 19, 2015 certifying no existing source CISWI units operate within the State of Rhode Island. This certification serves to update a previous negative declaration for existing source CISWI approved by EPA on April 12, 2002 (67 FR 17946).
The Vermont Department of Environmental Conservation (VT DEC) submitted a negative declaration on July 26, 2013 certifying no existing source CISWI units operate within the State of Vermont. This certification serves to update a previous negative declaration for existing source CISWI approved by EPA on December 11, 2001 (66 FR 63940).
Performance standards for new stationary source hospital/medical/infectious waste incinerators (HMIWI) and emission guidelines for existing source HMIWI were originally promulgated on September 15, 1997 (62 FR 48348). The rulemakings underwent a number of revisions and amendments throughout the 2000s, with the most recent amendments being finalized on April 4, 2011(76 FR 18407). Existing source HMIWI units are those which have commenced construction on or before December 1, 2008 or modified no later than April 6, 2010. The emission guidelines for existing source HMIWI are codified at 40 CFR part 60, subpart Ce.
RI DEM submitted a negative declaration on February 8, 2011 certifying no existing source HMIWI units operate within the State of Rhode Island. All HMIWI units within the state have permanently ceased operation. On August 19, 2015, RI DEM requested its state plan for existing source HMIWI, approved by EPA on April 27, 2001 (66 FR 21092), be withdrawn and the negative declaration be approved in its stead.
Performance standards for new stationary source large municipal waste combustors (MWC) and emission guidelines for existing large MWCs were originally promulgated on February 11, 1991 (54 FR 52251). Large MWC rulemakings underwent a number of revisions and amendments throughout the 1990s and early 2000s, with the most recent amendments being finalized on May 10, 2006 (71 FR 18407). Performance standards for new stationary source small MWCs and emission guidelines for existing small MWCs were originally promulgated on December 6, 2000 (65 FR 76350 and 65 FR 76378). Existing large MWC units are those which have commenced construction on or before September 20, 1994 or modified no later than June 19, 1996. The emission guidelines for existing source large MWCs are codified at 40 CFR part 60, subpart Cb. Existing source small MWC units are those
EPA approved the New Hampshire large and small MWC state plan on February 10, 2003 (68 FR 6630). The implementing and enforceable regulation for the New Hampshire large and small MWC state plan is CHAPTER Env-A 3300 MUNICIPAL WASTE COMBUSTION. On January 29, 2009, NH DES submitted revisions to its large and small MWC state plan, specifically revisions to Env-A 3300, in order to make New Hampshire's state plan consistent with EPA's 2006 amendments to the large MWC emission guidelines. A technical amendment to the January 2009 submittal was submitted on February 13, 2009. EPA approved New Hampshire's state plan revisions on September 3, 2014 (79 FR 52204).
In early 2016, the New Hampshire General Court revised 125–C:10–a, a state statute that establishes emission limits for large and small MWC units. The revised legislation increased the stringency of emission limits for existing small MWCs for particulate matter, cadmium, lead, and dioxin/furans. The revised emission limits for existing small MWCs are now identical to those of existing large MWCs for those particular pollutants. Revision to 125–C:10–a became effective on July 18, 2016.
In anticipation of the legislative action, NH DES revised Env-A 3300. Revisions to Env-A 3300 incorporated by reference 125–C:10–a and added a table to Env-A 3300 at Appendix D summarizing the most stringent emission limits applicable to existing small MWCs in New Hampshire. Other inconsequential formatting changes were made to Env-A 3300. Overall, the revised emission limits for existing source small MWCs make the New Hampshire regulation more stringent than federal standards for existing small MWCs.
NH DES submitted the amended Env-A 3300 as a state plan revision on July 28, 2016. NH DES provided adequate public notice of public hearings for the proposed rulemaking Env-A 3300.
EPA is approving CISWI negative declarations for the State of Connecticut, the State of Rhode Island, and the State of Vermont. EPA is approving the withdrawal of the New Hampshire CISWI state plan and approving the state's negative declaration. EPA is approving the withdrawal of the Rhode Island HMIWI state plan and approving the state's negative declaration. These negative declarations satisfy the requirements of 40 CFR 62.06 and will serve in lieu of CAA section 111(d)/129 state plans for the specified states and source categories.
EPA is approving revisions to the New Hampshire state plan for large and small MWCs. EPA's approval of the New Hampshire's state plan is based on our findings that:
• NH DES provided adequate public notice of public hearings for the proposed rulemaking that allows New Hampshire to carry out and enforce provisions that are at least as protective as the emission guidelines for large and small MWCs, and;
• NH DES demonstrated legal authority to adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine compliance; require record keeping; conduct inspections and tests; require the use of monitors; require emission reports of owners and operators; and make emission data publicly available.
EPA is publishing these actions without prior proposal because the Agency views these as noncontroversial amendments and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on August 7, 2017 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the CAA and applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because this direct final rulemaking is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 7, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401
On September 1, 2015, the State of Connecticut Department of Energy and Environmental Protection submitted a letter certifying no Commercial and Industrial Solid Waste Incineration units subject to 40 CFR 60, subpart DDDD operate within the state's jurisdiction.
The addition reads as follows:
(b) * * *
(4) * * *
(ii) Revised State Plan for Large and Small Municipal Waste Combustors was submitted on July 28, 2016. Revisions included amendments to New Hampshire Code of Administrative Rules Env-A 3300 Municipal Waste Combustion in response to more stringent emission limits for Small MWCs enacted by the New Hampshire General Court in 2016 and codified at New Hampshire Revised Statutes Annotated 125–C:10-a.
On September 25, 2013 the State of New Hampshire Department of Environmental Services submitted a letter certifying no Commercial and Industrial Solid Waste Incineration units subject to 40 CFR part 60, subpart DDDD operate within the state's jurisdiction.
On September 25, 2013 the State of Rhode Island Department of Environmental Management submitted a letter certifying no Hospital/Medical/Infectious Waste Incinerators units subject to 40 CFR part 60, subpart Ce operate within the state's jurisdiction.
On July 26, 2013, the State of Vermont Department of Environmental Conservation submitted a letter certifying no Commercial and Industrial Solid Waste Incineration units subject to 40 CFR part 60, subpart DDDD operate within the state's jurisdiction.
Nuclear Regulatory Commission.
Proposed rule.
The U.S. Nuclear Regulatory Commission (NRC) is proposing to amend its spent fuel storage regulations by revising the NAC International (NAC), MAGNASTOR® Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 7 to Certificate of Compliance (CoC) No. 1031. Amendment No. 7 provides a new Passive MAGNASTOR® Transfer Cask and associated Technical Specification (TS) changes in Appendices A and B, and updates Section 4.3.1(i) in Appendix A of the TSs to include revised seismic requirements. Clarifying (non-technical) changes were also made to Appendices A and B.
Submit comments by July 6, 2017. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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•
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Keith McDaniel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–5252; email:
Please refer to Docket ID NRC–2017–0008 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
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Please include Docket ID NRC–2017–0008 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
This proposed rule is limited to the changes contained in Amendment No. 7 to CoC No. 1031 and does not include other aspects of the NAC MAGNASTOR® Cask System design. Because the NRC considers this action noncontroversial and routine, the NRC is publishing this proposed rule concurrently with a direct final rule in the Rules and Regulations section of this issue of the
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TSs.
For additional procedural information and the regulatory analysis, see the direct final rule published in the Rules and Regulations section of this issue of the
Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”
To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of title 10 of the
The Plain Writing Act of 2010 (Pub. L. 111–274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883). The NRC requests comment on the proposed rule with respect to clarity and effectiveness of the language used.
The documents identified in the following table are available to interested persons as indicated.
The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at
Administrative practice and procedure, Criminal penalties, Hazardous waste, Indians, Intergovernmental relations, Manpower training programs, Nuclear energy, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is proposing to adopt the following amendments to 10 CFR part 72:
Atomic Energy Act of 1954, secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 223, 234, 274 (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2210e, 2232, 2233, 2234, 2236, 2237, 2238, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); National Environmental Policy Act of 1969 (42 U.S.C. 4332); Nuclear Waste Policy Act of 1982, secs. 117(a), 132, 133, 134, 135, 137, 141, 145(g), 148, 218(a) (42 U.S.C. 10137(a), 10152, 10153, 10154, 10155, 10157, 10161, 10165(g), 10168, 10198(a)); 44 U.S.C. 3504 note.
Certificate Number: 1031.
Initial Certificate Effective Date: February 4, 2009, superseded by Initial Certificate, Revision 1, on February 1, 2016.
Initial Certificate, Revision 1, Effective Date: February 1, 2016.
Amendment Number 1 Effective Date: August 30, 2010, superseded by Amendment Number 1, Revision 1, on February 1, 2016.
Amendment Number 1, Revision 1, Effective Date: February 1, 2016.
Amendment Number 2 Effective Date: January 30, 2012, superseded by Amendment Number 2, Revision 1, on February 1, 2016.
Amendment Number 2, Revision 1, Effective Date: February 1, 2016.
Amendment Number 3 Effective Date: July 25, 2013, superseded by Amendment Number 3, Revision 1, on February 1, 2016.
Amendment Number 3, Revision 1, Effective Date: February 1, 2016.
Amendment Number 4 Effective Date: April 14, 2015.
Amendment Number 5 Effective Date: June 29, 2015.
Amendment Number 6 Effective Date: December 21, 2016.
Amendment Number 7 Effective Date: August 21, 2017.
SAR Submitted by: NAC International, Inc.
SAR Title: Final Safety Analysis Report for the MAGNASTOR® System.
Docket Number: 72–1031.
Certificate Expiration Date: February 4, 2029.
Model Number: MAGNASTOR®.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 900EX airplanes. This proposed AD was prompted by a determination that new or more restrictive maintenance requirements and/or airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and/or airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 21, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016–0129, dated June 23, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model
The airworthiness limitations and maintenance requirements for the DA [Dassault Aviation] Falcon 900EX type design relating to Falcon 900EX Easy, Falcon 900LX and Falcon 900DX variants are included in Aircraft Maintenance Manual (AMM) chapter 5–40 and are approved by the European Aviation Safety Agency (EASA). These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
Consequently, EASA issued AD 2013–0052 [which corresponds to AD 2014–16–27, Amendment 39–17951 (79 FR 51071, August 27, 2014) (“2014–16–27”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in DA Falcon 900EX Easy/900LX/900DX AMM chapter 5–40 (DGT 113875) at revision 7.
Since that [EASA] AD was issued, DA issued revision 9 of DA Falcon 900EX Easy/900LX/900DX AMM chapter 5–40 (DGT 113875) (hereafter referred to as “the ALS” in this AD), which contains new or more restrictive maintenance requirements and/or airworthiness limitations. The ALS introduces, among others, the following new tasks:
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2013–0052, which is superseded, and requires accomplishment of the actions specified in the ALS.
You may examine the MCAI in the AD docket on the Internet at
We reviewed Chapter 5–40, Airworthiness Limitations, Revision 9, dated November 2015, of the Falcon 900EX EASy, Falcon 900LX, and Falcon 900DX Maintenance Manual. The service information describes procedures, maintenance tasks, and airworthiness limitations specified in the Airworthiness Limitations section (ALS) of the AMM. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
This proposed AD would not supersede AD 2014–16–27. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and/or airworthiness limitations than those required by AD 2014–16–27. Accomplishment of the proposed actions would then terminate all requirements of AD 2014–16–27.
The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.
Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.
In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.
When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).
The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.
To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.
However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD.
This proposed AD therefore applies to Dassault Aviation Model FALCON 900EX airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of approval of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.
We estimate that this proposed AD affects 63 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 21, 2017.
This AD affects AD 2014–16–27, Amendment 39–17951 (79 FR 51071, August 27, 2014) (“AD 2014–16–27”).
This AD applies to Dassault Aviation Model FALCON 900EX airplanes, serial number (S/N) 97 and S/N 120 and higher, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before November 1, 2015.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive maintenance requirements and/or airworthiness limitations are necessary. We are issuing this AD to prevent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5–40, Airworthiness Limitations, Revision 9, dated November 2015, of the Falcon 900EX EASy, Falcon 900LX, and Falcon 900DX Maintenance Manual. The initial compliance time for accomplishing the actions specified in Chapter 5–40, Airworthiness Limitations, Revision 9, dated November 2015, of the Falcon 900EX EASy, Falcon 900LX, and Falcon 900DX Maintenance Manual, is within the applicable times specified in the maintenance manual or 90 days after the effective date of this AD, whichever occurs later, except as provided by paragraphs (g)(1) through (g)(4) of this AD.
(1) The term “LDG” in the “First Inspection” column of any table in the service information means total airplane landings.
(2) The term “FH” in the “First Inspection” column of any table in the service information means total flight hours.
(3) The term “FC” in the “First Inspection” column of any table in the service information means total flight cycles.
(4) The term “M” in the “First Inspection” column of any table in the service information means months.
After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (
Accomplishing paragraph (g) of this AD terminates all requirements of AD 2014–16–27.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016–0129, dated June 23, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for various normal and transport category rotorcraft with certain Honeywell EGPWS installed. This proposed AD would require updating the software version of the EGPWS. This proposed AD is prompted by a software defect that prevents the EGPWS from providing terrain warnings. The proposed actions are intended to address an unsafe condition on these products.
We must receive comments on this proposed AD by August 7, 2017.
You may send comments by any of the following methods:
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You may examine the AD docket on the Internet at
For service information identified in this proposed rule, contact Honeywell International Inc., 15001 NE. 36 Street, Redmond, Washington 98052–5317; telephone (800) 601–3099; internet address
Judy Heredia, Aviation Safety Engineer, Los Angeles Aircraft Certification Office, Transport Airplane Directorate, FAA, 3960 Paramount Blvd., Lakewood, California 90712; telephone (562) 627–5335; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
We propose to adopt a new AD for Honeywell MK XXI EGPWS part number (P/N) 965–1227–005 and MK XXII EGPWS P/N 965–1595–020, P/N 965–1595–021, 965–1595–022, 965–1595–024, 965–1595–026, 965–1595–028, and 965–1595–030 installed on various normal and transport category helicopters from five manufacturers. This proposed AD would require updating the software of the EGPWS. This proposed AD is prompted by a software defect found by Honeywell in certain MK XXI and MK XXII EGPWSs during testing. The testing revealed the terrain alerting feature will not function as intended in certain specific geographical areas under altitudes of 175-feet mean sea level (MSL). According to Honeywell, the terrain display is not affected by the defect and will correctly present terrain and its corresponding elevation information. However, in some locations, the EGPWS will not issue a warning or caution for terrain, water, or obstacles below 175 feel MSL. Without this feature of the EGPWS, the helicopter could potentially operate into threatening terrain or obstacles without providing any warning to the crew, resulting in loss of the helicopter. Since the defect was discovered, Honeywell has developed a software modification (MOD) that corrects this condition.
In preparation of AD actions such as notices of proposed rulemaking and immediately adopted final rules, it is the practice of the FAA to obtain technical information and information on the operational and economic impact from design approval holders and aircraft operators. We discussed certain aspects of this proposed AD by email with Honeywell. A copy of each email contact can be found in the rulemaking docket. For information on locating the docket, see “Examining the AD Docket.”
We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.
We reviewed Honeywell Service Bulletin (SB) 965–1227–34–0001, Revision 0, dated May 4, 2015 (SB 965–1227–34–0001); Honeywell SB 965–1595–34–0034, Revision 0, dated February 18, 2015 (SB 965–1595–34–0034); and Honeywell SB 965–1595–34–0035, Revision 0, dated March 25, 2015 (SB 965–1595–34–0035). SB 965–1227–34–0001 specifies procedures for installing and verifying a software MOD to a certain part-numbered MK XXI EGPWS and for replacing the front panel label identifying the software version. SB 965–1595–34–0034 specifies procedures for installing and verifying a software MOD to certain part-numbered MK XXII EGPWS and for replacing the front panel label identifying the software version. SB 965–1595–34–0035 specifies procedures for installing and verifying a software MOD to certain part-numbered MK XXII EGPWS and for replacing the front panel label identifying the software version. This service information also states that terrain database version 437 must be installed prior to updating the EGPWS software.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We also reviewed Honeywell SB ATA No. 965–1590/1595–34–18, dated July 30, 2004. This service information contains procedures for updating the MK XXII EGPWS with terrain database version 437 and verifying the updated software was successfully installed.
By following certain procedures in the manufacturer's service bulletin, this proposed AD would require, within 1,080 hours time-in-service (TIS), installing terrain database version 437 if not already installed; updating, installing, and confirming software MOD 1 or MOD 2 as determined by the model and serial number of the EGPWS; and replacing the software version label on the EGPWS front face.
The service information requires the software MODs to be accomplished within 60 months, while this proposed AD would require compliance within 1,080 hours TIS.
We estimate that this proposed AD would affect 3,000 appliances installed on helicopters of U.S. Registry.
We estimate that operators may incur the following costs in order to comply with this proposed AD. At an average labor rate of $85 per hour, updating and confirming the software and replacing the software version label would require about 0.5 work-hour, and required parts would cost $2,500, for a total cost of $2,543 per helicopter and $7,629,000 for the U.S. fleet.
According to Honeywell's service information all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Honeywell. Accordingly, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by Reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Honeywell MK XXI Enhanced Ground Proximity Warning System (EGPWS) part number (P/N) 965–1227–005 with software modification (MOD) 1 and MK XXII EGPWS P/N 965–1595–020 with MOD 1, P/N 965–1595–021 with MOD 1, 965–1595–022 with MOD 1, 965–1595–024 with MOD 1, 965–1595–026 with MOD 1, 965–1595–028 with MOD 0, and 965–1595–030 with MOD 0. These EGPWSs are installed on, but not limited to, the following helicopters, certificated in any category:
(1) Agusta S.p.A. Model A109 and AW139;
(2) Airbus Helicopters Model AS350B, AS350B1, AS350B2, AS350B3, AS350BA, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, AS355N, AS355NP, SA–365N, EC130B4, EC130T2, EC 155B, EC155B1, and EC225LP;
(3) Airbus Helicopters Deutschland GmbH Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, and EC135T3;
(4) Bell Helicopter Textron Inc. Model 212 and 412;
(5) Bell Helicopter Textron Canada Limited Model 407;
(6) Bell Helicopter Textron Model 430;
(7) MD Helicopters, Inc. Model MD900; and
(8) Sikorsky Aircraft Corporation Model S–76B, S–76C, S–76D, and S–92A.
This AD defines the unsafe condition as failure of an EGPWS to generate a terrain warning, which could result in flight into terrain.
We must receive comments by August 7, 2017.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 1,080 hours time-in-service:
(1) Install terrain database version 437 if not already installed.
(2) For helicopters with an MK XXI EGPWS P/N 965–1227–005:
(i) Update the software by following the Accomplishment Instructions, paragraphs 3.B.(1)(a) through 3.B.(1)(j), of Honeywell Service Bulletin (SB) 965–1227–34–0001, Revision 0, dated May 4, 2015 (SB 965–1227–34–0001).
(ii) Determine whether the software updated by following paragraphs 3.B.(2)(a) through 3.B.(2)(d) of SB 965–1227–34–0001.
(iii) Install a new software version label on the EGPWS by following paragraph 3.D.(1) or 3.D.(2), as appropriate for your model EGPWS, of SB 965–1227–34–0001.
(3) For helicopters with an MK XXII EGPWS P/N 965–1595–020, P/N 965–1595–021, or P/N 965–1595–022:
(i) Update the software by following the Accomplishment Instructions, paragraphs 3.C.(1)(a) through (h), of Honeywell SB 965–1595–34–0035, Revision 0, dated March 25, 2015 (SB 965–1595–34–0035).
(ii) Determine whether the software updated by following paragraphs 3.C.(2)(a) through 3.C.(2)(d)
(iii) Install a new software version label on the EGPWS by following paragraph 3.E.(1) or 3.E.(2), as appropriate for your model EGPWS, of SB 965–1595–34–0035.
(4) For helicopters with an MK XXII EGPWS P/N 965–1595–024, P/N 965–1595–026, P/N 965–1595–028, or P/N 965–1595–030:
(i) Update the software by following the Accomplishment Instructions, paragraphs 3.C.(1)(a) through 3.C.(1)(h), of Honeywell Service Bulletin 965–1595–34–0034, Revision 0, dated February 18, 2015 (SB 965–1595–34–0034).
(ii) Determine whether the software updated by following paragraphs 3.C.(2)(a) through 3.C.(2)(d)
(iii) Install a new software version label on the EGPWS by following paragraph 3.E.(1) or 3.E.(2), as appropriate for your model EGPWS, of SB 965–1595–34–0034.
(5) Do not install an EGPWS on any helicopter unless you have complied with the requirements in this AD.
(1) The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Judy Heredia, Aviation Safety Engineer, Los Angeles Aircraft Certification Office, Transport Airplane Directorate, FAA, 3960 Paramount Blvd., Lakewood, California 90712; telephone (562) 627–5335; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Honeywell SB ATA No. 965–1590/1595–34–18, dated July 30, 2004, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Honeywell International Inc., 15001 NE. 36 Street, Redmond, Washington, 98052–5317; telephone (800) 601–3099; internet address
Joint Aircraft Service Component (JASC) Code: 3444 Ground Proximity System.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Dassault Aviation Model MYSTERE–FALCON 900 airplanes. This proposed AD was prompted by a determination that new or more restrictive maintenance requirements and/or airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and/or airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 21, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016–0127, dated June 23, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE–FALCON 900 airplanes. The MCAI states:
The airworthiness limitations and maintenance requirements for the DA [Dassault Aviation] Mystère-Falcon 900 type design are included in Aircraft Maintenance Manual (AMM) chapter 5–40 and are approved by the European Aviation Safety Agency (EASA). These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
Consequently, EASA issued AD 2013–0053 [which corresponds with AD 2016–01–16, Amendment 39–18376 (81 FR 3320, January 21, 2016) (“AD 2016–01–16”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in DA Mystère-Falcon 900 AMM chapter 5–40 (DGT 113873) at revision 20.
Since that [EASA] AD was issued, DA issued revision 22 of Mystère-Falcon 900 AMM chapter 5–40 (DGT 113873) (hereafter referred to as “the ALS” in this [EASA] AD), which contains new or more restrictive maintenance requirements and/or airworthiness limitations. The ALS introduces, among others, the following new tasks:
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2013–0053, which is superseded, and requires accomplishment of the actions specified in the ALS.
You may examine the MCAI in the AD docket on the Internet at
Dassault issued Chapter 5–40, Airworthiness Limitations, Revision 22, dated December 2015, of the Dassault Aviation Falcon 900 Maintenance Manual. The service information describes procedures, maintenance tasks, and airworthiness limitations specified in the Airworthiness Limitations section (ALS) of the AMM. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
This proposed AD would not supersede AD 2016–01–16. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and/or airworthiness limitations than those required by AD 2016–01–16. Accomplishment of the proposed actions would then terminate all the requirements of AD 2016–01–16.
The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.
Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.
In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.
When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).
The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.
To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.
However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to
We estimate that this proposed AD affects 65 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 21, 2017.
This AD affects AD 2016–01–16, Amendment 39–18376 (81 FR 3320, January 21, 2016) (“AD 2016–01–16”).
This AD applies to all Dassault Aviation MYSTERE–FALCON 900 airplanes, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before December 1, 2015.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive maintenance requirements and/or airworthiness limitations are necessary. We are issuing this AD to prevent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5–40, Airworthiness Limitations, Revision 22, dated December 2015, of the Dassault Aviation Falcon 900 Maintenance Manual. The initial compliance time for accomplishing the actions specified in Chapter 5–40, Airworthiness Limitations, Revision 22, dated December 2015, of the Dassault Aviation Falcon 900 Maintenance Manual, is within the applicable times specified in the maintenance manual, or within 90 days after the effective date of this AD, whichever occurs later, except as provided by paragraphs (g)(1) through (g)(4) of this AD.
(1) The term “LDG” in the “First Inspection” column of any table in the service information means total airplane landings.
(2) The term “FH” in the “First Inspection” column of any table in the service information means total flight hours.
(3) The term “FC” in the “First Inspection” column of any table in the service information means total flight cycles.
(4) The term “M” in the “First Inspection” column of any table in the service information means months.
After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (
Accomplishing paragraph (g) of this AD terminates all the requirements of AD 2016–01–16.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016–0127, dated June 23, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2016–09–12, which applies to certain The Boeing Company Model 787–8 and 787–9 airplanes. AD 2016–09–12 currently requires repetitive inspections of the bilge barriers located in the forward and aft cargo compartments for disengaged decompression panels, and reinstalling any disengaged panels. Since we issued AD 2016–09–12, a terminating modification has been developed to address the unsafe condition. This proposed AD would retain the actions required by AD 2016–09–12 and require replacing the existing decompression panels with new panels and straps, which would terminate the repetitive inspections. This proposed AD also removes airplanes from the effectivity. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 21, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740; telephone 562–797–1717; Internet
You may examine the AD docket on the Internet at
Caspar Wang, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM–150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6414; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On April 25, 2016, we issued AD 2016–09–12, Amendment 39–18510 (81 FR 27300, May 6, 2016) (“AD 2016–09–12”), for certain The Boeing Company Model 787–8 and 787–9 airplanes. AD 2016–09–12 requires repetitive inspections of the bilge barriers located
The preamble to AD 2016–09–12 specifies that we consider the requirements “interim action” and that the airplane manufacturer is currently developing a modification that will address the unsafe condition. That AD explains that we might consider further rulemaking if a modification is developed, approved, and available. The manufacturer now has developed such a modification, and we have determined that further rulemaking is indeed necessary; this proposed AD follows from that determination.
We reviewed Boeing Alert Service Bulletin B787–81205–SB500008–00, Issue 001, dated December 7, 2016. The service information describes procedures for replacing the existing decompression panels with new panels and adjustable straps.
We also reviewed Boeing Alert Service Bulletin B787–81205–SB500009–00, Issue 001, dated November 16, 2015. The service information describes procedures for repetitive inspections of the bilge barriers located in the forward and aft cargo compartments for disengaged decompression panels, and reinstalling any disengaged panels.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously. This proposed AD also removes airplanes from the applicability of AD 2016–09–12. Airplanes having line numbers 10, 16 through 19, and 499 and subsequent are identified in AD 2016–09–12. However, the unsafe condition was addressed on those airplanes in production; therefore they are not affected by the identified unsafe condition.
We estimate that this proposed AD affects 50 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary reinstallation that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this action:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by July 21, 2017.
This AD replaces AD 2016–09–12, Amendment 39–18510 (81 FR 27300, May 6, 2016) (“AD 2016–09–12”).
This AD applies to The Boeing Company Model 787–8 and 787–9 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787–81205–SB500008–00, Issue 001, dated December 7, 2016.
Air Transport Association (ATA) of America Code 25, Equipment/Furnishings.
This AD was prompted by several reports of disengaged decompression panels found on in-service airplanes. We are issuing this AD to prevent decompression panels from disengaging from the bilge barriers located in the forward and aft cargo compartments. In the event of a cargo compartment fire, this condition would provide a path for smoke and Halon to enter the flight compartment and passenger cabin, which could result in the inability to contain and extinguish a fire.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2016–09–12, with an added reference to terminating action: At the applicable time specified in paragraph (g)(1) or (g)(2) of this AD, do a general visual inspection of the bilge barriers located in the forward and aft cargo compartments for disengaged decompression panels, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787–81205–SB500009–00, Issue 001, dated November 16, 2015. Repeat the inspection thereafter at the applicable times specified in paragraph 5. “Compliance,” of Boeing Alert Service Bulletin B787–81205–SB500009–00, Issue 001, dated November 16, 2015; until the terminating modification required by paragraph (i) of this AD is done.
(1) For Group 1 airplanes identified in Boeing Alert Service Bulletin B787–81205–SB500009–00, Issue 001, dated November 16, 2015: Inspect within 30 days after May 23, 2016 (the effective date of AD 2016–09–12).
(2) For Group 2 airplanes identified in Boeing Alert Service Bulletin B787–81205–SB500009–00, Issue 001, dated November 16, 2015: Inspect within 180 flight cycles or within 90 days after May 23, 2016 (the effective date of AD 2016–09–12), whichever occurs later.
This paragraph restates the requirements of paragraph (h) of AD 2016–09–12, with no changes: If any disengaged decompression panel is found during any inspection required by paragraph (g) of this AD; before further flight, reinstall the panel, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787–81205–SB500009–00, Issue 001, dated November 16, 2015.
Within 22 months after the effective date of this AD: Replace the existing decompression panels of the bilge barriers located in the forward and aft cargo compartments with new decompression panels and adjustable straps, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787–81205–SB500008–00, Issue 001, dated December 7, 2016; except as provided by paragraph (j) of this AD. Accomplishing this modification terminates the repetitive inspections required by paragraph (g) of this AD.
(1) Where Step 3 of Task 10 of the Accomplishment Instructions of Boeing Alert Service Bulletin B787–81205–SB500008–00, Issue 001, dated December 7, 2016, identifies part number (P/N) C412705–577, the correct part number is P/N C412705–575.
(2) Where Step 4 of Task 10 of the Accomplishment Instructions of Boeing Alert Service Bulletin B787–81205–SB500008–00, Issue 001, dated December 7, 2016, identifies P/N C412705–575, the correct part number is P/N C412705–577.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (l)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously for AD 2016–09–12, are approved as AMOCs for the corresponding provisions of paragraphs (g) and (h) of this AD.
(5) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(5)(i) and (k)(5)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Caspar Wang, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM–150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6414; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740; telephone 562–797–1717; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 900EX airplanes. This proposed AD was prompted by a determination that new or more restrictive maintenance requirements and/or airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and/or airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 21, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016–0128, dated June 23, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 900EX airplanes. The MCAI states:
The airworthiness limitations and maintenance requirements for the DA [Dassault Aviation] Falcon 900EX type design are included in Aircraft Maintenance Manual (AMM) chapter 5–40 and are approved by the European Aviation Safety Agency (EASA). These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
Consequently, EASA issued AD 2013–0051 [which corresponds to AD 2014–16–26, Amendment 39–17950 (79 FR 51077, August 27, 2014) (“2014–16–26”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in DA Falcon 900EX AMM chapter 5–40 (DGT 113874) at revision 12.
Since that [EASA] AD was issued, DA issued revision 14 of Falcon 900EX AMM chapter 5–40 (DGT 113874) (hereafter referred to as “the ALS” in this AD), which contains new or more restrictive maintenance requirements and/or airworthiness limitations. The ALS introduces, among others, the following new tasks:
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2013–0051, which is superseded, and requires accomplishment of the actions specified in the ALS.
You may examine the MCAI in the AD docket on the Internet at
Dassault issued Chapter 5–40, Airworthiness Limitations, Revision 14, dated November 2015, of the Falcon 900EX Maintenance Manual. The service information describes procedures, maintenance tasks, and airworthiness limitations specified in the Airworthiness Limitations section of the AMM. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
This proposed AD would not supersede AD 2014–16–26. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and/or airworthiness limitations than those required by AD 2014–16–26. Accomplishment of the proposed actions would then terminate all requirements of AD 2014–16–26.
We estimate that this proposed AD affects 70 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 21, 2017.
This AD affects AD 2014–16–26, Amendment 39–17950 (79 FR 51077, August 27, 2014) (“AD 2014–16–26”).
This AD applies to Dassault Aviation Model FALCON 900EX airplanes, certificated in any category, serial numbers 1 through 96 inclusive, and serial numbers 98 through 119 inclusive, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive maintenance requirements and/or airworthiness limitations are necessary. We are issuing this AD to prevent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5–40, Airworthiness Limitations, Revision 14, dated November 2015, of the Falcon 900EX Maintenance Manual. The initial compliance time for accomplishing the actions specified in Chapter 5–40, Airworthiness Limitations, Revision 14, dated November 2015, of the Falcon 900EX Maintenance Manual, is within the applicable times specified in the maintenance manual, or 90 days after the effective date of this AD, whichever occurs later, except as provided by paragraphs (g)(1) through (g)(4) of this AD.
(1) The term “LDG” in the “First Inspection” column of any table in the service information means total airplane landings.
(2) The term “FH” in the “First Inspection” column of any table in the service information means total flight hours.
(3) The term “FC” in the “First Inspection” column of any table in the service information means total flight cycles.
(4) The term “M” in the “First Inspection” column of any table in the service information means months.
After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (
Accomplishing paragraph (g) of this AD terminates all requirements of AD 2014–16–26.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016–0128, dated June 23, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Marion General Hospital Heliport, Columbia, MS, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures (SIAPs) serving Marion General Hospital Heliport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the heliport.
Comments must be received on or before July 21, 2017.
Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor Rm. W12–140, Washington, DC 20590; Telephone: 1–800–647–5527, or (202)–366–9826.You must identify the Docket No. FAA–2017–0277; Airspace Docket No. 17–ASO–9, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace extending upward from 700 feet above the surface at Marion General Hospital Heliport, Columbia, MS, to support IFR operations in standard instrument approach procedures at the airport.
Interested persons are invited to comment on this proposed rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA–2017–0277 and Airspace Docket No. 17–ASO–9) and be submitted in triplicate to DOT Docket Operations (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2017–0277; Airspace Docket No. 17–ASO–9.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Marion General Hospital Heliport, Columbia, MS, providing the controlled airspace required to support the new Copter RNAV (GPS) standard instrument approach procedures for IFR operation at Marion General Hospital Heliport.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Marion General Hospital Heliport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Wellsboro, PA, as the airspace surrounding Wellsboro Johnston Airport was inadvertently removed. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport.
Comments must be received on or before July 21, 2017.
Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor, Rm. W12–140, Washington, DC 20590; Telephone: 1 (800) 647–5527, or 202–366–9826. You must identify the Docket No. FAA–2017–0289; Airspace Docket No. 17–AEA–4, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on-line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace in the Wellsboro, PA area.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the Internet at
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2017–0289; Airspace Docket No. 17–AEA–4.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) Part 71 to amend Class E airspace extending upward from 700 feet or more above the surface within a 8.2-mile radius of Wellsboro Johnston Airport, Wellsboro, PA, as this airspace was inadvertently removed, and for continued safety and management of IFR operations at the airport.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6-mile radius of a Point in Space for the SIAP serving the Nessmuk Helipad, and within an 8.2-mile radius of Wellsboro Johnston Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Highland Community Hospital Heliport, Picayune, MS, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures (SIAPs) serving Highland Community Hospital Heliport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the heliport.
Comments must be received on or before July 21, 2017.
Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor, Rm. W12–140, Washington, DC 20590; Telephone: 1–800–647–5527, or 202–366–9826. You must identify the Docket No. FAA–2017–0320; Airspace Docket No. 17–ASO–12, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace extending upward from 700 feet above the surface at Highland Community Hospital Heliport, Picayune, MS, to support IFR operations in standard instrument approach procedures at the heliport.
Interested persons are invited to comment on this proposed rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA–2017–0320 and Airspace Docket No. 17–ASO–12) and be submitted in triplicate to DOT Docket Operations (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2017–0320; Airspace Docket No. 17–ASO–12.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Highland Community Hospital Heliport, Picayune, MS, providing the controlled airspace required to support the new Copter RNAV (GPS) standard instrument approach procedures for Highland Community Hospital Heliport.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Highland Community Hospital Heliport.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to grant two, one-year extensions to the Moderate attainment date for the 2006 24-hour fine particulate matter (PM
Written comments must be received on or before July 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2017–0216 at
Crystal Ostigaard, Air Program, EPA, Region 8, Mailcode 8P–AR, 1595 Wynkoop Street, Denver, Colorado 80202–1129, (303) 312–6602,
a.
b.
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
On October 17, 2006 (71 FR 61144), the EPA revised the level of the 24-hour PM
Following this designation of nonattainment for PM
Subsequently, on January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the EPA should have implemented the 2006 24-hour PM
After the court's decision, on December 16, 2014, the Utah Department of Air Quality (UDAQ) withdrew all prior Logan, UT-ID PM
On August 24, 2016, the EPA finalized the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements (“PM
Under CAA section 188(d), the EPA may grant a state's request to extend the attainment date for a Moderate area if: “(1) the state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) no more than one exceedance of the 24-hour [NAAQS] level for PM
The PM
In the absence of an attainment date extension, upon a determination of failure to attain by the EPA, the area would be reclassified to Serious by operation of law under CAA section 188(b)(2). If an extension to the attainment date is granted, the EPA must determine whether the area attained the PM
As a Moderate PM
Following this proposed action, and as a result of subsequent events described below, the State of Idaho submitted a letter on April 25, 2017, requesting a second one-year Moderate area attainment date extension, from December 31, 2016 to December 31, 2017. On May 2, 2017, the State of Utah requested two, one-year extensions of the attainment date for the Logan, UT-ID nonattainment area, from December 31, 2015 to December 31, 2016, and then December 31, 2016 to December 31, 2017. Each of the extension requests from Idaho and Utah can be found in the Region 8 and Region 10 dockets for the Logan, UT-ID nonattainment area proposed extension request actions, EPA–R08–OAR–2017–0216 and EPA–R10–OAR–2017–0193.
The PM
On December 4, 2012, UDAQ submitted a SIP for the Utah portion of the Logan, UT-ID PM
EPA has reviewed Utah's existing SIP and the December 22, 2014, SIP submission and determined that the state is implementing the requirements and commitments in the submitted SIP. Based on this, the EPA proposes to determine that the state meets the criterion found in 40 CFR 51.1005(a)(1)(i). The control measures that Utah submitted for the Logan UT-ID NAA consist of a vehicle inspection and maintenance (I/M) program and area source rules. The EPA approved the vehicle I/M program on September 9, 2015 (80 FR 54237). The program was initiated on January 1, 2014, and requires a biennial test for vehicles greater than six years old that are of model year 1969 and newer. Half of
Similarly, the EPA approved Idaho's woodstove curtailment ordinances, burn ban, heating device restrictions, and woodstove change-out programs as meeting the RACM/RACT requirements in this area (82 FR 729, January 4, 2017). The woodstove curtailment ordinances, burn ban, and heating device restrictions were adopted and fully implemented in the summer and fall of 2012 in preparation for Idaho's December 14, 2012 attainment plan SIP revision. The residential woodstove change-out program was conducted in 2011 to 2012, with a subsequent round of change-outs in 2013 to 2014. A full description of the control measures is included in our December 26, 2013 proposed approval (78 FR 78315) and March 25, 2014 final approval (79 FR 16201). On April 25, 2017, Idaho committed to supplementing the 2012 attainment plan SIP revision, and Idaho's December 24, 2014 amendment to the attainment plan SIP revision, to comply with the revised regulatory requirements of the 2016 PM
The EPA proposes that the criterion found in 40 CFR 51.1005(a)(1)(i) has been met. Utah and Idaho submitted SIPs for the Logan, UT-ID Moderate PM
In accordance with 40 CFR part 58, UDAQ and IDEQ both operate PM
As explained in the May 8, 2017 memorandum in the docket, a large number of samples from the filter-based FRM monitor at Logan were invalid. After review of the PM
The EPA has reviewed this site and, using the criteria found in 40 CFR part 58, appendix A, has determined that the quality assurance (QA) for the continuous FEM monitor is acceptable such that data from the FEM monitor can be substituted for the days for which the FRM monitor data was invalid. Additional information related to these monitors can be found in the November 23, 2016 memoranda found in the docket for this proposed action.
On March 14, 2017, the EPA approved Utah's 2016 Annual Monitoring Network Plan (AMNP). As part of the approval, the EPA approved the closing of the Logan monitoring station (AQS ID# 49–005–0004) and the opening of the Smithfield monitoring station (AQS ID# 49–005–0007). The Logan and Smithfield monitoring stations both ran in 2015; however, the Smithfield monitoring site data was incomplete for 2015 because the station, including the co-located continuous monitor, was not operating in January of that year. The Logan monitoring site shut down on December 31, 2015, and Smithfield became the only operating monitor in the Utah portion of the Logan, UT-ID PM
The EPA is using data from calendar year 2015 to determine whether the Logan, UT-ID PM
In 2015, the 98th percentile for the Logan, UT-ID PM
In response to requests from the Governor of Utah on May 2, 2017, and from the IDEQ on December 15, 2015, February 26, 2016, and April 25, 2017, the EPA is proposing to grant two, one-year attainment date extensions to the Moderate attainment date for the 2006 24-hour PM
This action is not a redesignation to attainment under CAA section 107(d)(3)(E). Utah and Idaho are not currently attaining the NAAQS and have not submitted maintenance plans as required under section 175(A) of the CAA or met the other statutory requirements for redesignation to attainment. The designation status in 40 CFR part 81 will remain a Moderate nonattainment area until such time as Utah and Idaho meet the CAA requirements for redesignation to attainment or the area is reclassified to Serious.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and therefore is not subject to review by the Office of Management and Budget (OMB). This proposed action merely approves a state request as meeting federal requirements and imposes no new requirements.
This action does not impose any additional information collection burden under the provisions of the PRA, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law. Approval of a state's request for an attainment date extension does not create any new requirements and does not directly regulate any entities.
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 does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Pursuant to the CAA, this action merely approves a state request for an attainment date extension.
This action does not have tribal implications, as specified in Executive Order 13175. No tribal areas are located in the nonattainment area that will be receiving an attainment date extension. The CAA and the Tribal Authority Rule establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe any environmental health or safety risks addressed by this action present a disproportionate risk to children. This action merely approves a state request for an attainment date extension and it does not impose additional requirements beyond those imposed by state law.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards. This action merely approves a state request for an attainment date extension.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action approves a state request for an attainment date extension based on the state's compliance with requirements and commitments in its plan and recent air quality monitoring data that meets requirements for an extension.
Environmental protection, Air pollution control, Ammonia, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions concern emissions of oxides of nitrogen (NO
Any comments must arrive by July 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R09–OAR–2017–0259 at
Nicole Law, EPA Region IX, (415) 947–4126,
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On April 17, 2017, the EPA determined that the submittal for SCAQMD Rule 2001; SCAQMD Rule 2002; SCAQMD Rule 2005; SCAQMD Rule 2011, Attachment C; SCAQMD Rule 2011, Chapter 3; SCAQMD Rule 2012, Attachment C; SCAQMD Rule 2012, Chapter 4; SCAQMD Rule 2011, Attachment E; and SCAQMD Rule 2012, Attachment F met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
We approved earlier versions of Rule 2001; Rule 2011, Attachment C; Rule 2011, Chapter 3; Rule 2012, Attachment C; Rule 2012, Chapter 4; Rule 2011, Attachment E; and Rule 2012, Attachment F into the SIP on August 29, 2006 (71 FR 51120). The SCAQMD adopted revisions to the SIP-approved versions of these rules on May 6, 2005 and CARB submitted them to us on October 20, 2005. We approved earlier versions of Rule 2002 and Rule 2005 into the SIP on August 12, 2011 (76 FR 50128) and on December 20, 2011 (76 FR 78829). The SCAQMD adopted revisions to the SIP-approved versions of these rules on November 5, 2010 and June 3, 2011 and CARB submitted them to us on April 5, 2011 and September 27, 2011. We are acting on only the most recently submitted versions of these rules but have reviewed materials provided with previous submittals.
NO
Generally, SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). Because the submittal contains SIP rules that are part of an economic incentive program (EIP) and that address certain requirements of the nonattainment NSR program, we also evaluated the rule revisions in accordance with the EPA's requirements and recommendations for EIPs and NSR programs.
Additionally, SIP rules must require Reasonably Available Control Technology (RACT) for each major source of NO
Guidance and policy documents that we use to evaluate enforceability, SIP revisions, rule stringency requirements, and EIP recommendations include the following:
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule” (the NO
5. “Improving Air Quality with Economic Incentive Programs,” EPA–452/R–01–001, EPA OAR, January 2001.
We propose to find that the revised RECLAIM regulations satisfy the applicable CAA requirements for enforceability, NSR, SIP revisions, and economic incentive programs. In order to prevent NO
In addition, the revised regulations allow certain electric generating facilities to use RTCs held in a “Regional NSR Holding Account” to satisfy the NSR offset requirements specified in Rule 2005(f) but do not alter the existing requirement for all sources to hold RTCs in amounts equal to the amounts of required offsets.
The revised rules are projected to achieve significant environmental benefits and would not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements. The TSD has more information on our evaluation.
We are not reviewing the submitted rule revisions with respect to RACT requirements at this time because the District has not yet submitted an evaluation of the revised program in accordance with RACT requirements. Following the District's submission of a RACT evaluation for the revised RECLAIM rules, we intend to publish a separate proposed rule providing our evaluation of the program in accordance with RACT requirements and seeking public comment on that evaluation.
The EPA is proposing to fully approve the submitted rules under section 110(k)(3) of the Act based on our conclusion that they satisfy the applicable CAA requirements for enforceability, NSR, SIP revisions, and economic incentive programs. We will accept comments from the public on this proposal until July 6, 2017. If we take final action to approve the submitted rules, our final action will incorporate these rules into the federally enforceable SIP.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SCAQMD rules described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) revisions from the State of Colorado submitted to demonstrate that the State meets infrastructure requirements of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for sulfur dioxide (SO
Written comments must be received on or before July 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2013–0557 at
Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P–AR, 1595 Wynkoop Street, Denver, Colorado 80202–1129, 303–312–6563,
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions and organize your comments;
• Explain why you agree or disagree;
• Suggest alternatives and substitute language for your requested changes;
• Describe any assumptions and provide any technical information 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; and,
• Make sure to submit your comments by the comment period deadline identified.
On June 2, 2010, the EPA promulgated a revised primary SO
Under sections 110(a)(1) and (2) of the CAA, states are required to submit SIPs providing for implementation, maintenance, and enforcement of the NAAQS. The EPA has historically referred to these SIP submissions made to satisfy sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submission from those intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA; “regional haze SIP” submissions to address the visibility protection requirements of CAA section 169A; and nonattainment new source review (NSR) permit program submissions to address the permit requirements of CAA, title I, part D.
Infrastructure SIP submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that the existing SIPs for SO
The EPA is acting upon the SIP submissions from Colorado that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 SO
Section 110(a)(1) addresses the timing and general requirements for these infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The section 110(a)(2) list of required elements contains a variety of disparate provisions, some of which pertain to required legal authority, some to required substantive program provisions, and some to requirements for both authority and substantive program provisions.
With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and the EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186, Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007.
CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. The elements that are the subject of this action are:
• 110(a)(2)(A): Emission limits and other control measures
• 110(a)(2)(B): Ambient air quality monitoring/data system
• 110(a)(2)(C): Program for enforcement of control measures
• 110(a)(2)(D): Interstate transport
• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies
• 110(a)(2)(F): Stationary source monitoring and reporting
• 110(a)(2)(G): Emergency powers
• 110(a)(2)(H): Future SIP revisions
• 110(a)(2)(J): Consultation with government officials; public notification; PSD and visibility protection
• 110(a)(2)(K): Air quality modeling/data
• 110(a)(2)(L): Permitting fees
• 110(a)(2)(M): Consultation/participation by affected local entities.
Section VI, below, contains a detailed discussion of each of these elements.
Two elements identified in section 110(a)(2) are not governed by the three-year submission deadline of section 110(a)(1), and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather at the same time nonattainment area plan requirements are due under section 172. The two elements are: (1) Section
The Colorado Department of Public Health and Environment (CDPHE) submitted certifications concerning Colorado's infrastructure SIP for the 2010 SO
1.
Colorado's infrastructure SIP submissions identify existing EPA-approved SIP provisions limiting emissions of relevant pollutants. The State references a variety of SIP-approved Colorado AQCC regulations cited under element (C), including: Regulation 1, Particulates, Smokes, Carbon Monoxide, and Sulfur Dioxides; Regulation 3, Stationary Source Permitting and Air Pollution Emission Notice Requirements; Regulation 4, Woodburning Controls; Regulation 7, Control of Ozone via Ozone Precursors and Nitrogen Oxides; Regulation 11, Motor Vehicle Inspection; Regulation 16, Street Sanding and Sweeping; and Common Provisions Regulation. Subject to the following clarifications, the EPA proposes to find that SIP-approved AQCC regulations citied in Colorado's certifications provide enforceable emission limitations and other control measures, means or techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2010 SO
First, the EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1). Furthermore, Colorado has no areas designated as nonattainment for the 2010 SO
Second, as previously discussed, the EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. A number of states have such provisions that are contrary to the CAA and to EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency plans to take action in the future to address such state regulations. In the meantime, the EPA encourages any state having a director's discretion or variance provision contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
As a final clarification, in this action the EPA is also not proposing to approve or disapprove any existing state provision with regard to excess emissions during SSM operations at a facility. A number of states have SSM provisions that are contrary to the CAA and existing EPA guidance,
Subject to the above clarifications, the EPA is proposing to approve Colorado's infrastructure SIP for the 2010 SO
2.
The provisions for episode monitoring, data compilation and reporting, public availability of information, and annual network reviews are found in the statewide monitoring SIP (58 FR 49435, Sept. 23, 1993). As part of the monitoring SIP, Colorado submits an Annual Monitoring Network Plan (AMNP) each year for EPA approval. The EPA approved 2015 and 2016 network changes through an AMNP response letter (contained within the docket) mailed to CDPHE on December 22, 2016. The Colorado Air Pollution Control Division (APCD) also periodically submits a Quality Management Plan and a Quality Assurance Project Plan to the EPA. These plans cover procedures to monitor and analyze data.
In our August 19, 2015 rulemaking (80 FR 50205), we conditionally approved element (B) for the 2010 NO
We find Colorado's SIP adequate for the ambient air quality monitoring and data system requirements for the 2010
3.
To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2010 SO
The State's submissions for the 2010 SO
With respect to elements (C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants; this demonstration will also satisfy the requirements of element (D)(i)(II). To meet this requirement, Colorado cited SIP approved AQCC Regulation 3
In addition to these requirements, there are four other revisions to the Colorado SIP that are necessary to meet the requirements of infrastructure element 110(a)(2)(C). These four revisions are related to (1) the Ozone Implementation NSR Update (November 29, 2005, 70 FR 71612); (2) the “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (June 3, 2010, 75 FR 31514); (3) the NSR PM
On January 9, 2012 (77 FR 1027), we approved revisions to Colorado's PSD program that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 71612). As a result, the approved Colorado PSD program meets the current requirements for ozone.
With respect to GHGs, on June 23, 2014, the United States Supreme Court addressed the application of PSD permitting requirements to GHG emissions.
In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in
The EPA is planning to take additional steps to revise the federal PSD rules in light of the Supreme Court and subsequent D.C. Circuit opinion. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to the EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions.
The EPA has determined that Colorado's SIP is sufficient to satisfy elements (C), (D)(i)(II), and (J) with respect to GHGs, because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. The EPA most recently approved revisions to Colorado's PSD program on January 25, 2016 (81 FR 3963). The approved Colorado PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit's amended judgment. But the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C), (D)(i)(II) and (J). The SIP contains the currently necessary PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources.” And the application of those requirements is not impeded by the
Finally, we evaluate the PSD program with respect to current requirements for PM
On January 4, 2013, the U.S. Court of Appeals, in
The 2008 implementation rule addressed by the court decision, “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM
The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation rule also does not affect the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.
The second PSD requirement for PM
On May 11, 2012, the State submitted revisions to Regulation 3 that adopted all elements of the 2008 Implementation Rule and the 2010 PM
The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program is found in Regulation 3 of the Colorado SIP, and was originally approved by the EPA as Regulation 3 of the SIP (see 68 FR 37744, June 25, 2003). Since approval of the minor NSR program, the State and the EPA have relied on the program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS.
The EPA is proposing to approve Colorado's infrastructure SIP for the 2010 SO
4.
In this action, the EPA is addressing the 2010 SO
The PSD portion of section 110(a)(2)(D)(i)(II) may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated NSR pollutants and that satisfies the
As stated in the 2013 Guidance on Infrastructure SIP Elements, in-state sources not subject to PSD for any one or more of the pollutants subject to regulation under the CAA because they are in a nonattainment area for a NAAQS related to those particular pollutants may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state. One way a state may satisfy prong 3 with respect to these sources is by citing EPA-approved nonattainment NSR provisions addressing any pollutants for which the state has designated nonattainment areas. Colorado has a SIP-approved nonattainment NSR program that ensures regulation of major sources and major modifications in nonattainment areas.
As Colorado's SIP meets PSD requirements for all regulated NSR pollutants, and contains a fully approved nonattainment NSR program, the EPA is proposing to approve the infrastructure SIP submission as meeting the applicable requirements of element 3 of section 110(a)(2)(D)(i) for the 2010 SO
To determine whether the CAA section 110(a)(2)(D)(i)(II) requirement for visibility protection is satisfied, the SIP must address the potential for interference with visibility protection caused by the pollutant (including precursors) to which the new or revised NAAQS applies. An approved regional haze SIP that fully meets the regional haze requirements in 40 CFR 51.308 satisfies the 110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures that emissions from the state will not interfere with measures required to be included in other state SIPs to protect visibility. In the absence of a fully approved regional haze SIP, a state can still make a demonstration that satisfies the visibility requirement section of 110(a)(2)(D)(i)(II).
Colorado submitted a regional haze SIP to EPA on May 25, 2011. The EPA approved Colorado's regional haze SIP on December 31, 2012 (77 FR 76871). In early 2013, WildEarth Guardians and the National Parks Conservation Association (NPCA) filed separate petitions for reconsideration of certain aspects of the EPA's approval of the Colorado's regional haze SIP.
The EPA does, however, consider other aspects of our approval of Colorado's regional haze SIP to be sufficient to satisfy this requirement. Specifically, the EPA found that Colorado met its 40 CFR 51.308(d)(3)(ii) requirements to include in its regional haze SIP all measures necessary to (1) obtain its share of the emission reductions needed to meet the reasonable progress goals for any other state's Class I area to which Colorado causes or contributes to visibility impairment, and; (2) ensure it has included all measures needed to achieve its apportionment of emission reduction obligations agreed upon through a regional planning process. Colorado participated in a regional planning process with the Western Regional Air Partnership (WRAP). In the regional planning process, Colorado analyzed the WRAP modeling and determined that emissions from the State do not significantly impact other states' Class I areas.
5.
As required by 40 CFR 51.166(q)(2)(iv), Colorado's SIP-approved PSD program requires notice to states whose lands may be affected by the emissions of sources subject to PSD.
Colorado has no pending obligations under sections 126(c) or 115(b); therefore, its SIP currently meets the requirements of those sections. In summary, the SIP satisfies the requirements of CAA section 110(a)(2)(D)(ii) for the 2010 SO
6.
a.
Colorado law, specifically the Colorado Air Pollution Prevention and Control Act (APPCA) Sections 25–7–105, 25–7–111, 42–4–301 to 42–4–316, 42–4–414 and Article 7 of Title 25, provides adequate authority for the State of Colorado APCD and AQCC to carry out its SIP obligations with respect to the 2010 SO
Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. That provision contains two explicit requirements: (i) That any board or body that approves permits or enforcement orders under the CAA shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to such permits and enforcement orders; and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed
On April 10, 2012 (77 FR 21453) the EPA approved the Procedural Rules, Section 1.11.0, as adopted by the AQCC on January 16, 1998, into the Colorado SIP as meeting the requirements of section 128 of the Act. Section 1.11.0 specifies certain requirements regarding the composition of the AQCC and disclosure by its members of potential conflicts of interest. Details on how this portion of the Procedural Rules meets the requirements of section 128 are provided in our January 4, 2012 proposal notice (77 FR 235). In our April 10, 2012 action, we correspondingly approved Colorado's infrastructure SIP for the 1997 ozone NAAQS for element (E)(ii). Colorado's SIP continues to meet the requirements of section 110(a)(2)(E)(ii), and we propose to approve the infrastructure SIP for the 2010 SO
7.
The Colorado AQCC Regulations listed in the State's certifications (Regulations 1, 3, 7, and Common Provisions Regulation) and contained within this docket provide authority to establish a program for measurements and testing of sources, including requirements for sampling and testing. Air Pollutant Emission Notice (APEN) requirements are defined in Regulation 3 and requires stationary sources to report their emissions on a regular basis through APENs. Regulation 3 also requires that monitoring be performed in accordance with EPA-accepted procedures, and record keeping of air pollutants. Additionally, Regulation 3 provides for a permitting program that establishes emission limitations and standards. Emissions must be reported by sources to the State for correlation with applicable emissions limitations and standards. Monitoring may be required for both construction and operating permits.
Additionally, Colorado is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI), which is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, modifying the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and to report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Colorado made its latest update to the NEI on January 18, 2016. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the public at
Based on the analysis above, we propose to approve the Colorado's SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2010 SO
8.
Under CAA section 303, the Administrator has authority to bring suit to immediately restrain an air pollution source that presents an imminent and substantial endangerment to public health or welfare, or the environment. If such action may not practicably ensure prompt protection, then the Administrator has the authority to issue temporary administrative orders to protect the public health or welfare, or the environment, and such orders can be extended if the EPA subsequently files a civil suit. APPCA Sections 25–7–112 and 25–7–113 provide APCD with general emergency authority comparable to that in section 303 of the Act.
States must also have adequate contingency plans adopted into their SIP to implement the air agency's emergency episode authority (as discussed above). This can be met can by submitting a plan that meets the applicable requirements of 40 CFR part 51, subpart H for the relevant NAAQS
9.
The Colorado APPCA Sections 25–7–105(1)(a)(I) gives the AQCC sufficient authority to meet the requirements of 110(a)(2)(H). Therefore, we propose to approve Colorado's SIP as meeting the requirements of CAA section 110(a)(2)(H) for the 2010 SO
10.
The State has demonstrated that it has the authority and rules in place through its certifications (contained within this docket) to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal Land Manager having authority over federal land to which the SIP applies, consistent with the requirements of CAA section 121. Furthermore, the EPA previously addressed the requirements of CAA section 127 for the Colorado SIP and determined public notification requirements are appropriate (45 FR 53147, Aug. 11, 1980).
As discussed above, the State has a SIP-approved PSD program that incorporates by reference the federal program at 40 CFR 52.21. The EPA has further evaluated Colorado's SIP approved PSD program in this proposed action under element (C) and determined the State has satisfied the requirements of element 110(a)(2)(C), as noted above. Therefore, the State has also satisfied the requirements of element 110(a)(2)(J).
Finally, with regard to the applicable requirements for visibility protection, the EPA recognizes states are subject to visibility and regional haze program requirements under part C of the Act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there are no applicable visibility requirements under section 110(a)(2)(J) when a new NAAQS becomes effective.
Based on the above analysis, we propose to approve the Colorado SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2010 SO
11.
Colorado's Regulation 3 Part A.VIII (Technical Modeling and Monitoring Requirements) requires that estimates of ambient air concentrations be based on applicable air quality models approved by the EPA. Final approval for Regulation 3 Part A.VIII became effective February 20, 1997 (62 FR 2910). Additionally, Regulation 3 Part D, Section VI.C. requires the Division to transmit to the Administrator of the EPA a copy of each permit application relating to a major stationary source or major modification subject to this regulation, and provide notice of every action related to the consideration of such permit.
Colorado has broad authority to develop and implement an air quality control program that includes conducting air quality modeling to predict the effect on ambient air quality of any emissions of any air pollutant for which a NAAQS has been promulgated and provide that modeling data to the EPA. This broad authority can be found in 25–7–102, C.R.S., which requires that emission control measures be evaluated against economic, environmental, energy and other impacts, and indirectly authorizes modeling activities. Colorado also has broad authority to conduct modeling and submit supporting data to the EPA to satisfy federal nonattainment area requirements (25–7–105, 25–7–205.1, and 25–7–301, C.R.S.). The State also has the authority to submit any modeling data to the EPA on request under the Colorado Open Records Act (24–72–201 to 24–72–309, C.R.S.).
As a result, the SIP provides for the air quality modeling that the Administrator has prescribed. Therefore, we propose to approve the Colorado SIP as meeting the CAA section 110(a)(2)(K) for the 2010 SO
12.
The State of Colorado requires the owner or operator of a major stationary source to pay the Division any fee necessary to cover the reasonable costs of reviewing and acting upon any permit application. The collection of fees is described in AQCC Regulation 3, Part A.
We also note that the State has an EPA-approved title V permit program (60 FR 4563, Jan. 24, 1995) that provides for collection of permitting fees. Final approval of the title V operating permit program became effective October 16, 2000 (65 FR 49919). Interim approval of Colorado's title V operating permit program became effective February 23, 1995 (60 FR 4563). As discussed in the proposed interim approval of the title V program (59 FR 52123, October 14, 1994), the State demonstrated that the fees collected were sufficient to administer the program.
Therefore, based on the State's experience in relying on the collection of fees as described in AQCC Regulation 3, and the use of title V fees to implement and enforce PSD permits once they are incorporated into title V permits, we propose to approve the
13.
The statutory provisions cited in Colorado's SIP submittals (contained within this docket) meet the requirements of CAA section 110(a)(2)(M), so we propose to approve Colorado's SIP as meeting these requirements for the 2010 SO
In this action, the EPA is proposing to approve infrastructure elements for the 2010 SO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves some state law as meeting federal requirements and disapproves other state law because it does not meet federal requirements; this proposed action does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, Aug. 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 the 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, Feb. 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) revisions from the State of South Dakota to demonstrate the State meets infrastructure requirements of the Clean Air Act (Act, CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for sulfur dioxide (SO
Written comments must be received on or before July 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R08–OAR–2016–0709 at
Abby Fulton, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P–AR, 1595 Wynkoop Street, Denver, Colorado 80202–1129, 303–312–6563,
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions and organize your comments;
• 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; and,
• Make sure to submit your comments by the comment period deadline identified.
On June 2, 2010, the EPA promulgated a revised primary SO
Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance, and enforcement of the NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for SO
The EPA is acting upon the SIP submissions from South Dakota that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 SO
The EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
Examples of some of these ambiguities and the context in which the EPA interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) are discussed at length in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM
With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and the EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186, Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (“NSR Reform”).
CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements such as modeling, monitoring, and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below.
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C): Program for enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.
• 110(a)(2)(F): Stationary source monitoring and reporting.
• 110(a)(2)(G): Emergency powers.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.
• 110(a)(2)(K): Air quality modeling/data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
A detailed discussion of each of these elements is contained in the next section.
Two elements identified in section 110(a)(2) are not governed by the three-year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (1) Section 110(a)(2)(C) to the extent it refers to permit programs (known as “nonattainment NSR”) required under part D, and (2) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title 1 of the CAA are not changed by a new NAAQS.
The South Dakota Department of Environment and Natural Resources (DENR) submitted certifications of South Dakota's infrastructure SIP for the 2010 SO
1.
Multiple SIP-approved state air quality regulations within the ARSD and cited in South Dakota's certifications provide enforceable emission limitations and other control measures, means of techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2010 SO
First, the EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1). Furthermore, South Dakota has no areas designated as nonattainment for the 2010 SO
Second, as previously discussed, the EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. A number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency plans to take action in the future to address such state regulations. In the meantime, the EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
Third and finally, in this action, the EPA is also not proposing to approve or disapprove any existing state provision with regard to excess emissions during SSM or operations at a facility. A number of states have SSM provisions which are contrary to the CAA and existing EPA guidance
Therefore, the EPA is proposing to approve South Dakota's infrastructure SIP for the 2010 SO
2.
Under ARSD 74:36:02, the DENR operates a network of air monitoring sites. The EPA approved South Dakota's 2016 network changes through an Ambient Air Monitoring Plan response letter (contained within the docket) mailed to the DENR on November 1, 2016. The State of South Dakota submits data to the EPA's Air Quality System database in accordance with the deadlines in 40 CFR 58.16. South Dakota's air monitoring programs and data systems meet the requirements of CAA section 110(a)(2)(B) for the 2010 SO
We find that South Dakota's SIP and practices are adequate for the ambient air quality monitoring and data system requirements for the 2010 SO
3.
To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2010 SO
The State's submissions cite SIP approved ARSD Chapter 74:36:09 (Prevention of significant deterioration) and ARSD Chapter 74:36:20 (Construction permits for new sources and modifications) which provide for the enforcement of emission limits and control measures. SDCL 34A–1–39 through 34A–1–54 and 34A–1–62 gives the DENR authority to provide enforcement of South Dakota's measure and regulations that require new sources or modifications to existing sources to apply for and obtain an air quality permit before constructing.
With respect to elements (C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of element (D)(i)(II) prong 3 (PSD) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. South Dakota has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).
South Dakota implements the PSD program by, for the most part, incorporating by reference the federal PSD program as it existed on a specific date. The State periodically updates the PSD program by revising the date of incorporation by reference and submitting the change as a SIP revision. As a result, the SIP revisions generally reflect changes to PSD requirements that the EPA has promulgated prior to the revised date of incorporation by reference.
On June 30, 2011, we approved a revision to the South Dakota PSD program that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated in 2005 (76 FR 43912, July 22, 2011). As a result, the approved South Dakota PSD program meets current requirements for ozone.
With respect to GHGs, on June 23, 2014, the United States Supreme Court addressed the application of PSD permitting requirements to GHG emissions.
In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in
The EPA is planning to take additional steps to revise the federal PSD rules in light of the Supreme Court and subsequent D.C. Circuit opinion. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to the EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions.
At present, the EPA has determined that South Dakota's SIP is sufficient to satisfy elements (C), (D)(i)(II) prong 3, and (J) with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. The EPA most recently approved revisions to South Dakota's PSD program on October 13, 2016 (81 FR 70626). The approved South Dakota PSD permitting program does not contain provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit's amended judgment, as these provisions were removed in 81 FR 70626. The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of South Dakota's infrastructure SIP as to the requirements of Elements (C), (D)(i)(II) prong 3, and (J).
Finally, we evaluate the PSD program with respect to current requirements for PM
On January 4, 2013, the U.S. Court of Appeals, in
The 2008 implementation rule addressed by the court decision, “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM
The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation rule also does not affect the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.
The second PSD requirement for PM
On July 22, 2011, we approved revisions to ARSD Chapter 74:36:09 that adopted by reference federal provisions of 40 CFR part 52, section 21, as they existed on July 1, 2009 (76 FR 43912, July 22, 2011). As July 1, 2009 is after the effective date of the 2008 PM
The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program was originally approved by the EPA on September 6, 1995 (60 FR 46222). Since approval of the minor NSR program, the State and the EPA have relied on the program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. Additionally, the EPA is not proposing to approve or disapprove any state rules with regard to the NSR Reform requirements because they are outside the scope of this action. The EPA's action taken on changes to South Dakota's minor source NSR program (79 FR 36419, June 27, 2014) does not impact the approvability of Section 110(a)(2)(C) in this action.
The EPA is proposing to approve South Dakota's infrastructure SIP for the 2010 SO
4.
South Dakota's certifications for both the 2010 SO
As stated in the 2013 Memo, in-state sources not subject to PSD for any one or more of the pollutants subject to regulation under the CAA because they are in a nonattainment area for a NAAQS related to those particular pollutants may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state. South Dakota does not contain any nonattainment areas. The consideration of nonattainment NSR for element 3 is therefore not relevant as all major sources locating in the State are subject to PSD. As South Dakota's SIP meets PSD requirements for all regulated NSR pollutants, the EPA is proposing to approve the infrastructure SIP submission as meeting the applicable requirements of prong 3 of section 110(a)(2)(D)(i) for the 2010 SO
To determine whether the CAA section 110(a)(2)(D)(i)(II) requirement for visibility protection is satisfied, the SIP must address the potential for interference with visibility protection caused by the pollutant (including precursors) to which the new or revised NAAQS applies. An approved regional haze SIP that fully meets the regional haze requirements in 40 CFR 51.308 satisfies the 110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures that emissions from the state will not interfere with measures required to be included in other state SIPs to protect visibility. In the absence of a fully approved regional haze SIP, a state can still make a demonstration that satisfies the visibility requirement section of 110(a)(2)(D)(i)(II).
South Dakota submitted a regional haze SIP to the EPA on January 21, 2011, and submitted an amendment to the SIP on September 19, 2011. The EPA approved South Dakota's regional haze SIP on April 26, 2012 (77 FR 24845). The EPA is proposing to find that as a result of the prior approval of the South Dakota regional haze SIP, the South Dakota SIP contains adequate provisions to address the 110(a)(2)(D)(i) visibility requirements for the 2010 SO
5.
Section 126(a) requires notification to affected, nearby states of major proposed new (or modified) sources. Sections 126(b) and (c) pertain to petitions by affected states to the Administrator of the U.S. EPA (Administrator) regarding sources violating the “interstate transport” provisions of section 110(a)(2)(D)(i). Section 115 similarly pertains to international transport of air pollution.
As required by 40 CFR 51.166(q)(2)(iv), South Dakota's SIP-approved PSD program requires notice to states whose lands may be affected by the emissions of sources subject to PSD.
South Dakota has no pending obligations under sections 126(c) or 115(b); therefore, its SIP currently meets the requirements of those sections. In summary, the SIP meets the requirements of CAA section 110(a)(2)(D)(ii) for the 2010 SO
6.
SDCL 34A–1–57 through 34A–1–60 provide adequate authority for the State of South Dakota and the DENR to carry out its SIP obligations with respect to the 2010 SO
Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. That provision contains two explicit requirements: (i) That any board or body which approves permits or enforcement orders under the CAA shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to such permits and enforcement orders; and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.
On January 29, 2015 (80 FR 4799), the EPA approved SDCL 1–40–25.1 and revisions to ARSD 74:09, Procedures Board of Minerals and Environment, into the South Dakota SIP as meeting the requirements of section 128 of the Act. SDCL 1–40–25.1 addresses board composition requirements in section 128(a)(1) and ARSD 74:09 addresses conflict of interest requirements in section 128(a)(2). Details on how these portions of the SDCL and ARSD meet the requirements of section 128 are provided in our December 1, 2014 (79 FR 71040) proposal notice. In our January 29, 2015 action, we correspondingly approved South Dakota's infrastructure SIP for the 1997 and 2006 PM
7.
The South Dakota provisions listed in the State's certifications and contained within this docket provide authority to establish a program for measurement and testing of sources, including requirements for sampling and testing. South Dakota's SIP approved continuous emissions monitoring system rules (ARSD 74:36:13 and contained within this docket) require facilities to monitor and report emission data. ARSD 74:36:04:15(10), Contents of operating permit, requires operating permits for minor sources to include monitoring and related record keeping and reporting requirements. Reports contain the quantity of hazardous air pollutants, in tons, emitted for each 12-month period in the reporting period and supporting documentation. Operating permits for minor sources must comply with emission limits and other requirements of the Act (ARSD 74:36:04:04 and ARSD 74:36:04:15).
Additionally, ARSD 74:36:05:16.01(9) is applicable regarding data from sources with title V permits. South Dakota has an approved title V program (61 FR 2720, Jan. 29, 1996) and the definition of applicable requirements for a Part 70 source has been approved into its SIP at ARSD 74:36:01:05. This re-enforces a facility's record keeping and reporting emissions data responsibilities under title V permitting, even though the title V program is not approved into the SIP.
Furthermore, South Dakota is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data.
Based on the analysis above, we propose to approve the South Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2010 SO
8.
Under CAA section 303, the Administrator has authority to bring suit to immediately restrain an air pollution source that presents an imminent and substantial endangerment to public health or welfare, or the environment. If such action may not practicably assure prompt protection, then the Administrator has authority to issue temporary administrative orders to protect the public health or welfare, or the environment, and such orders can be extended if the EPA subsequently files a civil suit. SDCL section 34A–1–45 and ARSD section 74:36:03:01 provide APCD with general emergency authority comparable to that in section 303 of the Act.
States must also have adequate contingency plans adopted into their SIP to implement the air agency's emergency episode authority (as discussed above). This can be met can by submitting a plan that meets the applicable requirements of 40 CFR part 51, subpart H for the relevant NAAQS if the NAAQS is covered by those regulations.
Rules contained in ARSD and South Dakota's SIP adopt by reference the criteria in 40 CFR 51.151 as the air quality episode plan to address activities causing imminent and substantial endangerment to public health, including a contingency plan to implement the emergency episode provisions of the SIP. As of the date of South Dakota's submittal, the EPA has not established priority classification for a significant harm level for PM
Subpart H of 40 CFR part 51 requires states to classify regions and to develop contingency plans (also known as emergency episode plans) after ambient concentrations of certain criteria pollutants in an area have exceeded specified levels. However, Subpart H does not currently address requirements for the 24-hour PM
South Dakota has recorded no levels of ambient air concentrations in the three most recent complete calendar years—2013, 2014, and 2015—that exceed the 2009 guidance memorandum.
Revisions to the South Dakota Air Quality Episodes rules ARSD 74:36:03:01 “Air pollution emergency episode” and ARSD 74:36:03:02 “Episode emergency contingency plan” were most recently approved on June 27, 2014 (79 FR 36425). We find that South Dakota's air pollution emergency rules include PM
9.
South Dakota's statutory provision at SDCL 34A–1–6 gives DENR sufficient authority to meet the requirements of 110(a)(2)(H). Therefore, we propose to approve South Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(H).
10.
The State has demonstrated it has the authority and rules in place through its certifications (contained within this docket) to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal Land Manager having authority over federal land to which the
As previously discussed, the State has a SIP-approved PSD program that incorporates by reference the federal program at 40 CFR 52.21. The EPA has further evaluated South Dakota's SIP approved PSD program in this proposed action under element (C) and determined the State has satisfied the requirements of element 110(a)(2)(C), as previously noted. Therefore, the State has also satisfied the requirements of element 110(a)(2)(J).
Finally, with regard to the applicable requirements for visibility protection, the EPA recognizes states are subject to visibility and regional haze program requirements under part C of the Act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there are no applicable visibility requirements under section 110(a)(2)(J) when a new NAAQS becomes effective.
Based on the above analysis, we propose to approve the South Dakota SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2010 SO
11.
South Dakota's PSD program incorporates by reference the federal program at 40 CFR 52.21, including the provision at 40 CFR 52.21(l)(1) requiring that estimates of ambient air concentrations be based on applicable air quality models specified in Appendix W of 40 CFR part 51, and the provision at 40 CFR 52.21(l)(2) requiring that modification or substitution of a model specified in Appendix W must be approved by the Administrator.
Additionally, SDLC section 34A–1–1, 34A–1–10, and 1–40–31 provide the Department with the authority to advise, consult, and cooperate with the EPA and provide the EPA with public records, such as air quality modeling. As a result, the SIP provides for such air quality modeling as the Administrator has prescribed. Therefore, we propose to approve the South Dakota SIP as meeting the CAA section 110(a)(2)(K) for the 2010 SO
Section 110(a)(2)(L) requires “the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this [Act], a fee sufficient to cover[:] (i) the reasonable costs of reviewing and acting upon any application for such a permit[;] and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under [title] V.”
The funding sources used for the PSD permit reviews conducted by South Dakota derive from EPA grant and matching State general funds.
We also note that all the State SIPs we are proposing to approve in this action cite the regulation that provides for collection of permitting fees under the State's EPA-approved title V permit program (ARSD 74:37:01), which we approved and became effective February 28, 1996 (61 FR 2720, Jan. 29, 1996). Therefore, based on the State's experience in relying on the grant and general funds for PSD permits, and the use of title V fees to implement and enforce PSD permits once they are incorporated into title V permits, we propose to approve the submissions as supplemented by the State for the 2010 SO
Section 110(a)(2)(M) requires states to “provide for consultation and participation [in SIP development] by local political subdivisions affected by [the SIP].”
The statutory provisions cited in South Dakota's SIP submittals (SDCL section 34–A–1 and 34A–1–10
In this action, the EPA is proposing to approve infrastructure elements for the 2010 SO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves some state law as meeting federal requirements and disapproves other state law because it does not meet federal requirements; this proposed action does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, Oct. 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, Aug. 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 the 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, Feb. 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve: Negative declarations for commercial and industrial solid waste incinerators for the State of Connecticut, the State of New Hampshire, the State of Rhode Island, and the State of Vermont; negative declarations for hospital/medical/infectious waste incinerators for the State of Rhode Island; and revisions to the state plan for existing large and small municipal waste combustors for the State of New Hampshire. This action is being made in accordance with sections 111 and 129 of the Clean Air Act (CAA).
Written comments must be received on or before July 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R01–OAR–2017–0202 at
Patrick Bird, Air Permits, Toxics, & Indoor Programs Unit, Air Programs Branch, Office of Ecosystem Protection, U.S. Environmental Protection Agency,
In the Final Rules Section of this
For additional information, see the direct final rule which is located in the Rules Section of this
Environmental Protection Agency (EPA).
Proposed rule.
In response to administrative petitions for reconsideration, the Environmental Protection Agency (EPA) proposes to postpone certain compliance dates in the effluent limitations guidelines and standards for the steam electric point source category under the Clean Water Act (“CWA”), published in the
Comments on this proposed rule must be received on or before July 6, 2017.
Submit your comments, identified by Docket ID No. EPA–HQ–OW–2009–0819, at
Contact Ronald Jordan, United States Environmental Protection Agency, Engineering and Analysis Division; telephone number: (202) 564–1003; email address:
Electronic copies of this document and related materials are available on EPA's Web site at
On November 3, 2015, the EPA issued a final rule amending 40 CFR part 423, the effluent limitations guidelines and standards for the steam electric power generating point source category, under Sections 301, 304, 306, 307, 308, 402, and 501 of the CWA (33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361). The amendments addressed and contained limitations and standards on various wastestreams at steam electric power plants: Fly ash transport water, bottom ash transport water, flue gas mercury control wastewater, flue gas desulfurization (FGD) wastewater, gasification wastewater, and combustion residual leachate. Collectively, this rulemaking is known as the “Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category” (“Rule”). For further information on the Rule, see 80 FR 67838 (Nov. 3, 2015).
EPA received seven petitions for review of the Rule. The United States Judicial Panel on Multi-District Litigation issued an order on December 8, 2015, consolidating all of the petitions in the U.S. Court of Appeals for the Fifth Circuit,
In a letter dated March 24, 2017, the Utility Water Act Group (“UWAG”)
In an April 12, 2017 letter to those who submitted the reconsideration petitions, the Administrator announced his decision to reconsider the Rule (a copy of this letter is included in the docket for the rule). As explained in that letter, after considering the objections raised in the reconsideration petitions, the Administrator determined that it is appropriate and in the public interest to reconsider the Rule. On April 14, 2017, the EPA requested that the Fifth Circuit hold the case in abeyance while the Agency undertakes reconsideration. On April 24, 2017, the Fifth Circuit granted the motion and placed the case in abeyance.
The earliest compliance date for the new, and more stringent, BAT effluent limitations and pretreatment standards is November 1, 2018, for each of the following wastestreams: Fly ash transport water, bottom ash transport water, FGD wastewater, flue gas mercury control wastewater, and gasification wastewater. As UWAG pointed out in its April 13, 2017 letter “a rule of this magnitude and complexity requires substantial time to come into compliance for multiple wastestreams. Detailed studies and planning, followed by large capital expenditures and subsequent installation and testing, are time-consuming.” Companies have been evaluating their compliance options and are reaching the point at which they will be committing funds, incurring costs, or commencing construction to install technologies. In light of these imminent planning and capital expenditures that facilities incurring costs under the Rule will need to undertake in order to meet the compliance deadlines for the new, more stringent limitations and standards in the Rule—which are as early as November 1, 2018, for direct dischargers and no later than November 1, 2018, for indirect dischargers—the Agency views that it is appropriate to postpone the compliance dates of the Rule that have not yet passed.
In a separate action, EPA administratively postponed certain compliance dates in the rule pursuant to Section 705 of the Administrative Procedure Act (“APA”), 5 U.S.C. 705, which states that “[w]hen an agency finds that justice so requires, it may postpone the effective date of action taken by it pending judicial review.” Because Section 705 of the APA authorizes an Agency to postpone the effective date of an action pending judicial review, EPA is undertaking this notice-and-comment rulemaking to postpone certain compliance dates in the rule in the event that the litigation ends, and while the Agency is undertaking reconsideration. These compliance dates would be postponed until EPA promulgates a final rule specifying compliance dates.
This action is not a significant regulatory action as that term is defined in Executive Order 12866 (58 FR 51735, October 4, 1993). Accordingly, this proposed rule is not subject to requirements of E.O. 12866 that apply to significant regulatory actions.
This proposed rule does not involve any information collection activities subject to the PRA, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under 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.
This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 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).
This proposed rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because EPA previously determined that the environmental health risks or safety risks addressed by the requirements EPA is proposing to postpone do not present a disproportionate risk to children.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards that would require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272 note.
This is a proposal to delay action, and it does not change the requirements of the effluent limitations guidelines and standards published in 2015. While the proposed postponement in compliance dates could delay the protection the 2015 rule would afford to all communities, including those impacted disproportionately by the pollutants in certain wastewater discharges, this action will not change any impacts of the 2015 rule when it is fully implemented. The EPA therefore believes it is more appropriate to consider the impact on minority and low-income populations in the context
Environmental protection, Electric power generation, Power plants, Waste treatment and disposal, Water pollution control.
Secs. 101; 301; 304(b), (c), (e), and (g); 306; 307; 308 and 501, Clean Water Act (Federal Water Pollution Control Act Amendments of 1972, as amended; 33 U.S.C. 1251; 1311; 1314(b), (c), (e), and (g); 1316; 1317; 1318 and 1361).
(b) The compliance dates specified in §§ 423.13(g)(1)(i), (h)(1)(i), (i)(1)(i), (j)(1)(i), and (k)(1)(i) and 423.16(e), (f), (g), (h), and (i) are postponed.
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this part must achieve the following effluent limitations representing the degree of effluent reduction attainable by the application of the best available technology economically achievable (BAT). For applicability of the requirements in §§ 423.13(g)(1)(i), (h)(1)(i), (i)(1)(i), (j)(1)(i), and (k)(1)(i), see § 423.10(b).
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart which introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and achieve the following pretreatment standards for existing sources (PSES) by July 1, 1984. For applicability of the requirements in §§ 423.16(e), (f), (g), (h), and (i), see § 423.10(b).
Federal Communications Commission.
Notice of proposed rulemaking.
In this document, the Federal Communications Commission (Commission) will revise its Schedule of Regulatory Fees in order to recover an amount of $356,710,992 that Congress has required the Commission to collect for fiscal year 2017, as amended, provides for the annual assessment and collection of regulatory fees under and respectively, for annual “Mandatory Adjustments” and “Permitted Amendments” to the Schedule of Regulatory Fees.
Submit comments on or before June 22, 2017, and reply comments on or before July 7, 2017.
You may submit comments, identified by MD Docket No. 17–134, by any of the following methods:
•
•
•
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Roland Helvajian, Office of Managing Director at (202) 418–0444.
This is a summary of the Commission's
1. This
2.
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
3.
4.
5. An initial regulatory flexibility analysis (IRFA) is contained in this summary. Comments to the IRFA must be identified as responses to the IRFA and filed by the deadlines for comments on the Notice. The Commission will send a copy of the Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.
6. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198,
7. In this Notice of Proposed Rulemaking, we seek comment on the Commission's proposed regulatory fees for fiscal year (FY) 2017. We propose to collect $356,710,992 in regulatory fees for FY 2017, as detailed in the proposed fee schedules attached in Table 4.
8. The Commission is required by Congress to assess regulatory fees each year in an amount that can reasonably be expected to equal the amount of its appropriation.
9. Congress sets the amount the Commission must collect each year in the Commission's fiscal year appropriations. Section 9(a)(2) of the Communications Act of 1934, as amended (Communications Act or Act) requires the Commission to collect fees sufficient to offset the amount appropriated.
10. The Commission annually reviews the regulatory fee schedule, proposes changes to the schedule to reflect changes in the amount of its appropriation, and proposes increases or decreases to the schedule of regulatory fees.
11. As part of its annual review, the Commission regularly seeks to improve its regulatory fee analysis. For example, in the
12. The Commission proposes to collect $356,710,992 in regulatory fees for FY 2017,
13. Under section 9 of the Act, regulatory fees are to “be derived by determining the full-time equivalent number of employees performing” these activities, “adjusted to take into account factors that are reasonably related to the benefits provided to the payer of the fee by the Commission's activities . . . .”
14. The Commission has 1,431 FTEs funded by regulatory fees, of which 424 are currently direct FTEs.
15. We believe that continuing changes to the USF regulatory landscape requires us to reexamine the appropriateness of treating Universal Service Fund FTEs as direct FTEs. To start, we estimate that there are approximately 51 FTEs in the Wireline Competition Bureau, including the bureau front office, devoted to the Universal Service Fund, with 13 of those FTEs devoted to the high-cost program. We also estimate that there are approximately 3 FTEs in the Wireless Telecommunications Bureau, including the bureau front office, devoted to implementing the Mobility Fund, a universal service high-cost support mechanism devoted exclusively to mobile services.
16. We propose to “adjust[ ]” the allocation of these direct FTEs “to take into account factors that are reasonably related to the benefits provided to the payer of the fee by the Commission's activities . . . ”
17. We also seek comment on alternatives. Although the high-cost program has historically been tied to Wireline Competition Bureau regulatees, the Commission's recent actions such as the adoption of the Mobility Fund Phase II and the Connect America Fund Phase II reverse auctions open eligibility to many other providers. Do these recent changes justify reallocating the 13 Wireline Competition Bureau FTEs and three Wireless Telecommunications Bureau FTEs as indirect? Or should any such reallocation await the full implementation of these reverse auctions? Alternatively, should some portion of the 38 FTEs that work on non-high-cost programs of the Universal Service Fund not be reallocated as indirect? If so, what portion?
18. Commenters should provide legal and policy reasoning in support or opposition to the proposal and to the alternatives. We note that the Commission has said that it “would be inconsistent with section 9 to delay reallocating . . . FTEs, where the reallocation is clearly warranted, while we engage in painstaking examinations of less clear and more factually complex situations in other bureaus.”
19. We estimate that 7–8 FTEs in the Wireline Competition Bureau work on numbering issues. We propose to “adjust[ ]” the allocation of these direct FTEs “to take into account factors that are reasonably related to the benefits provided to the payer of the fee by the Commission's activities . . . .”
20. Commenters should provide legal and policy reasoning in support or opposition to the proposal, as well as whether the Commission should consider any alternatives. We note that the Commission has said that it “would
21. The proposed fee schedule includes an updated regulatory fee for DBS, a subcategory in the cable television and IPTV category.
22. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic dish antenna at the subscriber's location. The two DBS providers, AT&T and DISH Network, are multichannel video programming distributors (MVPDs).
23. Based on our updated analysis of the cable television/IPTV category, we find Media Bureau resources devoted to MVPD proceedings, including DBS,
24. In the
25. We seek comment on further adjusting the regulatory fees for FY 2017. The following chart proposes regulatory fees for AM and FM broadcasters, with revised ratios so that the difference between each tier is proportional. The second chart, for illustrative purposes, has the regulatory fees with the ratios used in the proposal for FY 2016. The second chart does not include the reduction for the two lowest tiers adopted in FY 2016. We seek comment on this proposal. Commenters should also discuss whether the regulatory fees should be reduced further for the AM and FM broadcasters in the two lowest tiers.
26. Broadcast television satellite stations pay a lower regulatory fee than standalone, full-service broadcast television stations, and are designated as such pursuant to note 5 to section 73.3555 of the Commission's rules.
27. There is a standalone full-service station usually within the same market that serves as the “parent” to the satellite station that could not be commonly owned or controlled with the satellite, but for such a waiver. Section 76.55(e)(2) of the Commission's rules specifies that a commercial broadcast television station's market is its Designated Market Area (DMA), which reflects viewing patterns, as determined by Nielsen Media Research and published in its Nielsen Station Index Directory and Nielsen Station Index US Television Household Estimates or any successor publications.
28. Recognizing that the Commission permitted a lesser fee for television satellite stations, we seek comment on whether we should increase the regulatory fees for broadcast satellite television stations to ensure that all television broadcasters are paying an appropriate regulatory fee based on Media Bureau FTE oversight and regulation. The circumstances that existed in 1994 when the Commission explained that it would permit consideration of a reduced fee in very limited circumstances have changed.
29. Historically, regulatory fees for international bearer circuits (IBCs) have been paid by facilities-based common carriers based on the number of active international bearer circuits they have in a transmission facility used to provide service to specified types of entities—specifically, by facilities-based common carriers that have active international bearer circuits in any transmission facility for the provision of service to an end user or resale carrier, which includes active circuits to themselves or to their affiliates.
30. The international services marketplace has continued to evolve and we seek comment on how to update and improve our regulatory fee assessment for terrestrial and satellite IBCs to reflect these changes.
31. Level 3 states that non-common carrier terrestrial IBCs should not be exempt from regulatory fees, as it finds the practice to be administratively burdensome, not equitable or competitively neutral, and a disincentive to compliance with the Commission's regulatory fee rules.
32. We also seek comment on whether we should make changes to the IBC fees for satellite circuits. The number of satellite IBCs are relatively small as compared to terrestrial IBCs.
33. We also seek comment on whether we should continue to assess regulatory fees based on IBCs that were active as of December 31 of the prior year.
34. Finally, we tentatively conclude that adding non-common carrier international bearer circuits to the regulatory fee schedule would be a permitted amendment as defined in section 9(b)(3) of the Act,
35. Under the Commission's current de minimis rule for regulatory fee payments, a regulatee is exempt from paying regulatory fees if the sum total of all of its regulatory fee liabilities for
36. In the FY 2014 regulatory fee proceeding, commenters argued the threshold should be increased to $750 or $1,000.
37. Consistent with this commitment, we seek comment on increasing the de minimis threshold to $1,000 to improve the cost effectiveness of the Commission's collection of regulatory fees and to provide regulatory fee relief to smaller entities, particularly those that have little Commission regulation or oversight.
38. We also seek comment on whether we should include multi-year wireless licenses in the de minimis threshold. If we adopt a de minimis threshold for multi-year wireless licensees, should the threshold be fee-based, or should it be determined by the number of licenses, frequencies, or paths the licensee holds? We recognize that some entities hold many multi-year licenses and the licenses can be renewed at different times of the year. Commenters should discuss whether including multi-year licenses in the de minimis threshold would be too administratively burdensome. We also seek comment on whether we should adopt a de minimis threshold based on number of cable television subscribers, as suggested by ACA.
39. In addition, we seek comment on eliminating regulatory fee categories, such as CMRS Messaging (Paging).
40. We tentatively conclude that eliminating categories from our regulatory fee schedule would be a permitted amendment as defined in section 9(b)(3) of the Act,
41. We also seek comment on ways to further improve our regulatory fee process to make it less burdensome for all entities. In particular, we seek comment on ways we can communicate better with smaller regulatees, such as mass emails (instead of through the U.S. Postal Service), and if we should therefore require a current email address for all regulatory fee payors.
42. Pursuant to an Office of Management and Budget (OMB) directive,
43. Since June 1, 2015, in accordance with U.S. Treasury Announcement No. A–2014–04 (July 2014), the amount that can be charged on a credit card for transactions with federal agencies has is $24,999.99.
44. Under the Commission's present de minimis rule for regulatory fee
45. The Commission will accept fee payments made in advance of the window for the payment of regulatory fees. The responsibility for payment of fees by service category is as follows:
•
•
•
•
•
•
•
•
46. The Commission will compile data from the Numbering Resource Utilization Forecast (NRUF) report that is based on “assigned” telephone number (subscriber) counts that have been adjusted for porting to net Type 0 ports (“in” and “out”).
47. A carrier wishing to revise its telephone number (subscriber) count can do so by accessing Fee Filer and follow the prompts to revise their telephone number counts. Any revisions to the telephone number counts should be accompanied by an explanation or supporting documentation.
48. Because some carriers do not file the NRUF report, they may not see their telephone number counts in Fee Filer. In these instances, the carriers should compute their fee payment using the standard methodology that is currently in place for CMRS Wireless services (
In order to calculate individual service fees for FY 2017, we adjusted FY 2016 payment units for each service to more accurately reflect expected FY 2017 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System (CDBS) and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireless Telecommunications Bureau's
We sought verification for these estimates from multiple sources and, in all cases, we compared FY 2017 estimates with actual FY 2016 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated with sufficient accuracy. These include an unknown number of waivers and/or exemptions that may occur in FY 2017 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2017 payment units are based on FY 2016 actual payment units, it does not necessarily mean that our FY 2017 projection is exactly the same number as in FY 2016. We have either rounded the FY 2017 number or adjusted it slightly to account for these variables.
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
2. This
3. This action, including publication of proposed rules, is authorized under sections (4)(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended.
4. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.
5. Small Entities. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive small entity size standards that could be directly affected by the proposals under consideration.
6. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.”
7. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS code category is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
8. Incumbent LECs. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS code category is Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer
9. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS code category is Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
10. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS code category is Wired Telecommunications Carriers as defined in paragraph 6 of this IRFA. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees.
11. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate NAICS code category for prepaid calling card providers is Telecommunications Resellers. This industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual networks operators (MVNOs) are included in this industry.
12. Local Resellers. Neither the Commission nor the SBA has developed a small business size standard specifically for Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.
13. Toll Resellers. The Commission has not developed a definition for Toll Resellers. The closest NAICS code Category is Telecommunications Resellers, and the SBA has developed a small business size standard for the category of Telecommunications Resellers.
14. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS code category is for Wired Telecommunications Carriers, as defined in paragraph 6 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees.
15. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services.
16. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.”
17. In assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
18. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.
19. Radio Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.”
20. In assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.
21. Cable Television and other Subscription Programming. This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature,
22. Cable Companies and Systems. The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide.
23. Cable System Operators (Telecom Act Standard). The Communications Act also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.”
24. Direct Broadcast Satellite (DBS) Service. DBS Service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic dish antenna at the subscriber's location. DBS is now included in SBA's economic census category “Wired Telecommunications Carriers.” The Wired Telecommunications Carriers industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of
25. All Other Telecommunications. “All Other Telecommunications” is defined as follows: This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or Voice over Internet Protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.
26. RespOrgs. Responsible Organizations, or RespOrgs, are entities chosen by toll free subscribers to manage and administer the appropriate records in the toll free Service Management System for the toll free subscriber.
27. Carrier RespOrgs. Neither the Commission, the U.S. Census, nor the SBA have developed a definition for Carrier RespOrgs. Accordingly, the Commission believes that the closest NAICS code-based definitional categories for Carrier RespOrgs are Wired Telecommunications Carriers,
28. The U.S. Census Bureau defines Wired Telecommunications Carriers as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.
29. The U.S. Census Bureau defines Wireless Telecommunications Carriers (except satellite) as establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services.
30. Non-Carrier RespOrgs. Neither the Commission, the U.S. Census, nor the SBA have developed a definition of Non-Carrier RespOrgs. Accordingly, the Commission believes that the closest NAICS code-based definitional categories for Non-Carrier RespOrgs are “Other Services Related to Advertising”
31. The U.S. Census defines Other Services Related to Advertising as comprising establishments primarily engaged in providing advertising services (except advertising agency services, public relations agency services, media buying agency services, media representative services, display advertising services, direct mail advertising services, advertising material distribution services, and marketing consulting services).
32. The U.S. Census defines Other Management Consulting Services as establishments primarily engaged in providing management consulting services (except administrative and general management consulting; human resources consulting; marketing consulting; or process, physical distribution, and logistics consulting). Establishments providing telecommunications or utilities management consulting services are included in this industry.
33. In addition to the data contained in the four (see above) U.S. Census NAICS code categories that provide definitions of what services and functions the Carrier and Non-Carrier RespOrgs provide, Somos, the trade association that monitors RespOrg activities, compiled data showing that as of July 1, 2016 there were 23 RespOrgs operational in Canada and 436 RespOrgs operational in the United States, for a total of 459 RespOrgs currently registered with Somos.
34. This
35. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
36. This
37. None.
38. Accordingly,
Agricultural Marketing Service, USDA.
Notice: Call for nominations.
The National Organic Standards Board (NOSB) was established to assist in the development of standards for substances to be used in organic production and to advise the Secretary on the implementation of the Organic Foods Production Act of 1990 (OFPA). Through this Notice, the United States Department of Agriculture (USDA) is announcing its call for nominations to fill one (1) upcoming vacancy for an individual with expertise in areas of environmental protection and resource conservation. The five-year term will begin January 24, 2018, and end January 23, 2023. Additionally, the USDA seeks nominations for a pool of candidates that the Secretary of Agriculture can draw upon as replacement appointees if unexpected vacancies occur. A person appointed to fill an unexpected vacancy will serve for the remainder of the 5-year term of the vacant position. Previous applicants who wish to be considered must reapply.
Written nominations must be postmarked on or before August 7, 2017.
Applications can be sent via email to Michelle Arsenault at
Michelle Arsenault, (202) 720–0081; Email:
The OFPA, as amended (7 U.S.C. 6501
As per the OFPA, individuals seeking appointment to the NOSB must meet the definition of the position that they seek as identified under 7 U.S.C. 6518, as well as satisfy the selection criteria for an NOSB member. Selection criteria include the following: An understanding of organic principles and practical experience in the organic community; demonstrated experience and interest in organic production and organic certification; demonstrated experience with respect to agricultural products produced and handled on certified organic farms; a commitment to the integrity of the organic food and fiber industry; demonstrated experience in the development of public policy such as participation on public or private advisory boards, boards of directors or other comparable organizations; support of consumer and public interest organizations; participation in standards development or involvement in educational outreach activities; the ability to evaluate technical information and to fully participate in Board deliberation and recommendations; the willingness to commit the time and energy necessary to assume Board duties; and other such factors as may be appropriate for specific positions.
To nominate yourself or someone else, please submit the following: a resume (required), Form AD–755 (required), which can be accessed at:
If USDA receives a request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) for records relating to NOSB nominations, your application materials may be released to the requester. Prior to the release of the information, personally identifiable information protected by the Privacy Act, 5 U.S.C. 552a, will be redacted.
Nominations are open to all individuals without regard to race, color, religion, gender, national origin, age, mental or physical disability, marital status, or sexual orientation. To ensure that the recommendations of the NOSB take into account the needs of the diverse groups that are served by the Department, membership on the NOSB shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
The information collection requirements concerning the nomination process have been previously cleared by the Office of Management and Budget (OMB) under OMB Control No. 0505–0001.
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Tennessee (State) Advisory
The meeting will be held on Wednesday, June 21, 2017 12:30 p.m. EST.
The meeting will be by teleconference. Toll-free call-in number: 888–452–4005, conference ID: 5512313.
Jeff Hinton, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888–452–4005, conference ID: 5512313. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office by July 21, 2017. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562–7005, or emailed to Regional Director, Jeffrey Hinton at
Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Tennessee Advisory Committee will hold a meeting on Wednesday, July 12, 2017, to finalize potential participants to the hearing on civil asset forfeiture.
The meeting will be held on Wednesday, July 12, 2017 12:30 p.m. EST.
The meeting will be by teleconference. Toll-free call-in number: 800–500–3170, conference ID: 6846142.
Jeff Hinton, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 800–500–3170, conference ID: 6846142. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office by July 10, 2017. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562–7005, or emailed to Regional Director, Jeffrey Hinton at
Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
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, International Trade Administration, Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on light-walled rectuangular pipe and tube (LWRPT) from Turkey. The period of review (POR) is May 1, 2015, through April 30, 2016. This administrative review covers nine exporters of the subject merchandise, including two mandatory respondents, Cinar Boru Profil Sanayi ve Ticaret A.S. (CINAR) and Noksel Celik Boru Sanayi A.S. (Noksel). The Department preliminarily determines that CINAR and Noksel made sales of subject merchandise at less than normal value during the POR. Interested parties are invited to comment on these preliminary results.
Effective June 6, 2017.
Jonathan Hill or Patrick O'Connor, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3518 or (202) 482–0989, respectively.
The merchandise covered by the antidumping order is certain welded carbon quality light-walled steel pipe and tube, of rectangular (including square) cross section, having a wall thickness of less than 4 millimeters from Turkey. The merchandise subject to the order is classified in the Harmonized Tariff Schedule of the United States at subheadings 7306.61.50.00 and 7306.61.70.60. For a full description of the scope of the order,
The Department is conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
The Department preliminarily determines that weighted-average dumping margins exist for the respondents for the period May 1, 2015, through April 30, 2016, as follows:
For the rate for non-selected respondents in an administrative review, generally, the Department looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this review.
For any individually examined respondents whose weighted-average dumping margin is above
The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of LWRPT from Turkey entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the companies under review will be equal to the weighted-average dumping margin established in the final results of this review (except, if the rate is zero or
The Department intends to disclose the calculations used in our analysis to interested parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties are invited to comment on the preliminary results of this review. Pursuant to 19 CFR 351.309(c)(1)(ii), interested parties may submit case briefs no later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the time limit for filing case briefs.
Pursuant to 19 CFR 351.310(c), any interested party may request a hearing within 30 days of the publication of this notice in the
We intend to issue the final results of this administrative review, including the results of our analysis of issues raised by the parties in the written comments, within 120 days of publication of these preliminary results in the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on diffusion-annealed, nickel-plated flat-rolled steel products (certain nickel-plated, flat-rolled steel) from Japan.
Effective June 6, 2017.
Brian Davis, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–7924, respectively.
On May 2, 2016, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on certain nickel-plated, flat-rolled steel from Japan.
The diffusion-annealed, nickel-plated flat-rolled steel products included in this order are flat-rolled, cold-reduced steel products, regardless of chemistry; whether or not in coils; either plated or coated with nickel or nickel-based alloys and subsequently annealed (
Imports of merchandise included in the scope of this order are classified primarily under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7212.50.0000 and 7210.90.6000, but may also be classified under HTSUS subheadings 7210.70.6090, 7212.40.1000, 7212.40.5000, 7219.90.0020, 7219.90.0025, 7219.90.0060, 7219.90.0080, 7220.90.0010, 7220.90.0015, 7225.99.0090, or 7226.99.0180. The foregoing HTSUS subheadings are provided only for convenience and customs purposes. The written description of the scope of this order is dispositive.
Subsequent to the initiation of this administrative review, the Department received a timely submission from NSSMC certifying that it did not have sales, shipments, or exports of subject merchandise to the United States during the POR.
The Department is conducting this review in accordance with section 751(a)(2) of the Act. For Toyo Kohan, export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
The Preliminary Decision Memorandum is a public document and is on file electronically
We preliminarily determine that, for the period May 1, 2015, through April 30, 2016, the following dumping margin exists:
The Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results of review within five days after the date of publication of this notice.
Parties who submit arguments in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments raised in the case and rebuttal briefs.
The Department intends to publish the final results of this administrative review, including the results of its analysis of issues addressed in any case or rebuttal brief, no later than 120 days after publication of the preliminary results, unless extended.
Upon completion of this administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.
For entries of subject merchandise during the POR produced by Toyo Kohan for which it did not know its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for intermediate company(ies) involved in the transaction.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Toyo Kohan will be that established in the final results of this administrative review (except, if the rate is zero or
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h)(1).
Enforcement and Compliance, International Trade Administration, Commerce.
On April 10, 2017, The Department of Commerce (the Department) published a notice of initiation of an administrative review of the antidumping duty order on small diameter graphite electrodes from the People's Republic of China (PRC). Based on the timely withdrawal of the requests for review of certain companies, we are now rescinding this administrative review for the period February 1, 2016 through January 31, 2017 with respect to 191 companies.
Effective June 6, 2017.
Dennis McClure or John Anwesen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–5973 or (202) 482–0131, respectively.
On February 8, 2017, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on small diameter graphite electrodes from the PRC for the period of review (POR) February 1, 2016, through January 31, 2017.
On February 28, 2017, SGL Carbon LLC and Superior Graphite Co. (the petitioners) requested an administrative review of the order for 194 producers and/or exporters of the subject merchandise.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation of the requested review. In this case, the petitioners timely withdrew their review request, in part, by the 90-day deadline, and no other party requested an administrative review of the antidumping duty order. Therefore, we are rescinding the administrative review of the antidumping duty order on small diameter graphite electrodes from the PRC for the period February 1, 2016, through January 31, 2017, with respect to the 191 for which all review requests were withdrawn. The review will continue with respect to the remaining three companies: (1) Fangda Group;
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the companies for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We intend to issue and publish this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Commerce.
The Department of Commerce (the Department) is rescinding the administrative review of the antidumping duty order on certain preserved mushrooms (mushrooms) from India for the period of February 1, 2016 through January 31, 2017.
Effective June 6, 2017.
Katherine Johnson or Denisa Ursu, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; Telephone: (202) 482–4929 or (202) 482–2285, respectively.
On February 8, 2017, the Department published in the
On February 28 2017, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), the Department received a timely request from Himalya International Limited and Himalya International Inc. (collectively, Himalya) to conduct an administrative review of the antidumping duty order on mushrooms from India manufactured and exported by Himalya International Limited.
On April 10, 2017, the Department published in the
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, if the party that requested the review withdraws its request within 90 days of the date of publication of notice of initiation of the requested review. Himalya withdrew its review request before the 90-day deadline, and no other party requested an administrative review of the antidumping duty order. Therefore, in response to the timely withdrawal of the review request, the Department is rescinding in its entirety the administrative review of the antidumping duty order on mushrooms from India for the review period February 1, 2016 through January 31, 2017.
The Department will instruct U.S. Customs and Border Protection (CBP) to
This notice serves as the only reminder to importers whose entries will be liquidated as a result of this rescission notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement may result in the presumption that reimbursement of antidumping duties and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is published in accordance with section 751 of the Act and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain steel nails from the Socialist Republic of Vietnam (Vietnam). The period of review (POR) is December 29, 2014, through June 30, 2016. The Department preliminarily determines that Truong Vinh Ltd. (Truong Vinh), Rich State, Inc. (Rich State), and Dicha Sombrilla Co., Ltd. (Dicha Sombrilla) did not demonstrate their eligibility for a separate rate and are, therefore, part of the Vietnam-wide entity. Further, because Mid Continent Steel & Wire, Inc. (the petitioner) withdrew its request for review of eight companies, we are rescinding the administrative review with regard to them. Interested parties are invited to comment on these preliminary results.
Effective June 6, 2017.
Chelsey Simonovich or Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1979 or (202) 482–6312, respectively.
On July 13, 2015, the Department published in the
The merchandise covered by this order is certain steel nails having a nominal shaft length not exceeding 12 inches. Certain steel nails subject to this order are currently classified under HTSUS subheadings 7317.00.55.02, 7317.00.55.03, 7317.00.55.05, 7317.00.55.07, 7317.00.55.08, 7317.00.55.11, 7317.00.55.18, 7317.00.55.19, 7317.00.55.20, 7317.00.55.30, 7317.00.55.40, 7317.00.55.50, 7317.00.55.60, 7317.00.55.70, 7317.00.55.80, 7317.00.55.90, 7317.00.65.30, 7317.00.65.60 and 7317.00.75.00. Certain steel nails subject to this order also may be classified under HTSUS subheadings 7907.00.60.00,
On October 5, 2016, the petitioner withdrew its request for review with respect to the following eight companies: Astrotech Steels Private Limited; Blue Moon Logistics Private Ltd.; Bollore Logistics Vietnam Co. Ltd.; Dahnay Logistics Private Ltd; FGS Logistics Co. Ltd.; Honour Lane Shipping Ltd; SDV Vietnam Co. Ltd.; and United Nail Products Co. Ltd.
The Vietnam-wide entity will not be under review unless a party specifically requests, or the Department self-initiates, a review of the entity.
The Department is conducting this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our conclusions,
The Department preliminarily determines that the following weighted-average dumping margins exist for the period December 29, 2014, through January 30, 2016:
Normally, the Department discloses to interested parties the calculations performed for the preliminary results within five days of the publication of this notice in accordance with 19 CFR 351.224(b). However, because the Department preliminarily applied the Vietnam-entity margin to the mandatory respondents in this administrative review, there are no calculations to disclose. Interested parties may submit case briefs not later than 30 days after the date of publication of this notice in the
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice.
Unless extended, the Department intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from Vietnam entered, or withdrawn from warehouse,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Enforcement and Compliance, International Trade Administration, Commerce.
The Department of Commerce (the Department) is rescinding the administrative review of the countervailing duty (CVD) order on certain magnesia carbon bricks (MC Bricks) from the People's Republic of China (PRC) for the period January 1, 2015, through December 31, 2015.
Effective June 6, 2017.
Gene H. Calvert, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone (202) 482–3586.
On November 9, 2016, based on a timely request for review by the Magnesia Carbon Bricks Fair Trade Committee (Fair Trade Committee),
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation of the requested review. In this case, the Fair Trade Committee timely withdrew its request for review within the 90-day deadline, and no other party requested an administrative review of the CVD order. Therefore, in response to the timely withdrawal of the request for review, and in accordance with 19 CFR 351.213(d)(1), we are rescinding the administrative review of the CVD order on MC Bricks from the PRC for the period January 1, 2015, through December 31, 2015, in its entirety.
The Department will instruct CBP to assess CVD duties on all appropriate entries. Because this administrative review is being rescinded in its entirety, the entries to which this administrative review pertain shall be assessed CVD duties that are equal to the cash deposits of estimated CVD duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice in the
This notice serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO, in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or the conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is published in accordance with section 751 of the Act and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Commerce.
In response to a request by interested parties, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on welded carbon steel standard pipe and tube products (welded pipe and tube) from Turkey. The period of review (POR) is May 1, 2015, to April 30, 2016. This review covers 14 companies. The preliminary results are listed below in the section titled “Preliminary Results of Review.” Interested parties are invited to comment on these preliminary results.
Effective June 6, 2017.
Fred Baker or Chelsey Simonovich; AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: 202–482–2924 or 202–482–1979, respectively.
The Department published the notice of initiation of this administrative review
On May 11, 2017, the Department extended the deadline for issuing its preliminary results of this administrative review to May 31, 2017.
The merchandise subject to the order is welded pipe and tube. The welded pipe and tube subject to the order is currently classifiable under subheading 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS subheading is provided for convenience and customs purposes. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.
The Department is conducting this review in accordance with section 751(a)(1)(B) and (2) of the Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
On July 18, 2016, Erbosan submitted a letter to the Department certifying that it had no sales, shipments, or entries of the subject merchandise to the United States during the POR.
Based on the foregoing, we preliminarily determine that Erbosan, Borusan Birlesik, Borusan Gemlik, Borusan Ihracat, Borusan Ithicat, and Tubeco each had no shipments during the POR. Also, consistent with our practice, the Department finds that it is not appropriate to rescind the review with respect to these six companies, but rather to complete the review with respect to them, and to issue appropriate instructions to CBP based on the final results of this review.
Furthermore, as noted above, Borusan Istikbal also submitted a no-shipment certification on August 8, 2017. However, we continue to find Borusan Istikbal to be part of the single entity, Borusan, and we find no record evidence that warrants altering this treatment. Therefore, because we find Borusan to have had shipments during this POR, we have not made a preliminary determination of no-shipments with respect to Borusan Istikbal.
The statute and the Department's regulations do not address the establishment of a rate to be applied to companies not selected for examination when the Department limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, the Department looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted average of the estimated weighted average dumping margins established for exporters and producers individually investigated, excluding any zero or
In this review, we have preliminarily calculated a weighted-average dumping margin for Borusan that is not zero,
As a result of this review, we preliminarily determine that the weighted-average dumping margins for the period May 1, 2015 through April 30, 2016 are as follows:
The Department intends to disclose to interested parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS, within 30 days after the date of publication of this notice.
In order to be properly filed, all ACCESS submissions must successfully receive an electronically filed document in its entirety by 5 p.m. Eastern Time.
Unless otherwise extended, the Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries in accordance with 19 CFR 351.212(b)(1). We intend to issue instructions to CBP 15 days after the date of publication of the final results of this review.
If either Borusan's or Toscelik's weighted-average dumping margin is not zero or
For the companies which were not selected for individual review, we will assign an assessment rate based on the methodology described in the “Rate for Non-Examined Companies” section, above.
With respect to Erbosan, Borusan Birlesik, Borusan Gemlik, Borusan Ihracat, Borusan Ithicat, and Tubeco, if we continue to find that these companies had no shipments of subject merchandise in the final results, we will instruct CBP to liquidate any existing entries of merchandise produced by these companies, but exported by other parties, at the rate for the intermediate reseller, if available, or at the all-others rate.
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Toscelik will be zero, unless there is change in Toscelik's dumping margin in the final results of this review; (2) the cash deposit rate for Borusan will be equal to the weighted-average dumping margin established in the final results of this review, except if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(1)(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty (AD) order on aluminum extrusions from the People's Republic of China (PRC). The period of review (POR) is May 1, 2015, through April 30, 2016. These preliminary results cover 191 companies and the PRC-wide entity for which an administrative review was initiated. The PRC-wide entity did not respond to the Department's initial quantity and value questionnaires (Q&Vs), and therefore the Department is preliminarily applying adverse facts available (AFA) to the PRC-wide entity. The Department selected the following companies as mandatory respondents: Kam Kiu Aluminium Products Sdn. Bhd. (Kam Kiu) and tenKsolar (Shanghai) Co., Ltd. (tenKsolar). The Department preliminarily determines that Kam Kiu did not demonstrate eligibility for a separate rate and is, therefore, part of the PRC-wide entity. The Department further preliminarily determines that because we lack sufficient record information to allow the Department to calculate a margin for tenKsolar's reported sales of subject merchandise into the United States during the POR, the rate applied to tenKsolar's merchandise upon entry continues to be the AD rate applied to tenKsolar, except to adjust for countervailable duty (CVD) subsidies determined under the parallel aluminum extrusions CVD order. If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on these preliminary results.
Effective June 6, 2017.
Deborah Scott or Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone:
On July 7, 2016, the Department published the notice of initiation of the administrative review of the AD order on aluminum extrusions from the PRC
For a complete description of the events that followed the initiation of this administrative review,
The merchandise covered by the
Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 6603.90.8100, 7616.99.51, 8479.89.94, 8481.90.9060, 8481.90.9085, 9031.90.9195, 8424.90.9080, 9405.99.4020, 9031.90.90.95, 7616.10.90.90, 7609.00.00, 7610.10.00, 7610.90.00, 7615.10.30, 7615.10.71, 7615.10.91, 7615.19.10, 7615.19.30, 7615.19.50, 7615.19.70, 7615.19.90, 7615.20.00, 7616.99.10, 7616.99.50, 8479.89.98, 8479.90.94, 8513.90.20, 9403.10.00, 9403.20.00, 7604.21.00.00, 7604.29.10.00, 7604.29.30.10, 7604.29.30.50, 7604.29.50.30, 7604.29.50.60, 7608.20.00.30, 7608.20.00.90, 8302.10.30.00, 8302.10.60.30, 8302.10.60.60, 8302.10.60.90, 8302.20.00.00, 8302.30.30.10, 8302.30.30.60, 8302.41.30.00, 8302.41.60.15, 8302.41.60.45, 8302.41.60.50, 8302.41.60.80, 8302.42.30.10, 8302.42.30.15, 8302.42.30.65, 8302.49.60.35, 8302.49.60.45, 8302.49.60.55, 8302.49.60.85, 8302.50.00.00, 8302.60.90.00, 8305.10.00.50, 8306.30.00.00, 8414.59.60.90, 8415.90.80.45, 8418.99.80.05, 8418.99.80.50, 8418.99.80.60, 8419.90.10.00, 8422.90.06.40, 8473.30.20.00, 8473.30.51.00, 8479.90.85.00, 8486.90.00.00, 8487.90.00.80, 8503.00.95.20, 8508.70.00.00, 8515.90.20.00, 8516.90.50.00, 8516.90.80.50, 8517.70.00.00, 8529.90.73.00, 8529.90.97.60, 8536.90.80.85, 8538.10.00.00, 8543.90.88.80, 8708.29.50.60, 8708.80.65.90, 8803.30.00.60, 9013.90.50.00, 9013.90.90.00, 9401.90.50.81, 9403.90.10.40, 9403.90.10.50, 9403.90.10.85, 9403.90.25.40, 9403.90.25.80, 9403.90.40.05, 9403.90.40.10, 9403.90.40.60, 9403.90.50.05, 9403.90.50.10, 9403.90.50.80, 9403.90.60.05, 9403.90.60.10, 9403.90.60.80, 9403.90.70.05, 9403.90.70.10, 9403.90.70.80, 9403.90.80.10, 9403.90.80.15, 9403.90.80.20, 9403.90.80.41, 9403.90.80.51, 9403.90.80.61, 9506.11.40.80, 9506.51.40.00, 9506.51.60.00, 9506.59.40.40, 9506.70.20.90, 9506.91.00.10, 9506.91.00.20, 9506.91.00.30, 9506.99.05.10, 9506.99.05.20, 9506.99.05.30, 9506.99.15.00, 9506.99.20.00, 9506.99.25.80, 9506.99.28.00, 9506.99.55.00, 9506.99.60.80, 9507.30.20.00, 9507.30.40.00, 9507.30.60.00, 9507.90.60.00, and 9603.90.80.50.
The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99, as well as under other HTSUS chapters. In addition, fin evaporator coils may be classifiable under HTSUS numbers: 8418.99.80.50 and 8418.99.80.60. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this
On January 3, 2017, the Department extended the period of time for issuing the preliminary results of this review until May 11, 2017.
Pursuant to 19 CFR 351.213(d)(1), based on the timely withdrawal of the requests for review, we are partially rescinding this administrative review with respect to 181 of the 191 companies named in the
The Department is conducting this review in accordance with section 751(a)(1)(B) of the Act. For a full description of the methodology underlying our preliminary results,
Based on information submitted by tenKsolar, we preliminarily find that we lack sufficient record information to allow the Department to calculate a margin for tenKsolar's reported sales of subject merchandise during the POR.
In the
Mandatory respondent Kam Kiu submitted a SRC,
The Department did not receive a SRA or SRC from any of the other entities remaining under review. As a result, we preliminarily determine that the following entities are not eligible for a separate rate in this administrative review: (1) Atlas Integrated Manufacturing Ltd.; (2) Classic & Contemporary Inc.; (3) Dongguan Golden Tiger Hardware Industrial Co., Ltd.; (4) Jiaxing Jackson Travel Products Co., Ltd.; (5) Taishan City Kam Kiu Aluminium Extrusion Co., Ltd.; (6) Shenyang Yuanda Aluminium Industry Engineering Co. Ltd.; (7) Sincere Profit Limited; and (8) Suzhou New Hongji Precision Part Co.
The Department preliminarily determines that the use of facts otherwise available is warranted with respect to the PRC-wide entity, in accordance with sections 776(a)(2)(A) and (C) of the Act. The Department issued a Q&V questionnaire to the PRC-wide entity on December 2, 2016;
Further, pursuant to section 776(b) of the Act, the Department preliminarily determines that, because the PRC-wide entity failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information, an adverse inference is warranted.
We preliminarily find that the following entities are part of the PRC-wide entity in this administrative review because they failed to submit a Q&V response, a SRA, a SRC, or (in the case of Kam Kiu) were selected as a mandatory respondent and failed to respond to the AD questionnaire: (1) Kam Kiu; (2) Atlas Integrated Manufacturing Ltd.; (3) Classic & Contemporary Inc.; (4) Dongguan Golden Tiger Hardware Industrial Co., Ltd.; (5) Jiaxing Jackson Travel Products Co., Ltd.; (6) Taishan City Kam Kiu Aluminium Extrusion Co., Ltd.; (7) Shenyang Yuanda Aluminium Industry Engineering Co. Ltd.; (8) Sincere Profit Limited; and (9) Suzhou New Hongji Precision Part Co.
The Department's change in policy regarding conditional review of the PRC-wide entity applies to this administrative review.
Because no mandatory respondent established eligibility for an adjustment under section 777A(f) of the Act for countervailable domestic subsidies, for these preliminary results, the Department did not make an adjustment pursuant to section 777A(f) of the Act for countervailable domestic subsidies for the separate-rate recipients.
Pursuant to section 772(c)(1)(C) of the Act, we made an adjustment for countervailable export subsidies for tenKsolar. We calculated this adjustment as the simple average of the countervailable export subsidies determined for the mandatory respondents in the 2014 (
Pursuant to section 772(c)(1)(C) of the Act, we also made an adjustment for countervailable export subsidies for the PRC-wide entity. We adjusted the PRC-wide entity cash deposit rate by the lowest countervailable export subsidy determined for the mandatory respondents in the 2014 (
The Department preliminarily determines that the following weighted-average dumping margins exist for the 2015–2016 POR:
Additionally, as explained above, the Department preliminarily determines that the following companies are part of the PRC-wide entity: (1) Kam Kiu; (2) Atlas Integrated Manufacturing Ltd.; (3) Classic & Contemporary Inc.; (4) Dongguan Golden Tiger Hardware Industrial Co., Ltd.; (5) Jiaxing Jackson Travel Products Co., Ltd.; (6) Taishan City Kam Kiu Aluminium Extrusion Co., Ltd.; (7) Shenyang Yuanda Aluminium Industry Engineering Co. Ltd.; (8) Sincere Profit Limited; and (9) Suzhou New Hongji Precision Part Co.
Normally, the Department discloses to interested parties the calculations performed in connection with its preliminary results within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). However, because the Department did not calculate weighted-average dumping margins for either of the individually examined companies, Kam Kiu and tenKsolar, in this review, nor for the PRC-wide entity, there are no calculations to disclose.
Interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
All submissions, with limited exceptions, must be filed electronically using ACCESS.
Unless otherwise extended, the Department intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results of this review, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
We intend to instruct CBP to liquidate entries containing subject merchandise exported by the PRC-wide entity at the PRC-wide rate. Additionally, if the Department determines that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number will be liquidated at the PRC-wide rate.
For the companies for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). We will instruct CBP accordingly.
The following cash deposit requirements for estimated antidumping duties, when imposed, will apply to all shipments of subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) If the companies preliminarily determined to be eligible for a separate rate receive a separate rate in the final results of this administrative review, their cash deposit rate will be equal to the weighted-average dumping margin established in the final results of this review, as adjusted for domestic and export subsidies (except, if that rate is
These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a preliminary reminder to importers of
We are issuing and publishing notice of these preliminary results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain stilbenic optical brightening agents (OBAs) from Taiwan. The period of review (POR) is May 1, 2015, through April 30, 2016. The review covers one producer/exporter of the subject merchandise, Teh Fong Ming International Co., Ltd. (TFM). We preliminarily find that TFM has not sold subject merchandise at less than normal value. Interested parties are invited to comment on these preliminary results.
Effective June 6, 2017.
Catherine Cartsos or Minoo Hatten, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1757, and (202) 482–1690, respectively.
The merchandise subject to the
The Department is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Constructed export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. In addition, the Department has relied on partial adverse facts available under sections 776(a) and (b) of the Act. For a full description of the methodology underlying our conclusions,
We preliminarily determine that a weighted-average dumping margin of 0.00 percent exists for TFM for the period May 1, 2015, through April 30, 2016.
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the preliminary results.
Pursuant to 19 CFR 351.309(c)(ii), interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a
The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1).
Upon issuance of the final results, the Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries covered by this review. If TFM's weighted-average dumping margin is above
For entries of subject merchandise during the POR produced by TFM for which it did not know its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of OBAs from Taiwan entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for TFM will be equal to the weighted-average dumping margin established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in these reviews but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in these reviews, a prior review, or the original investigation but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) the cash deposit rate for all other manufacturers or exporters will continue to be 6.19 percent.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h)(1).
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 August 7, 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 Suja Hall, (907) 586–7462.
This request is for an extension of a current information collection.
eLandings, seaLandings, and tLandings are data entry components of the Alaska Interagency Electronic Reporting System (IERS), which is a collaborative program run by the National Marine Fisheries Service (NMFS) Alaska Regional Office, the Alaska Department of Fish and Game (ADF&G), and the International Pacific Halibut Commission (IPHC). eLandings, seaLandings, and tLandings provide the Alaska fishing industry with a consolidated electronic means of reporting production and landings of commercial fish and shellfish to multiple management agencies with a single reporting system. NMFS collects groundfish harvest and production data for fishery management plan species in the Exclusive Economic Zone (EEZ). ADF&G collects harvest data for groundfish species taken in State of Alaska waters and has responsibility for some fisheries in the EEZ, such as lingcod and black rockfish. ADF&G and NMFS cooperatively manage the Crab Rationalization Program fisheries in the Bering Sea and Aleutian Islands Management Area. NMFS and IPHC cooperatively manage Individual Fishing Quota (IFQ) for Pacific halibut and sablefish in both State waters and in the EEZ.
eLandings is a web-based application used by vessels and processors to report groundfish, crab, Pacific halibut, and sablefish production and landings data. Processors with limited internet access, such as the at-sea fleet, use eLandings client desktop software named seaLandings, provided by NMFS, and submit the required reports as email attachments or via direct transmit over the Internet. Once data are entered and submitted, the User must print daily through eLandings each landing report, production report, logbook report, and if an IFQ delivery, each IFQ receipt. The parties to the information must acknowledge the accuracy of the printed reports by signing them and entering the date signed. In addition, the User must make the printed copies available upon request of NMFS observers and authorized officers.
tLandings is a software application for tender vessels that records landings data on a USB flash drive and creates a printable fish ticket. The fish ticket is printed on board the tender vessel and signed by the delivering catcher vessel operator. When the tender vessel delivers to the shoreside processor, the shoreside processor uploads the landing information on the USB flash drive into eLandings.
Some of the benefits of IERS include improved data quality, automated processing of data, improved process for correcting or updating information, availability of more timely data for fishery managers, and reduction of duplicative reporting of similar information to multiple agencies.
Methods of submittal include online and email. Clients with limited internet access, such as the at-sea fleet, use seaLandings client desktop software and submit landing reports as email attachments or over the Internet. The vessels use satellite communications, which may or may not include telephone, Internet, text messaging, email, and email attachment capabilities.
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 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 August 7, 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 Scott Miller, (907) 586–7228.
This request is for extension of a currently approved information collection.
Vessel Monitoring System (VMS) units integrate global positioning system (GPS) and communications electronics into a single, tamper-resistant package to automatically determine the vessel's position several times per hour. The units can be set to transmit a vessel's location periodically and automatically to an overhead satellite in real time. In most cases, the vessel owner is unaware
Automatic GPS position reporting starts after VMS transceiver installation and power activation on board the vessel. The unit is pre-configured and tested for NMFS VMS operations. Vessel operators who purchase and install a VMS on a vessel must fax a one-time VMS check-in report to NMFS. Thereafter, submittal is automatic by satellite.
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; proposed incidental harassment authorization; request for comments and information.
NMFS has received a request from the California Department of Transportation (CALTRANS) for an incidental take authorization to take small numbers of six species of marine mammals, by harassment, incidental to the dismantling of the original East Span of the San Francisco-Oakland Bay Bridge (SFOBB) in the San Francisco Bay (SFB), California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities.
Comments and information must be received no later than July 6, 2017.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Dale Youngkin, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application and supporting documents, as well as a list of references cited in this document, may be obtained at
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill, or attempt to harass, hunt, capture, or kill any marine mammal.
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
On April 5, 2017, CALTRANS submitted a request to NMFS for an IHA to take marine mammals incidental to the dismantling of the original East Span of the SFOBB in the San Francisco Bay. On May 1, 2017, NMFS deemed the application adequate and complete. CALTRANS requested authorization for incidental take by harassment only and NMFS concurs that mortality is not expected to result from this activity. NMFS is proposing to issue an IHA that will authorize take by Level B harassment of Pacific harbor seal, California sea lion, northern elephant seal, northern fur seal, harbor porpoise, and bottlenose dolphin incidental to CALTRANS' activities. As described in the Overview section, previous IHAs have been issued to CALTRANS for similar activities, specifically for the use of mechanical dismantling and controlled blasts to implode piers of the original East Span of the SFOBB.
CALTRANS proposes removal of the original East Span of the SFOBB by mechanical dismantling and by use of controlled charges to implode 13 piers (Piers E6–E18) into their open cellular chambers below the mudline. Activities associated with dismantling the original East Span may potentially result in incidental take of marine mammals due to the use of highly controlled charges to dismantle the marine foundations of the piers.
Several previous one-year IHAs have been issued to CALTRANS for pile driving/removal and construction of the new SFOBB East Span beginning in 2003. NMFS has issued 10 IHAs to CALTRANS for the SFOBB Project. The first five IHAs (2003, 2005, 2007, 2009, and 2011) addressed potential impacts associated with pile driving for the construction of the new East Span of the SFOBB. IHAs issued in 2013, 2014 and July 2015 addressed activities associated with both constructing the new East Span and dismantling the original East Span, specifically addressing vibratory pile driving, vibratory pile extraction/removal, attenuated impact pile driving, pile proof testing, and mechanical dismantling of temporary and permanent marine foundations. On September 9, 2015, NMFS issued an IHA to CALTRANS for incidental take associated with the demolition of Pier E3 of the original SFOBB by highly controlled explosives (80 FR 57584; September 24, 2015). On September 30, 2016, NMFS issued an IHA authorizing the incidental take of marine mammals associated with both pile driving/removal and controlled implosion of Piers E4 and E5 (81 FR 67313). CALTRANS is requesting this IHA to continue dismantling the original East Span of the SFOBB using mechanical means as well as five to six implosion events to dismantle 13 piers (Piers E6–E18). CALTRANS does not anticipate any further in-water pile installation or pile removal for the SFOBB project, and is not requesting coverage under this IHA to conduct pile driving/removal activities.
The demolition of Piers E6 through E18 through controlled implosion are planned to begin in September 2017. Implosion events would consist of the use of highly controlled charges to implode 1 to 4 piers per event, amounting to a total of 5 to 6 implosion events to dismantle the 13 piers (Piers E6–E18). CALTRANS is requesting issuance of an IHA for a period of one year. Therefore, an IHA, if issued, would cover the period from September 1, 2017 through August 31, 2018.
The SFOBB project area is located in the central San Francisco Bay (SFB or Bay), between Yerba Buena Island (YBI) and the city of Oakland. The western limit of the project area is the east portal of the YBI tunnel, located in the city of San Francisco. The eastern limit of the project area is located approximately 1,312 feet (ft) (400 meters (m)) west of the Bay Bridge toll plaza, where the new and former spans connect with land at the Oakland Touchdown (OTD) in the city of Oakland.
CALTRANS proposes the removal of Piers E6 through E18 (13 piers) of the original East Span by use of mechanical dismantling and controlled charges to implode each pier into its open cellular chambers below the mudline. A Blast Attenuation System (BAS) will be used to minimize potential impacts on biological resources in the Bay. Both NMFS and CALTRANS believe that the results from the 2015 Pier E3 Demonstration Project implosion, as well as the results from the 2016 implosions of Piers E4 and E5, support the use of controlled charges as a more expedient method of removal that will cause less environmental impact compared to mechanical methods using a dry (fully dewatered) cofferdam.
Piers E6 through E18 of the original East Span are located between the OTD area and YBI, and just south of the SFOBB new East Span. These piers consist of lightly reinforced concrete cellular structures that are supported by timber piles driven into the Bay mud and occupy areas below the mudline, within the water column, and above the water line of the Bay. Unlike Piers E3, E4, and E5, which were dismantled using highly controlled charges previously, Piers E6 through E18 do not extend deep below the mudline. The timber piles and concrete slabs that are below approved removal limits will remain in place. Piers E6, E7, and E8 supported the 504-ft bridge spans of the original SFOBB. Pier E9 is located at the connection point between the 504-ft bridge spans and the 288-ft bridge spans. Piers E10 through E18 supported the original SFOBB 288-ft bridge spans.
The use of controlled charges would greatly reduce in-water work periods and shorten the overall duration of marine foundation removal compared with mechanical removal. Because of the similar structures for each pier, each would be removed following the same five steps:
• Mechanical dismantling of the pier cap and concrete pedestals;
• Drilling bore holes into the marine foundation;
• Installing and testing the BAS;
• Installing charges, activating the BAS, and imploding the pier; and
• Managing and removing remaining dismantling debris.
Details of these steps are provided below.
For all piers, support barges will be used to move hydraulic excavators equipped with hoe rams, shearing attachments, drills, saws, and other equipment including cutting lances and torches to be used during the mechanical dismantling. A barge-mounted crane will be used to move equipment onto and off each pier.
For all piers, the concrete pedestals and pier cap will be removed by mechanical means using tools including those listed above to break the concrete structure to pieces. Concrete rubble and rebar will be managed using excavators and cranes that will be mounted with buckets. Throughout concrete dismantling operations on each pier, support platforms will be installed to provide a working surface for the
All concrete rubble from mechanical dismantling of concrete pedestals will be taken off-site for disposal. Rubble will be loaded onto receiving barges to be taken to Berth 9 in the Port of Oakland to be sorted and disposed of at an approved upland facility. The pier caps covering the central chambers will be dismantled last and will be broken with a ram hoe. The broken pier caps will remain in the hollow void during the controlled blasting, and all other mechanical dismantling activities would occur above the waterline.
After the mechanical dismantling operations are complete, access platforms will be installed on top of each pier to support the drilling equipment. The exposed interior cell walls, buttress walls, and outside walls will be drilled from the top down, to remove concrete and create boreholes to just below the controlled blasting removal limit for each pier. Boreholes that are drilled in areas that are inundated with water (
Pier 9 has additional buttress walls compared to other piers. Drilling holes for buttress walls on Pier 9 will be done by the same method that was used for the buttress wall of Pier 3 (Demonstration Project). Divers will cut notches into the buttress walls and will install conduit to the work platform on top of the pier. The drilling will be done within the casings from the work platform.
The BAS that will be used at Piers E6 to E 18 is the same system that was successfully used for Piers E3 (Demonstration Project), E4, and E5. The BAS is a modular system of pipe manifold frames, placed around each pier and fed by air compressors to create a curtain of air. The BAS will be activated before and during implosion. As shown during previous implosions, the BAS will help minimize noise and pressure waves generated during each controlled blast, to minimize potentially adverse effects on biological resources. Each BAS frame is approximately 50.5 ft (15.4 m) long by 6 ft (1.8 m) wide. The BAS to be used at Piers E6 through E18 will be same system that was used at Piers E3, E4, and E5, and will meet the same specifications.
To remove the 13 pier foundations of Piers E6 through E18 in 2017, multiple pier implosions may be performed on the same day, sequentially. Smaller piers will be combined into single blast events. The implosion of each pier within the blast events will be spaced 1 to 5 seconds apart. All pier implosion events involving multiple piers will use fewer explosives and will have shorter blast durations than the previous implosion of Pier E3. Up to 2 piers that formerly supported either the 504-foot spans of the bridge may be imploded on the same day. Two to four small piers (that formerly supported the 288-foot spans) may be imploded on the same day. A total of five to six pier implosion events, consisting of the implosion of one to four piers per event, may be required. An individual BAS will be installed around each pier included in a multiple-pier implosion event.
The complete BAS will be installed and tested during the weeks leading up to each controlled blast. Before installing the BAS, CALTRANS will move any existing debris on the Bay floor that may interrupt proper installation of the BAS. Existing debris identified as a risk to proper installation of the BAS will be moved outside the path of the BAS layout. Each BAS frame will be lowered to the bottom of the Bay by a barge-mounted crane and positioned into place. Divers will be used to assist frame placement, and to connect air hoses to the frames. Frames will be situated to contiguously surround the pier. Each frame will be weighted to negative buoyancy for activation. Compressors will provide enough pressure to achieve a minimal air volume fraction of three to four percent, consistent with the successful use of BAS systems in past controlled blasting activities, including Pier E3 (CALTRANS 2016 and CALTRANS 2017). System performance is anticipated to provide 70 to 80 percent sound and pressure attenuation, based on the results from the previous controlled blasting activities (CALTRANS 2016, 2017).
At the beginning of the implosion season, test blasts will be conducted within the completely installed and operating BAS so that the hydroacoustic monitoring equipment will be properly triggered and functional before each pier implosion event. A key requirement of the implosion involves accurately capturing hydroacoustic information from the controlled blast. To accomplish this, a smaller test charge will be used to trigger recording instrumentation. Multiple test blast events may be required to verify proper instrument operation and calibrate the equipment for the implosion event. These same instruments and others of the same type will use high-speed recording devices to capture hydroacoustic data at both near-field and far-field monitoring locations during the implosion.
Test charges will be scheduled to occur within two weeks of the first implosion scheduled for the implosion season and after the BAS is positioned into place and is functional. Additional test blasts may be needed prior to subsequent implosion events to ensure triggering of the data acquisition and recording instruments as well as calibration of the equipment. The BAS will be operational during all tests. Tests will use a charge weight of approximately 18 grains (0.0025 pound) or less. The test charge will be placed along one of the longer faces of the pier and inside the BAS while it is operating. Results from test blasts that occurred during the Piers E3–E5 indicate that these test blasts did not reach or exceed marine mammal threshold criteria beyond the bubble flux of the BAS (See Appendix A of the IHA application and CALTRANS 2016). Therefore, no take of marine mammals is anticipated due to test blasts.
Before pier removal via controlled blasting, the bore holes in the pier will be loaded with controlled charges. Individual cartridge charges, using electronic blasting caps versus pumpable liquid blasting agents, have been selected to provide greater control and accuracy in determining the individual and total charge weights. Use of individual cartridges will allow a refined blast plan that efficiently breaks concrete while minimizing the amount of charges needed.
Boreholes will vary in diameter and depth, and have been designed to provide optimal efficiency in transferring the energy created by the controlled charges to dismantle the pier. Individual charge weights will vary from 20 to 35 pounds (lbs) (9 to 16 kilograms (kg)), and the total charge weight for each controlled blast event will be approximately 2,132 to 15,800 lbs (967 to 7,167 kg). Depending on the
Controlled blasting of Pier E6 will remove concrete by blasting down through the concrete slab and top 3 ft (1 m) of the concrete seal. Controlled blasting of Pier E7 will remove concrete by blasting down through the concrete slab but not the concrete seal. Controlled blasting of Piers E8 through E18 will remove concrete by blasting down through the concrete cellular structure, but not through the concrete slab, seal, and timber piles below. For Pier E6, site conditions will require the pier to be blasted further into the structure to remove the upper 3 ft (1 m) of the concrete seal and remove the structure to the approved removal elevation. Remaining concrete seals and timber piles below the mudline will not be removed.
As stated above, to remove the 13 marine foundations of Piers E6 through E18 in the 2017 season, multiple pier implosions may be performed on the same day, sequentially. Smaller piers will be combined into single blast events. All pier implosion events involving multiple piers will use fewer explosives and will have a shorter total blast duration than the previous implosion of Pier E3.
Following the controlled implosion event and confirmation that the area is safe to work in, construction crews will begin to remove all associated equipment, including barges, compressors, the BAS, and blast mats. CALTRANS expects that a small portion of rubble from each pier will fall outside its respective footprint and/or mound within the footprint of each pier, and will need to be managed after each controlled implosion. The portions of each pier that do not break apart during controlled blasting and remain above the removal limits will be demolished by mechanical means. This may require the use of underwater mechanical equipment, including hydraulic crushing or grinding machinery or diver-operated jackhammers.
Rubble from the controlled implosion of Piers E6 through E18 will be removed down to each pier's respective planned debris removal limit elevation by barge-mounted crane with a clamming bucket. The clamming bucket will be equipped with a GPS unit to accurately guide the movement of the bucket during underwater operation. The planned debris removal limit elevations are shown in Table 1.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).
Seven species, representing seven stocks, of marine mammals may be affected by the SFOBB project. The two most common species observed are the Pacific harbor seal (
We have reviewed CALTRANS' species information, which summarizes available information regarding status and trends, distribution, and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species, for accuracy and completeness. We refer the reader to Chapters 3 and 4 of the CALTRANS IHA application as well as to NMFS' Stock Assessment Reports (SR;
This section includes a summary and discussion of the ways that the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section will consider the context of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. In August 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2016 Acoustic Technical Guidance). Under the NMFS 2016 Acoustic Technical Guidance, there are five marine mammal hearing group categories, with associated generalized hearing ranges as shown in Table 3 (note that animals are less sensitive to sounds at the outer edge of their generalized hearing range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range).
As mentioned previously, six marine mammal species (two cetacean and four pinniped species) are likely to be incidentally taken by the proposed SFOBB controlled pier implosions. Of the two cetacean species, one belongs to the MF cetacean (bottlenose dolphin) hearing group, and one to the HF cetacean hearing group (harbor porpoise). Two species of pinniped are phocid (Pacific harbor seal and northern elephant seal), and two species of pinniped are otariid (California sea lion and northern fur seal). A species' hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.
Explosives are impulsive sounds, which are characterized by short duration, abrupt onset, and rapid decay. The proposed CALTRANS SFOBB work using controlled charges (
Exposure to high intensity sound for a sufficient duration may result in behavioral reactions and auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran
When animals exhibit reduced hearing sensitivity (
For cetaceans, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran
Based on the best available scientific data, NMFS' 2016 Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing includes acoustic thresholds related to PTS and TTS for impulsive sounds that are expressed as weighted, cumulative sound exposure levels (SEL
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark
Masking occurs at the frequency band which the animals utilize. However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (
Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than 3 times in terms of sound pressure level) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). For CALTRANS' proposed SFOBB construction activities, noises from controlled blasting is not likely to contribute to the elevated ambient noise levels in the project area in such a way as to increasing potential for or severity of masking. Baseline ambient noise levels in the Bay are very high due to ongoing shipping, construction and other activities in the Bay, and the sound associated with the controlled blasting activities would be very brief.
Finally, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardson
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.
It is expected that an intense impulse from the proposed controlled blasting of Piers E6 through E18 would have the potential to impact marine mammals in the vicinity of the activity. The majority of impacts would be startle behavioral responses and temporary behavioral modification of marine mammals. However, a few individual animals could be exposed to sound levels that would cause TTS.
The underwater explosion would send a shock wave and blast noise through the water, release gaseous by-products, create an oscillating bubble, and cause a plume of water to shoot up from the water surface. The shock wave and blast noise are of most concern to marine animals. The effects of an underwater explosion on a marine mammal depends on many factors, including the size, type, and depth of both the animal and the explosive charge; the depth of the water column; and the standoff distance between the charge and the animal, as well as the sound propagation properties of the environment. Potential impacts can range from brief effects (such as behavioral disturbance), tactile perception, physical discomfort, slight injury of the internal organs and the auditory system, to death of the animal (Yelverton
Injuries resulting from a shock wave take place at boundaries between tissues of different density. Different velocities are imparted to tissues of different densities, and this can lead to their physical disruption. Blast effects are greatest at the gas-liquid interface (Landsberg 2000). Gas-containing organs, particularly the lungs and gastrointestinal (GI) tract, are especially susceptible (Goertner 1982; Hill 1978; Yelverton
Because the ears are the most sensitive to pressure, they are the organs most sensitive to injury (Ketten 2000). Sound-related damage associated with blast noise can be theoretically distinct from injury from the shock wave, particularly farther from the explosion. If an animal is able to hear a noise, at some level it can damage its hearing by causing decreased sensitivity (Ketten 1995). Sound-related trauma can be lethal or sublethal. Lethal impacts are those that result in immediate death or serious debilitation in or near an intense source and are not, technically, pure acoustic trauma (Ketten 1995). Sublethal impacts include hearing loss, which is caused by exposures to perceptible sounds. Severe damage (from the shock wave) to the ears includes tympanic membrane rupture, fracture of the ossicles, damage to the cochlea, hemorrhage, and cerebrospinal fluid leakage into the middle ear. Moderate injury implies partial hearing loss due to tympanic membrane rupture and blood in the middle ear. Permanent hearing loss also can occur when the hair cells are damaged by one very loud event, as well as by prolonged exposure to a loud noise or chronic exposure to noise. The level of impact from blasts depends on both an animal's location and, at outer zones, on its sensitivity to the residual noise (Ketten, 1995).
The above discussion concerning underwater explosions only pertains to open water detonations in a free field.
Changes in marine mammal behavior are expected to result from acute stress, or startle, responses. This expectation is based on the idea that some sort of physiological trigger must exist to change any behavior that is already being performed, and this may occur due to being startled by the implosion events. The exception to this expectation is the case of behavioral changes due to auditory masking (increasing call rates or volumes to counteract increased ambient noise). Masking is not likely since the CALTRANS' controlled implosion would only consist of five to six short, sequential detonations that last for approximately 3–4 seconds each.
The removal of the SFOBB East Span is not likely to negatively affect the habitat of marine mammal populations because no permanent loss of habitat will occur, and only a minor, temporary modification of habitat will occur due to the addition of sound and activity associated with the dismantling activities.
Project activities will not affect any pinniped haul-out sites or pupping sites. The YBI harbor seal haul-out site is on the opposite site of the island from the SFOBB Project area. Because of the distance and the island blocking the sound, underwater noise and pressure levels from the SFOBB Project will not reach the haul-out site. Other haul-out sites for sea lions and harbor seals are at a sufficient distance from the SFOBB Project area that they will not be affected. The closest recognized harbor seal pupping site is at Castro Rocks, approximately 8.7 miles (mi) (14 kilometers (km)) from the SFOBB Project area. No sea lion rookeries are found in the Bay.
The addition of underwater sound from SFOBB Project activities to background noise levels can constitute a potential cumulative impact on marine mammals. However, these potential cumulative noise impacts will be short in duration and would not occur in biologically important areas, would not significantly affect biologically important activities, and are not expected to have significant environmental effects, as noted in the original FHWA 2001 FEIS for the SFOBB project, incorporated by reference into NMFS' 2003 EA and subsequent Supplemental EAs (2009 and 2015) for the issuance of IHAs for the SFOBB project.
SPLs from pier implosions have the potential to injure or kill fish in the immediate area. During previous pier implosion and pile driving activities, CALTRANS reported mortality to prey species of marine mammals, including northern anchovies and Pacific herring (CALTRANS 2016), averaging approximately 200 fish per implosion event (none of which were ESA-listed species and none of which are managed under a Fishery Management Plan). These few isolated fish mortality events are not anticipated to have a substantial effect on prey species populations or their availability as a food resource for marine mammals.
Studies on explosives also suggest that larger fish are generally less susceptible to death or injury than small fish, and results of most studies are dependent upon specific biological, environmental, explosive, and data recording factors. For example, elongated forms that are round in cross section are less at risk than deep-bodied forms; orientation of fish relative to the shock wave may also affect the extent of injury; and finally, open water pelagic fish, such as those expected to be in the project area, seem to be less affected than reef fishes.
The huge variation in fish populations, including numbers, species, sizes, and orientation and range from the detonation point, makes it very difficult to accurately predict mortalities at any specific site of detonation. Most fish species experience a large number of natural mortalities, especially during early life-stages, and any small level of mortality caused by the CALTRANS' controlled implosion events will likely be insignificant to the population as a whole.
This section provides an estimate of the number of incidental takes proposed for authorization through an IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.
Harassment is the only type of take expected to result from these 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).
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns and/or TTS for individual marine mammals resulting from exposure to noise from the controlled implosions of 13 piers of the original East Span of the SFOBB. Based on the nature of activity and past results from controlled implosions of Piers E3, E4, and E5, Level A harassment is neither anticipated nor proposed to be authorized. The death of a marine mammal is also a type of incidental take. However, as described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.
The distance to marine mammal threshold criteria for implosion activities, and corresponding zones of influence (ZOI) have been determined based on underwater sound and pressure measurements collected during previous activities in the SFOBB Project area. The numbers of marine mammals by stock that may be taken by each type of take were calculated based on distance to the marine mammal threshold criteria, duration of the activity, and the estimated density of each stock in the ZOI. NMFS worked with CALTRANS and adjusted those estimated numbers upwards based on past monitoring data and/or other sightings data in the San Francisco Bay area to come up with a maximum number of potential occurrences for the requested takes, given that the number of marine mammals in the area is highly variable.
No systematic line transect surveys of marine mammals have been performed in the San Francisco Bay. Therefore, the in-water densities of harbor seals, California sea lions, and harbor porpoises were calculated based on marine mammal monitoring conducted intermittently from 2000 to 2016 during observations made during monitoring for the SFOBB construction and demolition activities. The amount of monitoring performed per year varied depending on the frequency and duration of construction activities with the potential to affect marine mammals. During the 251 days of monitoring from 2000 through 2016 (including 15 days of baseline monitoring in 2003), 958 harbor seals, 80 California sea lions, and 9 harbor porpoises were observed within the waters of the SFOBB east span (CLATRANS, 2001, 2004, 2013, 2014, 2015, 2016, 2017). Northern elephant seal density in the project area was calculated from stranding records of the Marine Mammal Center (MMC). Too few observations or strandings of northern fur seals have occurred to determine density estimates. However, take estimates for northern fur seals were made based on stranding data, which was provided by the MMC. Similarly, too few observations of bottlenose dolphins have occurred to determine density estimates. Observations of bottlenose dolphins are primarily west of Treasure Island and concentrated along the nearshore areas of San Francisco south to Redwood City. One individual has been observed near Alameda and is thought to have likely passed by the project area, but no other reports of bottlenose dolphins exist in the project area. Therefore, bottlenose dolphin takes are based on the possibility of a few individuals potentially passing by the project area. Table 5 provides the estimated in-water densities used for calculating take of marine mammals in the SFOBB project area.
Most data on harbor seal populations are collected while the seals are hauled out because they are much easier to count when they are out of the water. In-water density estimates rely on haul-out counts, the percentage of seals not on shore based on radio telemetry studies, and the size of the foraging range of the population. Harbor seal density in the water can vary greatly depending on weather conditions or the availability of prey. For example, during Pacific herring runs further north in the Bay in February 2014 (outside of the hydroacoustic zone for Piers E6 to E18), very few harbor seals were observed foraging near YBI or transiting through the project area for approximately two weeks. Sightings went from a high of 27 harbor seals in one day to no seals observed (CALTRANS 2014). In 2015 and 2016, the number of harbor seals sighted in the project area increased up to 41 seals per day (CALTRANS 2015 and 2016).
Calculated harbor seal density for the proposed project is a per day estimate of harbor seals in a 1 square kilometer (km
Within the SFOBB Project area, California sea lion density was calculated from all observations of animals in the water during SFOBB Project monitoring from 2000 to 2016. These observations included data from baseline, pre, during, and post-pile driving, mechanical dismantling, onshore blasting, and offshore implosion activities. All sea lion observations within a 1 km
Calculated California sea lion density was a per day estimate of sea lions in 1 km
Northern elephant seal density in the project area was calculated from the stranding records of the MMC, from 2004 to 2014. These data included both injured or sick seals and healthy seals. Approximately 100 elephant seals were reported in the Bay during this time; most of these hauled out and likely were sick or starving. The actual number of individuals in the Bay may have been higher because not all individuals would necessarily have hauled out. Some individuals may have simply left the Bay soon after entering because the Bay is not a usual haul-out area for elephant seals. Data from the MMC show several elephant seals stranding on Treasure Island, and one healthy elephant seal was observed resting on the beach in Clipper Cove in 2012. Elephant seal pups or juveniles also may have stranded after weaning in the spring and when they returned to California in the fall (September through November). The density estimate of 0.03 animals/km
Too few observations or strandings of northern fur seals have occurred to determine densities. Juveniles of this species occasionally strand in San Francisco Bay, particularly during El Nino events. During the 2016 El Nino event, northern fur seal juveniles were observed and stranded inside San Francisco Bay more frequently but were still not considered common. The MMC reported rescuing more than 80 stranded northern fur seal pups in 2015 and 2016, but only two to four northern fur seal strandings occurred in the Bay. That number is likely to decrease because the El Nino and warm water blob that affected the species' food resources has dissipated. Requested take was based on qualitative worst-case (and unlikely) estimates assuming six implosion events may occur and assuming presence of three northern fur seals at half (three) of the implosion events.
Too few observations of bottlenose dolphins have occurred to determine density. Observations of bottlenose dolphins primarily have occurred west of Treasure Island and were concentrated along the nearshore area of San Francisco south to Redwood City. One individual has been observed regularly near Alameda and likely passed by the project area, but no other reports of bottlenose dolphins exist in the project area (Perlman 2017). Requested take was based on qualitative worst-case (and unlikely) estimates assuming six implosion events may occur and assuming presence of three bottlenose dolphins at half (three) of the implosion events.
Harbor porpoise density was calculated from all observations during SFOBB Project monitoring, from 2000 to 2016. These observations included data from baseline, pre, during and post-pile driving, and onshore implosion activities. Over this period, the number of harbor porpoises that were observed entering and using the Bay increased. During the 16 years of monitoring in the SFOBB Project area, only 9 harbor porpoises were observed, and all occurred between 2006 and 2015 (including two in 2014 and 5 in 2015). Based on this data, a density estimate of 0.21 animals/km
Utilizing the marine mammal threshold criteria from NMFS' 2016 Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2016), presented in Table 4, distances to these threshold criteria were calculated using the results from previous hydroacoustic monitoring associated with the implosions of Piers E3, E4, and E5. In addition, the criteria for lung injury and mortality to marine mammals is dependent on the mass of the animal and depth of the animal in the water column. Animals that are smaller in mass are more susceptible to injury from impulse pressures from blasting, so the mass of juveniles (6 to 16 months old) from each species was used in the calculations because these would be the smallest animals potentially exposed. As Piers E6 through E18 are in water that ranges from 10 to 40 ft (3 to 12 m), and due to the fact that the species that may be present in the project area surface frequently, and average depth of 20 ft (6 m) was used in the threshold calculations for lung injury and mortality.
Distances to marine mammal threshold criteria were calculated for each of the potential pier implosion scenarios:
• Implosion of Pier E6.
• Implosion of two 504-ft span piers in one implosion event.
• Implosion of two 288-ft span piers in one implosion event.
• Implosion of three 288-ft span piers in one implosion event.
• Implosion of four 288-ft span piers in one implosion event.
Methods used to calculate distances to threshold criteria for the implosion of multiple piers are presented in detail in Appendix C of CALTRANS' application. Table 6 presents the distances calculated to each threshold for each of the anticipated pier implosion scenarios.
The number of marine mammals by stock that may be taken by implosion of Piers E6 through E18 were calculated based on distances to the marine mammal threshold criteria, duration of the activity, and the estimated density of each species in the ZOI (for species with insufficient data to calculate densities, estimated number of takes were based on potential for occurrence as described above). For each pier implosion scenario, the total area of the criteria zone was calculated and multiplied by the density of each species. Combining multiple piers in a single implosion event results in fewer implosion events and, therefore, fewer marine mammals that would potentially be taken. However, take estimates were calculated based on a worst-case scenario of a total of six implosion events.. Based on calculated sound pressure levels and the implementation of avoidance and minimization measures discussed below, no injury (Level A harassment) or mortality is anticipated to occur as a result of the implosion activities and NMFS is not authorizing any Level A takes for this activity. For more detailed information on the number of takes calculated for each implosion scenario, see Table 19 of the CALTRANS IHA application. For spreadsheets showing the calculations that were performed to estimate marine mammal exposures for each pier implosion scenario, see Appendix D of the IHA application. Table 7 provides a summary of the estimated exposure of marine mammals based on calculations using density estimates or past monitoring efforts in cases where density estimates were not able to be calculated (northern fur seal and bottlenose dolphin).
However, the number of marine mammals in the area at any given time is highly variable. Animal movement depends on time of day, tide levels, weather, and availability and distribution of prey species. Therefore, to account for potential high animal density that could occur during the short window of controlled implosion, NMFS worked with CALTRANS and adjusted the estimated number upwards based on past monitoring data and/or other sightings data in the San Francisco Bay area to come up with a maximum number of potential occurrences for the requested takes. These adjustments were based on likely group sizes of these animals and were developed quantitatively to account for variability in animal occurrence and activity.
A summary of the requested number of takes by implosion of Piers E6 through E18 is provided in Table 8.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (the latter is not applicable for this action). NMFS' regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully weigh two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, which considers the nature of the potential adverse impact being mitigated (likelihood, scope, range), as well as the likelihood that the measure will be effective if implemented; and (2) the practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations.
For CALTRANS's proposed controlled implosions of Piers E6 through E18, CALTRANS will utilize the mitigation measures discussed below to minimize the potential impacts to marine mammals in the project vicinity, which were developed and successfully employed for previous controlled implosions of other piers of the original East Span of the SFOBB. The primary purposes of these mitigation measures are to minimize impacts by reducing sound levels from the activities and to monitor for marine mammals within designated exclusion zones and zones of influence (ZOI). Specific proposed mitigation measures are:
Implosion of Piers E6 through E18 would only be conducted during daylight hours, with enough time for pre and post implosion monitoring during daylight hours. Implosion events would also only be conducted during periods with good visibility when the largest exclusion zone can be visually monitored. In addition, to minimize impacts on biological resources, implosion events would be conducted at slack tides between September and November.
Prior to the demolition of Piers E6 through E18, CALTRANS would install a Blast Attenuation System (BAS) as described above to reduce the noise and shockwave from the implosion.
CALTRANS will establish marine mammal exclusion zones (MMEZ) for both the mortality and Level A harassment zone (including PTS, GI track injury, and slight lung injury) using the criteria threshold that extends out the furthest distance (refer to Table 6). As an additional conservative measure to ensure that no marine mammals are taken by Level A harassment, the field-implemented MMEZ will be 20 percent larger than the calculated distances to threshold criteria in Table 6.
The isopleths for PTS for phocids (harbor seal and elephant seal) cover the entire area for both Level A harassment and mortality for all pinnipeds (including California sea lions and northern fur seals), as well as bottlenose dolphins. Therefore, the pinniped and dolphin exclusion zone will be established at the radial distance to the phocid PTS Level A harassment threshold plus an additional 20 percent conservative factor. The harbor porpoise exclusion zone will be established at the radial distance to the high-frequency cetacean PTS Level A harassment threshold plus an additional 20 percent conservative factor (see Table 23 and Figures 12–14 and 17–21 of the IHA application). These MMEZs will be monitored by marine mammal observers (MMOs), and if any marine mammals are observed within the MMEZs, the implosion will be delayed until the animal leaves the area or at least 15 minutes have passed since the last observation of pinnipeds and small cetaceans and at least 30 minutes have passed since the last observation of bottlenose dolphins.
Marine mammal monitoring zones will be established for both behavioral response and TTS (Level B harassment). Hydroacoustic monitoring results from the implosions of Piers E3, E4, and E5 were used to calculate distances to these thresholds for the implosions of Piers E6 through E18 (see Chapter 6 and Tables 9 to 18 of the IHA application). As a conservative measure, the field-implemented behavioral response and TTS monitoring zones will be 20 percent larger than the calculated distances to threshold criteria shown in Tables 9 to 18 of the IHA application.
The isopleths for Level B harassment to phocids (harbor seals and elephant seals) for all pier implosion scenarios cover the entire area for Level B harassment to all pinnipeds including otariids (California sea lions and fur seals) as well as bottlenose dolphins. Therefore, the pinniped and dolphin Level B harassment monitoring zones for each pier implosion scenario will be established at the radial distance to the phocid Level B harassment threshold plus an additional 20 percent conservative factor (see Tables 24 and 25 and Figures 12–16 of the IHA application).
All Marine Mammal Observers (MMOs) will be equipped with mobile phones and a VHF radio as a backup. One person will be designated as the Lead MMO and will be in constant contact with the Resident Engineer on site and the blasting crew. The Lead MMO will coordinate marine mammal sightings with the other MMOs. MMOs will contact the other MMOs when a sighting is made within the exclusion zone or near the exclusion zone so that the MMOOs within overlapping areas of responsibility can continue to track the animal and the Lead MMO is aware of the animal. If an animal has entered the exclusion zone or is near it within 30 minutes of blasting, the Lead MMO will notify the Resident Engineer and blasting crew. The Lead MMO will keep them informed of the disposition of the animal.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals.
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned.
• The practicability of the measure for applicant implementation.
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 received levels of 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 received levels of 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 received levels of activities expected 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 our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA 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 Incidental Take Authorizations (ITA) 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. Effective reporting is critical to both compliance as well as ensuring that the most value is obtained from the required monitoring. CALTRANS has proposed marine mammal monitoring measures as part of the IHA application found at
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine animals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
As most elements of marine mammal monitoring plans for pile driving activities are similar to what would be required for underwater implosions, monitoring for impacts to marine mammals from the implosion activities for Piers E3, E4, and E5 were based on the SFOBB pile driving monitoring protocol. Monitoring for the implosion events for Piers E6 through E18 will also be based on the SFOBB pile driving monitoring protocol and past implosion activities for Piers E3, E4, and E5. These monitoring plans would include monitoring an exclusion zone and ZOIs for TTS and behavioral harassment described above as well as the following:
A minimum of 10 MMOs would be required during the controlled implosions of Piers E6 through E18 so that the MMEZ, Level B Harassment TTS and Behavioral ZOIs, and surrounding area can be monitored. Up to 15 MMOs will be required for implosion events involving multiple piers in order to monitor the full extent of these areas. One MMO would be designated as the Lead MMO and would receive updates from other MMOs on the presence or absence of marine mammals within the MMEZ and would notify the Environmental Compliance Manager of a cleared exclusion zone to the implosion(s).
Implosions of Piers E6 through E18 will be conducted only during daylight hours and with enough time for pre and post-implosion monitoring during daylight hours, and with good visibility (
Each MMO will record the observation position, start and end times of observations, and weather conditions (
• Species.
• Number of animals (with or without pup/calf).
• Age class (pup/calf, juvenile, adult).
• Identifying marks or color (
• Position relative to piers being imploded (distance and direction).
• Movement (direction and relative speed).
• Behavior (
Although any injury or mortality from the implosions of Piers E6 through E18 is very unlikely, boat or shore surveys will be conducted daily for 3 days following the event, to determine whether any injured or stranded marine mammals are in the area. If an injured or dead animal is discovered during these surveys or by other means, the NMFS-designated stranding team will be contacted to pick up the animal. Veterinarians will treat the animal or will conduct a necropsy to attempt to determine whether it stranded because of the pier implosions.
CALTRANS would be required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the IHA (if issued), whichever comes earlier. This draft report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the draft report within 30 days, and if NMFS has comments, CALTRANS would address the comments and submit a final report to NMFS within 30 days. If no comments are provided by NMFS after 30 days receiving the report, the draft report is considered to be final.
Stranding plans for the pier implosions of Piers E3, E4, and E5 were prepared in cooperation with the local NMFS-designated marine mammal stranding, rescue, and rehabilitation center. An updated version of this plan will be implemented during implosions of Piers E6 through E18. Although avoidance and minimization measures likely will prevent any injuries, preparations will be made in the unlikely event that marine mammals are injured. Elements of the plan will include the following:
1. The stranding crew will prepare treatment areas at an NMFS-designated facility for cetaceans or pinnipeds that may be injured from the implosions. Preparation will include equipment to treat lung injuries, auditory testing equipment, dry and wet caged areas to hold animals, and operating rooms if surgical procedures are necessary.
2. A stranding crew and a veterinarian will be on call near the piers at the time of the implosions to quickly recover any injured marine mammals, provide emergency veterinary care, stabilize the animal's condition, and transport individuals to an NMFS-designated facility. If an injured or dead animal is found, NMFS (both the regional office and headquarters) will be notified immediately, even if the animal appears to be sick or injured from causes other than the implosions.
3. Post-implosion surveys will be conducted immediately after the event and over the following 3 days to determine whether any injured or dead marine mammals are in the area.
4. Any veterinarian procedures, euthanasia, rehabilitation decisions, and time of release or disposition of the animal will be at the discretion of the NMFS-designated facility staff and the veterinarians treating the animals. Any necropsies to determine whether the injuries or death of an animal was the result of an implosion or other anthropogenic or natural causes will be conducted at an NMFS-designated facility by the stranding crew and veterinarians. The results will be communicated to both the CALTRANS and to NMFS as soon as possible, followed by a written report within a month.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of
To avoid repetition, this introductory discussion of our analyses applies to all the species and stocks listed in Table 8, given that the anticipated effects of CALTRANS' SFOBB construction activities involving controlled implosions for Piers E6 through E18 on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis for this activity, or else species-specific factors would be identified and analyzed.
No injuries or mortalities are anticipated to occur as a result of CALTRANS' SFOBB activity associated with the controlled implosions to demolish Piers E6 through E18, and none are proposed to be authorized. The relatively low marine mammal density and small Level A exclusion zones make injury takes of marine mammals unlikely, based on take calculation described above. In addition, the Level A exclusion zones would be thoroughly monitored before the proposed implosion, and detonation activity would be postponed if an marine mammal is sighted within the exclusion zone.
The takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral responses and TTS). Due to implementation of mitigation measures and proven success in implementation of these measures as evidenced during previous SFOBB activities, more significant acute stress responses, serious injury or mortality, and more significant behavioral responses are not anticipated as a result of the proposed activities. Marine mammals (Pacific harbor seal, northern elephant seal, California sea lion, northern fur seal, harbor porpoise, and bottlenose dolphin) present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise level during the implosion noise. A few marine mammals could experience TTS if they occur within the Level B TTS ZOI. However, as discussed early in this document, TTS is a temporary loss of hearing sensitivity when exposed to loud sound, and the hearing threshold is expected to recover completely within minutes to hours. Therefore, it is not considered an injury. In addition, even if an animal receives a TTS, the TTS would be a one-time event from a brief impulse noise (about 5 seconds), making it unlikely that the TTS would lead to PTS. Finally, there is no critical habitat or other biologically important areas in the vicinity of CALTRANS' proposed controlled implosion areas (Calambokidis
The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Potential Effects of the Specified Activity on Marine Mammals and their Habitat” section. There is no biologically important area in the vicinity of the SFOBB project area. The project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
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 monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from CALTRANS's SFOBB demolition via controlled implosions of Piers E6 through E18 will have a negligible impact on the affected marine mammal species or stocks.
Table 8 presents the numbers of marine mammals that could be taken by Level B harassment incidental to CALTRAN's activities. Our analysis shows that less than 2.8 percent of the affected stocks could be taken by behavioral harassment and TTS (see Table 8 in this document). Therefore, the numbers of marine mammals estimated to be taken are small relative to total populations of the affected species or stocks. In addition, the mitigation and monitoring measures (described previously in this document) prescribed in the proposed IHA are expected to reduce even further any potential disturbance to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no subsistence uses of marine mammals in the proposed project area; and, thus, no subsistence uses impacted by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
NMFS has determined that issuance of the IHA will have no effect on listed marine mammals, as none are known to occur in the action area.
NMFS prepared an Environmental Assessment (EA) for the take of marine mammals incidental to construction of the East Span of the SFOBB and made a Finding of No Significant Impact (FONSI) on November 4, 2003. Due to the modification of part of the construction project and the mitigation measures, NMFS reviewed additional information from CALTRANS regarding empirical measurements of pile driving noises for the smaller temporary piles without an air bubble curtain system and the use of vibratory pile driving. NMFS prepared a Supplemental
As a result of these preliminary determinations, NMFS proposes to issue an IHA to CALTRANS for conducting SFOBB activities involving demolition via controlled implosion of Piers E6 through E18, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.
1. This Authorization is valid from September 1, 2017, through August 31, 2018.
2. This Authorization is valid only for activities associated with the SFOBB demolition activities in San Francisco Bay.
3. (a) The species authorized for incidental harassment takings, Level B harassment only, are: Pacific harbor seal (
(b) The authorization for taking by harassment is limited to the dismantling of Piers E6 through E18 via controlled implosion.
(c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the West Coast Administrator of the National Marine Fisheries Service (NMFS) at 206–526–6150, and the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427–8401, or her designee (301–427–8418).
4. The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, at least 48 hours prior to the start of activities identified in 3(b) (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible).
(a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 8 of this notice. The taking by Level A harassment, injury, or death of these species 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 Authorization.
(b) The taking of any marine mammal is prohibited whenever the required marine mammal observers (MMOs), required by condition 7(a), are not present in conformance with condition 7(a) of this Authorization.
Controlled implosion of Piers E6 through E18 shall only be conducted during daylight hours on slack tides between September and November and with enough time for pre- and post-activity monitoring during daylight hours. Further, controlled implosion shall only be conducted during periods of good visibility when the largest exclusion zone can be visually monitored.
(b) For controlled implosion of Piers E6 through E18, CALTRANS will install a Blast Attenuation System (BAS) prior to demolition to reduce the noise and shockwave from the implosion.
(c) For controlled implosion of Piers E6 though E18 and associated test blasting, CALTRANS shall establish exclusions zones and zones of influence (ZOIs) that are appropriate to specific marine mammal functional hearing group (Tables 1–10, Attachment 1; see Tables 9–18 of the application) .
(d) Exclusion Zone Monitoring for Mitigation Measures.
(i) NMFS-approved MMOs shall survey the exclusion zone for 30 minutes prior to the start of controlled implosion activities to ensure that no marine mammals are seen within the zones
(ii) If marine mammals are found within the exclusion zones, controlled implosion of the pier(s) shall be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor shall wait 15 minutes for pinnipeds and small cetaceans (harbor porpoise) and 30 minutes for bottlenose dolphins prior to initiating implosion activities. If no marine mammals are seen by the observer in that time it would be assumed that the animal has moved beyond the exclusion zone.
For controlled implosion, the Lead MMO shall be in constant contact with the Resident Engineer on site and the blasting crew to ensure that no marine mammal is within the exclusion zone before the controlled implosion.
7. Monitoring:
(a) Marine Mammal Observers.
(i) CALTRANS shall employ NMFS-approved MMOs to conduct marine mammal monitoring for its SFOBB controlled pier implosion.
(ii) Marine mammal monitoring shall begin at least 30 minutes prior to the start of the activities, shall occur through the entire activities, and shall continue for 60 minutes after the implosion events.
(iii) Observations shall be made using high-quality binoculars (
(iv) For controlled implosion of Piers E6 through E18:
(A) A minimum of 10 MMOs shall be required during controlled implosion so that the exclusion zone, Level B Harassment TTS and Behavioral ZOIs, and surrounding area can be monitored. Up to 15 MMOs will be required for implosion events involving multiple piers.
(B) MMOs shall be positioned near the edge of each of the threshold criteria zones and shall utilize boats, barges, and bridge piers and roadway.
(C) Boat or shore surveys shall be conducted immediately after the event and daily for the three days following the event to determine if there are any injured or stranded marine mammals in the area.
(D) Monitoring Data Collection:
For each marine mammal sighting, the following shall be recorded, if possible:
• Species.
• Number of animals (with or without pup/calf).
• Age class (pup/calf, juvenile, adult).
• Identifying marks or color (scars, red pelage, damaged dorsal fin, etc.).
• Position relative to pier implosion (distance and direction).
• Movement (direction and relative speed).
• Behavior (logging [resting at the surface], swimming, spyhopping [raising above the water surface to view the area], foraging,
• Duration of sighting or times of multiple sightings of the same individual
8. Reporting:
(a) CALTRANS shall submit a draft monitoring report within 90 days after completion of the dismantling work or the expiration of the IHA (if issued), whichever comes earlier. This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.
(b) NMFS will have an opportunity to provide comments within 30 days after receiving the draft report. If NMFS has comments, CALTRANS shall address the comments and submit a final report to NMFS within 30 days.
(c) If NMFS does not provide comments within 30 days after receiving the report, the draft report is considered to be final.
(d) In the unanticipated event that the dismantling activities clearly cause the take of a marine mammal in a manner prohibited by this Authorization (if issued), such as an injury, serious injury, or mortality, CALTRANS shall immediately cease all operations and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Status of all sound source use in the 24 hours preceding the incident;
(iv) Environmental conditions (
(v) Description of marine mammal observations in the 24 hours preceding the incident;
(vi) Species identification or description of the animal(s) involved;
(vii) The fate of the animal(s); and
(viii) Photographs or video footage of the animal (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with CALTRANS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. CALTRANS may not resume their activities until notified by NMFS via letter, email, or telephone.
(e) In the event that CALTRANS discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (
(f) In the event that CALTRANS discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
9. Marine Mammal Stranding Plan:
A marine mammal stranding plan shall be prepared in cooperation with the local NMFS-designated marine mammal stranding, rescue, and rehabilitation center. Elements of that plan would include the following:
(a) The stranding crew shall prepare treatment areas at the NMFS-designated facility for cetaceans or pinnipeds that may be injured from the implosion. Preparation shall include equipment to treat lung injuries, auditory testing equipment, dry and wet caged areas to hold animals, and operating rooms if surgical procedures are necessary. Equipment to conduct auditory brainstem response hearing testing would be available to determine if any inner ear threshold shifts (TTS or PTS) have occurred.
(b) A stranding crew and a veterinarian shall be on call near the implosion event sites at the time of the implosion to quickly recover any injured marine mammals, provide emergency veterinary care, stabilize the animal's condition, and transport individuals to the NMFS-designated facility. If an injured or dead animal is found, NMFS (both the regional office and headquarters) shall be notified immediately even if the animal appears to be sick or injured from other than blasting.
(c) Post-implosion surveys shall be conducted immediately after the event and over the following three days to determine if there are any injured or dead marine mammals in the area.
(d) Any veterinarian procedures, euthanasia, rehabilitation decisions and time of release or disposition of the animal shall be at the discretion of the NMFS-designated facility staff and the veterinarians treating the animals. Any necropsies to determine if the injuries or death of an animal was the result of the blast or other anthropogenic or natural causes will be conducted at the NMFS-designated facility by the stranding crew and veterinarians. The results shall be communicated to both CALTRANS and to NMFS as soon as possible with a written report within a month.
10. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.
11. A copy of this Authorization must be in the possession of each contractor who performs the controlled implosion work for Piers E6 through E18 and associated Test Blasts.
Department of the Navy, DOD.
Notice.
The Department of the Navy herby gives notice of its intent to grant to Evolva, Inc., a revocable, nonassignable, exclusive license to practice in the field of use of thermoset compositions for composites manufacturing in the United States and its territories, the Government-owned inventions described in U.S. Patent No. 8,853,343 entitled: Thermoset compositions from plant polyphenols; U.S. Patent No. 8,921,614 entitled: Selective deoxygenation of hydroxybenzaldehydes; U.S. Patent No.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than June 21, 2017.
Written objections should be directed to Naval Air Warfare Center Weapons Division, Code 400000D, 1900 N. Knox Road Stop 6306, China Lake, CA 93555–6106.
Dylan Riley, Director of Technology Transfer, Naval Air Warfare Center Weapons Division, Code 498400D, 1900 N. Knox Road Stop 6312, China Lake, CA 93555–6106, telephone 760–939–2105, FAX 760–939–1210, Email:
35 U.S.C. 207, 37 CFR part 404.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The Secretary is publishing the following list of correspondence from the U.S. Department of Education (Department) received by individuals during the first and second quarters of 2016. The correspondence describes the Department's interpretations of the Individuals with Disabilities Education Act (IDEA) or the regulations that implement the IDEA. This list and the letters or other documents described in this list, with personally identifiable information redacted, as appropriate, can be found at:
Jessica Spataro or Mary Louise Dirrigl. Telephone: (202) 245–7605.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), you can call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain a copy of this list and the letters or other documents described in this list in an accessible format (
The following list identifies correspondence from the Department issued from January 1, 2016, through March 31, 2016, and April 1, 2016, through June 30, 2016. Under section 607(f) of the IDEA, the Secretary is required to publish this list quarterly in the
○ Letter dated March 3, 2016, to individual (personally identifiable information redacted), regarding whether certain New York State regulations are consistent with the requirements of Part B of the IDEA.
○ Dear Colleague Letter dated April 26, 2016, regarding the obligations of public agencies in meeting the special education and related services needs of children with disabilities who reside in nursing homes.
○ Letter dated February 9, 2016, to Technical Assistance for Excellence in Special Education, Executive Director John D. Copenhaver, clarifying whether an individual who is not the parent of a child with a disability under Part B of the IDEA can serve as a member of the State advisory panel.
○ Letter dated February 17, 2016, to Illinois State Board of Education official, David Andel, reiterating the policy of the Office of Special Education Programs (OSEP) regarding attendance of attorneys at IEP Team meetings, and clarifying that the parent is not required to notify the public agency prior to an IEP Team meeting that the parent will be bringing an attorney to an IEP Team meeting.
○ Letter dated April 25, 2016, to Decoding Dyslexia Missouri representative, Kelli Unnerstall, regarding a public agency's responsibility to conduct evaluations of children whose reading difficulties result from dyslexia, and a parent's right to challenge the public agency's evaluation.
○ Letter dated January 19, 2016, to Maryland attorney Diana M. Savit, regarding whether professionals conducting independent educational evaluations initiated by parents and school personnel conducting evaluations for the public agency must have the same qualifications and reiterating OSEP's policy regarding the use of audio or video recording devices at IEP Team meetings.
○ Letter dated May 9, 2016, to Maryland Special Needs Advocacy Project Coordinator Martha Goodman, regarding whether a State that chooses to develop a State policy to make Part
You may also access documents of the Department published in the
Office of Planning, Evaluation and Policy Development (OPEPD), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a new information collection.
Interested persons are invited to submit comments on or before August 7, 2017.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Oliver Schak, 202–453–5643.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Federal Energy Regulatory Commission, Department of Energy.
Comment request.
The Federal Energy Regulatory Commission (Commission or FERC) previously issued a 60-day Notice in the
In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(a)(1)(D), the Commission is submitting the FERC–521 to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below.
Comments on FERC–521 are due by July 6, 2017.
Comments filed with OMB, identified by the OMB Control No. 1902–0087, should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Federal Energy Regulatory Commission, identified by the Docket No. IC17–4–000, by either of the following methods:
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Ellen Brown may be reached by email at
When the Commission completes a study of a river basin, it determines headwater benefits charges that will be apportioned among the various downstream beneficiaries. A headwater benefits charge and the cost incurred by the Commission to complete an evaluation are paid by downstream hydropower project owners. In essence, the owners of non-federal hydropower projects that directly benefit from a headwater improvement must pay an equitable portion of the annual charges for interest, maintenance, and depreciation of the headwater project to the U.S. Treasury. The regulations provide for apportionment of these costs between the headwater project and downstream projects based on downstream energy gains and propose equitable apportionment methodology that can be applied to all river basins in which headwater improvements are built. The Commission requires owners of non-federal hydropower projects to file data for determining annual charges as outlined in 18 Code of Federal Regulations (CFR) part 11.
The total estimated annual cost burden to respondents is $9,180 [120 hrs. * $76.50/hour
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report 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 date(s). 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 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 Commission received the following electric corporate 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 Commission has received the following Natural Gas Pipeline Rate and Refund Report 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:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public teleconference of the Chartered SAB to: Discuss information provided by the EPA on planned actions in the Fall 2016 semi-annual regulatory agenda and their supporting science; and to receive briefings on current activities from SAB members.
The teleconference will be held on Thursday, June 29, 2017, from 1:00 p.m. to 5:00 p.m. (Eastern Time).
Any member of the public wishing to obtain information concerning the public teleconference may contact Mr. Thomas Carpenter, Designated Federal Officer (DFO), EPA Science Advisory Board Staff Office (1400R), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; by telephone/voice mail at (202) 564–4885 or at
The SAB was established pursuant to the Environmental Research, Development, and Demonstration Authorization Act (ERDDAA), codified at 42 U.S.C. 4365, to provide independent scientific and technical advice to the Administrator on
(1) As part of the EPA's effort to routinely inform the SAB about proposed and planned agency actions that have a scientific or technical basis, the agency provided notice to the SAB that the Office of Management and Budget published the “Unified (Regulatory) Agenda” on the Web on November 17, 2016 available at
(2) The SAB convened a Work Group to review information provided in the agency's Fall 2016 regulatory agenda regarding EPA planned actions and their supporting science. The SAB will discuss recommendations and information developed by the Work Group regarding the adequacy of the science supporting the planned actions. Information about this advisory activity can be found on the Web at
Pursuant to FACA and EPA policy, notice is hereby given that the Chartered SAB will hold a public teleconference to discuss information provided by the EPA on planned actions in the Fall 2016 semi-annual regulatory agenda and their supporting science. The Chartered SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to the EPA. Members of the public can submit comments for a federal advisory committee to consider as it develops advice for the EPA. Interested members of the public may submit relevant written or oral information on the topic of this advisory activity, and/or the group conducting the activity, for the SAB to consider during the advisory process. Input from the public to the SAB will have the most impact if it provides specific scientific or technical information or analysis for SAB to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should follow the instructions below to submit comments.
Environmental Protection Agency (EPA).
Notice.
There will be a 4-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review physiologically based pharmacokinetic modeling to address pharmacokinetic differences between and within species.
The meeting will be held on October 24, 2017 to October 27, 2017, from approximately 9 a.m. to 5 p.m.
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Dr. Marquea D. King, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 564–3626; email address:
This action is directed to the public in general. This action may be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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You may participate in this meeting by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA–HQ–OPP–2017–0180 in the subject line on the first page of your request.
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The selection of scientists to serve on FIFRA SAP is based on the function of the Panel and the expertise needed to address the Agency's charge to the Panel. No interested scientists shall be ineligible to serve by reason of their membership on any other advisory committee to a Federal department or agency or their employment by a Federal department or agency, except EPA. Other factors considered during the selection process include availability of the potential Panel member to fully participate in the Panel's review, absence of any conflicts of interest or appearance of lack of impartiality, independence with respect to the matters under review, and lack of bias. Although financial conflicts of interest, the appearance of lack of impartiality, lack of independence, and bias may result in disqualification, the absence of such concerns does not assure that a candidate will be selected to serve on FIFRA SAP. Numerous qualified candidates are identified for each Panel. Therefore, selection decisions involve carefully weighing a number of factors including the candidates' areas of expertise and professional qualifications and achieving an overall balance of different scientific perspectives on the Panel. In order to have the collective breadth of experience needed to address the Agency's peer review charge for this meeting, the Agency anticipates selecting approximately 13 ad hoc scientists.
FIFRA SAP members are subject to the provisions of 5 CFR part 2634—Executive Branch Financial Disclosure, Qualified Trusts, and Certificates of Divestiture, as supplemented by EPA in 5 CFR part 6401. In anticipation of this requirement, prospective candidates for service on FIFRA SAP will be asked to submit confidential financial information which shall fully disclose, among other financial interests, the candidate's employment, stocks, and bonds, and where applicable, sources of research support. EPA will evaluate the candidate's financial disclosure form to assess whether there are financial conflicts of interest, appearance of a lack of impartiality, or any prior involvement with the development of the documents under consideration (including previous scientific peer review) before the candidate is considered further for service on FIFRA SAP. Those who are selected from the pool of prospective candidates will be asked to attend the public meetings and to participate in the discussion of key issues and assumptions at these meetings. In addition, they will be asked to review and to help finalize the meeting minutes and the final meeting report. The list of FIFRA SAP members participating at this meeting will be posted on the FIFRA SAP Web site at
FIFRA SAP serves as the primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. FIFRA SAP is a Federal advisory committee established in 1975 under FIFRA that operates in accordance with requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix). FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health and the National Science Foundation. The FIFRA SAP is assisted in their reviews by ad hoc participation from the Science Review Board (SRB). As a scientific peer review mechanism, FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists.
The 2009 National Research Council's report “Science and Decisions” recommends that the EPA use the best, most current science to support or revise the default assumptions in risk assessment. In addition, the 2013 Institute of Medicine's report on “Environmental Decisions in the Face of Uncertainty” further recommends that replacing default uncertainty factors with data-derived extrapolation factors (DDEFs) that delineate the differences between species would reduce uncertainty in risk assessment. Such inter- and intra-species extrapolation factors can be derived using a PBPK modeling approach to organize mechanistic data on properties that determine the absorption, distribution, metabolism, and excretion (ADME) of chemicals that enter the body. In the 2006 document on “Approaches for the Application of Physiologically Based Pharmacokinetic (PBPK) Models and Supporting Data in Risk Assessment”, the Agency recognizes that PBPK model analysis is a scientifically sound approach that allows for estimating the internal dose of a chemical or its metabolite at a target site, and can act as a means to evaluate and describe the uncertainty in a risk assessment.
PBPK models incorporate the relevant physiology, chemistry, biochemistry that determines the ADME processes, and thus, they are useful for predicting internal dosimetry related to a certain chemical within and outside the testing conditions (
Several registrants, including the Council for the Advancement of Pyrethroid Human Health Risk Assessment (CAPHRA), Tessenderlo Kerley Inc. (TKI), FMC/Cheminova, and Syngenta, are developing PBPK (or PBPK–PD) models for the chemicals: Acibenzolar, carbaryl, deltamethrin, dimethoate, malathion, and permethrin. All six models will include life-stage physiological changes from birth to adulthood, so that dose metrics can be predicted at any age. These life-stage models, however, will not include gestation and lactational phases, therefore; it is not expected that these models will have the capability to predict dose metrics in pregnant women or fetuses or breastfeeding exposures. These models are intended as a means to estimating inter- and intra-species data derived extrapolation factors and/or human points of departure (PoD) for various exposure scenarios (
The purpose of the October 2017 SAP will be to review five PBPK or PBPK–PD models (carbaryl, deltamethrin, dimethoate, malathion, and permethrin) for the purposes of model structures, mathematical representations, parameter estimations, computer implementations, variability and uncertainty analysis, and model predictive capabilities, as well as the appropriateness of their applications in human health risk assessments. The details for each model, including their inputs, parameters and associated distributions, and the model code, written in software program acslX or R, will be provided for five (not including acibenzolar) chemicals as part of the background materials for the meeting. The agency will solicit comments from the SAP members on the evaluation of these PBPK (or PBPK–PD) models regarding their capability to predict appropriate internal dose metrics in humans. In addition, the SAP members will be asked to evaluate the appropriateness of using these models for intended risk assessment purposes, such as deriving chemical-specific DDEFs to replace default uncertainty factors, or estimating human PoDs for various exposure scenarios (
For the sixth PBPK model (acibenzolar), developed in Simcyp, details including inputs, parameters and associated distributions, will be provided as background materials. The SAP members, however, will not be asked to review the Simcyp model code. Instead, the agency will solicit comments from the SAP members as a consultation on this model as primarily
EPA's background paper, charge/questions to FIFRA SAP, and related supporting materials will be available on or before August 11, 2017. In addition, a list of candidates under consideration as prospective ad hoc panelists for this meeting will be available for public comment by mid to late August (see link for listing of nominees to appear in mid to late August at
FIFRA SAP will prepare meeting minutes summarizing its recommendations to the Agency approximately 90 days after the meeting. The meeting minutes and final report will be posted on the FIFRA SAP Web site or may be obtained from the OPP Docket at
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice of tentative approval.
Notice is hereby given that the State of Washington has revised its approved State Public Water Supply Supervision Primacy Program. Washington has adopted regulations analogous to the Environmental Protection Agency's Revised Total Coliform Rule. EPA has determined that these revisions are no less stringent than the corresponding federal regulations. Therefore, EPA intends to approve these State program revisions. By approving these rules, EPA does not intend to affect the rights of federally recognized Indian tribes within “Indian country” as defined by 18 U.S.C. 1151, nor does it intend to limit existing rights of the State of Washington.
All interested parties may request a public hearing. A request for a public hearing must be submitted by July 6, 2017 to the Acting Regional Administrator at the EPA address shown below. Frivolous or insubstantial requests for a hearing may be denied by the Acting Regional Administrator. However, if a substantial request for a public hearing is made by July 6, 2017, a public hearing will be held. If no timely and appropriate request for a hearing is received and the Acting Regional Administrator does not elect to hold a hearing on his own motion, this determination shall become final and effective on July 6, 2017. Any request for a public hearing shall include the following information: (1) The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; (2) a brief statement of the requesting person's interest in the Acting Regional Administrator's determination and a brief statement of the information that the requesting person intends to submit at such hearing; (3) the signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
All documents relating to this determination are available for inspection between the hours of 9:00 a.m. and 4:00 p.m., Monday through Friday, at the Washington Department of Health, Drinking Water Program, P.O. Box 47820, Olympia, Washington 98504 and between the hours of 9:00 a.m.–12:00 p.m. and 1:00–4:00 p.m. at the EPA Region 10 Library, 1200 Sixth Avenue, Seattle, Washington 98101. Copies of the documents which explain the rule can also be obtained at EPA's Web site at:
Ricardi Duvil, Ph.D., EPA Region 10, Drinking Water Unit, 1200 Sixth Avenue, Suite 900, OWW–193, Seattle, Washington 98101, telephone (206) 553–2578, email at
Section 1413 of the Safe Drinking Water Act, as amended (1996), and 40 CFR part 142 of the National Primary Drinking Water Regulations.
Environmental Protection Agency (EPA).
Notice of approval and solicitation of requests for public hearing.
Notice is hereby given that the Commonwealth of Virginia is revising its approved Public Water System Supervision Program. Virginia has adopted drinking water regulations for the Revised Total Coliform Rule. The U.S. Environmental Protection Agency (EPA) has determined that Virginia's Revised Total Coliform Rule meets all minimum federal requirements, and that it is no less stringent than the corresponding federal regulation. Therefore, EPA has tentatively decided to approve the State program revisions.
Comments or a request for a public hearing must be submitted by July 6, 2017. This determination shall become final and effective on July 6, 2017, if no timely and appropriate request for a hearing is received, and the Regional Administrator does not elect to hold a hearing on his own motion, and if no comments are received which cause EPA to modify its tentative approval.
Comments or a request for a public hearing must be submitted to the U.S. Environmental Protection Agency, Region III, 1650 Arch Street,
• Drinking Water Branch, Water Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103–2029.
• Virginia Department of Health, Office of Water, Madison Building, 109 Governor Street, Richmond, VA 23219 or telephone at 804–864–7502.
Patti Kay Wisniewski, Drinking Water Branch (3WP21) at the Philadelphia address given above, via email at
All interested parties are invited to submit written comments on this determination and may request a hearing. All comments will be considered, and if necessary EPA will issue a response. Frivolous or insubstantial requests for a hearing will be denied by the Regional Administrator. If a substantial request for a public hearing is made by July 6, 2017, a public hearing will be held. A request for public hearing shall include the following: (1) The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; (2) a brief statement of the requesting person's interest in the Regional Administrator's determination and of information that the requesting person intends to submit at such hearing; and (3) the signature of the individual making the request; or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
Environmental Protection Agency (EPA).
Notice of adequacy determination.
The Environmental Protection Agency (EPA) is notifying the public of its finding that the motor vehicle emissions budget (MVEB) for primary particulate matter with an aerodynamic diameter of a nominal 2.5 microns or less (PM
This finding is effective June 21, 2017.
The finding will be available at the EPA's conformity Web site:
This action provides notice of the EPA's adequacy finding regarding the MVEBs located in the attainment plan for the 2006 PM
Before the attainment plan was submitted to the EPA, consultation among federal, State, and local agencies occurred. The State submitted the attainment plan to the EPA on January 20, 2017. Pursuant to 40 CFR 93.118(f)(1), the EPA notified the public of its receipt of this plan and its review for an adequacy determination on the EPA's Web site and requested public comment by no later than March 9, 2017. The EPA received no comments on the plan during the comment period. As part of our analysis, we also reviewed the State's compilation of public comments and response to comments that were submitted during the State's public process for the attainment plan. The EPA finds that the MVEBs in the attainment plan are adequate for purposes of transportation conformity. There were no comments submitted on the attainment plan during the State public process.
The EPA notified Oregon DEQ in a letter dated April 24, 2017 (adequacy letter), subsequent to the close of the EPA comment period, that the EPA had found the MVEBs located in the attainment plan to be adequate for use in transportation conformity. A copy of the adequacy letter and its enclosure are available in the docket for this action and at the EPA's conformity Web site.
Transportation conformity is required by section 176(c) of the Clean Air Act. Transportation conformity to an attainment plan means that on-road transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards. The minimum criteria by which we determine whether an attainment plan is adequate for conformity purposes are specified at 40 CFR 93.118(e)(4). The EPA's analysis of how the attainment plan satisfies these criteria is found in the adequacy letter and its enclosure. The EPA's adequacy review is separate from the EPA's attainment plan completeness review and it is not dispositive of the EPA's ultimate action on the attainment plan.
42 U.S.C. 7401–767Iq.
Environmental Protection Agency.
Notice, extension of comment period.
On January 9, 2017, the Environmental Protection Agency (EPA) published a draft notice of the rationale for granting petitions to add n-propyl bromide (nPB), also known as 1-bromopropane (1-BP) (Chemical Abstract Service No. 106–94–5), to the list of hazardous air pollutants contained in section 112(b)(1) of the Clean Air Act. In this notice, the EPA is extending the comment period on the draft notice until October 1, 2017. The EPA received a timely request to extend the comment period from March 10, 2017, to October 1, 2017, in order to allow for the review of data and information that would otherwise become available after the close of the comment period. On March 6, 2017, as an initial response, the EPA made an interim extension of the comment period by 90 days until June 8, 2017. The EPA is now granting the request in full and extending the comment period until October 1, 2017.
The public comment period for the draft notice published in the
For questions about this proposed action, contact Ms. Elineth Torres, Sector Policies and Programs Division (D205–02), Office of Air Quality Planning and Standards, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–4347; email address:
The EPA is granting the request for extension of time to provide the public additional opportunity to review and consider the Toxics Release Inventory (TRI) data for nPB, which becomes available in late July 2017, when preparing comments on this draft notice. The EPA has decided to extend the public comment period until October 1, 2017.
Environmental Protection Agency (EPA).
Notice of adequacy.
The Environmental Protection Agency (EPA) is notifying the public that it has found that the motor vehicle emissions budgets (MVEBs) in the Houston-Galveston-Brazoria, Texas (HGB) Reasonable Further Progress (RFP) State Implementation Plan (SIP) revision for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS), submitted on December 29, 2016 by the Texas Commission on Environmental Quality (TCEQ) are adequate for transportation conformity purposes. As a result of EPA's finding, the HGB area must use these budgets for future conformity determinations.
These budgets are effective June 21, 2017.
The essential information in this notice will be available at EPA's conformity Web site:
Throughout this document “we,” “us,” and “our” refers to EPA. The word “budget(s)” refers to the mobile source emissions budget for volatile organic compounds (VOCs) and the mobile source emissions budget for nitrogen oxides (NO
On December 29, 2016, we received a SIP revision from the TCEQ. This revision consisted of an RFP SIP for the HGB 2008 8-hour ozone NAAQS nonattainment area. This submission established MVEBs for the HGB 2008 ozone nonattainment area for the year 2017. The MVEB is the amount of emissions allowed in the SIP for on-road motor vehicles; it establishes an emissions ceiling for the HGB area regional transportation network, used to develop the 2017 on-road motor vehicle emissions projections contained in the RFP SIP. The MVEBs are provided in Table 1:
On January 18, 2017, EPA posted the revised HGB area MVEBs on EPA's Web site for the purpose of soliciting public comments, as part of the adequacy process. The comment period closed on February 17, 2017, and we received no comments.
Today's notice is simply an announcement of a finding that EPA has already made. EPA Region 6 sent a letter to TCEQ on April 28, 2017, finding that the MVEBs in the HGB RFP SIP, submitted on December 29, 2016 are adequate and must be used for transportation conformity determinations in the HGB area. This finding has also been announced on EPA's conformity Web site:
Transportation conformity is required by section 176(c) of the Clean Air Act. EPA's conformity rule, 40 Code of Federal Regulations (CFR) part 93, requires that transportation plans, programs and projects conform to state air quality implementation plans and establishes the criteria and procedures for determining whether or not they do so. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The criteria by which EPA determines whether a SIP's MVEB is adequate for transportation conformity purposes are outlined in 40 CFR 93.118(e)(4). We have also described the process for determining the adequacy of submitted SIP budgets in our July 1, 2004, final rulemaking entitled, “Transportation Conformity Rule Amendments for the New 8-hour Ozone and PM
Within 24 months from the effective date of this notice, the HGB-area transportation partners, such as the Houston-Galveston Area Council, will need to demonstrate conformity to the new MVEBs if the demonstration has not already been made, pursuant to 40 CFR 93.104(e). See 73 FR 4419 (January 24, 2008).
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Notice.
Since 1988, the Environmental Protection Agency (EPA) has maintained a Federal Agency Hazardous Waste Compliance Docket (“Docket”) under Section 120(c) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Section 120(c) requires EPA to establish a Docket that contains certain information reported to EPA by Federal facilities that manage hazardous waste or from which a reportable quantity of hazardous substances has been released. As explained further below, the Docket is used to identify Federal facilities that should be evaluated to determine if they pose a threat to public health or welfare and the environment and to provide a mechanism to make this information available to the public.
This notice identifies the Federal facilities not previously listed on the Docket and also identifies Federal facilities reported to EPA since the last update on October 24, 2016. In addition to the list of additions to the Docket, this notice includes a section with revisions of the previous Docket list and a section of Federal facilities that are to be deleted from the Docket. Thus, the revisions in this update include 33 additions, 1 correction, and 13 deletions to the Docket since the previous update. At the time of publication of this notice, the new total number of Federal facilities listed on the Docket is 2,338.
This list is current as of March 10, 2017.
Electronic versions of the Docket and more information on its implementation can be obtained at
Section 120(c) of CERCLA, 42 United States Code (U.S.C.) § 9620(c), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), requires EPA to establish the Federal Agency Hazardous Waste Compliance Docket. The Docket contains information on Federal facilities that manage hazardous waste and such information is submitted by Federal agencies to EPA under Sections 3005, 3010, and 3016 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6925, 6930, and 6937. Additionally, the Docket contains information on Federal facilities with a reportable quantity of hazardous substances that has been released and such information is submitted by Federal agencies to EPA under Section 103 of CERCLA, 42 U.S.C. 9603. Specifically, RCRA Section 3005 establishes a permitting system for certain hazardous waste treatment, storage, and disposal (TSD) facilities; RCRA Section 3010 requires waste generators, transporters and TSD facilities to notify EPA of their hazardous waste activities; and RCRA Section 3016 requires Federal agencies to submit biennially to EPA an inventory of their Federal hazardous waste facilities. CERCLA Section 103(a) requires the owner or operator of a vessel or onshore or offshore facility to notify the National Response Center (NRC) of any spill or other release of a hazardous substance that equals or exceeds a reportable quantity (RQ), as defined by CERCLA Section 101. Additionally, CERCLA Section 103(c) requires facilities that have “stored, treated, or disposed of” hazardous wastes and where there is “known, suspected, or likely releases” of hazardous substances to report their activities to EPA.
CERCLA Section 120(d) requires EPA to take steps to assure that a Preliminary Assessment (PA) be completed for those sites identified in the Docket and that the evaluation and listing of sites with
The Docket serves three major purposes: (1) To identify all Federal facilities that must be evaluated to determine whether they pose a threat to human health and the environment sufficient to warrant inclusion on the National Priorities List (NPL); (2) to compile and maintain the information submitted to EPA on such facilities under the provisions listed in Section 120(c) of CERCLA; and (3) to provide a mechanism to make the information available to the public.
The initial list of Federal facilities to be included on the Docket was published in the
This notice provides some background information on the Docket. Additional information on the Docket requirements and implementation are found in the Docket Reference Manual, Federal Agency Hazardous Waste Compliance Docket found at
In prior updates, information was also provided regarding No Further Remedial Action Planned (NFRAP) status changes. However, information on NFRAP and NPL status is no longer being provided separately in the Docket update as it is now available at:
Contact the following Docket Coordinators for information on Regional Docket repositories:
Martha Bosworth (HBS), US EPA Region 1, 5 Post Office Square, Suite 100, Mail Code: OSRR07–2, Boston MA 02109–3912, (617) 918–1407.
Helen Shannon (ERRD), US EPA Region 2, 290 Broadway, New York, NY 10007–1866, (212) 637– 4260.
Joseph Vitello (3HS12), US EPA Region 3, 1650 Arch Street, Philadelphia, PA 19107, (215) 814–3354.
Leigh Lattimore (4SF–SRSEB), US EPA Region 4, 61 Forsyth St. SW., Atlanta, GA 30303, 404–562–8768.
David Brauner (SR–6J), US EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, (312) 886–1526.
Philip Ofosu (6SF–RA), US EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202–2733, (214) 665–3178.
Paul Roemerman (SUPRERSP), US EPA Region 7, 11201 Renner Blvd., Lenexa, KS 66219, (913) 551–7694.
Ryan Dunham (EPR–F), US EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202, (303) 312–6627.
Leslie Ramirez (SFD–6–1), US EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 972–3978.
Monica Lindeman (ECL, ABU), US EPA Region 10, 1200 Sixth Avenue, Suite 900, ECL–112, Seattle, WA 98101, (206) 553–5113.
This section includes a discussion of the additions and deletions to the list of Docket facilities since the previous Docket update.
In this notice, 33 Federal facilities are being added to the Docket, primarily because of new information obtained by EPA (for example, recent reporting of a facility pursuant to RCRA Sections 3005, 3010, or 3016 or CERCLA Section 103). CERCLA Section 120, as amended by the Defense Authorization Act of 1997, specifies that EPA take steps to assure that a Preliminary Assessment (PA) be completed within a reasonable time frame for those Federal facilities that are included on the Docket. Among other things, the PA is designed to provide information for EPA to consider when evaluating the site for potential response action or listing on the NPL.
In this notice, 13 Federal facilities are being deleted from the Docket. There are no statutory or regulatory provisions that address deletion of a facility from the Docket. However, if a facility is incorrectly included on the Docket, it may be deleted from the Docket. The criteria EPA uses in deleting sites from the Docket include: A facility for which there was an incorrect report submitted for hazardous waste activity under RCRA (
Changes necessary to correct the previous Docket are identified by both EPA and Federal agencies. The corrections section may include changes in addresses or spelling, and corrections of the recorded name and ownership of a Federal facility. In addition, changes in the names of Federal facilities may be made to establish consistency in the Docket or between the Superfund Enterprise Management System (SEMS) and the Docket. For the Federal facility for which a correction is entered, the original entry is as it appeared in
In compiling the newly reported Federal facilities for the update being published in this notice, EPA extracted the names, addresses, and identification numbers of facilities from four EPA databases—the WebEOC, the Biennial Inventory of Federal Agency Hazardous Waste Activities, the Resource Conservation and Recovery Act Information System (RCRAInfo), and SEMS—that contain information about Federal facilities submitted under the four provisions listed in CERCLA Section 120(c).
EPA assures the quality of the information on the Docket by conducting extensive evaluation of the current Docket list and contacts the other Federal Agency (OFA) with the information obtained from the databases identified above to determine which Federal facilities were, in fact, newly reported and qualified for inclusion on the update. EPA is also striving to correct errors for Federal facilities that were previously reported. For example, state-owned or privately-owned facilities that are not operated by the Federal government may have been included. Such problems are sometimes caused by procedures historically used to report and track Federal facilities data. Representatives of Federal agencies are asked to contact the EPA HQ Docket Coordinator at the address provided in the
Certain categories of facilities may not be included on the Docket, such as: (1) Federal facilities formerly owned by a Federal agency that at the time of consideration was not Federally-owned or operated; (2) Federal facilities that are small quantity generators (SQGs) that have never generated more than 1,000 kg of hazardous waste in any month; (3) Federal facilities that are solely hazardous waste transportation facilities, as reported under RCRA Section 3010; and (4) Federal facilities that have mixed mine or mill site ownership.
An EPA policy issued in June 2003 provided guidance for a site-by-site evaluation as to whether “mixed ownership” mine or mill sites, typically created as a result of activities conducted pursuant to the General Mining Law of 1872 and never reported under Section 103(a), should be included on the Docket. For purposes of that policy, mixed ownership mine or mill sites are those located partially on private land and partially on public land. This policy is found at
EPA tracks the NPL status of Federal facilities listed on the Docket. An updated list of the NPL status of all Docket facilities, as well as their NFRAP status, is available at
The information is provided in three tables. The first table is a list of new Federal facilities that are being added to the Docket. The second table is a list of Federal facilities that are being deleted from the Docket. The third table is for corrections.
The Federal facilities listed in each table are organized by the date reported. Under each heading is listed the name and address of the facility, the Federal agency responsible for the facility, the statutory provision(s) under which the facility was reported to EPA, and a code.
The statutory provisions under which a Federal facility is reported are listed in a column titled “Reporting Mechanism.” Applicable mechanisms are listed for each Federal facility: For example, Sections 3005, 3010, 3016, 103(c), or Other. “Other” has been added as a reporting mechanism to indicate those Federal facilities that otherwise have been identified to have releases or threat of releases of hazardous substances. The National Contingency Plan 40 CFR 300.405 addresses discovery or notification, outlines what constitutes discovery of a hazardous substance release, and states that a release may be discovered in several ways, including: (1) A report submitted in accordance with Section 103(a) of CERCLA,
The complete list of Federal facilities that now make up the Docket and the NPL and NFRAP status are available to interested parties and can be obtained at
(1) Small-Quantity Generator.Show citation box.
(2) Never Federally Owned and/or Operated.
(3) Formerly Federally Owned and/or Operated but not at time of listing.
(4) No Hazardous Waste Generated.
(5) (This code is no longer used.)
(6) Redundant Listing/Site on Facility.
(7) Combining Sites Into One Facility/Entries Combined.
(8) Does Not Fit Facility Definition.
(15) Small-Quantity Generator with either a RCRA 3016 or CERCLA 103 Reporting Mechanism.
(16) One Entry Being Split Into Two (or more)/Federal Agency Responsibility Being Split.
(17) New Information Obtained Showing That Facility Should Be Included.
(18) Facility Was a Site on a Facility That Was Disbanded; Now a Separate Facility.
(19) Sites Were Combined Into One Facility.
(19A) New Currently Federally Owned and/or Operated Facility Site.
(20) Reporting Provisions Change.
(20A) Typo Correction/Name Change/Address Change.
(21) Changing Responsible Federal Agency. (If applicable, new responsible Federal agency submits proof of previously performed PA, which is subject to approval by EPA.)
(22) Changing Responsible Federal Agency and Facility Name. (If applicable, new responsible Federal Agency submits proof of previously performed PA, which is subject to approval by EPA.)
(24) Reporting Mechanism Determined To Be Not Applicable After Review of Regional Files.
United States Environmental Protection Agency (EPA).
Notice of final agency action.
This notice announces that on September 30, 2016, the Environmental Protection Agency (EPA), Region 9, issued a final permit decision to Resolute Natural Resources Company to amend the Prevention of Significant Deterioration (PSD) permit for the McElmo Creek Unit Oil Production Facility (MCU Facility) (PSD Permit No. NU 05–01), an existing oil and gas production operation. The final permit decision was issued pursuant to the PSD regulations.
In accordance with 40 CFR 124.15(b), the final permit decision became effective on November 30, 2016.
The EPA has established docket number EPA–R09–OAR–2014–0785 for this action. Key portions of the administrative record for this PSD permit decision (including the final PSD permit decision, all public comments, the EPA's responses to the public comments, and additional supporting information) are available through a link at our Web site,
Shaheerah Kelly, EPA Region 9, Air Division (AIR–3), (415) 947–4156,
On September 30, 2016, the EPA Region 9 issued a final permit decision to Resolute Natural Resources Company to amend the PSD permit for the MCU Facility (PSD Permit No. NU 05–01). The MCU Facility is an existing oil and gas production operation located within the Four Corners Area on the Navajo Nation Indian Reservation near the town of Aneth, San Juan County, Utah.
The EPA amended the PSD permit, in accordance with PSD regulations (40 CFR 52.21), to incorporate pollution limits, terms, and conditions for the already existing Main Flare at the MCU Facility pursuant to a federal Consent Decree (
Additionally, the EPA amended the PSD permit to remove and update other applicable requirements in the MCU Facility's PSD permit due to equipment that has been shut down and removed from the site. Air pollution emissions as a result of this permit action would not cause or contribute to violations of any National Ambient Air Quality Standards or any applicable PSD increments. This permit action does not authorize any new construction or modification of existing equipment at the MCU Facility.
EPA received comments from eight commenters, including the Resolute Natural Resources Company. In accordance with 40 CFR 124.15(b), the final PSD permit decision issued on September 30, 2016, became effective on November 30, 2016. Pursuant to 40 CFR 124.19(l)(1), a petition to EPA's Environmental Appeals Board (EAB) under 40 CFR 124.19(a) is a prerequisite to seeking judicial review of this final agency action. No petition for review was properly and timely filed with EAB under 40 CFR 124.19(a).
Environmental Protection Agency (EPA).
Notice.
There will be a 3-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review the “Continuing Development of Alternative High-Throughput Screens to Determine Endocrine Disruption, Focusing on Androgen Receptor, Steroidogenesis, and Thyroid Pathways”.
The meeting will be held on November 28, 2017 to November 30, 2017, from approximately 9 a.m. to 5 p.m.
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Todd Peterson, DFO, Office of Science
This action is directed to the public in general. This action may also be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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You may participate in this meeting by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA–HQ–OPP–2017–0214 in the subject line on the first page of your request.
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4.
The selection of scientists to serve on FIFRA SAP is based on the function of the Panel and the expertise needed to address the Agency's charge to the Panel. No interested scientists shall be ineligible to serve by reason of their membership on any other advisory committee to a Federal department or agency or their employment by a Federal department or agency, except EPA. Other factors considered during the selection process include availability of the potential Panel member to fully participate in the Panel's review, absence of any conflicts of interest or appearance of lack of impartiality, independence with respect to the matters under review, and lack of bias. Although financial conflicts of interest, the appearance of lack of impartiality, lack of independence, and bias may result in disqualification, the absence of such concerns does not assure that a candidate will be selected to serve on FIFRA SAP. Numerous qualified candidates are identified for each Panel. Therefore, selection decisions involve carefully weighing a number of factors including the candidates' areas of expertise and professional qualifications and achieving an overall balance of different scientific perspectives on the Panel. In order to have the collective breadth of experience needed to address the Agency's peer review charge for this meeting, the Agency anticipates selecting approximately 10 ad hoc scientists.
FIFRA SAP members are subject to the provisions of 5 CFR part 2634—Executive Branch Financial Disclosure, Qualified Trusts, and Certificates of Divestiture, as supplemented by EPA in 5 CFR part 6401. In anticipation of this requirement, prospective candidates for service on FIFRA SAP will be asked to submit confidential financial information which shall fully disclose, among other financial interests, the candidate's employment, stocks and bonds, and where applicable, sources of research support. EPA will evaluate the candidate's financial disclosure form to assess whether there are financial conflicts of interest, appearance of a lack of impartiality, or any prior involvement with the development of the documents under consideration (including previous scientific peer review) before the candidate is considered further for service on FIFRA SAP. Those who are selected from the pool of prospective candidates will be asked to attend the public meetings and to participate in the discussion of key issues and assumptions at these meetings. In addition, they will be asked
FIFRA SAP serves as the primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. FIFRA SAP is a Federal advisory committee established in 1975 under FIFRA that operates in accordance with requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix). FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health and the National Science Foundation. The FIFRA SAP is assisted in their reviews by ad hoc participation from the Science Review Board (SRB). As a scientific peer review mechanism, FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists.
The United States EPA's Endocrine Disruptor Screening Program uses appropriate validated test systems and other scientifically-relevant information to screen and test for endocrine disrupting chemicals. Since the issuance of the
EPA's background paper, charge/questions to FIFRA SAP, and related supporting materials will be available on or before August 14, 2017. In addition, a list of candidates under consideration as prospective ad hoc panelists for this meeting will be available for public comment by August 22, 2017 (see link for listing of nominees to appear on August 4, 2017 at:
FIFRA SAP will prepare meeting minutes summarizing its recommendations to the Agency approximately 90 days after the meeting. The meeting minutes will be posted on the FIFRA SAP Web site or may be obtained from the OPP Docket at
7 U.S.C. 136
Environmental Protection Agency.
Notice.
This notice announces EPA's approval of the State of Utah's request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective June 6, 2017.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566–1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
Part 123—EPA Administered Permit Programs: The National Pollutant Discharge Elimination System;
Part 403—General Pretreatment Regulations for Existing and New Sources of Pollution; and
Part 501—State Sludge Management Program Regulations.
UT DEQ was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public meeting of the Science Advisory Board (SAB) Risk and Technology Review (RTR) Methods Panel to peer review EPA's draft
The public meeting will be held on Thursday, June 29, 2017, from 9:00 a.m. to 5:00 p.m. (Eastern Time) and Friday, June 30, 2017, from 9:00 a.m. to 4:00 p.m. (Eastern Time).
Any member of the public wishing to obtain information concerning the public meeting may contact Dr. Bryan Bloomer, Designated Federal Officer (DFO), at (202) 564–4222 or
EPA's Office of Air Quality Planning and Standards (OAQPS) has requested that the SAB conduct a review of the methods for conducting Risk and Technology Review Assessments in conjunction with assessments of residual risk required by the Clean Air Act. These assessments evaluate the effects of industrial emissions of hazardous air pollutants (HAPs) on public health and the environment. Additional information about this SAB advisory activity can be found at
Environmental Protection Agency.
Notice of final actions.
The purpose of this document is to announce that between October 2, 2015 and April 11, 2017, the Region 2 Office of the Environmental Protection Agency (EPA), issued one final agency action and the New Jersey Department of Environmental Protection (NJDEP) issued three final agency actions pursuant to the Prevention of Significant Deterioration of Air Quality (PSD) regulations.
The effective dates for the above determinations are delineated in the chart in the
Mr. Frank Jon, Environmental Engineer of the Permitting Section, Air Programs Branch, Clean Air and Sustainability Division, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, NY 10007–1866, at (212) 637–4085.
Pursuant to the PSD regulations codified at 40 CFR 52.21, the Region 2 Office of the USEPA, and the NJDEP have made final PSD determinations relative to the facilities listed below:
This document lists only the facilities that have received final PSD determinations. Anyone who wishes to review these determinations and related materials should contact the following offices:
U.S. Environmental Protection Agency, Region 2 Office, Air Programs Branch—25th Floor, 290 Broadway, New York, New York 10007–1866, (212) 637–4085.
New Jersey Department of Environmental Protection, Division of Environmental Quality, Air Quality Permitting Element, Bureau of Preconstruction Permits, 401 East State Street, Trenton, New Jersey 08625, (609) 777–0286.
With respect to the final PSD permits for PSEG Fossil LLC Sewaren Generating Station and the Middlesex Energy Center, pursuant to 40 CFR 124.19(l), a prerequisite to seeking judicial review of the determination under section 307(b)(1) of the Clean Air Act (the Act), 42 U.S.C. 7607(b)(1), is
Federal Accounting Standards Advisory Board.
Notice.
The Statement is available on the FASAB Web site at
Ms. Wendy M. Payne, Executive Director, 441 G Street NW., Mailstop 6H19, Washington, DC 20548, or call (202) 512–7350.
Federal Advisory Committee Act, Pub. L. 92–463.
Notice is given that a complaint has been filed with the Federal Maritime Commission (Commission) by CMI Distribution Inc., hereinafter “Complainant,” against Service by Air, Inc., Radiant Customs Services Inc., (formerly known as SBA Consolidators, Inc.), and Las Freight Systems Ltd., hereinafter “Respondents.” Complainant states it is a “corporation organized and existing under the laws of Illinois.” Complainant alleges that: Respondent Service by Air, Inc. is a “corporation organized and existing under the laws of New York” and was “an OTI . . . subject to regulation by the FMC”; Respondent Radiant Customs Services Inc. is a “corporation organized and existing under the laws of New York” and a Commission licensed non-vessel-operating common carrier (NVOCC); and Respondent Las Freight Systems Ltd. “is a Taiwanese private limited company” and a Commission registered NVOCC.
Complainant states that they “engaged Respondents to provide transportation of more than 60 shipments (the Shipments)” from China to Illinois between April 2014 and June 2015. Complainant alleges that they “assessed more than $400,000 in demurrage or storage fees associated with the Shipments,” but the Respondents “have been unwilling to provide details regarding the amounts of demurrage or storage fees charged” regarding those shipments. Complainant states that while it “repeatedly questioned and challenged the level of demurrage charges on the Shipments, it was forced to pay those charges in order to gain release of the shipments.” Complainant alleges that the Respondents violated the Shipping Act by acting as an OTI without a license in the case of Respondent Service by Air in violation of 46 U.S.C. 40901, failure to observe just and reasonable practices in violation of 46 U.S.C. 41102 (c), failure to provide service in accordance with rates, charges, and rules contained in a published tariff in violation of 46 U.S.C. 41102(2)(c), and failure to maintain a tariff in violation of 46 U.S.C. 40501.
Complainant seeks reparations and other relief. The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding has been assigned to the Office of Administrative Law Judges. The initial decision of the presiding officer in this proceeding shall be issued by May 31, 2018, and the final decision of the Commission shall be issued by December 14, 2018.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement 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.
Federal Trade Commission (“FTC” or “Commission”).
Notice.
The FTC intends to ask the Office of Management and Budget (“OMB”) to extend for an additional three years the current Paperwork Reduction Act (“PRA”) clearance for information collection requirements contained in its Trade Regulation Rule on Disclosure Requirements and Prohibitions Concerning Franchising (“Franchise Rule” or “Rule”). That clearance expires on November 30, 2017.
Comments must be submitted by August 7, 2017.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Requests for additional information should be addressed to Craig Tregillus, Attorney, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Room 8607, Washington, DC 20580, (202) 326–2970.
Under the PRA, 44 U.S.C. 3501–3521, federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). As required by section 3506(c)(2)(A) of the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing clearance for the information collection requirements contained in the Franchise Rule, 16 CFR part 436 (OMB Control No. 3084–0107).
The FTC invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Franchise Rule ensures that consumers who are considering a franchise investment have access to the material information they need to make an informed investment decision provided in a format that facilitates comparisons of different franchise offerings. The Rule requires that franchisors disclose this information to consumers and maintain records to facilitate enforcement of the Rule.
Amendments to the Rule promulgated on March 30, 2007, which took effect after a one-year phase-in on July 1, 2008, merged the Rule's disclosure requirements with the disclosure format accepted by 15 states that have franchise registration or disclosure laws.
The amended Rule requires franchisors to furnish prospective purchasers with a Franchise Disclosure Document (“FDD”) that provides information relating to the franchisor, its business, the nature of the proposed franchise, and any representations by the franchisor about financial performance regarding actual or potential sales, income, or profits made to a prospective franchise purchaser. The franchisor must preserve materially different copies of its FDD for 3 years, as well as information that provides a reasonable basis for any financial performance representation it elects to make. These requirements are subject to the PRA and underlie the Commission's pursuit of renewed OMB clearance.
Based on a review of trade publications and information from state regulatory authorities, staff believes that, on average, from year to year, there are approximately 2,500 sellers of franchises covered by the Rule, with perhaps about 10% of that total reflecting an equal amount of new and departing business entrants.
Staff estimates that the average annual disclosure burden to update existing disclosure documents will be three hours each for the 2,250 established franchisors, or 6,750 hours cumulatively for them, and 30 hours apiece each year for the 250 or so new-entrant franchisors to prepare their initial disclosure documents, or 7,500 hours, cumulatively, for the latter group. These estimates parallel staff's 2014 estimates for the amended Rule.
Under the Rule, a franchisor is required to retain copies of receipts of disclosure documents, as well as materially different versions of its disclosure documents. Such recordkeeping requirements, however, are consistent with, or less burdensome than, those imposed by the states that have franchise registration and disclosure laws. Accordingly, staff
Covered franchisors also may need to maintain a record of the single additional FDD for use in non-registration states, which may differ from FDDs used in registration states. This may require as much as an additional hour of recordkeeping per year. Assuming, as FTC staff has in the past, an hour of incremental recordkeeping per covered franchisor, this yields an additional cumulative total of 2,500 hours for all covered franchisors.
Based on the above assumptions and estimates, average annual burden for new and established franchisors during a prospective three-year clearance would be 16,750 hours ((30 hours of annual disclosure burden × 250 new franchisors) + (3 hours of average annual disclosure burden × 2,250 established franchisors) + (1 hour of annual recordkeeping burden × 2,500 franchisors)).
Labor costs are derived by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below are estimated averages.
Commission staff anticipates that an attorney will prepare the disclosure document. Applying the above assumptions to an estimated hourly attorney rate of $250
The FTC additionally anticipates that recordkeeping under the Rule will be performed by clerical staff at approximately $15 per hour.
Cumulatively, then, total estimated labor cost under the Rule is $3,600,000 (($7,500 attorney costs × 250 new franchisors = $1,875,000) + ($750 attorney costs × 2,250 established franchisors = $1,687,500) + ($15 clerical costs × 2,500 franchisors = $37,500)).
In developing cost estimates initially for this Rule, FTC staff consulted with practitioners who prepare disclosure documents for a cross-section of franchise systems. The FTC believes that its cost estimates remain representative of the costs incurred by franchise systems generally. In addition, many franchisors establish and maintain Web sites for ordinary business purposes, including advertising their goods or services and to facilitate communication with the public. Accordingly, any costs franchisors would incur specifically as a result of electronic disclosure under the Rule appear to be minimal.
As set forth in the 2014 Notices, FTC staff estimates that the non-labor burden incurred by franchisors under the Franchise Rule differs based on the length of the disclosure document and the number of them produced. Staff estimates that 2,000 franchisors (80% of total franchisors covered by the Rule) will print and mail 100 disclosure documents at $35 each. Thus, these franchisors would each incur an estimated $3,500 in printing and mailing costs. Staff estimates that the remaining 20% of covered franchisors (500) will transmit 50% of their 100 disclosure documents electronically, at $5 per electronic disclosure. Thus, these franchisors will each incur $2,000 in distribution costs (($250 for electronic disclosure [$5 for electronic disclosure × 50 disclosure documents]) + ($1,750 for printing and mailing [$35 for printing and mailing × 50 disclosure documents])).
Accordingly, the cumulative annual non-labor costs for the Rule is approximately $8,000,000 (($3,500 printing and mailing costs × 2,000 franchisors = $7,000,000) + ($250 electronic distribution costs + $1,750 printing and mailing costs) × 500 franchisors = $1,000,000)).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Franchise Rule, PRA Comment, FTC File No. P094400” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street, SW., 5th Floor, Suite 5610, Washington, DC 20024. If possible, please submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC Web site at
Comments containing material for which confidential treatment is requested must be filed in paper form,
Visit the FTC Web site to read this Notice. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before August 7, 2017. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of one AHRQ Subcommittee Meeting by Telephone Conference.
The subcommittee listed below is part of AHRQ's Health Services Research Initial Review Group Committee. Grant applications are to be reviewed and discussed at this meeting.
July 13, 2017 (Open from 1:00 p.m. to 1:30 a.m. and closed for remainder of the meeting).
(to obtain a roster of members, agenda or minutes of the non-confidential portions of this meeting.)
This meeting will be closed to the public in accordance with 5 U.S.C. App. 2 section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6). In accordance with section 10 (a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), AHRQ announces the meeting of the scientific peer review group listed above, which is a subcommittee of AHRQ's Health Services Research Initial Review Group Committee. This subcommittee meeting will be closed to the public in accordance with the provisions set forth in 5 U.S.C. App. 2 section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6) The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Agenda items for these meetings are subject to change as priorities dictate.
In accordance with Presidential Executive Order No. 13175, November 6, 2000, and the Presidential Memorandum of November 5, 2009, and September 23, 2004, Consultation and Coordination with Indian Tribal Governments, CDC/Agency for Toxic Substances and Disease Registry (ATSDR), announces the following meeting and Tribal Consultation Session:
August 8, 2017
August 9, 2017
Please note that the TAC reserves the right to call a tribal caucus at any time during the public portions of the TAC meeting, and those who are not elected tribal leaders will be asked to step out of the meeting room during any ad hoc caucus periods.
Tribes also will have an opportunity to present testimony about tribal health issues during the Tribal Consultation Session. All tribal leaders are encouraged to submit written testimony by 5:00 p.m. (EDT) Friday, July 7, 2017, to Captain Carmen Clelland, Associate Director for the Tribal Support Unit, OSTLTS, via mail to 4770 Buford Highway NE., MS E–70, Atlanta, GA 30341–3717, or email to
Based on the number of tribal leaders giving testimony and the time available, it may be necessary to limit the time for each presenter. However, all submitted and written testimony will be entered in to the record.
Information about the TAC, CDC/ATSDR's Tribal Consultation Policy, and previous meetings can be found at
The Director, Management Analysis and Services Office, has been delegated the authority to sign
An insurer may choose to participate in the data comparison using one of the following methods:
• An insurer submits information concerning claims, settlements, awards, and payments to the federal Office of Child Support and Enforcement (OCSE). OCSE compares the information with parents who owe past-due support.
• OCSE sends a file containing information about parents who owe past-due support to the insurer, or their agent to compare with their claims, settlements, awards, and payments. The insurer or their agent sends the matches to OCSE.
On a daily basis, OCSE sends the results of the comparison in the Insurance Match Response Record to child support agencies responsible for collecting past-due support. Child support agencies use the matches to collect past-due support from the insurance proceeds.
The information collection activities pertaining to the information comparison with insurance data are authorized by:
(1) 42 U.S.C. 652(a)(9) which requires the federal Office of Child Support Enforcement (OCSE) to operate the FPLS established by 42 U.S.C. 653(a)(1); and
(2) 42 U.S.C. 652(m) which authorizes OCSE, through the FPLS, to compare information concerning individuals owing past-due support with information maintained by insurers (or their agents) concerning insurance claims, settlements, awards, and payments, and to furnish information resulting from the data matches to the state child support agencies responsible for collecting child support from the individuals.
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 Administration, Office of Planning, Research and Evaluation, 330 C Street SW., Washington, DC 20201, Attn: ACF 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
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice of single-source awards for Nurse Education, Practice, Quality and Retention—Veteran's Bachelor of Science Degree in Nursing Program.
HRSA is providing single-source awards to two cohorts of current Nurse Education, Practice, Quality and Retention (NEPQR)—Veteran's Bachelor of Science Degree in Nursing (VBSN) Program recipients. The purpose of the NEPQR–VBSN program is to provide training to veterans and equip them with the tools necessary to successfully transition into civilian nurse professional careers. These awards will enable NEPQR–VBSN grantees to continue to train the 672 veteran students who are in the middle of their degree studies. Of this number, approximately 120 students are expected to graduate in 2018, take the NCLEX–RN licensing exam, and transition as highly skilled BSN nurses into the civilian workforce. Approximately $6.2 million is available for single-source awards to these NEPQR–VBSN grantees.
Kasey Farrell, Nursing Education and Practice Branch Chief, Division of Nursing and Public Health, Bureau of Health Workforce, Health Resources and Services Administration, 5600 Fishers Lane, 11N110, Rockville, Maryland 20857, Phone: (301) 443–0188, Email:
Health Resources and Services Administration, Department of Health and Human Services.
Notice of Noncompetitive Single-source Award: Fiscal Year 2017 Ryan White HIV/AIDS Program (RWHAP) Part C Early Intervention Services Program Existing Geographic Service Area (EISEGA).
To prevent a lapse in comprehensive HIV primary care services for persons living with HIV, HRSA will provide one-time noncompetitive single-source award to Staywell Health Care, Inc. The purpose of the RWHAP Part C EISEGA is to provide HIV primary care in the outpatient setting to targeted low income, underinsured, and uninsured people living with HIV. Pending the availability of appropriated funds, the amount of the fiscal year (FY) 2017 award will be based on the amount of the FY 2016 RWHAP Part C EISEGA award to the relinquishing recipient.
CAPT Mahyar Mofidi, DMD, Ph.D., Director, Division of Community HIV/AIDS Programs, HIV/AIDS Bureau, Health Resources and Services Administration, 5600 Fishers Lane, 09N09, Rockville, MD 20857, Phone: (301) 443–2075, Email:
Section 2651–2667 of the Public Health Service Act, (42 U.S.C. 300ff–51 through 67) and section 2693 of the Public Health Service Act, as amended by the Ryan White HIV/AIDS Treatment Act of 2009 (P.L. 111–87).
Office of the Secretary, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for renewal of the approved information collection assigned OMB control number 0990–0278, scheduled to expire on August 31, 2017. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before July 6, 2017.
Submit your comments to
Sherrette Funn,
When submitting comments or requesting information, please include the document identifier 0990–0278–30D for reference.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Exploration of Antimicrobial Resistant Microbes and Antimicrobial Therapeutics.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Child Health and Human Development Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or 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 grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
In order to facilitate public attendance at the open session of Council in the main meeting room, Conference Room 6, please contact Ms. Lisa Kaeser, Program and Public Liaison Office, NICHD, at 301–496–0536 to make your reservation, additional seating will be available in the meeting overflow rooms, Conference Rooms 7 and 8. Individuals will also be able to view the meeting via NIH Videocast. Please go to the following link for Videocast access instructions at:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting 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 section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the
The Substance Abuse and Mental Health Services Administration (SAMHSA) is requesting a revision from the Office of Management and Budget (OMB) for approval of the Notification of Intent to Use Schedule III, IV, or V Opioid Drugs for the Maintenance and Detoxification Treatment of Opiate Addiction by a “Qualifying Other Practitioner.” The Notification of Intent would allow SAMHSA to determine whether other practitioners are eligible to prescribe certain approved narcotic treatment medications for the maintenance or detoxification treatment of opioid addiction.
This Notification of Intent is a result of the Comprehensive Addiction and Recovery Act (Pub. L. 114–198), which was signed into law on July 22, 2016. The law establishes criteria for nurse practitioners (NPs) and physician assistants (PAs) to qualify for a waiver to prescribe covered medications. To be eligible for a waiver, the NP or PA must: Be licensed under State law to prescribe schedule III, IV, or V medications for the treatment of pain; fulfill qualification requirements in the law for training and experience; and fulfill qualification requirements in the law for appropriate supervision by a qualifying physician. SAMHSA has the responsibility to receive, review, approve, or deny waiver requests.
Practitioners who meet the statutory requirements will be eligible to prescribe only those opioid treatment medications that are controlled in Schedules III, IV, or V, under the Controlled Substance Act (CSA), that are specifically approved by the Food and Drug Administration (FDA) for the treatment of opioid addiction, and are not the subject of an “adverse determination.” The only medications that currently fulfill these requirements are ones that contain the active ingredient buprenorphine.
Below are the following changes:
The newly revised instructions in Section 2 now acknowledge that practitioners may practice at multiple practice locations, but may only list a practice location address that matches their DEA registration practice site. Furthermore, the revised section provides a link where practitioners may add additional practice sites.
The Statute section 823(g)(2)(B)(i) refers to both physicians and mid-level providers as “qualifying practitioners.” Therefore in order to avoid confusion and redundancy the revised NOI Instructions Section refers to “other qualifying practitioners,” simply as “practitioners.”
The third and fourth criteria in this section created confusion regarding the relationship with a qualifying physician since providers are required to be supervised by OR work with a collaborative physician, but not both. Therefore, the word “and” was replaced by “or”.
Language was added allowing practitioners who have treated 30 patients for at least one year to increase their patient limit to 100. This second notification to treat 100 patients was omitted in the original NOI form.
The Controlled Substance Act (CSA) requires that NPs and PAs be supervised (or collaborate with) a “qualifying physician” when required by state law to work with a supervising physician (see 21 U.S.C. 823(g)(2)(G)(iv)(III)). SAMHSA added a footnote with a definition of the term “qualifying physician” means in the context of the NOI. The term “qualifying physician” is specifically defined under 21 U.S.C. 823(g)(2)(G)(ii).
The law specifically authorizes NPs and PAs as eligible to apply to be a “Qualifying Other Practitioner.” However, the proposed Notification of Intent form asks applicants to certify that they are either an “advanced practice nurse or physician assistant.” This difference in terminology was considered confusing to potential applicants. SAMHSA revised the first attestation in Certification of Qualifying Criteria to read “I certify that I am either a nurse practitioner or physician assistant who satisfies the definition of a `qualifying other practitioner.”
The previous NOI required that the practitioner to write-in the name of training provider(s)' name(s). The revised NOI allows practitioners to select all applicable training providers from a drop down list.
The second attestation in this section was missing a verb. SAMHSA corrected this error to reflect the statutory language requiring qualifying practitioners to attest to the capacity to provide
It was clarified that the second option regarding increasing patient load to 100 refers to a second notifications (as specified in the analogous NOI form for physicians).
This section noted that medical specialty societies be used to verify practitioner credentials. The revised NOI replaced the words “medical specialty societies” with “relevant licensing boards to verify practitioners' qualifications.”
The following table is the estimated hour burden:
Written comments and recommendations concerning the proposed information collection should be sent by July 6, 2017 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of Solicitation of Appointment Nominations.
The Department of Housing and Urban Development (HUD) established the Housing Counseling Federal Advisory Committee (HCFAC) on April 14, 2015. This notice invites the public to nominate individuals to fill one vacancy representing the real estate industry for a three-year term.
Please submit nominations as soon as possible, but no later than June 21, 2017.
Nominations must be in writing and submitted via email to
Marjorie George, Housing Program Technical Specialist, Office of Housing Counseling, U.S. Department of Housing and Urban Development, 200 Jefferson Avenue, Suite 300, Memphis, TN 38103; telephone number (901) 544–4228 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877–8339 (toll-free number). Individuals with questions may also email
The Housing Counseling Federal Advisory Committee (HCFAC) is congressionally mandated to provide advice to the Office of Housing Counseling (OHC) (Pub. L. 111–203). The HCFAC provides the OHC valuable advice regarding its mission to provide individuals and families with the knowledge they need to obtain, sustain, and improve their housing through a strong national network of HUD-approved housing counseling agencies and HUD-certified counselors. The HCFAC, however, has no role in reviewing or awarding of OHC housing counseling grants and procurement contracts. The HCFAC is subject to the requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix), 41 CFR parts 101–6 and 102–3, and Presidential Memorandum “Final Guidance on Appointments of Lobbyists to Federal Boards and Commissions,” dated June 18, 2010, along with any relevant guidance published in the
The HCFAC shall consist of not more than 12 individuals appointed by the Secretary. The membership will equally represent the mortgage industry, real estate industry, consumers, and HUD-approved housing counseling agencies. Each member shall be appointed in his or her individual capacity for a term of 3 years and may be reappointed at the discretion of the Secretary. Of the 12 members first appointed to the HCFAC in 2016, 4 were appointed for an initial term of 1 year, 4 were appointed for a term of 2 years, and 4 were appointed for a term of 3 years. The initial 12 appointments were made by the Secretary on June 1, 2016, and the one-year appointees terms will expire on May 31, 2017. This notice indicates the Secretary's decision to reappoint to new three-year terms the original appointees for consumer, mortgage, and housing counseling and to solicit applications to address a vacancy for real estate due to a withdrawal from consideration.
HUD is seeking nominations for an individual whose experience is representative of the real estate industry to fill one vacancy. Individuals may nominate themselves. Nominees must be U.S. citizens, and cannot be employees of the U.S. Government. All nominees will be serving in their “individual capacity” and not in a “representative capacity,” therefore, no Federally-registered lobbyists may serve on the HCFAC.
Nominations to the HCFAC must be submitted via a form available on the Office of Housing Counseling's Web site federal advisory page at:
• Name, title, and organization of the nominee and a description of how the applicant is representative of the real estate industry;
• Nominee's mailing address, email address, and telephone number;
• A statement summarizing the nominee's qualifications (including unique experiences, skills and knowledge the individual will bring to the HCFAC) and reasons why the nominee should be appointed to the HCFAC;
• A statement confirming that the nominee is not a registered federal lobbyist; and
• A statement agreeing to submit to any pre-appointment screenings HUD might require of Special Government Employees, as defined in 18 U.S.C. 202.
Nominations should be submitted via email to
HCFAC members will be required to adhere to the conflict of interest rules applicable to Special Government Employees as such employees are defined in 18 U.S.C. 202(a). The rules include relevant provisions in Title 18 of the U.S. Code related to criminal activity, Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635) and Executive Order 12674 (as modified by Executive Order 12731). Therefore, applicants will be required to submit to pre-appointment screenings relating to identity of interest and financial interests that HUD might require as shown above. If selected, HCFAC members will also be asked to complete form OGE Form 450 (Confidential Financial Disclosure Report).
Members of the HCFAC shall serve without pay but shall receive travel expenses including per diem in lieu of subsistence as authorized by 5 U.S.C. 5703. Regular attendance is essential to the effective operation of the HCFAC.
Please note this Notice is not intended to be the exclusive method by which HUD will solicit nominations and expressions of interest to identify qualified candidates; however, all candidates for membership on the HCFAC will be subject to the same evaluation criteria.
After all nominations, have been reviewed, HUD will publish a notice in the
The estimated number of meetings anticipated within a fiscal year is two. Additional meetings may be held as needed to render advice to the Deputy Assistant Secretary for the Office of Housing Counseling. All meetings will be announced by notice in the
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 6), which granted a motion for limited intervention in the above-captioned investigation.
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2532. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on March 10, 2017, based on a complaint, supplemented by letters, filed by Paice LLC and Abell Foundation, Inc. both of Baltimore, Maryland (collectively, “Paice”). 82 FR 13363 (Mar. 10, 2017). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain hybrid electric vehicles and components thereof by reason of the infringement of certain claims of five United States patents. The notice of investigation named as the respondent Ford Motor Company of Dearborn, Michigan (“Ford”). The Office of Unfair Import Investigations was not named as a party.
On April 7, 2017, Paice filed a motion with the ALJ for a recommendation to the United States District Court for the District of Columbia to issue an order/commission pursuant to Article 17 of the United States-Japan Consular Convention to obtain discovery from the Toyota Motor Corporation of Aichi Prefecture, Japan (“Toyota”). On April 11, 2017, Ford opposed the motion. That same day, non-party Toyota moved to intervene in this investigation for the purpose of submitting a concurrently filed opposition to the motion.
No petitions for review of the ID were filed. The Commission has determined not to review the ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
Effective May 31, 2017.
Jordan Harriman (202) 205–2610, Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (
Effective February 27, 2017, the Commission established a schedule for the conduct of this review (82 FR 12467, March 3, 2017). Subsequently, counsel for the domestic interested parties filed a request for consideration of cancellation of the hearing. Counsel indicated a willingness to submit written testimony and responses to any Commission questions in lieu of an actual hearing. No other party has entered an appearance in this review. Consequently, the public hearing in connection with this review, scheduled to begin at 9:30 a.m. on Thursday, June 15, 2017, at the U.S. International Trade Commission Building, is cancelled. Parties to this review should respond to any written questions posed by the Commission in their posthearing briefs, which are due to be filed on June 26, 2017.
For further information concerning this review see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
Office of Attorney Recruitment and Management, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Justice Management Division, Office of Attorney Recruitment and Management (OARM), will be submitting this information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The information collection is a Request for Corrective Action Form, available on OARM's public Web site, for current and former employees of, or applicants for employment with, the Federal Bureau of Investigation (FBI) who wish to file a claim of whistleblower reprisal.
Comments are encouraged and will be accepted for 60 days until August 7, 2017.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the U.S. Department of Justice, Office of Attorney Recruitment and Management, 450 5th Street NW., Suite 10200, Attn: Hilary S. Delaney, Washington, DC 20530. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405A, Washington, DC 20530.
Bureau of Justice Statistics, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until August 7, 2017.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Jessica Stroop, Statistician, Bureau of Justice Statistics, 810 Seventh Street NW., Washington, DC 20531 (email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
On May 30, 2017, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Northern District of Texas, Abilene Division, in the lawsuit entitled
The proposed Consent Decree resolves United States' claims under the Clean Air Act (CAA) against Alon USA, LP, concerning its petroleum refinery located in Big Spring, Texas. The proposed Decree addresses the pollutants benzene (under the National Emission Standards for Hazardous Air Pollutants for benzene) and volatile organic compounds (in connection with leak-detection-and-repair requirements). Under the CAA's New Source Performance Standards and the Prevention of Significant Deterioration standards, the proposed Decree also addresses various emissions from certain refinery devices, including: Heaters and boilers, flares, and a fluidized catalytic cracking unit (including its regenerator and its associated boiler). Also under the proposed Decree, Defendant would perform a supplemental environmental project to reduce emissions of nitrogen oxides and pay a civil penalty of $456,250.00.
The publication of this notice opens a period for public comment on the proposed 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 $40.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Respirator Program Records,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before July 6, 2017.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Respirator Program Records information collection requirements contained in regulations 30 CFR 56.5005 and 57–5005, which provide that, generally, whenever respiratory equipment is used, the metal or nonmetal mine operator must institute a respirator program governing selection, maintenance, training, fitting, supervision, cleaning, and use of respirators. These regulations seek to control miner exposure to harmful airborne contaminants by using engineering controls to prevent contamination and to vent or to dilute any contaminated air. The regulations include information collections related to the development of a respirator program that addresses the selection, use, and care of respirators; fit-testing records used to ensure that a respirator worn by an individual is the same brand, model, and size respirator that was worn when that individual successfully passed a fit-test; and records kept of inspection dates and findings for respirators maintained for emergency use. The mine operator uses the information to issue proper respiratory protection to miners when feasible engineering and/or administrative controls do not reduce miners' exposures to permissible levels. The MSHA uses the information to determine compliance with the standard. Mine Safety and Health Act of 1977 section 103(h) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on July 31, 2017. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the
Occupational Safety and Health Administration (OSHA), Labor.
Announcement of a teleconference meeting of ACCSH.
ACCSH will hold a teleconference meeting June 20, 2017, to consider a proposed rule to extend the enforcement date for OSHA's crane operator certification requirement in the Cranes and Derricks in Construction standard for an additional year until November 10, 2018. OSHA also proposes to extend the existing employer duty to ensure that crane operators are trained and competent to operate equipment safely for the same period of time.
ACCSH will meet from 1 to 5 p.m., ET, Tuesday, June 20, 2017.
Submit (postmark, send, transmit) comments, requests to address the ACCSH meeting, speaker presentations (written or electronic), and requests for special accommodations for the ACCSH meeting by June 9, 2017.
OSHA will post comments, requests to speak, and speaker presentations, including any personal information provided, without change, at
ACCSH advises the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health (Assistant Secretary) in the formulation of standards affecting the construction industry, and on policy matters arising in the administration of the safety and health provisions under the Contract Work Hours and Safety Standards Act (Construction Safety Act (CSA)) (40 U.S.C. 3701
• Presentation on OSHA's proposed rule to extend the enforcement date for the crane operator certification requirements and the existing employer duty in the Cranes and Derricks in Construction standards (29 CFR part 1926, subpart CC);
• ACCSH's consideration of, and recommendation on, OSHA's Proposed Rule to extend the enforcement date for the crane operator certification requirements and the existing employer duty in the Cranes and Derricks in Construction standards (29 CFR part 1926, subpart CC); and,
• Public Comment Period.
• The amount of time requested to speak;
• The interest you represent (
• A brief outline of your presentation.
PowerPoint presentations and other electronic materials must be compatible with PowerPoint 2010 and other Microsoft Office 2010 formats.
Alternately, you may request to address ACCSH briefly during the public comment period.
The ACCSH Chair may grant requests to address ACCSH as time and circumstances permit.
Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by 29 U.S.C. 656; 40 U.S.C. 3704; 5 U.S.C. App. 2; 29 CFR parts 1911 and 1912; 41 CFR 102–3; and Secretary of Labor's Order No. 1–2012 (77 FR 3912, Jan. 25, 2012).
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Security Presidential Directive (NSPD–39) dated December 8, 2004, and Executive Order 13708 dated September 20, 2015, the National Aeronautics and Space Administration (NASA) announces a meeting of the National Space-Based Positioning, Navigation, and Timing (PNT) Advisory Board.
Wednesday, June 28, 2017, 10:00 a.m. to 6:00 p.m.; and Thursday, June 29, 2017, 9:00 a.m. to 1:00 p.m., Local Time.
Baltimore Marriott Inner Harbor, 110 South Eutaw Street, Baltimore, MD 21201.
Mr. James J. Miller, Designated Federal Officer, and Deputy Director of Policy and Strategic Communications, Space Communications and Navigation, Human Exploration and Operations Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–4417, fax (202) 358–4297, or
The meeting will be open to the public up to the seating capacity of the room. It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
The agenda for the meeting includes the following topics:
• Update on PNT Policy and Global Positioning System (GPS) Modernization.
• Prioritize current and planned GPS capabilities and services while assessing future PNT architecture alternatives with a focus on affordability.
• Examine methods in which to Protect, Toughen, and Augment (PTA) access to GPS/Global Navigation Satellite System (GNSS) services in key domains for multiple user sectors.
• Assess economic impacts of GPS on the United States and in select international regions, with a consideration towards effects of potential PNT service disruptions if radio spectrum interference is introduced.
• Review the potential benefits, perceived vulnerabilities, and any proposed regulatory constraints to accessing foreign Radio Navigation Satellite Service (RNSS) signals in the United States and subsequent impacts on multi-GNSS receiver markets.
• Explore opportunities for enhancing the interoperability of GPS with other emerging international GNSS.
• Examine emerging trends and requirements for PNT services in U.S. and international fora through PNT Board technical assessments, including back-up services for terrestrial, maritime, aviation, and space users.
National Archives and Records Administration (NARA).
Notice of advisory committee meeting.
In accordance with the Federal Advisory Committee Act, we are announcing a meeting of the Advisory Committee on the Records of Congress. The committee advises NARA on the full range of programs, policies, and plans for the Center for Legislative Archives in NARA's Office of Legislative Archives, Presidential Libraries, and Museum Services (LL). This meeting will take place at the Capitol Visitor Center.
The meeting will be on June 26, 2017, from 10:00 a.m. to 11:30 a.m. EDT.
Capitol Visitor Center, Congressional Meeting Room North.
Sharon Shaver by email at
The meeting is open to the public.
Nuclear Regulatory Commission.
License amendment request; notice of opportunity to comment, request a hearing, and petition for leave to intervene; order imposing procedures.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of one amendment request. The amendment request is for Southern Nuclear Operating Company, Inc., Vogtle Electric Generating Plant, Units 3 and 4. The proposed amendment would revise the combined licenses (COL) Appendix C (and to plant-specific Tier 1 information) and associated Tier 2 information to address mitigation of fire protection system flooding of the Auxiliary Building identified during completion of the pipe rupture hazards analysis. An exemption request relating to the proposed changes to the AP1000 Design Control Document Tier 1 is included with the request. The NRC proposes to determine that the license amendment request involves no significant hazards consideration. Because the amendment request contains sensitive unclassified non-safeguards information (SUNSI), an order imposes procedures to obtain access to SUNSI for contention preparation.
Comments must be filed by July 6, 2017. A request for a hearing must be filed by August 7, 2017. Any potential party as defined in § 2.4 of title 10 of the
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Kay Goldstein, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–1506, email:
Please refer to Docket ID NRC–2017–0119, facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC–2017–0119, facility name, unit number(s), plant docket number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the NRC is publishing this notice. The Act requires the Commission to publish notice of any amendments issued or proposed to be issued, and grants the Commission the
This notice includes a notice of an amendment containing SUNSI.
The Commission has made a proposed determination that the following amendment request involves no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated, or (2) create the possibility of a new or different kind of accident from any accident previously evaluated, or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for the amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish a notice of issuance in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by August 7, 2017. The petition must be filed in accordance with the filing instructions in the
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC Web site at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes to the design and licensing basis flood level in the Auxiliary Building [radiologically controlled area (RCA)], and the associated plant changes to limit the volume of water available for flooding or to limit the effects of flooding do not affect any essential safety-related equipment or function. The changes and affected levels of the Auxiliary Building RCA do not involve any accident, initiating event or component failure; thus, the probabilities of the accidents previously evaluated are not affected. The maximum allowable leakage rate specified in the Technical Specifications is unchanged, and radiological material release source terms are not affected; thus, the radiological releases in the accident analyses are not affected.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes to the design and licensing basis flood level in the Auxiliary Building RCA and the associated plant changes to limit the volume of water available for flooding or to limit the effects of flooding do not affect any safety-related equipment or function. The changes do not change the condition of any essential safety-related equipment or structure; therefore, no new accident initiator or failure mode is created. The proposed changes do not create a new fault or sequence of events that could result in a radioactive release. The proposed changes will not affect any safety-related mitigating function.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes to the design and licensing basis flood level in the Auxiliary Building RCA and associated plant changes to limit the volume of water available for flooding or to limit the effects of flooding do not affect any essential safety-related equipment or function. The proposed changes do not have any effect on the ability of safety-related structures, systems, or components to perform their design basis functions. The changes ensure that the capability to achieve safe shutdown is maintained. No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes, thus no margin of safety is reduced.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request access to SUNSI. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after receipt of (or access to) that information. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and requisite need, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an Administrative Law Judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
(3) Further appeals of decisions under this paragraph must be made pursuant to 10 CFR 2.311.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed within 5 days of the notification by the NRC staff of its grant of access and must be filed with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an Administrative Law Judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. The attachment to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued, from May 9, 2017, to May 22, 2017. The last biweekly notice was published on May 23, 2017.
Comments must be filed by July 6, 2017. A request for a hearing must be filed by August 7, 2017.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Shirley Rohrer, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–5411; email:
Please refer to Docket ID NRC–2017–0131, facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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•
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Please include Docket ID NRC–2017–0131, facility name, unit number(s), plant docket number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by August 7, 2017. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or federally recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State,
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC Web site at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document,
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed activities involve the revision of Columbia Generating Station (Columbia) Technical Specification (TS) 5.5.12 to allow the extension of the Type A containment test interval to 15 years, and the extension of the Type C test interval to 75 months. The current Type A test interval of 120 months (10 years) would be extended on a permanent basis to no longer than 15 years from the last Type A test. The current Type C test interval of 60 months for selected components would be extended on a performance basis to no longer than 75 months. Extensions of up to nine months (total maximum interval of 84 months for Type C tests) are permissible only for non-routine emergent conditions.
The proposed extensions do not involve either a physical change to the plant or a change in the manner in which the plant is operated or controlled. The containment is designed to provide an essentially leak tight barrier against the uncontrolled release of radioactivity to the environment for postulated accidents. As such, the containment and the testing requirements invoked to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident, and do not involve the prevention or identification of any precursors of an accident.
The change in Type A test frequency to once-per-fifteen-years, measured as an increase to the total integrated plant risk for those accident sequences influenced by Type A testing, is 2.77E–4 person-rem [roentgen equivalent man]/yr (a 0.00761% increase). EPRI [Electric Power Research Institute] Report No. 1009, Revision 2–A states that a very small population dose is defined as an increase of less than 1.0 person-rem per year or less than 1 percent of the total population dose, whichever is less restrictive for the risk impact assessment of the extended ILRT [integrated leakage rate test] intervals. Moreover, the risk impact when compared to other severe accident risks is negligible. Therefore, the proposed extension does not involve a significant increase in the probability of an accident previously evaluated.
In addition, as documented in NUREG–1493, “Performance-Based Containment Leak-Test Program,” dated January 1995, Types B and C tests have identified a very large percentage of containment leakage paths, and the percentage of containment leakage paths that are detected only by Type A testing is very small. The Columbia Type A test history supports this conclusion.
The integrity of the containment is subject to two types of failure mechanisms that can be categorized as: (1) Activity based, and (2) time based. Activity based failure mechanisms are defined as degradation due to system and/or component modifications or maintenance. Local leak rate test requirements and administrative controls such as configuration management and procedural requirements for system restoration ensure that containment integrity is not degraded by plant modifications or maintenance activities. The design and construction requirements of the containment combined with the containment inspections performed in accordance with ASME [American Society of Mechanical Engineers] Section XI, and TS requirements serve to provide a high degree of assurance that the containment would not degrade in a manner that is detectable only by a Type A test. Based on the above, the proposed test interval extensions do not significantly increase the consequences of an accident previously evaluated.
The proposed amendment also deletes two exceptions previously granted. The first exception allowed a one-time extension of the ILRT test frequency for Columbia. This exception was for an activity that has already taken place; therefore, this deletion is solely an administrative action that does not result in any change in how Columbia is operated. The second exemption to compensate for flow metering inaccuracies in excess of those specified in the American National Standards Institute (ANSI)/American Nuclear Society (ANS) ANSI/ANS 56.8–1994 will be deleted as new test equipment has been acquired with accuracies within the tolerances specified in ANSI/ANS 56.8–1994 and 2002.
Therefore, the proposed changes do not result in a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment to the TS 5.5.12, “Primary Containment Leakage Rate Testing Program,” involves the extension of the Columbia Type A containment test interval to 15 years and the extension of the Type C test interval to 75 months. The containment and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident.
The proposed change does not involve a physical modification to the plant (
The proposed amendment also deletes two exceptions previously granted. The first exception granted under TS Amendment No. 191 allowed a one-time extension of the ILRT test frequency for Columbia. This exception was for an activity that has already occurred; therefore, this deletion is solely an administrative action that does not result in any change in how Columbia is operated. The second exemption which was originally granted via Amendment No. 144 to compensate for flow meter inaccuracies in excess of those specified in ANSI/ANS 56.8–1994, will be deleted as new test equipment has been acquired with accuracies within the tolerances specified in ANSI/ANS 56.8–1994 and 2002. These changes to the exceptions in TS 5.5.12 are administrative in nature and do not create the possibility of a new or different kind of accident from any previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in the margin of safety?
Response: No.
The proposed amendment to TS 5.5.12 involves the extension of the Columbia Type A containment test interval to 15 years and the extension of the Type C test interval to 75 months for selected components. This amendment does not alter the manner in which safety limits, limiting safety system set points, or limiting conditions for operation are determined. The specific requirements and conditions of the TS Containment Leak Rate Testing Program exist to ensure that the degree of containment structural integrity and leak-tightness that is considered in the plant safety analysis is maintained. The overall containment leak rate limit specified by TS is maintained.
The proposed change involves the extension of the interval between Type A containment leak rate tests and Type C tests for Columbia. The proposed surveillance interval extension is bounded by the 15-year ILRT interval and the 75-month Type C test interval currently authorized within NEI 94–01, Revision 3–A. Industry experience supports the conclusion that Type B and C testing detects a large percentage of containment leakage paths and that the percentage of containment leakage paths that are detected only by Type A testing is small.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises or adds SRs that require verification that the Emergency Core Cooling System (ECCS), Reactor Core Isolation Cooling (RCIC) System, Residual Heat Removal (RHR) Shutdown Cooling System, RHR Drywell Spray System, and RHR Suppression Pool Cooling System are not rendered inoperable due to accumulated gas and to provide allowances which permit performance of the revised verification. Gas accumulation in the subject systems is not an initiator of any accident previously evaluated. As a result, the probability of any accident previously evaluated is not significantly increased. The proposed SRs ensure that the subject systems continue to be capable to perform their assumed safety function and are not rendered inoperable due to gas accumulation. Thus, the consequences of any accident previously evaluated are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises or adds SRs that require verification that the ECCS, RCIC System, RHR Shutdown Cooling System, RHR Drywell Spray System, and RHR Suppression Pool Cooling System are not rendered inoperable due to accumulated gas and to provide allowances which permit performance of the revised verification. The proposed change does not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in the margin of safety?
Response: No.
The proposed change revises or adds SRs that require verification that the ECCS, RCIC System, RHR Shutdown Cooling System, RHR Drywell Spray System, and RHR Suppression Pool Cooling System are not rendered inoperable due to accumulated gas and to provide allowances which permit performance of the revised verification. The proposed change adds new requirements to manage gas accumulation in order to ensure the subject systems are capable of performing their assumed safety functions. The proposed SRs are more comprehensive than the current SRs and will ensure that the assumptions of the safety analysis are protected. The proposed change does not adversely affect any current plant safety margins or the reliability of the equipment assumed in the safety analysis. Therefore, there are no changes being made to any safety analysis assumptions, safety limits or limiting safety system settings that would adversely affect plant safety as a result of the proposed change.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
This amendment request would alter portions of the southern, outer EPZ boundary defined in the DAEC E Plan to align with the EPZ boundaries requested by the Linn County Emergency Management Commission. The proposed amendment does not involve any modifications or physical changes to plant systems, structures, or components. The proposed amendment does not change plant operations or maintenance of plant systems, structures, or components, nor does the proposed amendment alter any DAEC E Plan facility or equipment. Changing the EPZ boundaries cannot increase the probability of an accident since emergency plan functions would be implemented after a postulated accident occurs. The proposed amendment does not alter or prevent the ability of the DAEC emergency response organization to perform intended emergency plan functions to mitigate the consequences of, and to respond adequately to, radiological emergencies.
Therefore, the proposed TS change does not involve an increase in the probability or consequences of a previously evaluated accident.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
This amendment request alters the EPZ boundary described in the DAEC E Plan. The proposed amendment does not involve any design modifications or physical changes to the plant, does not change plant operation or maintenance of equipment, and does not alter DAEC E Plan facilities or equipment. The proposed amendment to the DAEC E Plan does not alter any DAEC emergency actions that would be implemented in response to postulated accident events.
The proposed amendment does not create any credible new failure mechanisms, malfunctions, or accident initiators not previously considered.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
This amendment request would alter one subarea in the EPZ boundary defined in the DAEC E Plan. The proposed amendment does not involve any design or licensing bases functions of the plant, no physical changes to the plant are to be made, it does not impact plant operation or maintenance of equipment, and it does not alter DAEC E Plan facilities or equipment. This change does not alter any DAEC emergency actions that would be implemented in response to postulated accident events. The DAEC E Plan continues to meet 10 CFR 50.47 and 10 CFR 50, Appendix E requirements for emergency response.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS 5.3.1 to take exception to ANSI N18.1–1971 requirements for the education and experience qualifications requirements for licensed operators and requires compliance with 10 CFR 55 and standardizes language between the TS without modifying meaning. An allowance for utilization of a Commission-approved training program that is based upon a SAT [site access training] is contained within 10 CFR 55. The NRC has also stated that the NANT [National Academy for Nuclear Training] guidelines, as endorsed, for initial licensed operator training and qualification are an acceptable way to meet the requirements of 10 CFR 55.
The proposed changes are administrative and do not affect any system that is a contributor to initiating events for previously evaluated accidents. Nor do the changes affect any system that is used to mitigate any previously evaluated accidents.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any previously evaluated?
Response: No.
The proposed change revises TS 5.3.1 to take exception to ANSI N18.1–1971 requirements for the education and experience qualifications requirements for licensed operators and requires compliance with 10 CFR 55 and standardizes language between the TS without modifying the meaning. An allowance for utilization of a Commission-approved training program that is based upon a SAT is contained within 10 CFR 55. The NRC has also stated that the NANT guidelines, as endorsed, for initial licensed operator training and qualification are an acceptable way to meet the requirements of 10 CFR 55. The proposed change is administrative and does not alter the design, function, or operation of any plant component, nor do they involve installation of any new or different equipment.
Therefore, the proposed change does not create the possibility of a new or difference [different] kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change revises TS 5.3.1 to take exception to ANSI N18.1–1971 requirements for the education and experience qualifications requirements for licensed operators and requires compliance with 10 CFR 55 and standardizes language between the TS without modifying the meaning. An allowance for utilization of a Commission-approved training program that is based upon a SAT is contained within 10 CFR 55. The NRC has also stated that the NANT guidelines, as endorsed, for initial licensed operator training and qualification are an acceptable way to meet the
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to the MNGP EAL scheme does not impact the physical function of plant structures, systems or components (SSC) or the manner in which the SSCs perform their design function. The proposed change neither adversely affects accident initiators or precursors, nor alters design assumptions. Therefore, the proposed change does not alter or prevent the ability of SSCs to perform their intended function to mitigate the consequences of an event. The Emergency Plan, including the associated EALs, is implemented when an event occurs and cannot increase the probability of an accident. Further, the proposed change does not reduce the effectiveness of the Emergency Plan to meet the emergency planning requirements established in 10 CFR 50.47 and 10 CFR 50, Appendix E.
Therefore, the proposed EAL scheme change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve any physical alteration to the plant, that is, no new or different type of equipment will be installed. The proposed change also does not change the method of plant operation and does not alter assumptions made in the safety analysis. Therefore, the proposed change will not create new failure modes or mechanisms that could result in a new or different kind of accident. The Emergency Plan, including the associated EAL scheme, is implemented when an event occurs and is not an accident initiator.
Therefore, the proposed EAL scheme change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
Margin of safety is provided by the ability of accident mitigation SSCs to perform at their analyzed capability. The change proposed in this license amendment request does not modify any plant equipment and there is no impact to the capability of the equipment to perform its intended accident mitigation function. The proposed change does not impact operation of the plant or its response to transients or accidents. Additionally, the proposed changes will not change any criteria used to establish safety limits or any safety system settings. The applicable requirements of 10 CFR 50.47 and 10 CFR 50, Appendix E will continue to be met.
Therefore, the proposed EAL scheme change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The amendment request proposes a change to the FCS CSP MS8 completion date as set forth in the CSP implementation schedule and associated regulatory commitments. The NRC staff has concluded that the proposed change: (1) Does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected; (2) does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of postulated accidents; and (3) has no impact on the probability or consequences of an accident previously evaluated. In addition, the NRC staff has concluded that the proposed change to the CSP implementation schedule is administrative in nature.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The NRC staff has concluded the proposed change: (1) Does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected; and (2) does not require any plant modifications which affect the performance capability of the structures, systems, and components relied upon to mitigate the consequences of
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The delay of the full implementation date for the FCS CSP MS8 has no substantive impact because other measures have been taken which provide adequate protection for the plant during this period of time. Therefore, the NRC staff has concluded that there is no significant reduction in a margin of safety. In addition, the NRC staff has concluded that the proposed change to the FCS CSP MS8 implementation schedule is administrative in nature.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
Because the 10 CFR part 50 license for FCS will no longer authorize operation of the reactor or emplacement or retention of fuel into the reactor vessel with the certifications required by 10 CFR part 50.82(a)(1) submitted, as specified in 10 CFR part 50.82(a)(2), the occurrence of postulated accidents associated with reactor operation is no longer credible. The only remaining credible accident is a [fuel handling accident (FHA)]. The proposed amendment does not adversely affect the inputs or assumptions of any of the design basis analyses that impact the FHA.
The only remaining [Update Safety Analysis Report (USAR)] Chapter 14 postulated accident scenario that could potentially occur at a permanently defueled facility would be a[n] FHA. Remaining Chapter 14 events include an accidental release of waste liquid and heavy load drop. Since the waste gas decay tanks have been purged of their content, and the volume control tanks, liquid holdup tanks, reactor coolant drain tank, and associated systems, contain waste that does not exceed any of the 10 CFR 50.67 limits if an event were to occur. The analyzed accident that remains applicable to FCS in the permanently shutdown and defueled condition is a[n] FHA in the auxiliary building where the SFP is located. The FHA analyses for FCS shows that, following 100 days of decay time after reactor shutdown and provided the [spent fuel pool (SFP)] water level requirements of TS 2.8.3(2) are met, the dose consequences are acceptable without relying on [structures, systems, and components (SSCs)] remaining functional for accident mitigation during and following the event. The one exception to this is the continued function of the passive SFP structure.
The probability of occurrence of previously evaluated accidents is not increased, since extended operation in a defueled condition and safe storage and handling of fuel will be the only operations performed, and therefore bounded by the existing analyses. Additionally, the occurrence of postulated accidents associated with reactor operation will no longer be credible in a permanently defueled reactor. This significantly reduces the scope of applicable accidents.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes have no impact on facility SSCs affecting the safe storage of irradiated fuel, or on the methods of operation of such SSCs, or on the handling and storage of irradiated fuel itself. The removal of TS that are related only to the operation of the nuclear reactor or only to the prevention, diagnosis, or mitigation of reactor-related transients or accidents, cannot result in different or more adverse failure modes or accidents than previously evaluated because the reactor is permanently shutdown and defueled and FCS is no longer authorized to operate the reactor.
The proposed modification or deletion of requirements in the FCS 10 CFR part 50 License and TS do not affect systems credited in the accident analysis for the FHA at FCS.
The proposed license and TS will continue to require proper control and monitoring of systems associated with significant parameters and activities. The TSs continue to preserve the requirements for safe storage and movement of irradiated fuel.
The proposed amendment does not result in any new mechanisms that could initiate damage to the remaining credited barriers for defueled plants (fuel cladding, spent fuel racks, SFP integrity, and SFP water level). Since extended operation in a defueled condition and safe fuel handling will be the only operations performed, and therefore bounded by the existing analyses, such a condition does not create the possibility of a new or different kind of accident.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Because the 10 CFR part 50 license for FCS no longer authorizes operation of the reactor or emplacement or retention of fuel into the reactor vessel with the certifications required by 10 CFR part 50.82(a)(1) submitted, as specified in 10 CFR part 50.82(a)(2), the occurrence of postulated accidents associated with reactor operation is no longer credible. The only remaining credible postulated accident is a[n] FHA. The proposed amendment does not adversely affect the inputs or assumptions of any of the design basis analyses that impact the FHA.
The proposed changes are limited to those portions of the license and TS that are not related to the safe storage or movement of irradiated fuel. The requirements that are proposed to be revised or deleted from the FCS license and TS are not credited in the existing accident analysis for the remaining applicable postulated accident; and as such, do not contribute to the margin of safety associated with the accident analysis. Postulated [design-basis accidents (DBAs)] involving the reactor will no longer be possible because the reactor will be permanently shutdown and defueled and FCS will no longer be authorized to operate the reactor.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The containment fan cooling units (CFCUs) are safety related components which provide the minimum containment cooling as assumed by the containment response analysis for a design-basis loss of coolant accident (LOCA) or main steam line break (MSLB) event. The CFCUs are not accident initiators; the CFCUs are designed to mitigate the consequences of previously evaluated accidents including a design basis LOCA or MSLB event. Extending the AOT for one or two inoperable CFCUs would not affect the previously evaluated accidents since the remaining three CFCUs supplying cooling to containment would continue to be available to perform the accident mitigation functions. Thus allowing one or two CFCUs to be inoperable for an additional 7 days for performance of maintenance or testing does not increase the probability of a previously evaluated accident.
Deterministic and probabilistic risk assessments evaluated the effect of the proposed Technical Specification change on the acceptability of operating with one or two CFCUs inoperable for up to 14 days. These assessments concluded that the proposed Technical Specification change does not involve a significant increase in the risk from CFCU unavailability.
The calculated impact on risk associated with continued operation for an additional 7 days with one or two CFCUs inoperable is very small and is consistent with the acceptance guidelines contained in Regulatory Guides 1.174 and 1.177. This risk is judged to be reasonably consistent with the risk associated with operations for 7 days with one or two CFCUs inoperable as allowed by the current Technical Specifications. The remaining 3 operable CFCUs, in conjunction with the Containment Spray System, are adequate to supply cooling to remove sufficient heat from the reactor containment, following the initial LOCA/MSLB containment pressure transient, to keep the containment pressure from exceeding the design pressure.
The consequences of previously evaluated accidents will remain the same during the proposed 14 day AOT as during the current 7 day AOT. The ability of the remaining 3 TS required CFCUs to maintain containment pressure and temperature within limits following a postulated design basis LOCA or MSLB event will not be affected.
There will be no impact on the source term or pathways assumed in accidents previously evaluated. No analysis assumptions will be changed and there will be no adverse effects on onsite or offsite doses as the result of an accident.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed Technical Specification change does not involve a change in the plant design, system operation, or procedures involved with the CFCUs. The proposed changes allow one or two CFCUs to be inoperable for additional time. There are no new failure modes or mechanisms created due to plant operation for an extended period to perform CFCU maintenance or testing. Extended operation with one or two inoperable CFCUs does not involve any modification in the operational limits or physical design of plant systems. There are no new accident precursors generated due to the extended AOT.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The proposed change, which would increase the AOT from 7 days to 14 days for one or two inoperable CFCUs, does not exceed or alter a setpoint, design basis or safety limit.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to add IRWST lower narrow range level instruments addresses the accuracy required to initiate IRWST containment recirculation following a design basis accident in order to mitigate the consequences of the accident. The proposed change to add the new defense-in-depth refueling cavity and SFS isolation on Low IRWST wide range level addresses a seismic or other event resulting in a pipe rupture in the nonsafety-related, nonseismic SFS when connected to the IRWST that could potentially result in a loss of IRWST inventory. Isolation of the SFS from the IRWST to mitigate the consequences of a design basis accident continues to be implemented by the existing containment isolation function, and does not rely on the new defense-in-depth refueling cavity and SFS isolation on Low IRWST wide range level. The addition of RTS and ESFAS P–9 interlocks and blocks does not affect the availability of the actuated equipment to perform their design functions to mitigate the consequences of an accident. The proposed
The affected equipment does not adversely affect or interact with safety-related equipment or a radioactive material barrier, and this activity does not involve the containment of radioactive material. Thus, the proposed changes would not adversely affect any safety-related accident mitigating function. The radioactive material source terms and release paths used in the safety analyses are unchanged, thus the radiological release in the UFSAR accident analyses are not affected.
These proposed changes to the PMS design do not have an adverse effect on any of the design functions of the affected actuated systems. The proposed changes do not affect the support, design, or operation of mechanical and fluid Systems required to mitigate the consequences of an accident. There is no change to plant systems or the response of systems to postulated accident conditions. There is no change to the predicted radioactive releases due to postulated accident conditions. The plant response to previously evaluated accidents or external events is not adversely affected, nor do the proposed changes create any new accident precursors.
Therefore, the requested amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change to add IRWST lower narrow range level instruments include requirements similar in function and qualification to many safety-related instruments already performing the affected safety functions as described in the current licensing basis to enable the RTS and ESFAS to perform required design functions, and are consistent with other Updated Final Safety Analysis Report (UFSAR) information. The proposed change to add the new defense-in-depth refueling cavity and SFS isolation on Low IRWST wide range level addresses a seismic or other event resulting in a postulated pipe rupture in the nonsafety-related, nonseismic SFS when connected to the IRWST that could potentially result in a loss of IRWST inventory. Isolation of the SFS from the IRWST to mitigate the consequences of a design basis accident continues to be implemented by the existing containment isolation function, and does not rely on the new defense-in-depth refueling cavity and SFS isolation on Low IRWST wide range level. The addition of RTS and ESFAS P–9 interlocks and blocks does not affect the availability of the actuated equipment to perform their design functions to mitigate the consequences of an accident. This activity does not allow for a new radioactive material release path, result in a new radioactive material barrier failure mode, or create a new sequence of events that would result in significant fuel cladding failures.
The proposed changes revise the PMS design. The proposed changes do not adversely affect the design requirements for the PMS, or the design requirements of associated actuated systems. The proposed changes do not adversely affect the design function, support, design, or operation of mechanical and fluid systems. The proposed changes to the PMS do not result in a new failure mechanism or introduce any new accident precursors. No design function described in the UFSAR is adversely affected by the proposed changes.
Therefore, the requested amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
No safety analysis or design basis acceptance limit or acceptance criterion is challenged or exceeded by the proposed changes, and no margin of safety is reduced. The proposed change to add the new defense-in-depth refueling cavity and SFS isolation of Low IRWST wide range level addresses a seismic or other event resulting in a postulated pipe rupture in the nonsafety-related, nonseismic SFS when connected to the IRWST, maintaining the required IRWST inventory and preserving the original margin of safety assumed for the PXS and SFS.
Therefore, the requested amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The design functions of the auxiliary building roof are to provide support, protection, and separation for the seismic Category I mechanical and electrical equipment located in the auxiliary building. The auxiliary building is a seismic Category I structure and is designed for dead, live, thermal, pressure, safe shutdown earthquake loads, and loads due to postulated pipe breaks. The auxiliary building roof is designed for snow, wind, and tornado loads and postulated external missiles. The proposed changes to UFSAR descriptions and figures are intended to address changes in the detail design of the auxiliary building roof. The thickness and strength of the auxiliary building roof are not reduced. As a result, the design function of the auxiliary building structure is not adversely affected by the proposed changes. There is no change to plant systems or the response of systems to postulated accident conditions. There is no change to the predicted radioactive releases due to postulated accident conditions. The plant response to previously evaluated accidents or external events is not adversely affected, nor do the changes described create any new accident precursors.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes to UFSAR descriptions and figures are proposed to address changes in the detail design of the auxiliary building roof. The thickness, geometry, and strength of the structures are not adversely altered. The concrete and reinforcement materials are not altered. The properties of the concrete are not altered. The changes to the design details of the auxiliary building structure do not create any new accident precursors. As a result, the design function of the auxiliary building structure is not adversely affected by the proposed changes.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The criteria and requirements of American Concrete Institute (ACI) 349 and American Institute of Steel Construction (AISC) N690 provide a margin of safety to structural failure. The design of the auxiliary building structure conforms to applicable criteria and requirements in ACI 349 and AISC N690 and therefore maintains the margin of safety. The proposed changes to the UFSAR address changes in the detail design of the auxiliary
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes do not adversely affect the operation of any systems or equipment that initiate an analyzed accident or alter any structures, systems, and components (SSCs) accident initiator or initiating sequence of events. The proposed changes do not adversely affect the physical design and operation of the in-containment refueling water storage tank (IRWST) injection, drain, containment recirculation, or fourth-stage automatic depressurization system (ADS) valves, including as-installed inspections and maintenance requirements as described in the Updated Final Safety Analysis Report (UFSAR). Inadvertent operation or failure of the fourth-stage ADS valves are considered as an accident initiator or part of an initiating sequence of events for an accident previously evaluated. However, the proposed change to the test methodology and calculated flow resistance for the fourth-stage ADS lines does not adversely affect the probability of inadvertent operation or failure. Therefore, the probabilities of the accidents previously evaluated in the UFSAR are not affected.
The proposed changes do not adversely affect the ability of IRWST injection, drain, containment recirculation, and fourth-stage ADS valves to perform their design functions. The designs of the IRWST injection, drain, containment recirculation, and fourth-stage ADS valves continue to meet the same regulatory acceptance criteria, codes, and standards as required by the UFSAR. In addition, the proposed changes maintain the capabilities of the IRWST injection, drain, containment recirculation, and fourth-stage ADS valves to mitigate the consequences of an accident and to meet the applicable regulatory acceptance criteria. The proposed changes do not adversely affect the prevention and mitigation of other abnormal events,
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes do not affect the operation of any systems or equipment that might initiate a new or different kind of accident, or alter any SSC such that a new accident initiator or initiating sequence of events is created. The proposed changes do not adversely affect the physical design and operation of the IRWST injection, drain, containment recirculation, and fourth-stage ADS valves, including as-installed inspections, and maintenance requirements, as described in the UFSAR. Therefore, the operation of the IRWST injection, drain, containment recirculation, and fourth-stage ADS valves is not adversely affected. These proposed changes do not adversely affect any other SSC design functions or methods of operation in a manner that results in a new failure mode, malfunction, or sequence of events that affect safety-related or nonsafety-related equipment. Therefore, this activity does not allow for a new fission product release path, result in a new fission product barrier failure mode, or create a new sequence of events that result in significant fuel cladding failures.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes maintain existing safety margins. The proposed changes verify and maintain the capabilities of the IRWST injection, drain, containment recirculation, and fourth-stage ADS valves to perform their design functions. The proposed changes maintain existing safety margin through continued application of the existing requirements of the UFSAR, while updating the acceptance criteria for verifying the design features necessary to ensure the IRWST injection, drain, containment recirculation, and fourth-stage ADS valves perform the design functions required to meet the existing safety margins in the safety analyses. Therefore, the proposed changes satisfy the same design functions in accordance with the same codes and standards as stated in the UFSAR. These changes do not adversely affect any design code, function, design analysis, safety analysis input or result, or design/safety margin.
No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes, and no margin of safety is reduced.
Therefore, the requested amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of any accident previously evaluated?
Response: No.
The proposed amendment would provide more restrictive acceptance criteria for certain DG technical specification surveillance tests. The proposed acceptance criteria changes would help to ensure the DGs are capable of carrying the electrical loading assumed in the safety analyses that take credit for the operation of the DGs. [The proposed changes] would not affect the capability of other structures, systems, and components to perform their design function, and would not increase the likelihood of a malfunction.
Therefore, the proposed amendment does not significantly increase the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes would provide more restrictive acceptance criteria to be applied to existing technical specification surveillance tests that demonstrate the capability of the facility DGs to perform their design function. The proposed acceptance criteria changes would not create any new failure mechanisms, malfunctions, or accident initiators not considered in the design and licensing bases.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed DG surveillance requirement changes to voltage and frequency test acceptance criteria are conservative because the minimum steady state voltage increase and the narrowing of the acceptable steady-state frequency range validates use of existing design basis analysis for these test acceptance criteria. Both changes support the use of conservative administrative controls that remain in place, allowing [the] use of the new test acceptance criteria in test procedures until technical specifications reflect these new requirements. The conduct of surveillance tests on safety related plant equipment is a means of assuring that the equipment is capable of maintaining the margin of safety established in the safety analyses for the facility. The proposed amendment does not affect DG performance as described in the design basis analyses, including the capability for the DG to attain and maintain required voltage and frequency for accepting and supporting plant safety loads, should a DG start signal occur. The proposed amendment does not introduce changes to limits established in accident analysis.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change replaces existing Surveillance Requirements to operate the SGT [Standby Gas Treatment] and CREV [Control Room Emergency Ventilation] systems for BFN and the EGT [Emergency Gas Treatment] and ABGT [Auxiliary Building Gas Treatment] systems for WBN, equipped with electric heaters for a continuous 10 hour period every 31 days with a requirement to operate the systems for 15 continuous minutes with heaters operating.
These systems are not accident initiators and therefore, these changes do not involve a significant increase in the probability of an accident. The proposed system and filter testing changes are consistent with current regulatory guidance for these systems and will continue to assure that these systems perform their design function which may include mitigating accidents. Thus the change does not involve a significant increase in the consequences of an accident.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change replaces existing Surveillance Requirements to operate the SGT and CREV systems for BFN and the EGT and ABGT systems for WBN, equipped with electric heaters for a continuous 10 hour period every 31 days with a requirement to operate the systems for 15 continuous minutes with heaters operating.
The change proposed for these ventilation systems does not change any system operations or maintenance activities. Testing requirements will be revised and will continue to demonstrate that the Limiting Conditions for Operation are met and the system components are capable of performing their intended safety functions. The change does not create new failure modes or mechanisms and no new accident precursors are generated.
Therefore, it is concluded that this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change replaces existing Surveillance Requirements to operate the SGT and CREV systems for BFN and the EGT and ABGT systems for WBN, equipped with electric heaters for a continuous 10 hour period every 31 days with a requirement to operate the systems for 15 continuous minutes with heaters operating.
The design basis for the ventilation systems' heaters is to heat the incoming air which reduces the relative humidity. The heater testing change proposed will continue to demonstrate that the heaters are capable of heating the air and will perform their design function. The proposed change is consistent with regulatory guidance.
Therefore, it is concluded that this change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change reflects a design change to the turbine control system that results in the use of an increased control oil [system pressure], necessitating a change to the value at which a low fluid oil pressure initiates a reactor trip on turbine trip. The low fluid oil pressure is an input to the reactor trip instrumentation in response to a turbine trip event. The value at which the low fluid oil initiates a reactor trip is not an accident initiator. A change in the nominal control oil pressure does not introduce any mechanisms that would increase the probability of an accident previously analyzed. The reactor trip on turbine trip function is initiated by the same protective signal as used for the existing auto stop low fluid oil system trip signal. There is no change in form or function of this signal and the probability or consequences of previously analyzed accidents are not impacted.
The proposed change also adds test requirements to the low fluid oil pressure TS instrument function related to those variables to ensure that instruments will function as required to initiate protective systems or actuate mitigating systems at the point assumed in the applicable setpoint calculation. Surveillance tests are not an initiator to any accident previously evaluated. As a result, the probability of any accident previously evaluated is not significantly increased. The systems and components required by the low fluid oil pressure TS instrument function for which surveillance tests are added are still required to be operable, meet the acceptance criteria for the surveillance requirements, and be capable of performing any mitigation function.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The EHC [electrohydraulic control] fluid oil pressure rapidly decreases in response to a turbine trip signal. The value at which the low fluid oil pressure switches initiates a reactor trip is not an accident initiator. The proposed TS change reflects the higher pressure that will be sensed after the pressure switches are relocated from the auto stop low fluid oil system to the EHC high pressure header. Failure of the new switches would not result in a different outcome than is considered in the current design basis. Further, the change does not alter assumptions made in the safety analysis but ensures that the instruments perform as assumed in the accident analysis.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
Response: No.
The change involves a parameter that initiates an anticipatory reactor trip following a turbine trip. The safety analyses do not credit this anticipatory trip for reactor core protection. The original pressure switch configuration and the new pressure switch configuration both generate the same reactor trip signal. The difference is that the initiation of the trip will now be adjusted to a different system of higher pressure. This system function of sensing and transmitting a reactor trip signal on turbine trip remains the same. Also, the proposed change adds test requirements that will assure that technical specifications instrumentation allowable values: (1) Will be limiting settings for assessing instrument channel operability and; (2) will be conservatively determined so that evaluation of instrument performance history and the as left tolerance requirements of the calibration procedures will not have an adverse effect on equipment operability. The testing methods and acceptance criteria for systems, structures, and components, specified in applicable codes and standards (or alternatives approved for use by the NRC) will continue to be met as described in the plant licensing basis including the updated Final Safety Analysis Report. There is no impact to safety analysis acceptance criteria as described in the plant licensing basis because no change is made to the accident analysis assumptions.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination,
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 16, 2017.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 11, 2017.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 11, 2017.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 12, 2017.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 16, 2017.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 11, 2017.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 16, 2017.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 10, 2017.
The Commission's related evaluation of the amendment is contained in the Safety Evaluation dated May 1, 2017.
The Commission's related evaluation of the amendment is contained in the Safety Evaluation dated May 18, 2017
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 18, 2017.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 10, 2017.
For the Nuclear Regulatory Commission.
Weeks of June 5, 12, 19, 26, July 3, 10, 2017.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of June 5, 2017.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of June 19, 2017.
There are no meetings scheduled for the week of June 26, 2017.
There are no meetings scheduled for the week of July 3, 2017.
There are no meetings scheduled for the week of July 10, 2017.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301–415–0681 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301–415–1969), or email
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering an exemption request from Entergy Nuclear Operations, Inc. (Entergy) to allow the Vermont Yankee Nuclear Power Station (VYNPS) to load higher enriched fuel assemblies with certain lower enriched fuel assemblies in the same HI–STORM 100 multi-purpose canister (MPC) using Certificate of Compliance (CoC) No. 1014, Amendment No. 10. The NRC prepared an environmental assessment (EA) documenting its finding. The NRC concluded that the proposed action would have no significant environmental impact. Accordingly, the NRC staff is issuing a finding of no significant impact (FONSI) associated with the proposed exemption.
The EA and FONSI referenced in this document are available on June 6, 2017.
Please refer to Docket ID NRC–2017–0134 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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Yen-Ju Chen, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone: 301–415–1018; email:
The NRC is reviewing an exemption request from Entergy, dated November 9, 2016 (ADAMS Accession No. ML16319A102), and supplemented by letter dated January 9, 2017 (ADAMS
Specifically, Entergy requested an exemption from Appendix B, Table 2.1–3, Note 19 of Amendment No. 10 to CoC No. 1014, therefore allowing certain lower enriched channeled fuel assemblies classified as “undamaged” per the CoC to be loaded with higher enriched fuel assemblies in the same MPC.
Under the requirements of 10 CFR 51.21 and 51.30(a), the NRC staff developed a draft EA (ADAMS Accession No. ML16343A859) to evaluate the proposed Federal action, which is for the NRC to grant an exemption to Entergy to allow storing certain lower enriched fuel assemblies with higher enriched fuel assemblies in a HI–STORM 100 MPC at the VYNPS site.
The EA defines the NRC's proposed action (
This EA evaluates the potential environmental impacts of granting the exemption to allow loading of higher enriched fuel assemblies with certain lower enriched fuel assemblies in a HI–STORM 100 MPC at the VYNPS ISFSI. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the EA for the rulemaking to provide for the storage of spent fuel under a general license on July 18, 1990 (55 FR 29181). The EA for using the HI–STORM 100, Amendment No. 10, cask system (81 FR 13265) tiers off of the EA for the 1990 final rule.
There is no change to the types or quantities of effluents that may be released offsite, and there is no increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action. There is no change to the non-radiological effluents. The proposed action will take place within the site boundary, and does not have other environmental impacts. Therefore, the proposed action will not have a significant effect on the quality of the human environment. Therefore, the environmental impacts of the proposed action are no greater than those described in the EA for the rulemaking to add the HI–STORM 100, Amendment No. 10, cask system to 10 CFR 72.214.
The NRC staff has prepared an EA and associated FONSI in support of the proposed action. The NRC staff has concluded that the proposed action, for the NRC to grant an exemption, allowing the loading of certain lower enriched fuel assemblies with higher enriched fuel assemblies in the same HI–STORM 100 MPC, will not significantly impact the quality of the human environment, and that the proposed action is the preferred alternative. The environmental impacts are bounded by the previous NRC EA for the rulemaking to add the HI–STORM 100, Amendment No. 10, cask system to 10 CFR 72.214.
The NRC provided the Vermont Department of Health (VDOH) with a draft copy of the EA for a 30-day review on February 7, 2017 (ADAMS Accession No. ML17038A468). On March 16, 2017, the VDOH provided its comments (ADAMS Accession No. ML17080A475). The NRC staff responded to VDOH's comments on May 23, 2017 (ADAMS Accession No. ML17144A045). The NRC did not make changes to this EA as a result of VDOH's comments; however, the NRC will consider the VDOH's comments during the preparation of the safety evaluation report.
The NRC staff informed the Vermont State Historic Preservation Office (SHPO) of the NRC's “no effects” determination by letter dated February 9, 2017 (ADAMS Accession No. ML17040A337). The Vermont SHPO concurred on the NRC's determination by email on February 24, 2017 (ADAMS Accession Package No. ML17055A594, including ADAMS Accession Nos. ML17055A626 and ML17055A636). The staff reviewed the updated listings of endangered species and critical habitats, and no changes were identified since the staff's review in 2007 (ADAMS Accession Nos. ML072050012 and ML072050013).
The NRC staff has determined that this exemption would have no impact on historic and cultural resources or ecological resources, and therefore no consultations are necessary under Section 106 of the National Historic Preservation Act and Section 7 of the Endangered Species Act.
Therefore, the NRC finds that there are no significant environmental impacts from the proposed action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a FONSI is appropriate.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Licenses and Radiation Safety Requirements for Well Logging.”
Submit comments by July 6, 2017.
Submit comments directly to the OMB reviewer at: Aaron Szabo, Desk Officer, Office of Information and Regulatory Affairs (3150–0130), NEOB–10202, Office of Management and Budget, Washington, DC 20503; telephone: 202–395–3621, email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–2084; email:
Please refer to Docket ID NRC–2016–0243 when contacting the NRC about the availability of information for this action. You may obtain publicly-
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The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Licenses and Radiation Safety Requirements for Well Logging.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is establishing a public inquiry to ascertain the Postal Service's progress and data collection capabilities to update its city carrier models. This notice informs the public of this proceeding, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
The Commission establishes Docket No. PI2017–1 in order to ascertain the Postal Service's progress in its ongoing efforts to update its city carrier cost models and data collection capabilities in accordance with Commission Order No. 2792 and to invite public comment on these topics.
In Order No. 2792, the Commission directed the Postal Service to investigate several issues, including the steps required to collect daily volume measurements for specified special studies and the feasibility of updating the cost model used to assign the costs of Sunday delivery hours and parcel routes. Order No. 2792 at 65–66. The Commission also directed the Postal Service to determine whether a single equation city carrier letter route cost model for street time could produce improved variability estimates.
In its response to Order No. 2792, the Postal Service indicated that it had
In Docket No. ACR2015, the Postal Service reported that it had initiated an investigation into updating its city carrier Special Purpose Route (SPR) cost model for street time.
The Commission establishes PI2017–1 to obtain an update on the Postal Service's progress in investigating the data required for, and the viability of, a single equation city carrier letter route cost model as well as in reviewing the SPR cost model for street time.
Chairman's Information Request No. 1 is issued contemporaneously with this Notice and Order. It seeks an update to the Postal Service's Response to Order No. 2792 and further clarification on designated IOCS-estimated city carrier costs and City Carrier Cost System volumes.
Comments on these topics are due no later than August 29, 2017. Comments are to be submitted via the Commission's online filing system at
Pursuant to 39 U.S.C. 505, Katalin K. Clendenin, is designated as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
1. The Commission hereby establishes Docket No. PI2017–1 to review the Postal Service's progress towards the Commission directives in Order No. 2792 and to inquire about the current data and methodology used to estimate city carrier costs and City Carrier Cost System volumes.
2. Comments are due no later than August 29, 2017.
3. Pursuant to 39 U.S.C. 505, the Commission appoints Katalin K. Clendenin to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on May 31, 2017, it filed with the Postal Regulatory Commission a
On April 6, 2017, the Chicago Stock Exchange, Inc. (“CHX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Article 1, Rule 2(e) and Article 9, Rule 7 to conform to the Commission's amendment to Rule 15c6–1(a) under the Act
Current Article 1, Rule 2(e)(1) relating to order settlement terms defines “Regular Way Settlement” as “a transaction for delivery on the third full business day following the day of the contract.” The Exchange proposes to shorten the “third full business day” time period to “second full business day.”
Current Article 1, Rule 2(e)(2)(C) defines “Seller's Option” as “a transaction for delivery within the time specified in the option, which time shall not be less than four (4) full business days nor more than 60 days following the day of the contract; except that the Exchange may provide otherwise in specific issues of stocks or classes of stocks.” The Exchange proposes to shorten the “four (4) full business days” time period to “three (3) full business days.”
Current Article 9, Rule 7(a) governing ex-dividend transactions provides in part that transactions in stocks shall be ex-dividend or ex-rights two full business days immediately preceding the date of record fixed by the corporation for the determination of stockholders entitled to receive such dividends or rights, except when such record date occurs upon a holiday or half-holiday, transactions in the stock shall be ex-dividend or ex-rights three full business days immediately preceding the record date. The Exchange proposes amendments to shorten the “two full business days” time period to a “business day” under Rule 7(a) and the “three full business days” time period to “two full business days” under Rule 7(a)(1).
The Exchange proposes similar changes to current Article 9, Rule 7(b) pertaining to ex-warrants that provides, in pertinent part, that transactions in securities which have subscription warrants attached (except those made for “cash”) shall be ex-warrants on the second full business day preceding the date of expiration of the warrants, except when the day of expiration occurs on a holiday or Sunday, the transactions shall be ex-warrants on the third full business day preceding the day of expiration. The Exchange proposes to shorten the “second full business day” time period to a “business day” under Rule 7(b) and the “third full business day” time period to “second full business day” under Rule 7(b)(1).
After careful review of the proposed rule change, the Commission finds that the proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange.
The Commission notes that the proposed rule change would amend Exchange rules to conform to the amendment that the Commission has adopted to Rule 15c6–1(a) under the Act
For the reasons noted above, the Commission finds that the proposal is consistent with the requirements of the Act and would foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, remove impediments to and perfect the mechanism of a free and open market and a national market system, and protect investors and the public interest.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend fees for its Equities Platform (“BZX Fee Schedule”) and to amend fees for its Options Platform (“BZX Options Fee Schedule”) to establish the fees for Industry Members related to the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”).
The text of the proposed rule change is available at 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 parts of such statements.
Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), Investors' Exchange LLC, Miami International Securities Exchange, LLC, MIAX PEARL, LLC, NASDAQ BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC,
The following provides an executive summary of the CAT funding model approved by the Operating Committee, as well as Industry Members' rights and obligations related to the payment of CAT Fees calculated pursuant to the CAT funding model. A detailed description of the CAT funding model and the CAT Fees follows this executive summary.
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Article XI of the CAT NMS Plan requires the Operating Committee to approve the operating budget, including projected costs of developing and operating the CAT for the upcoming year. As set forth in Article XI of the CAT NMS Plan, the CAT NMS Plan requires a bifurcated funding model, where costs associated with building and operating the Central Repository would be borne by (1) Participants and Industry Members that are Execution Venues through fixed tier fees based on market share, and (2) Industry Members (other than Execution Venue ATSs) through fixed tier fees based on message traffic. In its order approving the CAT NMS Plan, the Commission determined that the proposed funding model was “reasonable”
More specifically, the Commission stated in approving the CAT NMS Plan that “[t]he Commission believes that the proposed funding model is reasonably designed to allocate the costs of the CAT between the Participants and Industry Members.”
The Commission believes that the proposed funding model reflects a reasonable exercise of the Participants' funding authority to recover the Participants' costs related to the CAT. The CAT is a regulatory facility jointly owned by the Participants and . . . the Exchange Act specifically permits the Participants to charge their members fees to fund their self-regulatory obligations. The Commission further believes that the proposed funding model is designed to impose fees reasonably related to the Participants' self-regulatory obligations because the fees would be directly associated with the costs of establishing and maintaining the CAT, and not unrelated SRO services.
Accordingly, the funding model imposes fees on both Participants and Industry Members.
In addition, as discussed in Appendix C of the CAT NMS Plan, the Operating Committee considered the advantages and disadvantages of a variety of alternative funding and cost allocation models before selecting the proposed model.
In addition, multiple reviews of current broker-dealer order and trading data submitted under existing reporting requirements showed a wide range in activity among broker-dealers, with a number of broker-dealers submitting
Accordingly, the CAT NMS Plan contemplates that costs will be allocated across the CAT Reporters on a tiered basis to allocate costs to those CAT Reporters that contribute more to the costs of creating, implementing and maintaining the CAT.
The Commission also noted in approving the CAT NMS Plan that “[t]he Participants have offered a credible justification for using different criteria to charge Execution Venues (market share) and Industry Members (message traffic)”
The CAT NMS Plan provides that the Operating Committee will use different criteria to establish fees for Execution Venues and non-Execution Venues due to the fundamental differences between the two types of entities. In particular, the CAT NMS Plan provides that fees charged to CAT Reporters that are Execution Venues will be based on the level of market share and that costs charged to Industry Members (other than Execution Venue ATSs) will be based upon message traffic.
The CAT NMS Plan's funding model also is structured to avoid a “reduction in market quality.”
The CAT NMS Plan is structured to avoid potential conflicts raised by the Operating Committee determining fees applicable to its own members—the Participants. First, the Company will be operated on a “break-even” basis, with fees imposed to cover costs and an appropriate reserve. Any surpluses will be treated as an operational reserve to offset future fees and will not be distributed to the Participants as profits.
Finally, by adopting a CAT-specific fee, the Participants will be fully transparent regarding the costs of the CAT. Charging a general regulatory fee, which would be used to cover CAT costs as well as other regulatory costs, would be less transparent than the selected approach of charging a fee designated to cover CAT costs only.
A full description of the funding model is set forth below. This description includes the framework for the funding model as set forth in the CAT NMS Plan, as well as the details as to how the funding model will be applied in practice, including the number of fee tiers and the applicable fees for each tier. Bats notes that the complete funding model is described below, including those fees that are to be paid by the Participants. The proposed Consolidated Audit Trail Funding Fees, however, do not apply to the Participants; the proposed Consolidated Audit Trail Funding Fees only apply to Industry Members. The CAT fees for Participants will be imposed separately by the Operating Committee pursuant to the CAT NMS Plan.
Section 11.2 of the CAT NMS Plan sets forth the principles that the Operating Committee applied in establishing the funding for the Company. The Operating Committee has considered these funding principles as well as the other funding requirements set forth in the CAT NMS Plan and in Rule 613 in developing the proposed funding model. The following are the funding principles in Section 11.2 of the CAT NMS Plan:
• To create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and other costs of the Company;
• To establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act, taking into account the timeline for implementation of the CAT and distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company's resources and operations;
• To establish a tiered fee structure in which the fees charged to: (i) CAT Reporters that are Execution Venues, including ATSs, are based upon the level of market share; (ii) Industry Members' non-ATS activities are based upon message traffic; (iii) the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venue and/or Industry Members);
• To provide for ease of billing and other administrative functions;
• To avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality; and
• To build financial stability to support the Company as a going concern.
Under Section 11.3(b) of the CAT NMS Plan, the Operating Committee is required to establish fixed fees to be payable by Industry Members, based on message traffic generated by such Industry Member, with the Operating Committee establishing at least five and no more than nine tiers.
The CAT NMS Plan clarifies that the fixed fees payable by Industry Members pursuant to Section 11.3(b) shall, in addition to any other applicable message traffic, include message traffic generated by: (i) An ATS that does not execute orders that is sponsored by such Industry Member; and (ii) routing orders to and from any ATS sponsored by such Industry Member. In addition, the Industry Member fees will apply to Industry Members that act as routing broker-dealers for exchanges. The Industry Member fees will not be applicable, however, to an ATS that qualifies as an Execution Venue, as discussed in more detail in the section on Execution Venue tiering.
In accordance with Section 11.3(b), the Operating Committee approved a tiered fee structure for Industry Members (other than Execution Venue ATSs) as described in this section. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on CAT System resources of different Industry Members, and that establish comparable fees among the CAT Reporters with the most Reportable Events. The Operating Committee has determined that establishing nine tiers results in the fairest allocation of fees, best distinguishing between Industry Members with differing levels of message traffic. Thus, each such Industry Member will be placed into one of nine tiers of fixed fees, based on “message traffic” for a defined period (as discussed below). A nine tier structure was selected to provide the widest range of levels for tiering Industry Members such that Industry Members submitting significantly less message traffic to the CAT would be adequately differentiated from Industry Members submitting substantially more message traffic. The Operating Committee considered historical message traffic generated by Industry Members across all exchanges and as submitted to FINRA's Order Audit Trail System (“OATS”), and considered the distribution of firms with similar levels of message traffic, grouping together firms with similar levels of message traffic. Based on this, the Operating Committee determined that nine tiers would best group firms with similar levels of message traffic, charging those firms with higher impact on the CAT more, while lowering the burden of Industry Members that have less CAT-related activity.
Each Industry Member (other than Execution Venue ATSs) will be ranked by message traffic and tiered by predefined Industry Member percentages (the “Industry Member Percentages”). The Operating Committee determined to use predefined percentages rather than fixed volume thresholds to allow the funding model to ensure that the total CAT fees collected recover the intended CAT costs regardless of changes in the total level of message traffic. To determine the fixed percentage of Industry Members in each tier, the Operating Committee analyzed historical message traffic generated by Industry Members across all exchanges and as submitted to OATS, and considered the distribution of firms with similar levels of message traffic, grouping together firms with similar levels of message traffic. Based on this, the Operating Committee identified tiers that would group firms with similar levels of message traffic, charging those firms with higher impact on the CAT more, while lowering the burden on Industry Members that have less CAT-related activity.
The percentage of costs recovered by each Industry Member tier will be determined by predefined percentage allocations (the “Industry Member Recovery Allocation”). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter message traffic on the CAT System as well as the distribution of total message volume across Industry Members while seeking to maintain comparable fees among the largest CAT Reporters. Accordingly, following the determination of the percentage of Industry Members in each tier, the Operating Committee identified the percentage of total market volume for each tier based on the historical message traffic upon which Industry Members had been initially ranked. Taking this into account along with the resulting percentage of total recovery, the percentage allocation of costs recovered for each tier were assigned, allocating higher percentages of recovery to tiers with higher levels of message traffic while avoiding any inappropriate burden on competition. Furthermore, by using percentages of Industry Members and costs recovered per tier, the Operating Committee sought to include stability and elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Industry Members or the total level of message traffic.
The following chart illustrates the breakdown of nine Industry Member tiers across the monthly average of total equity and equity options orders, cancels and quotes in Q1 2016 and identifies relative gaps across varying levels of Industry Member message traffic as well as message traffic thresholds between the largest of
Based on the above analysis, the Operating Committee approved the following Industry Member Percentages and Recovery Allocations:
For the purposes of creating these tiers based on message traffic, the Operating Committee determined to define the term “message traffic” separately for the period before the commencement of CAT reporting and for the period after the start of CAT reporting. The different definition for message traffic is necessary as there will be no Reportable Events as defined in the Plan, prior to the commencement of CAT reporting. Accordingly, prior to the start of CAT reporting, “message traffic” will be comprised of historical equity and equity options orders, cancels and quotes provided by each exchange and FINRA over the previous three months.
After an Industry Member begins reporting to the CAT, “message traffic” will be calculated based on the Industry Member's Reportable Events reported to the CAT as will be defined in the Technical Specifications.
The Operating Committee has determined to calculate fee tiers every three months, on a calendar quarter basis, based on message traffic from the prior three months. Based on its analysis of historical data, the Operating Committee believes that calculating tiers based on three months of data will provide the best balance between reflecting changes in activity by Industry Members while still providing predictability in the tiering for Industry Members. Because fee tiers will be calculated based on message traffic from the prior three months, the Operating Committee will begin calculating message traffic based on an Industry Member's Reportable Events reported to the CAT once the Industry Member has been reporting to the CAT for three months. Prior to that, fee tiers will be calculated as discussed above with regard to the period prior to CAT reporting.
Under Section 11.3(a) of the CAT NMS Plan, the Operating Committee is required to establish fixed fees payable by Execution Venues. Section 1.1 of the CAT NMS Plan defines an Execution Venue as “a Participant or an alternative trading system (“ATS”) (as defined in Rule 300 of Regulation ATS) that operates pursuant to Rule 301 of Regulation ATS (excluding any such ATS that does not execute orders).”
The Participants determined that ATSs should be included within the definition of Execution Venue. Given the similarity between the activity of exchanges and ATSs, both of which meet the definition of an “exchange” as set forth in the Exchange Act and the fact that the similar trading models would have similar anticipated burdens on the CAT, the Participants determined that ATSs should be treated in the same manner as the exchanges for the purposes of determining the level of fees associated with the CAT.
Given the differences between Execution Venues that trade NMS Stocks and/or OTC Equity Securities and Execution Venues that trade Listed Options, Section 11.3(a) addresses Execution Venues that trade NMS Stocks and/or OTC Equity Securities separately from Execution Venues that trade Listed Options. Equity and Options Execution Venues are treated separately for two reasons. First, the differing quoting behavior of Equity and Options Execution Venues makes comparison of activity between Execution Venues difficult. Second, Execution Venue tiers are calculated based on market share of share volume, and it is therefore difficult to compare market share between asset classes (
Section 11.3(a)(i) of the CAT NMS Plan states that each Execution Venue that (i) executes transactions or, (ii) in the case of a national securities association, has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange, in NMS Stocks or OTC Equity Securities
In accordance with Section 11.3(a)(i) of the CAT NMS Plan, the Operating Committee approved a tiered fee structure for Equity Execution Venues and Option Execution Venues. In determining the Equity Execution Venue Tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on system resources of different Equity Execution Venues, and that establish comparable fees among the CAT Reporters with the most Reportable Events. Each Equity Execution Venue will be placed into one of two tiers of fixed fees, based on the Execution Venue's NMS Stocks and OTC Equity Securities market share. In choosing two tiers, the Operating Committee performed an analysis similar to that discussed above with regard to the non-Execution Venue Industry Members to determine the number of tiers for Equity Execution Venues. The Operating Committee determined to establish two tiers for Equity Execution Venues, rather than a larger number of tiers as established for non-Execution Venue Industry Members, because the two tiers were sufficient to distinguish between the smaller number of Equity Execution Venues based on market share. Furthermore, the incorporation of additional Equity Execution Venue tiers would result in significantly higher fees for Tier 1 Equity Execution Venues and diminish comparability between Execution Venues and Industry Members.
Each Equity Execution Venue will be ranked by market share and tiered by predefined Execution Venue percentages, (the “Equity Execution Venue Percentages”). In determining the fixed percentage of Equity Execution Venues in each tier, the Operating Committee looked at historical market share of share volume for execution venues. Equities Execution Venue market share of share volume were sourced from market statistics made publicly-available by Bats Global Markets, Inc. (“Bats”). ATS market share of share volume was sourced from market statistics made publicly-available by FINRA. FINRA trading [sic] reporting facility (“TRF”) market share of share volume was sourced from market statistics made publicly available by Bats. As indicated by FINRA, ATSs accounted for 37.80% of the share volume across the TRFs during the recent tiering period. A 37.80/62.20 split was applied to the ATS and non-ATS breakdown of FINRA market share, with FINRA tiered based only on the non-ATS portion of its TRF market share of share volume.
Based on this, the Operating Committee considered the distribution of Execution Venues, and grouped together Execution Venues with similar levels of market share of share volume. In doing so, the Participants considered that, as previously noted, Execution Venues in many cases have similar levels of message traffic due to quoting activity, and determined that it was simpler and more appropriate to have fewer, rather than more, Execution Venue tiers to distinguish between Execution Venues.
The percentage of costs recovered by each Equity Execution Venue tier will be determined by predefined percentage allocations (the “Equity Execution Venue Recovery Allocation”). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter market share activity on the CAT System as well as the distribution of total market volume across Equity Execution Venues while seeking to maintain comparable fees among the largest CAT Reporters. Accordingly, following the determination of the percentage of Execution Venues in each tier, the Operating Committee identified the percentage of total market volume for each tier based on the historical market share upon which Execution Venues had been initially ranked. Taking this into account along with the resulting percentage of total recovery, the percentage allocation of costs recovered for each tier were assigned, allocating higher percentages of recovery to the tier with a higher level of market share while avoiding any inappropriate burden on competition. Furthermore, due to the similar levels of impact on the CAT System across Execution Venues, there is less variation in CAT Fees between the highest and lowest of tiers for Execution Venues. Furthermore, by using percentages of Equity Execution Venues and costs recovered per tier, the Operating Committee sought to include stability and elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Equity Execution Venues or changes in market share.
Based on this analysis, the Operating Committee approved the following Equity Execution Venue Percentages and Recovery Allocations:
The following table exhibits the relative separation of market share of share volume between Tier 1 and Tier 2 Equity Execution Venues. In reviewing the table, note that while this division was referenced as a data point to help differentiate between Equity Execution Venue tiers, the proposed funding model is directly driven not by market share thresholds, but rather by fixed percentages of Equity Execution Venues across tiers to account for
Section 11.3(a)(ii) of the CAT NMS Plan states that each Execution Venue that executes transactions in Listed Options will pay a fixed fee depending on the Listed Options market share of that Execution Venue, with the Operating Committee establishing at least two and no more than five tiers of fixed fees, based on an Execution Venue's Listed Options market share. For these purposes, market share will be calculated by contract volume.
In accordance with Section 11.3(a)(ii) of the CAT NMS Plan, the Operating Committee approved a tiered fee structure for Options Execution Venues. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on system resources of different Options Execution Venues, and that establish comparable fees among the CAT Reporters with the most Reportable Events. Each Options Execution Venue will be placed into one of two tiers of fixed fees, based on the Execution Venue's Listed Options market share. In choosing two tiers, the Operating Committee performed an analysis similar to that discussed above with regard to Industry Members (other than Execution Venue ATSs) to determine the number of tiers for Options Execution Venues. The Operating Committee determined to establish two tiers for Options Execution Venues, rather than a larger number of tiers as established for Industry Members (other than Execution Venue ATSs), because the two tiers were sufficient to distinguish between the smaller number of Options Execution Venues based on market share. Furthermore, due to the smaller number of Options Execution Venues, the incorporation of additional Options Execution Venue tiers would result in significantly higher fees for Tier 1 Options Execution Venues and reduce comparability between Execution Venues and Industry Members.
Each Options Execution Venue will be ranked by market share and tiered by predefined Execution Venue percentages, (the “Options Execution Venue Percentages”). To determine the fixed percentage of Options Execution Venues in each tier, the Operating Committee analyzed the historical and publicly available market share of Options Execution Venues to group Options Execution Venues with similar market shares across the tiers. Options Execution Venue market share of share volume were sourced from market statistics made publicly-available by Bats. The process for developing the Options Execution Venue Percentages was the same as discussed above with regard to Equity Execution Venues.
The percentage of costs recovered by each Options Execution Venue tier will be determined by predefined percentage allocations (the “Options Execution Venue Recovery Allocation”). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter market share activity on the CAT System as well as the distribution of total market volume across Options Execution Venues while seeking to maintain comparable fees among the largest CAT Reporters. Furthermore, by using percentages of Options Execution Venues and costs recovered per tier, the Operating Committee sought to include stability and elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Options Execution Venues or changes in market share. The process for developing the Options Execution Venue Recovery Allocation was the same as discussed above with regard to Equity Execution Venues.
Based on this analysis, the Operating Committee approved the following Options Execution Venue Percentages and Recovery Allocations:
The following table exhibits the relative separation of market share of share volume between Tier 1 and Tier 2 Options Execution Venues. In reviewing the table, note that while this division was referenced as a data point to help differentiate between Options Execution Venue tiers, the proposed funding model is directly driven, not by market share thresholds, but rather by fixed percentages of Options Execution Venues across tiers to account for fluctuating levels of market share across time. Actual market share in any tier will vary based on the actual market activity in a given measurement period, as well as the number of Options Execution Venues included in the measurement period. The Options Execution Venue Percentages and Equity Execution Venue Recovery Allocation for each tier will remain fixed with each Options Execution Venue tier to be reassigned periodically, as described below in Section 3(a)(1)(I) [sic].
The Operating Committee determined that, prior to the start of CAT reporting, market share for Execution Venues would be sourced from publicly-available market data. Options and
After the commencement of CAT reporting, market share for Execution Venues will be sourced from data reported to the CAT. Equity Execution Venue market share will be determined by calculating each Equity Execution Venue's proportion of the total volume of NMS Stock and OTC Equity shares reported by all Equity Execution Venues during the relevant time period. Similarly, market share for Options Execution Venues will be determined by calculating each Options Execution Venue's proportion of the total volume of Listed Options contracts reported by all Options Execution Venues during the relevant time period.
The Operating Committee has determined to calculate fee tiers for Execution Venues every three months based on market share from the prior three months. Based on its analysis of historical data, the Operating Committee believes calculating tiers based on three months of data will provide the best balance between reflecting changes in activity by Execution Venues while still providing predictability in the tiering for Execution Venues.
In addition to the funding principles discussed above, including comparability of fees, Section 11.1(c) of the CAT NMS Plan also requires expenses to be fairly and reasonably shared among the Participants and Industry Members. Accordingly, in developing the proposed fee schedules pursuant to the funding model, the Operating Committee calculated how the CAT costs would be allocated between Industry Members and Execution Venues, and how the portion of CAT costs allocated to Execution Venues would be allocated between Equity Execution Venues and Options Execution Venues. These determinations are described below.
In determining the cost allocation between Industry Members (other than Execution Venue ATSs) and Execution Venues, the Operating Committee analyzed a range of possible splits for revenue recovered from such Industry Members and Execution Venues. Based on this analysis, the Operating Committee determined that 75 percent of total costs recovered would be allocated to Industry Members (other than Execution Venue ATSs) and 25 percent would be allocated to Execution Venues. The Operating Committee determined that this 75/25 division maintained the greatest level of comparability across the funding model, keeping in view that comparability should consider affiliations among or between CAT Reporters (
Furthermore, the allocation of total CAT costs recovered recognizes the difference in the number of CAT Reporters that are Industry Members versus CAT Reporters that are Execution Venues. Specifically, the cost allocation takes into consideration that there are approximately 25 times more Industry Members expected to report to the CAT than Execution Venues (
The Operating Committee also analyzed how the portion of CAT costs allocated to Execution Venues would be allocated between Equity Execution Venues and Options Execution Venues. In considering this allocation of costs, the Operating Committee analyzed a range of alternative splits for revenue recovered between Equity and Options Execution Venues, including a 70/30, 67/33, 65/35, 50/50 and 25/75 split. Based on this analysis, the Operating Committee determined to allocate 75 percent of Execution Venue costs recovered to Equity Execution Venues and 25 percent to Options Execution Venues. The Operating Committee determined that a 75/25 division between Equity and Options Execution Venues maintained elasticity across the funding model as well the greatest level of fee equitability and comparability based on the current number of Equity and Options Execution Venues. For example, the allocation establishes fees for the larger Equity Execution Venues that are comparable to the larger Options Execution Venues, and fees for the smaller Equity Execution Venues that are comparable to the smaller Options Execution Venues. In addition to fee comparability between Equity Execution Venues and Options Execution Venues, the allocation also establishes equitability between larger (Tier 1) and smaller (Tier 2) Execution Venues based upon the level of market share. Furthermore, the allocation is intended to reflect the relative levels of current equity and options order events.
The Operating Committee determined to establish a CAT-specific fee to collectively recover the costs of building and operating the CAT. Accordingly, under the funding model, the sum of the CAT Fees is designed to recover the total cost of the CAT. The Operating Committee has determined overall CAT costs to be comprised of Plan Processor costs and non-Plan Processor costs, which are estimated to be $50,700,000 in total for the year beginning November 21, 2016.
The Plan Processor costs relate to costs incurred by the Plan Processor and consist of the Plan Processor's current estimates of average yearly ongoing costs, including development cost, which total $37,500,000. This amount is based upon the fees due to the Plan Processor pursuant to the agreement with the Plan Processor.
The non-Plan Processor estimated costs incurred and to be incurred by the Company through November 21, 2017 consist of three categories of costs. The first category of such costs are third party support costs, which include historic legal fees, consulting fees and audit fees from November 21, 2016 until the date of filing as well as estimated third party support costs for the rest of the year. These amount to an estimated $5,200,000. The second category of non-Plan Processor costs are estimated insurance costs for the year. Based on discussions with potential insurance providers, assuming $2–5 million insurance premium on $100 million in coverage, the Company has received an estimate of $3,000,000 for the annual
Based on the estimated costs and the calculations for the funding model described above, the Operating Committee determined to impose the following fees:
For Industry Members (other than Execution Venue ATSs):
For Execution
For Execution
As noted above, the fees set forth in the tables reflect the Operating Committee's decision to ensure comparable fees between Execution Venues and Industry Members. The fees of the top tiers for Industry Members (other than Execution Venue ATSs) are not identical to the top tier for Execution Venues, however, because the Operating Committee also determined that the fees for Execution Venue complexes should be comparable to those of Industry Member complexes. The difference in the fees reflects this decision to recognize affiliations.
The Operating Committee has calculated the schedule of effective fees for Industry Members (other than Execution Venue ATSs) and Execution Venues in the following manner. Note that the calculation of CAT Reporter fees assumes 53 Equity Execution Venues, 15 Options Execution Venues and 1,631 Industry Members (other than Execution Venue ATSs) as of January 2017.
The funding principles require a funding model in which the fees charged to the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venue and/or Industry Members). Accordingly, in creating the model, the Operating Committee sought to take account of the affiliations between or among CAT Reporters—that is, where affiliated entities may have multiple Industry Member and/or Execution Venue licenses, by maintaining relative comparability of fees among such affiliations with the most expected CAT-related activity. To do this, the Participants identified representative affiliations in the largest tier of both Execution Venues and Industry Members and compared the aggregate fees that would be paid by such firms.
While the proposed fees for Tier 1 and Tier 2 Industry Members are relatively higher than those of Tier 1 and Tier 2 Execution Venues, Execution Venue complex fees are relatively higher than those of Industry Member complexes largely due to affiliations between Execution Venues. The tables set forth below describe the largest Execution Venue and Industry Member complexes and their associated fees:
Under Section 11.1(c) of the CAT NMS Plan, to fund the development and implementation of the CAT, the Company shall time the imposition and collection of all fees on Participants and Industry Members in a manner reasonably related to the timing when the Company expects to incur such development and implementation costs. The Company is currently incurring such development and implementation costs and will continue to do so prior to the commencement of CAT reporting and thereafter. For example, the Plan Processor has required up-front payments to begin building the CAT. In addition, the Company continues to incur consultant and legal expenses on an on-going basis to implement the CAT. Accordingly, the Operating Committee determined that all CAT Reporters, including both Industry Members and Execution Venues (including Participants), would begin to be invoiced as promptly as possible following the establishment of a billing mechanism. Bats will issue a Regulatory Circular to its members when the billing mechanism is established, specifying the date when such invoicing of Industry Members will commence.
Section 11.3(d) of the CAT NMS Plan states that “[t]he Operating Committee shall review such fee schedule on at least an annual basis and shall make any changes to such fee schedule that it deems appropriate. The Operating Committee is authorized to review such fee schedule on a more regular basis, but shall not make any changes on more than a semi-annual basis unless, pursuant to a Supermajority Vote, the Operating Committee concludes that such change is necessary for the adequate funding of the Company.” With such reviews, the Operating Committee will review the distribution of Industry Members and Execution Venues across tiers, and make any updates to the percentage of CAT Reporters allocated to each tier as may be necessary. In addition, the reviews will evaluate the estimated ongoing CAT costs and the level of the operating reserve. To the extent that the total CAT costs decrease, the fees would be adjusted downward, and, to the extent that the total CAT costs increase, the fees would be adjusted upward.
The Operating Committee has determined to calculate fee tiers every three months based on market share or message traffic, as applicable, from the prior three months. For the initial tier assignments, the Company will calculate the relevant tier for each CAT Reporter using the three months of data prior to the commencement date. As with the initial tier assignment, for the tri-monthly reassignments, the Company will calculate the relevant tier using the three months of data prior to the relevant tri-monthly date. Bats notes that any movement of CAT Reporters between tiers will not change the criteria for each tier or the fee amount corresponding to each tier.
In performing the tri-monthly reassignments, Bats notes that the percentage of CAT Reporters in each assigned tier is relative. Therefore, a CAT Reporter's assigned tier will depend, not only on its own message traffic or market share, but it also will depend on the message traffic/market share across all CAT Reporters. For example, the percentage of Industry Members (other than Execution Venue ATSs) in each tier is relative such that such Industry Member's assigned tier will depend on message traffic generated across all CAT Reporters as well as the total number of CAT Reporters. The Operating Committee will inform CAT Reporters of their assigned tier every three months following the periodic tiering process, as the funding model will compare an individual CAT Reporter's activity to that of other CAT Reporters in the marketplace.
The following demonstrates a tier reassignment. In accordance with the funding model, the top 75% of Options Execution Venues in market share are categorized as Tier 1 while the bottom 25% of Options Execution Venues in market share are categorized as Tier 2. In the sample scenario below, Options Execution Venue L is initially categorized as a Tier 2 Options Execution Venue in Period A due to its market share. When market share is recalculated for Period B, the market share of Execution Venue L increases, and it is therefore subsequently reranked and reassigned to Tier 1 in Period B. Correspondingly, Options Execution Venue K, initially a Tier 1 Options Execution Venue in Period A, is reassigned to Tier 2 in Period B due to decreases in its market share of share volume.
Bats proposes the Consolidated Audit Trail Funding Fees to implement the CAT Fees determined by the Operating Committee on SRO's Industry Members. The proposed fee schedule has three sections, covering definitions, the fee schedule for CAT Fees, and the timing and manner of payments. Each of these sections is discussed in detail below.
Paragraph (a) of the proposed fee schedule sets forth the definitions for the proposed fee schedule. Paragraph (a)(1) states that, for purposes of the Consolidated Audit Trail Funding Fees, the terms “CAT NMS Plan,” “Industry Member,” “NMS Stock,” “OTC Equity Security”, and “Participant” are defined as set forth in Rule 4.5 (Consolidated Audit Trail—Definitions).
The proposed fee schedule imposes different fees on Equity ATSs and Industry Members that are not Equity ATSs. Accordingly, the proposed fee schedule defines the term “Equity ATS.” First, paragraph (a)(2) defines an “ATS” to mean an alternative trading system as defined in Rule 300(a) of Regulation ATS under the Securities Exchange Act of 1934, as amended, that operates pursuant to Rule 301 of Regulation ATS. This is the same definition of an ATS as set forth in Section 1.1 of the CAT NMS Plan in the definition of an “Execution Venue.” Then, paragraph (a)(4) defines an “Equity ATS” as an ATS that executes transactions in NMS Stocks and/or OTC Equity Securities.
Paragraph (a)(3) of the proposed fee schedule defines the term “CAT Fee” to mean the Consolidated Audit Trail Funding Fee(s) to be paid by Industry Members as set forth in paragraph (b) in the proposed fee schedule.
Finally, Paragraph (a)(6) defines an “Execution Venue” as a Participant or an ATS (excluding any such ATS that does not execute orders). This definition is the same substantive definition as set forth in Section 1.1 of the CAT NMS Plan. Paragraph (a)(5) defines an “Equity Execution Venue” as an Execution Venue that trades NMS Stocks and/or OTC Equity Securities.
Bats proposes to impose the CAT Fees applicable to its Industry Members through paragraph (b) of the proposed fee schedule. Paragraph (b)(1) of the proposed fee schedule sets forth the CAT Fees applicable to Industry Members other than Equity ATSs. Specifically, paragraph (b)(1) states that the Company will assign each Industry Member (other than an Equity ATS) to a fee tier once every quarter, where such tier assignment is calculated by ranking each Industry Member based on its total message traffic for the three months prior to the quarterly tier calculation day and assigning each Industry Member to a tier based on that ranking and predefined Industry Member percentages. The Industry Members with the highest total quarterly message traffic will be ranked in Tier 1, and the Industry Members with lowest quarterly message traffic will be ranked in Tier 9. Each quarter, each Industry Member (other than an Equity ATS) shall pay the following CAT Fee corresponding to the tier assigned by the Company for such Industry Member for that quarter:
Paragraph (b)(2) of the proposed fee schedule sets forth the CAT Fees applicable to Equity ATSs.
Section 11.4 of the CAT NMS Plan states that the Operating Committee shall establish a system for the collection of fees authorized under the CAT NMS Plan. The Operating Committee may include such collection responsibility as a function of the Plan Processor or another administrator. To implement the payment process to be adopted by the Operating Committee, paragraph (c)(1) of the proposed fee schedule states that the Company will provide each Industry Member with one invoice each quarter for its CAT Fees as determined pursuant to paragraph (b) of the proposed fee schedule, regardless of whether the Industry Member is a member of multiple self-regulatory organizations. Paragraph (c)(1) further states that each Industry Member will pay its CAT Fees to the Company via the centralized system for the collection of CAT Fees established by the Company in the manner prescribed by the Company. Bats will provide Industry Members with details regarding the manner of payment of CAT Fees by Regulatory Circular.
Although the exact fee collection system and processes for CAT fees has not yet been established, all CAT fees will be billed and collected centrally through the Company, via the Plan Processor or otherwise. Although each Participant will adopt its own fee schedule regarding CAT Fees, no CAT Fees or portion thereof will be collected by the individual Participants. Each Industry Member will receive from the Company one invoice for its applicable CAT fees, not separate invoices from each Participant of which it is a member. The Industry Members will pay the CAT Fees to the Company via the centralized system for the collection of CAT fees established by the Company.
Section 11.4 of the CAT NMS Plan also states that Participants shall require each Industry Member to pay all applicable authorized CAT Fees within thirty days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated). Section 11.4 further states that, if an Industry Member fails to pay any such fee when due, such Industry Member shall pay interest on the outstanding balance from such due date until such fee is paid at a per annum rate equal to the lesser of: (i) The Prime Rate plus 300 basis points; or (ii) the maximum rate permitted by applicable law. Therefore, in accordance with Section 11.4 of the CAT NMS Plan, Bats proposes to adopt paragraph (c)(2) of the proposed fee schedule. Paragraph (c)(2) of the proposed fee schedule states that each Industry Member shall pay CAT Fees within thirty days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated). If an Industry Member fails to pay any such fee when due, such Industry Member shall pay interest on the outstanding balance from such due date until such fee is paid at a per annum rate equal to the lesser of: (i) The Prime Rate plus 300 basis points; or (ii) the maximum rate permitted by applicable law.
Bats believes that the proposed rule change is consistent with the provisions of Section 6(b)(5) of the Act,
Bats believes that this proposal is consistent with the Act because it implements, interprets or clarifies the provisions of the Plan, and is designed to assist Bats and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.”
Bats believes that the proposed tiered fees are reasonable. First, the total CAT Fees to be collected would be directly associated with the costs of establishing and maintaining the CAT, where such costs include Plan Processor costs and costs related to insurance, third party services and the operational reserve. The CAT Fees would not cover Participant services unrelated to the CAT. In addition, any surplus CAT Fees cannot be distributed to the individual Participants; such surpluses must be used as a reserve to offset future fees. Given the direct relationship between the fees and the CAT costs, Bats believes that the total level of the CAT Fees is reasonable.
In addition, Bats believes that the proposed CAT Fees are reasonably designed to allocate the total costs of the CAT equitably between and among the Participants and Industry Members, and are therefore not unfairly discriminatory. As discussed in detail above, the proposed tiered fees impose comparable fees on similarly situated CAT Reporters. For example, those with a larger impact on the CAT (measured via message traffic or market share) pay higher fees, whereas CAT Reporters with a smaller impact pay lower fees. Correspondingly, the tiered structure lessens the impact on smaller CAT Reporters by imposing smaller fees on those CAT Reporters with less market share or message traffic. In addition, the funding model takes into consideration affiliations between CAT Reporters, imposing comparable fees on such affiliated entities.
Moreover, Bats believes that the division of the total CAT costs between Industry Members and Execution Venues, and the division of the Execution Venue portion of total costs between Equity and Options Execution Venues, is reasonably designed to allocate CAT costs among CAT Reporters. The 75/25 division between Industry Members and Execution Venues maintains the greatest level of comparability across the funding model, keeping in view that comparability should consider affiliations among or between CAT Reporters (
Finally, Bats believes that the proposed fees are reasonable because they would provide ease of calculation, ease of billing and other administrative functions, and predictability of a fixed fee. Such factors are crucial to estimating a reliable revenue stream for the Company and for permitting CAT Reporters to reasonably predict their payment obligations for budgeting purposes.
Section 6(b)(8) of the Act
Moreover, as previously described, Bats believes that the proposed rule change fairly and equitably allocates costs among CAT Reporters. In particular, the proposed fee schedule is structured to impose comparable fees on similarly situated CAT Reporters, and lessen the impact on smaller CAT Reporters. CAT Reporters with similar levels of CAT activity will pay similar fees. For example, Industry Members (other than Execution Venue ATSs) with higher levels of message traffic will pay higher fees, and those with lower levels of message traffic will pay lower fees. Similarly, Execution Venue ATSs and other Execution Venues with larger market share will pay higher fees, and those with lower levels of market share will pay lower fees. Therefore, given that there is generally a relationship between message traffic and market share to the CAT Reporter's size, smaller CAT Reporters generally pay less than larger CAT Reporters. Accordingly, Bats does not believe that the CAT Fees would have a disproportionate effect on smaller or larger CAT Reporters. In addition, ATSs and exchanges will pay the same fees based on market share. Therefore, Bats does not believe that the fees will impose any burden on the competition between ATSs and exchanges. Accordingly, Bats believes that the proposed fees will minimize the potential for adverse effects on competition between CAT Reporters in the market.
Furthermore, the tiered, fixed fee funding model limits the disincentives to providing liquidity to the market. Therefore, the proposed fees are structured to limit burdens on competitive quoting and other liquidity provision in the market.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend a pilot program to quote and to trade certain options classes in penny increments (“Penny Pilot Program”).
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.
Under the Penny Pilot Program, the minimum price variation for all participating options classes, except for the Nasdaq-100 Index Tracking Stock (“QQQQ”), the SPDR S&P 500 Exchange Traded Fund (“SPY”) and the iShares Russell 2000 Index Fund (“IWM”), is $0.01 for all quotations in options series that are quoted at less than $3 per contract and $0.05 for all quotations in options series that are quoted at $3 per contract or greater. QQQQ, SPY and IWM are quoted in $0.01 increments for all options series. The Penny Pilot Program is currently scheduled to expire on June 30, 2017.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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.
All submissions should refer to File Number SR–ISE–2017–48. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. 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–ISE–2017–48 and should be submitted
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend a pilot program to quote and to trade certain options classes in penny increments (“Penny Pilot Program”).
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
Under the Penny Pilot Program, the minimum price variation for all participating options classes, except for the Nasdaq–100 Index Tracking Stock (“QQQQ”), the SPDR S&P 500 Exchange Traded Fund (“SPY”) and the iShares Russell 2000 Index Fund (“IWM”), is $0.01 for all quotations in options series that are quoted at less than $3 per contract and $0.05 for all quotations in options series that are quoted at $3 per contract or greater. QQQQ, SPY and IWM are quoted in $0.01 increments for all options series. The Penny Pilot Program is currently scheduled to expire on June 30, 2017.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from
All submissions should refer to File Number SR–MRX–2017–06 and should be submitted on or before June 27, 2017.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 2, 2017, the participants (“Participants”)
The Commission is publishing this notice to reflect that on April 27, 2017, prior to the end of the 60-day period provided for in Exchange Act Rule 608(b)(iii), the Participants withdrew the Amendments.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 1017, Openings in Options, to conform this rule to recently filed Nasdaq ISE, LLC (“ISE”) Rule 701.
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 is proposing to amend its rules relating to its opening process to conform the rule to a recently filed ISE rule change.
ISE recently filed to adopt Phlx's Opening Process.
With respect to the definitions at Rule 1017(a), ISE alphabetized the definitions. Phlx proposes to reorder the
Rule 1017(b) proposes to amend text explaining what interest is included in the Opening Process. The rule today specifies what may be submitted, the elimination of redundant text simply makes clear what will not be included in the Opening Process. Quotes other than Valid Width Quotes will not be included in the Opening Process. The purpose of this change was to make the rule text simple and clear. The rule continues to make clear what interest will be included within the Opening Process. Phlx Rule 1017(b)(ii) is adding a reference to Rule 1014 for allocation purposes similar to ISE Rule 713.
Rule 1017(d)(i) proposes to amend the rule text to clarify that any of the options for opening with a Valid Width Quote in Rule 1017(d)(i)(A)–(C) may apply. The word “either” was not as clear that there were three choices for opening the market. In addition, the Exchange proposes to add the words “for the underlying currency” to describe that for U.S. dollar-settled foreign currency options it would be within two minutes of the market opening for the underlying currency. The reference should help readers understand which security is being discussed for the opening. Finally within this paragraph the Exchange is removing the capitalization from “Opening Price” because the opening price being referenced is the opening price for the undelying [sic] index, not the Opening Price as defined in Rule 1017.
Rule 1017(d)(ii) proposes to rearrange the rule text for clarity to make clear that for all options, for the Opening Process to commence the underlying security must be open on the primary market. The Exchange is not proposing to substantively amend the process. The proposed text changes make clear the purpose of the paragraph by explaining that the text explains a prerequisite for the Opening Process.
Rule 1017(d)(iv) proposes to add a “this” before Rule 1017 for emphasis. The Exchange proposes to segregate Rule 1017(d)(v) rule text to explain when an ABBO becomes crossed. Other minor changes are proposed to this section to simply clarify the rule text.
Rule 1017(f) proposes to amend the rule text to account for three conditions that must all exist to open with a PBBO. The change emphasizes the conditions, three of them, that must be met to open with a PBBO.
Rule 1017(h) proposes to amend the rule text to clarify that orders include Opening Sweeps. Opening Sweeps is already mentioned in the rule text, the placement of its mention is changed so that it is subcategorized in thinking about orders. The rule text also cross-references to Potential Opening Price to provide a roadmap within the rule.
Rule 1017(h)(C) proposes to add clarifying text to specify the Potential Opening Price is bounded by the better away market. The word “limited” was previously used and is being replaced by another word “bounded” to describe the same process. The “better” is added to clarify that it is the away market that is being considered.
Rule 1017(i) proposes to clarify the rule text with respect to the manner in which Opening with a Trade will occur. The proposed rule text simplifies the language in the rule. Rule 1017(i)(B)(2) proposes to insert the words “would cross” in place of “that crosses.” Also, additional language is proposed to be added to Rule 1017(i)(B)(2)(b) regarding the mid-point calculation. The current text simply notes that Exchange would open the option series for trading with an execution and use the best price which the Potential Opening Price crosses as a boundary price for the purposes of the mid-point calculation. The new text is more explicit, and makes clear that in order to calculate the midpoint, the Exchange will use the better of the Pre-Market BBO or ABBO as a boundary price, which is more specific than simply “best price.” Instead of stating the Exchange will open the option series for trading with an execution, the amendment adds “at the resulting Potential Opening Price,” which makes clear what price it would open with when opening with a trade. The current text does not explain what happens if the conditions described in Rule 1017(i)(B)(2) are not met. The proposed text once again provides a guidepost within the rule to make clear that if the conditions are not met, the text leads to paragraph (j) which describes the Opening Quote Range and thereafter, the Price Discovery Mechanism in paragraph (k).
Rule 1017(j) proposes to amend to clarify that the system will calculate an Opening Quote Range if the Exchange has not opened under any of the provisions from 1017(a)–(i). The word “sub” is proposed to be removed before the word “paragraph” in certain places throughout Rule 1017 because it is unnecessary.
Rule 1017(j)(3) proposes to amend the rule text to add more context to this paragraph. Currently, the rule text provides that if one or more away markets have disseminated opening quotes that are not crossed and there are Valid Width Quotes on the Exchange that cross each other or that cross away market quotes then the information in subparagraph (a) and (b) below would apply. The proposed new text uses the word “disseminating” for accuracy, because quotes are disseminated and instead of “opening quotes” the more precise “BBO” is utilized. A parenthetical is added to note that the Opening Process stops, because the market is crossed, and the series will not open if the ABBO becomes crossed as previously noted in Rule 1017(d)(v). This is another guidepost, in this case to emphasize again that the Exchange will not open with an ABBO that is crossed. The BBO cannot be crossed because it is indicative of uncertainty in the marketplace of where the option series should be valued. In this case, the Exchange will wait for the ABBO to become uncrossed before initiating the Opening Process to ensure that there is stability in the marketplace in order to assist the Exchange in determining the Opening Price. Rule 1017(j) indicates that the existence of all three conditions in Rule 1017(j)(1)–(3) warrant further price discovery to validate or perhaps update the Potential Opening Price and to attract additional interest to perhaps render an opening trade possible, because in the case of paragraph (2)
Furthermore, the words “away bid” and “away offer” are replacements for the concepts of quote bid/offer among quotes on away markets in Rules 1017(j)(3)(a) and (b). The Exchange does not believe there is any difference in those words, simply a more efficient word usage choice.
Rule 1017(j)(4) proposes to replace the word “opening quotes” with the more specific defined term “Valid Width Quotes.” The Exchange recognizes that opening quotes was intended to have the meaning that is intended in Valid Width Quotes and incorrectly did not utilize the definition in the initial filing. The term Valid Width Quote is what was intended when the Exchange utilized the more general term “opening quote.” The word cross is being replaced with “are executable against.” The Exchange used the term cross in the Phlx original filing and is now conforming these words to the approved words in the ISE rule change “are executable against” to signify that no difference was intended. The Exchange believes that this is an example of different word choice. The words “disseminating a BBO” are being added in this paragraph to more clearly express that each exchange disseminates a BBO. An exchange broadcasts its market's best bid or offer by disseminating it publically so that other exchanges are aware of what is the away market BBO. This more specific language simply provides more context to the sentence.
Rule 1017(j)(5) proposes to replace certain language in that rule text with more clarifying language. The new rule text replaces the words “through the” OQR with “wider than the” OQR. The words were intended to mean that the OQR must be exceeded. The word choice was amended to “wider than” in the ISE filing to make this point. The same language is being amended in this rule for consistency. Also, the Exchange notes in this paragraph that “If there is more than one Potential Opening Price possible where no contracts would be left unexecuted, any price used for the mid-point calculation (which is described in subparagraph (h) above) that is wider than the OQR will be restricted to the OQR price on that side of the market for the purposes of the
Rule 1017(j)(6) is being amended to add clarifying language. Currently the paragraph states “[i]f there is more than one Potential Opening Price possible where no contracts would be left unexecuted and any price used for the mid-point calculation (which is described in subparagraph (h) above) an away market price when contracts will be routed, the system will use the away market price as the Potential Opening Price.” The Exchange proposes to instead remove the reference “and any price used for the mid-point calculation (which is described in subparagraph (h) above)” and instead simply state “pursuant to paragraph (h)(C)” which describes the Potential Opening Price. The Exchange believes that the replacement language avoids confusion to the reader because as proposed it would reference the specific language in the rule.
Rule 1017(j)(7) is being amended to add clarifying language. Currently the paragraph states, “If non-routable interest can be maximum executable against Exchange interest after routable interest has been determined by the system to satisfy the away market . . .” The purpose of this sentence was intended to convey that the Exchange will attempt to execute as much interest as possible at the opening. It was suggested in the ISE filing that another way to state this concept was “If the Exchange determines that non-routable interest can execute the maximum number of contracts against Exchange interest, after routable interest has been determined by the system to satisfy the away market . . .” The Exchange amended the language in the ISE filing to be clear. The Exchange proposes the same revision in the Phlx rule text. This is not a substantive change. The current sentence goes on to state, “then the Potential Opening Price is the price at which the maximum volume, excluding the volume which will be routed to an away market . . .” The ISE rule change removed the references to “volume” and instead replaced the concept of volume as follows, “then the Potential Opening Price is the price at which the maximum number of contacts can execute, excluding the interest which will be routed to an away market . . .” The Exchange notes that the new language is more specific because instead of volume in the first instance, the concept is expanded to the number of contracts executed and instead of volume in the second instance, the concept of interest is more accurate.
Rule 1017(k)(A) proposes to add language for clarity. The paragraph starts, “First, the system will broadcast an Imbalance Message.” It was noted in the ISE filing that adding “for the affected series” would be more specific, because the message concerns a certain series. The sentence then states, “(which includes the symbol, side of the imbalance (unmatched contracts), size of matched contracts, size of the imbalance, and
Rule 1017(k)(B) proposes to replace certain language in that rule text with more clarifying language. The current rule text states, “If during or at the end of the Imbalance Timer, the Opening Price is at or within the OQR, the Imbalance Timer will execute at the Opening Price . . .” The ISE filing replaces the words “execute at” with more explicit language “open with a trade at” to convey that the trade is the manner in which the Phlx opens the market. This is not a substantive change, but different word usage. The current rule text continues later, “If no new interest comes in during the Imbalance Timer and the Opening Price is at or within OQR, the Exchange will open at the end of the Imbalance Timer.” The “Opening Price” is again being more specifically changed to the defined term “Potential Opening Price” here and the concept is again added to the end of the sentence to make clear that the Exchange will open with a trade at the end of the Imbalance Timer at the Potential Opening Price. The new language makes clear again that the trade is the manner in which the Phlx opens the market at the Potential Opening Price.
Rule 1017(k)(C)(1) proposes to replace the words “without trading” with “and would not trade” for clarity. This is simply a change in word choice and is not a substantive change.
Rule 1017(k)(C)(2) replaces the word “other” with “away” to describe a market other than Phlx. The word “simultaneously” is added to describe the order in which the trade will occur and the timer will end. The word “Potential Opening Price” was added to demonstrate the effect on this price more clearly as described herein in Rule 1017(k)(B). The Exchange also proposes to amend language that references “will trade” to instead more accurately states “will open with trades” to more precisely express that the system will open with the trade.
Rule 1017(k)(C)(3) proposes to add a clause at the beginning of the text “If no trade occurred pursuant to (2) above” as a roadmap to connect the rule. The words “without trading” are proposed to be replaced with “and would not trade” for clarity. Also, the word “series” is being added after the word “options” for more specificity.
Rule 1017(k)(C)(3)(i) proposes to add the words “better priced away” to the beginning of the sentence. Currently, the sentence reads, “If the total number of displayed contracts at better prices than the Exchange's Potential Opening Price on away markets (“better priced away contracts”) . . .” The ISE filings just noted “better priced away contracts” rather than the more in depth explanation of displayed at better prices than the Exchange's Potential Opening Price on away markets (“better priced away contracts”), for simplicity. The language is being relocated to modify the term contract at the beginning of the sentence rather than at the end of the sentence. Finally, the language in the last sentence of this paragraph is being amended to replace “routed to other away markets” to “routed to away markets.” This is simply a verbiage change to match the ISE rule.
Rule 1017(k)(C)(3)(ii) proposes to amend the rule text to add a clause “based on price/time priority of routable interest” for clarity as to the allocation method being utilized in this instance to route the orders. By adding the allocation method to the rule text, it makes it clear to market participants the order in which the Exchange will route orders. Further, the term “other” is proposed to be replaced by “away” to describe markets other than “Phlx”. References to “Phlx” and “at the Exchange Opening Price” is proposed to be removed as unnecessary and superfluous.
Rule 1017(k)(C)(3)(iii) proposes to amend the rule text to add a clause “based on price/time priority of routable interest” for clarity, as described in Rule 1017(k)(C)(3)(ii). Further, the term “other” is proposed to be replaced by “away” to describe markets other than “Phlx”.
Rule 1017(k)(C)(5) proposes to add a term “paragraph” to provide more context to the reference to “(4) above.” Also, the words “the series by executing” is proposed to be added to the rule text to refer to what is being opened, which is the open series and the manner in which that will happen is with an execution. The language is more explicit. The term “other” is proposed to be replaced by “away” to describe markets other than “Phlx”. A sentence is proposed to be added to the end of this rule text, “All other interest will be eligible for trading after opening” to provide context to the manner in which interest will be handled by the system.
Rule 1017(k)(D) proposes to remove the numbering as unnecessary and superfluous.
Rule 1017(k)(E) proposes to reword this rule text to add more clarity by adding the phrase, “During the opening of the option series, where there is an execution possible,” to give context to what follows, which is the manner in which the system will allocate order. The rule states the system will give priority to market orders first, in time priority. The words “in time priority” were removed as unnecessary because the Exchange references the specific allocation provision in Rule 1014(g)(vii). Quotes are added to the rule text because only limit orders were mentioned and quotes should have also been included to complete the interest that is available to trade.
Finally, Rule 1017(k)(F) proposes to reword the text to state, “Upon opening of an option series”, instead of “When the open series opens” to provide a more accurate representation of the timing of that process. Also, the Exchange proposes to insert the phrase “regardless of an execution” to explain that an opening can occur with or without a trade. This language matches the ISE language.
As noted, the Exchange believes that these proposed amendments add clarity to the rule text, but the proposed amendments do not substantively amend the manner in which the Opening Process occurs.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Conforming Phlx's Rule to that of ISE is not a substantive amendment, the Phlx Opening Process will continue to operate in the same manner as today. The proposal does not change the intense competition that exists among the options markets for options business including on the opening. Nor does the Exchange believe that the proposal will impose any burden on intra-market competition; the Opening Process involves many types of participants and interest.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 7260 by extending the Penny Pilot Program through December 31, 2017. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the effective time period of the Penny Pilot Program that is currently scheduled to expire on June 30, 2017, until December 31, 2017.
The Exchange may replace, on a semi-annual basis, any Pilot Program classes
BOX is specifically authorized to act jointly with the other options exchanges participating in the Pilot Program in identifying any replacement class.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
In particular, the proposed rule change, which extends the Penny Pilot until December 31, 2017 and changes the dates for replacing Penny Pilot issues that were delisted to the second trading day following July 1, 2017, will enable public customers and other market participants to express their true prices to buy and sell options for the benefit of all market participants. This is consistent with the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, this proposal is pro-competitive because it allows Penny Pilot issues to continue trading on the Exchange. Moreover, the Exchange believes that the proposed rule change will allow for further analysis of the Pilot and a determination of how the Pilot should be structured in the future; and will serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Pilot is an industry wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot will allow for continued competition between market participants on the Exchange trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot.
The Exchange has neither solicited nor received comments on the proposed rule change.
(a) This proposed rule change is filed pursuant to paragraph (A) of section 19(b)(3) of the Exchange Act
(b) This proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest.
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 (the “Act”),
The Exchange filed a proposal to amend fees for its Equities Platform (“EDGX Fee Schedule”) and to amend fees for its Options Platform (“EDGX Options Fee Schedule”) to establish the fees for Industry Members related to the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”).
The text of the proposed rule change is available at 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 parts of such statements.
Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), Investors' Exchange LLC, Miami International Securities Exchange, LLC, MIAX PEARL, LLC, NASDAQ BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC,
The following provides an executive summary of the CAT funding model approved by the Operating Committee, as well as Industry Members' rights and obligations related to the payment of CAT Fees calculated pursuant to the CAT funding model. A detailed description of the CAT funding model and the CAT Fees follows this executive summary.
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Article XI of the CAT NMS Plan requires the Operating Committee to approve the operating budget, including projected costs of developing and operating the CAT for the upcoming year. As set forth in Article XI of the CAT NMS Plan, the CAT NMS Plan requires a bifurcated funding model, where costs associated with building and operating the Central Repository would be borne by (1) Participants and Industry Members that are Execution Venues through fixed tier fees based on market share, and (2) Industry Members (other than Execution Venue ATSs) through fixed tier fees based on message traffic. In its order approving the CAT NMS Plan, the Commission determined that the proposed funding model was “reasonable”
More specifically, the Commission stated in approving the CAT NMS Plan that “[t]he Commission believes that the proposed funding model is reasonably designed to allocate the costs of the CAT between the Participants and Industry Members.”
The Commission believes that the proposed funding model reflects a reasonable exercise of the Participants' funding authority to recover the Participants' costs related to the CAT. The CAT is a regulatory facility jointly owned by the Participants and . . . the Exchange Act specifically permits the Participants to charge their members fees to fund their self-regulatory obligations. The Commission further believes that the proposed funding model is designed to impose fees reasonably related to the Participants' self-regulatory obligations because the fees would be directly associated with the costs of establishing and maintaining the CAT, and not unrelated SRO services.
Accordingly, the funding model imposes fees on both Participants and Industry Members.
In addition, as discussed in Appendix C of the CAT NMS Plan, the Operating Committee considered the advantages and disadvantages of a variety of alternative funding and cost allocation models before selecting the proposed model.
In addition, multiple reviews of current broker-dealer order and trading data submitted under existing reporting requirements showed a wide range in activity among broker-dealers, with a number of broker-dealers submitting fewer than 1,000 orders per month and other broker-dealers submitting millions and even billions of orders in the same period. Accordingly, the CAT NMS Plan includes a tiered approach to fees. The tiered approach helps ensure that fees are equitably allocated among similarly situated CAT Reporters and furthers the goal of lessening the impact on smaller firms.
Accordingly, the CAT NMS Plan contemplates that costs will be allocated across the CAT Reporters on a tiered basis to allocate costs to those CAT Reporters that contribute more to the costs of creating, implementing and maintaining the CAT.
The Commission also noted in approving the CAT NMS Plan that “[t]he Participants have offered a credible justification for using different criteria to charge Execution Venues (market share) and Industry Members (message traffic)”
The CAT NMS Plan provides that the Operating Committee will use different criteria to establish fees for Execution Venues and non-Execution Venues due to the fundamental differences between the two types of entities. In particular, the CAT NMS Plan provides that fees charged to CAT Reporters that are Execution Venues will be based on the level of market share and that costs charged to Industry Members (other than Execution Venue ATSs) will be based upon message traffic.
The CAT NMS Plan's funding model also is structured to avoid a “reduction in market quality.”
The CAT NMS Plan is structured to avoid potential conflicts raised by the Operating Committee determining fees applicable to its own members—the Participants. First, the Company will be operated on a “break-even” basis, with fees imposed to cover costs and an appropriate reserve. Any surpluses will be treated as an operational reserve to offset future fees and will not be distributed to the Participants as profits.
Finally, by adopting a CAT-specific fee, the Participants will be fully transparent regarding the costs of the CAT. Charging a general regulatory fee, which would be used to cover CAT costs as well as other regulatory costs, would be less transparent than the selected approach of charging a fee designated to cover CAT costs only.
A full description of the funding model is set forth below. This description includes the framework for the funding model as set forth in the CAT NMS Plan, as well as the details as to how the funding model will be applied in practice, including the number of fee tiers and the applicable fees for each tier. Bats notes that the complete funding model is described below, including those fees that are to be paid by the Participants. The proposed Consolidated Audit Trail Funding Fees, however, do not apply to the Participants; the proposed Consolidated Audit Trail Funding Fees only apply to Industry Members. The CAT fees for Participants will be imposed separately by the Operating Committee pursuant to the CAT NMS Plan.
Section 11.2 of the CAT NMS Plan sets forth the principles that the Operating Committee applied in establishing the funding for the Company. The Operating Committee has considered these funding principles as well as the other funding requirements set forth in the CAT NMS Plan and in Rule 613 in developing the proposed funding model. The following are the funding principles in Section 11.2 of the CAT NMS Plan:
• To create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and other costs of the Company;
• To establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act, taking into account the timeline for implementation of the CAT and distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company's resources and operations;
• To establish a tiered fee structure in which the fees charged to: (i) CAT Reporters that are Execution Venues, including ATSs, are based upon the level of market share; (ii) Industry Members' non-ATS activities are based upon message traffic; (iii) the CAT Reporters with the most CAT-related activity (measured by market share and/or message traffic, as applicable) are generally comparable (where, for these comparability purposes, the tiered fee structure takes into consideration affiliations between or among CAT Reporters, whether Execution Venue and/or Industry Members);
• To provide for ease of billing and other administrative functions;
• To avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality; and
• To build financial stability to support the Company as a going concern.
Under Section 11.3(b) of the CAT NMS Plan, the Operating Committee is required to establish fixed fees to be payable by Industry Members, based on message traffic generated by such Industry Member, with the Operating Committee establishing at least five and no more than nine tiers.
The CAT NMS Plan clarifies that the fixed fees payable by Industry Members pursuant to Section 11.3(b) shall, in addition to any other applicable message traffic, include message traffic generated by: (i) An ATS that does not execute orders that is sponsored by such Industry Member; and (ii) routing orders to and from any ATS sponsored by such Industry Member. In addition, the Industry Member fees will apply to Industry Members that act as routing broker-dealers for exchanges. The Industry Member fees will not be applicable, however, to an ATS that qualifies as an Execution Venue, as discussed in more detail in the section on Execution Venue tiering.
In accordance with Section 11.3(b), the Operating Committee approved a tiered fee structure for Industry Members (other than Execution Venue ATSs) as described in this section. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on CAT System resources of different Industry Members, and that establish comparable fees among the CAT Reporters with the most Reportable Events. The Operating Committee has determined that establishing nine tiers results in the fairest allocation of fees, best distinguishing between Industry Members with differing levels of message traffic. Thus, each such Industry Member will be placed into one of nine tiers of fixed fees, based on “message traffic” for a defined period (as discussed below). A nine tier structure was selected to provide the widest range of levels for tiering Industry Members such that Industry Members submitting significantly less message traffic to the CAT would be adequately differentiated from Industry Members submitting substantially more message traffic. The Operating Committee considered historical message traffic generated by Industry Members across all exchanges and as submitted to FINRA's Order Audit Trail System (“OATS”), and considered the distribution of firms with similar levels of message traffic, grouping together firms with similar levels of message traffic. Based on this, the Operating Committee determined that nine tiers would best group firms with similar levels of message traffic, charging those firms with higher impact on the CAT more, while lowering the burden of Industry Members that have less CAT-related activity.
Each Industry Member (other than Execution Venue ATSs) will be ranked by message traffic and tiered by predefined Industry Member percentages (the “Industry Member Percentages”). The Operating Committee determined to use predefined percentages rather than fixed volume thresholds to allow the funding model to ensure that the total CAT fees collected recover the intended CAT costs regardless of changes in the total level of message traffic. To determine the fixed percentage of Industry Members in each tier, the Operating Committee analyzed historical message traffic generated by Industry Members across all exchanges and as submitted to OATS, and considered the distribution of firms with similar levels of message traffic, grouping together firms with similar levels of message traffic. Based on this, the Operating Committee identified tiers that would group firms with similar levels of message traffic, charging those firms with higher impact on the CAT more, while lowering the burden on Industry Members that have less CAT-related activity.
The percentage of costs recovered by each Industry Member tier will be determined by predefined percentage allocations (the “Industry Member Recovery Allocation”). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter message traffic on the CAT System as well as the distribution of total message volume across Industry Members while seeking to maintain
The following chart illustrates the breakdown of nine Industry Member tiers across the monthly average of total equity and equity options orders, cancels and quotes in Q1 2016 and identifies relative gaps across varying levels of Industry Member message traffic as well as message traffic thresholds between the largest of Industry Member message traffic gaps. The Operating Committee referenced similar distribution illustrations to determine the appropriate division of Industry Member percentages in each tier by considering the grouping of firms with similar levels of message traffic and seeking to identify relative breakpoints in the message traffic between such groupings. In reviewing the chart and its corresponding table, note that while these distribution illustrations were referenced to help differentiate between Industry Member tiers, the proposed funding model is directly driven, not by fixed message traffic thresholds, but rather by fixed percentages of Industry Members across tiers to account for fluctuating levels of message traffic across time and to provide for the financial stability of the CAT by ensuring that the funding model will recover the required amounts regardless of changes in the number of Industry Members or the amount of message traffic. Actual messages in any tier will vary based on the actual traffic in a given measurement period, as well as the number of firms included in the measurement period. The Industry Member Percentages and Industry Member Recovery Allocation for each tier will remain fixed with each Industry Member's tier to be reassigned periodically, as described below in Section 3(a)(1)(H) [sic].
Based on the above analysis, the Operating Committee approved the following Industry Member Percentages and Recovery Allocations:
For the purposes of creating these tiers based on message traffic, the Operating Committee determined to define the term “message traffic” separately for the period before the commencement of CAT reporting and for the period after the start of CAT reporting. The different definition for message traffic is necessary as there will be no Reportable Events as defined in the Plan, prior to the commencement of CAT reporting. Accordingly, prior to the start of CAT reporting, “message traffic” will be comprised of historical equity and equity options orders, cancels and quotes provided by each exchange and FINRA over the previous three months.
After an Industry Member begins reporting to the CAT, “message traffic” will be calculated based on the Industry Member's Reportable Events reported to the CAT as will be defined in the Technical Specifications.
The Operating Committee has determined to calculate fee tiers every three months, on a calendar quarter basis, based on message traffic from the prior three months. Based on its analysis of historical data, the Operating Committee believes that calculating tiers based on three months of data will provide the best balance between reflecting changes in activity by Industry Members while still providing predictability in the tiering for Industry Members. Because fee tiers will be calculated based on message traffic from the prior three months, the Operating Committee will begin calculating message traffic based on an Industry Member's Reportable Events reported to the CAT once the Industry Member has
Under Section 11.3(a) of the CAT NMS Plan, the Operating Committee is required to establish fixed fees payable by Execution Venues. Section 1.1 of the CAT NMS Plan defines an Execution Venue as “a Participant or an alternative trading system (“ATS”) (as defined in Rule 300 of Regulation ATS) that operates pursuant to Rule 301 of Regulation ATS (excluding any such ATS that does not execute orders).”
The Participants determined that ATSs should be included within the definition of Execution Venue. Given the similarity between the activity of exchanges and ATSs, both of which meet the definition of an “exchange” as set forth in the Exchange Act and the fact that the similar trading models would have similar anticipated burdens on the CAT, the Participants determined that ATSs should be treated in the same manner as the exchanges for the purposes of determining the level of fees associated with the CAT.
Given the differences between Execution Venues that trade NMS Stocks and/or OTC Equity Securities and Execution Venues that trade Listed Options, Section 11.3(a) addresses Execution Venues that trade NMS Stocks and/or OTC Equity Securities separately from Execution Venues that trade Listed Options. Equity and Options Execution Venues are treated separately for two reasons. First, the differing quoting behavior of Equity and Options Execution Venues makes comparison of activity between Execution Venues difficult. Second, Execution Venue tiers are calculated based on market share of share volume, and it is therefore difficult to compare market share between asset classes (
Section 11.3(a)(i) of the CAT NMS Plan states that each Execution Venue that (i) executes transactions or, (ii) in the case of a national securities association, has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange, in NMS Stocks or OTC Equity Securities will pay a fixed fee depending on the market share of that Execution Venue in NMS Stocks and OTC Equity Securities, with the Operating Committee establishing at least two and not more than five tiers of fixed fees, based on an Execution Venue's NMS Stocks and OTC Equity Securities market share. For these purposes, market share for Execution Venues that execute transactions will be calculated by share volume, and market share for a national securities association that has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange in NMS Stocks or OTC Equity Securities will be calculated based on share volume of trades reported, provided, however, that the share volume reported to such national securities association by an Execution Venue shall not be included in the calculation of such national security association's market share.
In accordance with Section 11.3(a)(i) of the CAT NMS Plan, the Operating Committee approved a tiered fee structure for Equity Execution Venues and Option Execution Venues. In determining the Equity Execution Venue Tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on system resources of different Equity Execution Venues, and that establish comparable fees among the CAT Reporters with the most Reportable Events. Each Equity Execution Venue will be placed into one of two tiers of fixed fees, based on the Execution Venue's NMS Stocks and OTC Equity Securities market share. In choosing two tiers, the Operating Committee performed an analysis similar to that discussed above with regard to the non-Execution Venue Industry Members to determine the number of tiers for Equity Execution Venues. The Operating Committee determined to establish two tiers for Equity Execution Venues, rather than a larger number of tiers as established for non-Execution Venue Industry Members, because the two tiers were sufficient to distinguish between the smaller number of Equity Execution Venues based on market share. Furthermore, the incorporation of additional Equity Execution Venue tiers would result in significantly higher fees for Tier 1 Equity Execution Venues and diminish comparability between Execution Venues and Industry Members.
Each Equity Execution Venue will be ranked by market share and tiered by predefined Execution Venue percentages, (the “Equity Execution Venue Percentages”). In determining the fixed percentage of Equity Execution Venues in each tier, the Operating Committee looked at historical market share of share volume for execution venues. Equities Execution Venue market share of share volume were sourced from market statistics made publicly-available by Bats Global Markets, Inc. (“Bats”). ATS market share of share volume was sourced from market statistics made publicly-available by FINRA. FINRA trading [sic] reporting facility (“TRF”) market share of share volume was sourced from market statistics made publicly available by Bats. As indicated by FINRA, ATSs accounted for 37.80% of the share volume across the TRFs during the recent tiering period. A 37.80/62.20 split was applied to the ATS and non-ATS breakdown of FINRA market share, with FINRA tiered based only on the non-ATS portion of its TRF market share of share volume.
Based on this, the Operating Committee considered the distribution of Execution Venues, and grouped together Execution Venues with similar levels of market share of share volume. In doing so, the Participants considered that, as previously noted, Execution Venues in many cases have similar levels of message traffic due to quoting activity, and determined that it was simpler and more appropriate to have fewer, rather than more, Execution Venue tiers to distinguish between Execution Venues.
The percentage of costs recovered by each Equity Execution Venue tier will be determined by predefined percentage allocations (the “Equity Execution Venue Recovery Allocation”). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter market share activity on the CAT System as well as the distribution of total market volume across Equity Execution Venues while seeking to maintain comparable fees among the largest CAT Reporters. Accordingly, following the determination of the percentage of Execution Venues in each tier, the Operating Committee identified the percentage of total market volume for each tier based on the historical market share upon which Execution Venues had been initially ranked. Taking this into account along with the resulting percentage of total recovery,
Based on this analysis, the Operating Committee approved the following Equity Execution Venue Percentages and Recovery Allocations:
The following table exhibits the relative separation of market share of share volume between Tier 1 and Tier 2 Equity Execution Venues. In reviewing the table, note that while this division was referenced as a data point to help differentiate between Equity Execution Venue tiers, the proposed funding model is directly driven not by market share thresholds, but rather by fixed percentages of Equity Execution Venues across tiers to account for fluctuating levels of market share across time. Actual market share in any tier will vary based on the actual market activity in a given measurement period, as well as the number of Equity Execution Venues included in the measurement period. The Equity Execution Venue Percentages and Equity Execution Venue Recovery Allocation for each tier will remain fixed with each Equity Execution Venue tier to be reassigned periodically, as described below in Section 3(a)(1)(I) [sic].
Section 11.3(a)(ii) of the CAT NMS Plan states that each Execution Venue that executes transactions in Listed Options will pay a fixed fee depending on the Listed Options market share of that Execution Venue, with the Operating Committee establishing at least two and no more than five tiers of fixed fees, based on an Execution Venue's Listed Options market share. For these purposes, market share will be calculated by contract volume.
In accordance with Section 11.3(a)(ii) of the CAT NMS Plan, the Operating Committee approved a tiered fee structure for Options Execution Venues. In determining the tiers, the Operating Committee considered the funding principles set forth in Section 11.2 of the CAT NMS Plan, seeking to create funding tiers that take into account the relative impact on system resources of different Options Execution Venues, and that establish comparable fees among the CAT Reporters with the most Reportable Events. Each Options Execution Venue will be placed into one of two tiers of fixed fees, based on the Execution Venue's Listed Options market share. In choosing two tiers, the Operating Committee performed an analysis similar to that discussed above with regard to Industry Members (other than Execution Venue ATSs) to determine the number of tiers for Options Execution Venues. The Operating Committee determined to establish two tiers for Options Execution Venues, rather than a larger number of tiers as established for Industry Members (other than Execution Venue ATSs), because the two tiers were sufficient to distinguish between the smaller number of Options Execution Venues based on market share. Furthermore, due to the smaller number of Options Execution Venues, the incorporation of additional Options Execution Venue tiers would result in significantly higher fees for Tier 1 Options Execution Venues and reduce comparability between Execution Venues and Industry Members.
Each Options Execution Venue will be ranked by market share and tiered by predefined Execution Venue percentages, (the “Options Execution Venue Percentages”). To determine the fixed percentage of Options Execution Venues in each tier, the Operating Committee analyzed the historical and publicly available market share of Options Execution Venues to group Options Execution Venues with similar market shares across the tiers. Options Execution Venue market share of share volume were sourced from market statistics made publicly-available by Bats. The process for developing the Options Execution Venue Percentages was the same as discussed above with regard to Equity Execution Venues.
The percentage of costs recovered by each Options Execution Venue tier will be determined by predefined percentage allocations (the “Options Execution Venue Recovery Allocation”). In determining the fixed percentage allocation of costs recovered for each tier, the Operating Committee considered the impact of CAT Reporter market share activity on the CAT System as well as the distribution of total market volume across Options Execution Venues while seeking to maintain comparable fees among the largest CAT Reporters. Furthermore, by using percentages of Options Execution Venues and costs recovered per tier, the Operating Committee sought to include stability and elasticity within the funding model, allowing the funding model to respond to changes in either the total number of Options Execution Venues or changes in market share. The process for developing the Options Execution Venue Recovery Allocation was the same as discussed above with regard to Equity Execution Venues.
Based on this analysis, the Operating Committee approved the following Options Execution Venue Percentages and Recovery Allocations:
The following table exhibits the relative separation of market share of share volume between Tier 1 and Tier 2 Options Execution Venues. In reviewing the table, note that while this division was referenced as a data point to help differentiate between Options Execution Venue tiers, the proposed funding model is directly driven, not by market share thresholds, but rather by fixed percentages of Options Execution Venues across tiers to account for fluctuating levels of market share across time. Actual market share in any tier will vary based on the actual market activity in a given measurement period, as well as the number of Options Execution Venues included in the measurement period. The Options Execution Venue Percentages and Equity Execution Venue Recovery Allocation for each tier will remain fixed with each Options Execution Venue tier to be reassigned periodically, as described below in Section 3(a)(1)(I) [sic].
The Operating Committee determined that, prior to the start of CAT reporting, market share for Execution Venues would be sourced from publicly-available market data. Options and equity volumes for Participants will be sourced from market data made publicly available by Bats while Execution Venue ATS volumes will be sourced from market data made publicly available by FINRA. Set forth in the Appendix are two charts, one listing the current Equity Execution Venues, each with its rank and tier, and one listing the current Options Execution Venues, each with its rank and tier.
After the commencement of CAT reporting, market share for Execution Venues will be sourced from data reported to the CAT. Equity Execution Venue market share will be determined by calculating each Equity Execution Venue's proportion of the total volume of NMS Stock and OTC Equity shares reported by all Equity Execution Venues during the relevant time period. Similarly, market share for Options Execution Venues will be determined by calculating each Options Execution Venue's proportion of the total volume of Listed Options contracts reported by all Options Execution Venues during the relevant time period.
The Operating Committee has determined to calculate fee tiers for Execution Venues every three months based on market share from the prior three months. Based on its analysis of historical data, the Operating Committee believes calculating tiers based on three months of data will provide the best balance between reflecting changes in activity by Execution Venues while still providing predictability in the tiering for Execution Venues.
In addition to the funding principles discussed above, including comparability of fees, Section 11.1(c) of the CAT NMS Plan also requires expenses to be fairly and reasonably shared among the Participants and Industry Members. Accordingly, in developing the proposed fee schedules pursuant to the funding model, the Operating Committee calculated how the CAT costs would be allocated between Industry Members and Execution Venues, and how the portion of CAT costs allocated to Execution Venues would be allocated between Equity Execution Venues and Options Execution Venues. These determinations are described below.
In determining the cost allocation between Industry Members (other than Execution Venue ATSs) and Execution Venues, the Operating Committee analyzed a range of possible splits for revenue recovered from such Industry Members and Execution Venues. Based on this analysis, the Operating Committee determined that 75 percent of total costs recovered would be allocated to Industry Members (other than Execution Venue ATSs) and 25 percent would be allocated to Execution Venues. The Operating Committee determined that this 75/25 division maintained the greatest level of comparability across the funding model, keeping in view that comparability should consider affiliations among or between CAT Reporters (
Furthermore, the allocation of total CAT costs recovered recognizes the difference in the number of CAT Reporters that are Industry Members versus CAT Reporters that are Execution Venues. Specifically, the cost allocation takes into consideration that there are approximately 25 times more Industry Members expected to report to the CAT than Execution Venues (
The Operating Committee also analyzed how the portion of CAT costs allocated to Execution Venues would be allocated between Equity Execution Venues and Options Execution Venues. In considering this allocation of costs, the Operating Committee analyzed a range of alternative splits for revenue recovered between Equity and Options Execution Venues, including a 70/30, 67/33, 65/35, 50/50 and 25/75 split. Based on this analysis, the Operating Committee determined to allocate 75
The Operating Committee determined to establish a CAT-specific fee to collectively recover the costs of building and operating the CAT. Accordingly, under the funding model, the sum of the CAT Fees is designed to recover the total cost of the CAT. The Operating Committee has determined overall CAT costs to be comprised of Plan Processor costs and non-Plan Processor costs, which are estimated to be $50,700,000 in total for the year beginning November 21, 2016.
The Plan Processor costs relate to costs incurred by the Plan Processor and consist of the Plan Processor's current estimates of average yearly ongoing costs, including development cost, which total $37,500,000. This amount is based upon the fees due to the Plan Processor pursuant to the agreement with the Plan Processor.
The non-Plan Processor estimated costs incurred and to be incurred by the Company through November 21, 2017 consist of three categories of costs. The first category of such costs are third party support costs, which include historic legal fees, consulting fees and audit fees from November 21, 2016 until the date of filing as well as estimated third party support costs for the rest of the year. These amount to an estimated $5,200,000. The second category of non-Plan Processor costs are estimated insurance costs for the year. Based on discussions with potential insurance providers, assuming $2–5 million insurance premium on $100 million in coverage, the Company has received an estimate of $3,000,000 for the annual cost. The final cost figures will be determined following receipt of final underwriter quotes. The third category of non-Plan Processor costs is the operational reserve, which is comprised of three months of ongoing Plan Processor costs ($9,375,000), third party support costs ($1,300,000) and insurance costs ($750,000). The Operating Committee aims to accumulate the necessary funds for the establishment of the three-month operating reserve for the Company through the CAT Fees charged to CAT Reporters for the year. On an ongoing basis, the Operating Committee will account for any potential need for the replenishment of the operating reserve or other changes to total cost during its annual budgeting process. The following table summarizes the Plan Processor and non-Plan Processor cost components which comprise the total CAT costs of $50,700,000.
Based on the estimated costs and the calculations for the funding model described above, the Operating Committee determined to impose the following fees:
For Industry Members (other than Execution Venue ATSs):
For Execution
For Execution
As
The Operating Committee has calculated the schedule of effective fees for Industry Members (other than Execution Venue ATSs) and Execution Venues in the following manner. Note that the calculation of CAT Reporter fees assumes 53 Equity Execution Venues, 15 Options Execution Venues and 1,631 Industry Members (other than Execution Venue ATSs) as of January 2017.
The
While the proposed fees for Tier 1 and Tier 2 Industry Members are relatively higher than those of Tier 1 and Tier 2 Execution Venues, Execution Venue complex fees are relatively higher than those of Industry Member complexes largely due to affiliations between Execution Venues. The tables set forth below describe the largest Execution Venue and Industry Member complexes and their associated fees:
Under Section 11.1(c) of the CAT NMS Plan, to fund the development and implementation of the CAT, the Company shall time the imposition and collection of all fees on Participants and Industry Members in a manner reasonably related to the timing when the Company expects to incur such development and implementation costs. The Company is currently incurring such development and implementation costs and will continue to do so prior to the commencement of CAT reporting and thereafter. For example, the Plan Processor has required up-front payments to begin building the CAT. In addition, the Company continues to incur consultant and legal expenses on an on-going basis to implement the CAT. Accordingly, the Operating Committee determined that all CAT Reporters, including both Industry Members and Execution Venues (including Participants), would begin to be invoiced as promptly as possible following the establishment of a billing mechanism. Bats will issue a Regulatory Circular to its members when the billing mechanism is established, specifying the date when such invoicing of Industry Members will commence.
Section 11.3(d) of the CAT NMS Plan states that “[t]he Operating Committee shall review such fee schedule on at least an annual basis and shall make any changes to such fee schedule that it deems appropriate. The Operating Committee is authorized to review such fee schedule on a more regular basis, but shall not make any changes on more than a semi-annual basis unless, pursuant to a Supermajority Vote, the Operating Committee concludes that such change is necessary for the adequate funding of the Company.” With such reviews, the Operating Committee will review the distribution of Industry Members and Execution Venues across tiers, and make any updates to the percentage of CAT Reporters allocated to each tier as may be necessary. In addition, the reviews will evaluate the estimated ongoing CAT costs and the level of the operating reserve. To the extent that the total CAT costs decrease, the fees would be adjusted downward, and, to the extent that the total CAT costs increase, the fees would be adjusted upward.
The Operating Committee has determined to calculate fee tiers every three months based on market share or message traffic, as applicable, from the prior three months. For the initial tier assignments, the Company will calculate the relevant tier for each CAT Reporter using the three months of data prior to the commencement date. As with the initial tier assignment, for the tri-monthly reassignments, the Company will calculate the relevant tier using the three months of data prior to the relevant tri-monthly date. Bats notes that any movement of CAT Reporters between tiers will not change the criteria for each tier or the fee amount corresponding to each tier.
In performing the tri-monthly reassignments, Bats notes that the percentage of CAT Reporters in each assigned tier is relative. Therefore, a CAT Reporter's assigned tier will depend, not only on its own message traffic or market share, but it also will depend on the message traffic/market share across all CAT Reporters. For example, the percentage of Industry Members (other than Execution Venue ATSs) in each tier is relative such that such Industry Member's assigned tier will depend on message traffic generated across all CAT Reporters as well as the total number of CAT Reporters. The Operating Committee will inform CAT Reporters of their assigned tier every three months following the periodic tiering process, as the funding model will compare an individual CAT Reporter's activity to that of other CAT Reporters in the marketplace.
The following demonstrates a tier reassignment. In accordance with the funding model, the top 75% of Options Execution Venues in market share are categorized as Tier 1 while the bottom 25% of Options Execution Venues in market share are categorized as Tier 2. In the sample scenario below, Options Execution Venue L is initially categorized as a Tier 2 Options Execution Venue in Period A due to its market share. When market share is recalculated for Period B, the market share of Execution Venue L increases, and it is therefore subsequently reranked and reassigned to Tier 1 in Period B. Correspondingly, Options Execution Venue K, initially a Tier 1 Options Execution Venue in Period A, is reassigned to Tier 2 in Period B due to decreases in its market share of share volume.
Bats proposes the Consolidated Audit Trail Funding Fees to implement the CAT Fees determined by the Operating Committee on SRO's Industry Members. The proposed fee schedule has three sections, covering definitions, the fee schedule for CAT Fees, and the timing and manner of payments. Each of these sections is discussed in detail below.
Paragraph (a) of the proposed fee schedule sets forth the definitions for the proposed fee schedule. Paragraph (a)(1) states that, for purposes of the Consolidated Audit Trail Funding Fees, the terms “CAT NMS Plan,” “Industry Member,” “NMS Stock,” “OTC Equity Security”, and “Participant” are defined as set forth in Rule 4.5 (Consolidated Audit Trail—Definitions).
The proposed fee schedule imposes different fees on Equity ATSs and Industry Members that are not Equity ATSs. Accordingly, the proposed fee schedule defines the term “Equity ATS.” First, paragraph (a)(2) defines an “ATS” to mean an alternative trading system as defined in Rule 300(a) of Regulation ATS under the Securities Exchange Act of 1934, as amended, that operates pursuant to Rule 301 of Regulation ATS. This is the same definition of an ATS as set forth in Section 1.1 of the CAT NMS Plan in the definition of an “Execution Venue.” Then, paragraph (a)(4) defines an “Equity ATS” as an ATS that executes transactions in NMS Stocks and/or OTC Equity Securities.
Paragraph (a)(3) of the proposed fee schedule defines the term “CAT Fee” to mean the Consolidated Audit Trail Funding Fee(s) to be paid by Industry Members as set forth in paragraph (b) in the proposed fee schedule.
Finally, Paragraph (a)(6) defines an “Execution Venue” as a Participant or an ATS (excluding any such ATS that does not execute orders). This definition is the same substantive definition as set forth in Section 1.1 of the CAT NMS Plan. Paragraph (a)(5) defines an “Equity Execution Venue” as an Execution Venue that trades NMS Stocks and/or OTC Equity Securities.
Bats proposes to impose the CAT Fees applicable to its Industry Members through paragraph (b) of the proposed fee schedule. Paragraph (b)(1) of the proposed fee schedule sets forth the CAT Fees applicable to Industry Members other than Equity ATSs. Specifically, paragraph (b)(1) states that the Company will assign each Industry
Paragraph (b)(2) of the proposed fee schedule sets forth the CAT Fees applicable to Equity ATSs.
Section 11.4 of the CAT NMS Plan states that the Operating Committee shall establish a system for the collection of fees authorized under the CAT NMS Plan. The Operating Committee may include such collection responsibility as a function of the Plan Processor or another administrator. To implement the payment process to be adopted by the Operating Committee, paragraph (c)(1) of the proposed fee schedule states that the Company will provide each Industry Member with one invoice each quarter for its CAT Fees as determined pursuant to paragraph (b) of the proposed fee schedule, regardless of whether the Industry Member is a member of multiple self-regulatory organizations. Paragraph (c)(1) further states that each Industry Member will pay its CAT Fees to the Company via the centralized system for the collection of CAT Fees established by the Company in the manner prescribed by the Company. Bats will provide Industry Members with details regarding the manner of payment of CAT Fees by Regulatory Circular.
Although the exact fee collection system and processes for CAT fees has not yet been established, all CAT fees will be billed and collected centrally through the Company, via the Plan Processor or otherwise. Although each Participant will adopt its own fee schedule regarding CAT Fees, no CAT Fees or portion thereof will be collected by the individual Participants. Each Industry Member will receive from the Company one invoice for its applicable CAT fees, not separate invoices from each Participant of which it is a member. The Industry Members will pay the CAT Fees to the Company via the centralized system for the collection of CAT fees established by the Company.
Section 11.4 of the CAT NMS Plan also states that Participants shall require each Industry Member to pay all applicable authorized CAT Fees within thirty days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated). Section 11.4 further states that, if an Industry Member fails to pay any such fee when due, such Industry Member shall pay interest on the outstanding balance from such due date until such fee is paid at a per annum rate equal to the lesser of: (i) The Prime Rate plus 300 basis points; or (ii) the maximum rate permitted by applicable law. Therefore, in accordance with Section 11.4 of the CAT NMS Plan, Bats proposes to adopt paragraph (c)(2) of the proposed fee schedule. Paragraph (c)(2) of the proposed fee schedule states that each Industry Member shall pay CAT Fees within thirty days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated). If an Industry Member fails to pay any such fee when due, such Industry Member shall pay interest on the outstanding balance from such due date until such fee is paid at a per annum rate equal to the lesser of: (i) The Prime Rate plus 300 basis points; or (ii) the maximum rate permitted by applicable law.
Bats believes that the proposed rule change is consistent with the provisions of Section 6(b)(5) of the Act,
Bats believes that this proposal is consistent with the Act because it implements, interprets or clarifies the provisions of the Plan, and is designed to assist Bats and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and
Bats believes that the proposed tiered fees are reasonable. First, the total CAT Fees to be collected would be directly associated with the costs of establishing and maintaining the CAT, where such costs include Plan Processor costs and costs related to insurance, third party services and the operational reserve. The CAT Fees would not cover Participant services unrelated to the CAT. In addition, any surplus CAT Fees cannot be distributed to the individual Participants; such surpluses must be used as a reserve to offset future fees. Given the direct relationship between the fees and the CAT costs, Bats believes that the total level of the CAT Fees is reasonable.
In addition, Bats believes that the proposed CAT Fees are reasonably designed to allocate the total costs of the CAT equitably between and among the Participants and Industry Members, and are therefore not unfairly discriminatory. As discussed in detail above, the proposed tiered fees impose comparable fees on similarly situated CAT Reporters. For example, those with a larger impact on the CAT (measured via message traffic or market share) pay higher fees, whereas CAT Reporters with a smaller impact pay lower fees. Correspondingly, the tiered structure lessens the impact on smaller CAT Reporters by imposing smaller fees on those CAT Reporters with less market share or message traffic. In addition, the funding model takes into consideration affiliations between CAT Reporters, imposing comparable fees on such affiliated entities.
Moreover, Bats believes that the division of the total CAT costs between Industry Members and Execution Venues, and the division of the Execution Venue portion of total costs between Equity and Options Execution Venues, is reasonably designed to allocate CAT costs among CAT Reporters. The 75/25 division between Industry Members and Execution Venues maintains the greatest level of comparability across the funding model, keeping in view that comparability should consider affiliations among or between CAT Reporters (
Finally, Bats believes that the proposed fees are reasonable because they would provide ease of calculation, ease of billing and other administrative functions, and predictability of a fixed fee. Such factors are crucial to estimating a reliable revenue stream for the Company and for permitting CAT Reporters to reasonably predict their payment obligations for budgeting purposes.
Section 6(b)(8) of the Act
Moreover, as previously described, Bats believes that the proposed rule change fairly and equitably allocates costs among CAT Reporters. In particular, the proposed fee schedule is structured to impose comparable fees on similarly situated CAT Reporters, and lessen the impact on smaller CAT Reporters. CAT Reporters with similar levels of CAT activity will pay similar fees. For example, Industry Members (other than Execution Venue ATSs) with higher levels of message traffic will pay higher fees, and those with lower levels of message traffic will pay lower fees. Similarly, Execution Venue ATSs and other Execution Venues with larger market share will pay higher fees, and those with lower levels of market share will pay lower fees. Therefore, given that there is generally a relationship between message traffic and market share to the CAT Reporter's size, smaller CAT Reporters generally pay less than larger CAT Reporters. Accordingly, Bats does not believe that the CAT Fees would have a disproportionate effect on smaller or larger CAT Reporters. In addition, ATSs and exchanges will pay the same fees based on market share. Therefore, Bats does not believe that the fees will impose any burden on the competition between ATSs and exchanges. Accordingly, Bats believes that the proposed fees will minimize the potential for adverse effects on competition between CAT Reporters in the market.
Furthermore, the tiered, fixed fee funding model limits the disincentives to providing liquidity to the market. Therefore, the proposed fees are structured to limit burdens on competitive quoting and other liquidity provision in the market.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal 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
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934,
The principal purpose of the proposed rule change is to revise the ICC Liquidity Risk Management Framework and the ICC Stress Testing Framework. These revisions do not require any changes to the ICC Clearing Rules (“Rules”).
In its filing with the Commission, ICC 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. ICC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
ICC proposes revisions to its Liquidity Risk Management Framework and to its Stress Testing Framework. ICC believes such revisions will facilitate the prompt and accurate clearance and settlement of securities transactions and derivative agreements, contracts, and transactions for which it is responsible. The proposed revisions are described in detail as follows.
ICC proposes to revise its Liquidity Risk Management Framework in order to make revisions to its liquidity monitoring program in order to enhance compliance with U.S. Commodity Futures Trading Commission (“CFTC”) regulations, including 17 CFR 39.11, 17 CFR 39.33and 17 CFR 39.36.
ICC proposes to enhance the description of the components which comprise its liquidity risk management model. As revised, the liquidity risk management model now includes, but is not limited to, the following components: Currency-specific risk requirements; acceptable collateral; liquidity requirements; collateral valuation methodology; investment strategy; Clearing Participant (“CP”) deposits as a liquidity pool; liquidity facilities (including committed repo facilities and committed foreign exchange (“FX”) facilities); and liquidity waterfall. Each of these components are described thoroughly within the Liquidity Risk Management Framework, and changes to each component are described below.
ICC proposes to add language to the `currency-specific risk requirements' section to cross reference ICC's current policy of maintaining cash and collateral assets posted by CPs (on behalf of themselves and/or their clients) to meet currency-specific Initial Margin (“IM”) and GF requirements, to ensure ICC has sufficient total resources in the required currencies of denomination.
The `acceptable collateral' section remains the same, and notes that CPs may post IM and GF deposits that meet ICC's acceptable collateral criteria as
The `liquidity requirements' section sets forth ICC's liquidity requirements for house/proprietary accounts and client-related accounts. Such requirements are also set forth in ICC's Treasury Operations Policies and Procedures and Schedule 401 of the ICC Rules. The `liquidity requirements' section will reflect the changes to ICC's liquidity thresholds for Euro (“EUR”) denominated products set forth in filing SR–ICC–2017–002.
The `collateral valuation methodology' section remains substantially the same, and sets forth the method by which ICC prices the assets posted as collateral, including haircut calculations.
The `investment strategy section' remains substantially the same, and sets forth a summary of ICC's investment strategy. ICC proposes revisions to the `investment strategy' section to note that when beneficial, ICC diversifies its cash investments across multiple depository institutions to reduce its liquidity exposure to any single depository.
The `CP deposits as a liquidity pool' section remains substantially the same, and refers to the ability of ICC, pursuant to ICC Rules 402 and 804, to borrow GF and house origin IM cash deposits of non-defaulting CPs and pledge non-cash and cash assets of an equivalent value deposited by the defaulting and/or non-defaulting CP(s) as collateral for this loan.
ICC proposes revisions to the `liquidity facilities' section to add reference to its committed repurchase facilities (as opposed to committed repurchase agreements). ICC added reference to its recently available committed FX facilities for converting USD cash to EUR cash. ICC also proposes removing reference to FX Swaps, Immediate FX Spot Transactions, because these arrangements do not count as “qualifying liquidity resources” under CFTC Regulation 39.33,
Under the `liquidity waterfall' section, ICC proposes revisions to its definition of Available Liquidity Resources (“ALR”) to note that ALR consist of the available deposits currently in cash of the required denomination, and the cash equivalent of the available deposits in collateral types that ICC can convert to cash, in the required currency of denomination, using all sources of liquidity available to it. For reference, the liquidity waterfall classifies ALR on any given day into four Levels. Level One includes the House IM and GF cash deposits of the defaulting CP. Level Two includes GF cash deposits of: (i) ICC; and (ii) non-defaulting CPs, which until ICC has consumed the cash equivalent value of all defaulting CPs' IM and GF deposits, are available to ICC after pledging an equivalent value of non-cash assets (or cash assets in a different currency) from the defaulting CP's IM deposits or GF deposits. Level Three includes House IM cash deposits of the non-defaulting CPs, which are available to ICC after pledging an equivalent value of non-cash assets (or cash assets in a different currency) from the defaulting CP's IM deposits or GF deposits. Level Three cash used by ICC is always a loan, against which it must provide the equivalent Pledgeable Collateral from the GF deposits of the non-defaulting CPs and ICC, and/or from the IM and/or GF deposits of the defaulting CPs.
Level Four includes ICC's committed repo facilities to convert U.S. Treasuries to USD cash and ICC's committed FX facilities to convert USD cash to EUR cash. Note that when determining ALR for stress testing analyses purposes, to account for the risk associated with Foreign Exchange (“FX”) rate fluctuations,
ICC noted that ICC's liquidity stress testing and historical liquidity analysis scenarios do not consider any tolerance for delayed payouts. ICC also noted that, during a default management period, ICC may initiate the liquidation of non-cash collateral and/or conversion of cash collateral into the required currencies of denomination, so that ICC has additional ALR to use according to the liquidity waterfall on subsequent days of default management and/or is able to pay back some or all of the cash previously borrowed in Levels Two to Four of the liquidity waterfall.
ICC proposes changes to the `methodology' section to change the calculation for available liquidity resources. In the historical and stress testing analysis, ICC proposes replacing the estimation of minimum available liquid resources based on risk requirements with the observation of cash and collateral on deposit (excluding cash that will be unavailable by the applicable ICC Payout Deadline because it has been invested by ICC). As such, ICC proposes removing the section from the Liquidity Risk Management Framework which described the process for computing the estimation of minimum available liquid resources. In
ICC also proposes additional changes to the `methodology' section. Among other things, the proposed revisions will clarify that ICC's measurement and monitoring methodology assesses the adequacy of ICC's established liquidity resources in response to historically observed and hypothetically created (forward looking) scenarios with risk horizons up to and including 6-days. The analyzed scenarios feature assumptions that directly impact the ability of ICC to meet its payment obligations. From available IM and GF collateral on deposit on the day of the considered default(s), the analysis determines currency-specific ALR by liquidity waterfall level, and compares these ALRs to the currency-specific Liquidity Obligations resulting from the analyzed scenarios on each day of the considered time horizon. To be conservative, the analysis assumes no client-related ALR and that only the day-1 ALR are available throughout the considered time horizon (
ICC proposes changes to the `historical analysis' section of the framework. ICC proposes adding language to note that, as part of its historical liquidity analysis, ICC analyzes historical data sets to assess the level of liquidity coverage achieved for each currency. Under the revised framework, ICC will continue to conduct a historical liquidity analysis on both an individual AG basis and a cover-2 basis.
ICC proposes the use of the Basel Traffic Light System
ICC proposes additional enhancements to the `historical analysis' section to consider the simultaneous default of the two worst-case Affiliate Groups (“AGs”)
ICC proposes enhancements to the `historical analysis' section to note that, for each day of its historical analysis, and on a currency specific basis, the Risk Department explores predefined cover-2 scenarios considering the default of the CPs within two AGs creating the largest remaining Liquidity Obligation after applying the IM and GF cash deposits of each constituent CP to that CP's Liquidity Obligation. ICC's cover-2 analysis considers the liquidity resources provided by the defaulting CPs, the GF and IM liquidity resources provided by the non-defaulting CPs and ICC, and any externally available liquidity resources.
ICC proposes clarifying changes to the `historical analysis section' to note that the prices considered for historical analysis purposes are “dirty” prices as they include riskless (deterministic) payments (
ICC proposes changes to the `stress testing' section of the framework. Under the previously approved framework, ICC used predefined scenarios believed to be potential market outcomes historically observed, but with a very low probability of occurrence, as well as scenarios that replicated observed instrument price changes during the Lehman Brothers default. ICC also used predefined scenarios designed to test the performance of the risk methodology under extreme conditions, which ICC did not expect the market to realize.
ICC proposes re-categorizing and adding to the stress testing scenarios set forth in the `stress testing' section of the framework. Under the revised framework, ICC has enhanced its description of its historically observed extreme but plausible market scenarios, to note that the scenarios define spread or price shocks based on observations during specific historical events. The historical data set from which ICC derives the proposed scenarios will continue to begin on April 1, 2007 and include periods of extreme market events such as the Bear Stearns collapse, the Lehman Brothers default, the 2009 Credit Crisis, the US “Flash Crash” event, and the European Sovereign Crisis. The scenarios are similar to the stress testing currently performed under the financial resources Stress Testing Framework.
ICC proposes eliminating all scenarios not expected to be realized as market outcomes (
ICC also proposes revising the `stress testing' section of the framework to add a number of hypothetically constructed (forward looking) extreme but plausible market scenarios comprised of a given historically observed extreme but plausible market scenario and additional stress enhancements representing forward looking hypothetical adverse market events. Specifically, two sets of hypothetically constructed (forward looking) extreme but plausible market scenarios are proposed: Loss-given default scenarios, and one-service-provider-down scenarios. The loss-given default scenarios consider the addition of up to three adverse credit events including the holder of the considered portfolio, one additional CP name and one additional non-CP name. The one-service-provider-down scenarios consider a reduction in ALR designed to represent ICC's worst-case exposure to a single service provider at which it maintains cash deposits or investments, due to ICC's potential inability to access those deposits and/or investments when required. ICC proposes that the reduction in ALR used in the one-service-provider-down scenarios is based on ICC's analysis of the diversification of its deposits and investments across its multiple service providers.
ICC proposes revisions to the `stress testing' section to further describe its analysis under the above referenced scenarios. ICC proposes revisions to consider the simultaneous default of the two worst-case Affiliate Groups (“AGs”)
ICC proposes enhancements to the `stress testing' section to describe its cover-N analysis in which, for each scenario, it first considers the default of one AG, then the defaults of two AGs, then three AGs, and so forth. The sequence of selecting AGs is based on the remaining Liquidity Obligation associated with the constituent CP's portfolios after applying the IM and GF cash deposits of each constituent CP to its own Liquidity Obligation. AGs are sequenced from largest to smallest remaining Liquidity Obligation. For each set of AGs considered to be in a state of default (1 AG, 2 AGs, 3 AGs, etc.), ICC compares the total remaining Liquidity Obligation to the remaining liquidity resources to determine if there are sufficient resources to meet the obligation. In this way, ICC determines how many AGs it would require to be in a state of default to consume all available liquidity resources.
To determine the Liquidity Obligations in the above analysis, ICC applies the stress scenarios to actual cleared portfolios to determine a currency-specific profit/loss for each CP, representing the largest cumulative loss over the specified risk horizon. The considered profit/loss in the analysis is the sum of the upfront fee changes corresponding to the clean prices associated with the hypothetical scenarios, and excluding the riskless (deterministic) payments.
To determine ICC's liquidity needs for each scenario, the Risk Department computes Liquidity Obligations for FCM/BD CPs by combining the net payments for house and client origin accounts. For the purposes of selecting defaulting AGs, the Risk Department does not offset client origin losses with house origin gains, or offset house origin losses with client origin gains.
The `required analysis' section remains substantially the same. The ICC Risk Department executes stress testing daily, with weekly reporting to different audiences depending on the results. The Risk Department also executes monthly historical liquidity adequacy analyses and reviews the results monthly, with monthly reporting to different audiences depending on the results.
The `interpretation of results and potential actions' section remains substantially the same. Depending on the scenarios and the frequency and severity of any resulting deficiencies, the Risk Department may choose to make appropriate enhancements to its model. Before enhancing its liquidity risk management model, ICC first discusses such enhancements with its senior management team, and subsequently consults with its Risk Working Group and Risk Committee before submitting to the Board of Managers for approval.
ICC proposes changing the `materiality and reporting framework' section to note that, at each Risk Committee meeting, the Risk Department provides a summary of historical liquidity analysis and liquidity stress testing analysis, which demonstrates the adequacy of ICC's liquidity resources to cover Liquidity Obligations over N-days. Such analyses will also include any instance where Level Three resources were required to meet Liquidity Obligations in response to any of the considered historical liquidity or liquidity stress testing scenarios.
ICC proposes revisions to the `materiality and reporting framework' to note that, when exceedances of funded and/or unfunded resources are identified, the Risk Department is required to report them to the senior management team and the ICC Risk Committee, and (i) demonstrate breaches do not highlight a significant liquidity risk management weaknesses, or (ii) recommend specific liquidity risk management model enhancements that produce an adequate increase in funded and/or unfunded liquidity resources under the identified scenario(s). In addition to the reporting described above, the Risk Department will also report to the Risk Committee any instances where the Basel Traffic Light System categorizes the number of observed exceedances in its individual AG historical analysis as being in the predefined “red zone”. In these instances, the Risk Department will discuss with the Risk Committee the appropriateness of its liquidity thresholds, and if appropriate, make revisions.
ICC proposes revisions to the `model validation' section to note that its Liquidity Risk Management Framework is under the purview of the Model Validation Framework, and subject to initial validations.
ICC proposes revisions to its Stress Testing Framework to unify the stress testing scenarios with the liquidity stress testing scenarios set forth in the Liquidity Risk Management Framework. ICC operates its stress testing and liquidity stress testing on a unified set of stress testing scenarios and system. As such, revisions to the stress testing scenarios are necessary to ensure scenario unification, following changes to the Liquidity Risk Management Framework. Such changes are consistent with recently issued guidance for certain principles and key considerations in the Committee on Payments and Market Infrastructures-Board of the International Organization of Securities Commissions Principles for Financial Market Infrastructures.
ICC proposes to introduce Risk Factor specific scenarios for all stress test scenarios. Previously, corporate single names were considered at the sector level (as opposed to the Risk Factor level). This change is reflected throughout the framework.
ICC also proposes to add clarifying language to note that the predefined stress testing scenarios set forth in its Stress Testing Framework are applied to all cleared instruments, and that name-specific scenarios are applied to all sovereign and corporate reference entities.
ICC also proposes revisions to extend ICC's margin risk horizon up to 6-days, to account for the risk associated with clearing Asia Pacific products. This change will apply throughout the framework; the risk horizon is reflected as “N-day” where N≥5 is the margin risk horizon or Margin Period of Risk (MPOR). The margin risk horizon is based on the greatest MPOR (rounded up to the nearest integer) for the CDS instruments currently eligible for clearing in order to capture the risk associated with clearing products across multiple time zones (
ICC also proposes to revise its description of the “Historically Observed Extreme but Plausible Market Scenarios” to note that the stress spread changes considered as part of each scenario are extracted from the market history of the most actively traded instrument for the considered Risk Factors.
ICC proposes to revise the “Hypothetically Constructed (Forward Looking) Extreme but Plausible Market Scenarios” to ensure consistency with the loss-given default stress scenario set forth in the Liquidity Risk Management Framework, which combines a given historically observed extreme but plausible market scenario with explicit Jump-to-Default events. The proposed revisions specify that there will be up to two reference entities selected for a hypothetical adverse credit event.
ICC proposes to revise the description of the discordant scenarios (
Section 17A(b)(3)(F) of the Act
Further, the changes to the Stress Testing Framework to unify the stress testing scenarios with the stress testing scenarios set forth in the Liquidity Risk Management Framework are necessary following recent changes to the Liquidity Risk Management Framework, as ICC operates its stress testing and liquidity stress testing on a unified set of stress testing scenarios and system. ICC's stress testing practices will continue to ensure the adequacy of systemic risk protections. As such, the proposed rule changes are designed to promote the prompt and accurate clearance and settlement of securities transactions, derivatives agreements, contracts, and transactions within the meaning of Section 17A(b)(3)(F)
ICC does not believe the proposed rule changes would have any impact, or impose any burden, on competition. The Liquidity Risk Management Framework and the Stress Testing Framework apply uniformly across all CPs. Therefore, ICC does not believe the proposed rule changes impose any
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
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–2017–005 and should be submitted on or before June 27, 2017.
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 amend Chapter VI, Section 5 (Minimum Increments),
Proposed new language is
(a) The Board may establish minimum quoting increments for options contracts traded on BX Options. Such minimum increments established by the Board will be designated as a stated policy, practice, or interpretation with respect to the administration of this Section within the meaning of Section 19 of the Exchange Act and will be filed with the SEC as a rule change for effectiveness upon filing. Until such time as the Board makes a change in the increments, the following principles shall apply:
(1)–(2) No Change.
(3) For a pilot period scheduled to expire on [June 30, 2017]
The Exchange may replace any pilot issues that have been delisted with the next most actively traded multiply listed options classes that are not yet included in the pilot, based on trading activity in the previous six months. The replacement issues may be added to the pilot on the second trading day following [January 1, 2017]
(4) No Change.
(b) No Change.
The text of the proposed rule change is also available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to amend Chapter VI, Section 5, to extend the Penny Pilot through December 31, 2017 or the date of permanent approval, if earlier,
Under the Penny Pilot, the minimum price variation for all participating options classes, except for the Nasdaq-100 Index Tracking Stock (“QQQQ”), the SPDR S&P 500 Exchange Traded Fund (“SPY”) and the iShares Russell 2000 Index Fund (“IWM”), is $0.01 for all quotations in options series that are quoted at less than $3 per contract and $0.05 for all quotations in options series that are quoted at $3 per contract or greater. QQQQ, SPY and IWM are quoted in $0.01 increments for all options series. The Penny Pilot is currently scheduled to expire on June 30, 2017.
The Exchange proposes to extend the time period of the Penny Pilot through December 31, 2017 or the date of permanent approval, if earlier, and to provide a revised date for adding replacement issues to the Penny Pilot. The Exchange proposes that any Penny Pilot Program issues that have been delisted may be replaced on the second trading day following July 1, 2017. The replacement issues will be selected based on trading activity in the previous six months.
This filing does not propose any substantive changes to the Penny Pilot Program; all classes currently participating in the Penny Pilot will remain the same and all minimum increments will remain unchanged. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been demonstrated to outweigh the potential increase in quote traffic.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In particular, the proposed rule change, which extends the Penny Pilot for an additional six months through December 31, 2017 or the date of permanent approval, if earlier, and changes the date for replacing Penny Pilot issues that were delisted to the second trading day following July 1, 2017, will enable public customers and other market participants to express their true prices to buy and sell options for the benefit of all market participants. This is consistent with the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, this proposal is pro-competitive because it allows Penny Pilot issues to continue trading on the Exchange.
Moreover, the Exchange believes that the proposed rule change will allow for further analysis of the Pilot and a determination of how the Pilot should be structured in the future; and will serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
The Pilot is an industry-wide initiative supported by all other option exchanges. The Exchange believes that extending the Pilot will allow for continued competition between market participants on the Exchange trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues trading as part of the Pilot.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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 e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet website (
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. 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–BX–2017–026 and should be submitted on or before June 27, 2017.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a closed meeting on Thursday, June 8, 2017 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(7), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matter at the closed meeting.
Commissioner Stein, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matter of the closed meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Consideration of amici participation; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend a pilot program to quote and to trade certain options classes in penny increments (“Penny Pilot Program”).
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
Under the Penny Pilot Program, the minimum price variation for all participating options classes, except for the Nasdaq–100 Index Tracking Stock (“QQQQ”), the SPDR S&P 500 Exchange Traded Fund (“SPY”) and the iShares Russell 2000 Index Fund (“IWM”), is $0.01 for all quotations in options series that are quoted at less than $3 per contract and $0.05 for all quotations in options series that are quoted at $3 per contract or greater. QQQQ, SPY and IWM are quoted in $0.01 increments for all options series. The Penny Pilot Program is currently scheduled to expire on June 30, 2017.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You
All submissions should refer to File Number SR–GEMX–2017–21 and should be submitted on or before June 27, 2017.
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 correct rule language added by a previous filing
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.
Earlier this year, the Commission approved a Nasdaq filing (the “Initial Filing”) to amend, among other things, the continued listing requirements for exchange-traded products (“ETPs”) in the Nasdaq Rule 5700 Series.
Specifically, the Exchange proposes to correct under the applicability section of Nasdaq Rule 5735(b)(1) (Managed Fund Shares)
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change to correct Nasdaq Rule 5735(b)(1) to require that any of the statements or representations regarding not just the description of the portfolio, but also of reference assets, will constitute continued listing requirements for listing of shares will provide clarity and accurately reflect the intent of the rule to the benefit of investors and the public interest.
For these reasons, Nasdaq believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
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, as amended. The Exchange believes that the proposed rule change may enhance competition since it corrects and makes more consistent the applicability of listing requirements for ETPs.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)
The Exchange has asked the Commission to waive the 30-day operative delay, making this proposal operative upon filing. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest. The proposal will modify Nasdaq Rule 5735(b)(1) to provide that any of the statements or representations regarding not just the description of the portfolio, but also the description of reference assets, among other things, constitute continued listing requirements for Managed Fund Shares. This aligns the
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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email:
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email:
The Department of State issued a Presidential permit to the Otay Water District (the District) on May 16, 2017, authorizing the District to construct, connect, operate, and maintain cross-border water pipeline facilities for the importation of desalinated seawater at the international boundary between the United States and Mexico in San Diego County, California. In making this determination, the Department provided public notice of the proposed permit, offered the opportunity for comment, and consulted with other federal agencies, as required by Executive Order 11423, as amended.
Contact the Office of Mexican Affairs' Border Affairs Unit via email at
The following is the text of the issued permit:
By virtue of the authority vested in me as the Acting Assistant Secretary of State for the Bureau of Oceans and International Environmental and Scientific Affairs including those authorities under Executive Order 11423, 33 FR 11741 (1968); as amended by Executive Order 12847 of May 17, 1993, 58 FR 29511 (1993), and Executive Order 13337 of April 30, 2004, 69 FR 25299 (2004); and Department of State Delegation of Authority 118–2 of January 26, 2006 and Delegation 415 of January 18, 2017; having considered the environmental effects of the proposed action consistent with the National Environmental Policy Act of 1969, as amended (83 Stat. 852, 42 U.S.C. 4321
The term “facilities” as used in this permit means the relevant portion of the pipeline and any land, structures, installations, or equipment appurtenant thereto as described in the permittee's November 2013 application for a Presidential permit (the “Application”).
The term “U.S. facilities” as used in this permit means those parts of the facilities in the United States, as described in the Application.
This permit is subject to the following conditions:
(2) The construction, connection, operation, and maintenance of the facilities shall be in all material respects as described in the Application.
(2) The permittee shall save harmless and indemnify the United States from any claimed or adjudged liability arising out of construction, connection, operation, or maintenance of the facilities.
(3) The permittee shall maintain the U.S. facilities and every part thereof in a condition of good repair for their safe operation.
(4) The permittee shall obtain a license from the USIBWC before commencing construction.
(5) The permittee shall obtain an easement from DHS for any portion of the pipeline that crosses over or under property in which the U.S. Customs and Border Protection owns an interest.
(6) The permittee shall obtain a permit from the California Environmental Protection Agency, State Water Resources Control Board, Division of Drinking Water.
Federal Aviation Administration (FAA), DOT.
Notice of Request to Release Airport Property.
The FAA proposes to rule and invite public comment on the release of land at the Colorado Springs Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21).
Comments must be received on or before July 6, 2017.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. John P. Bauer, Manager, Federal Aviation Administration, Northwest Mountain Region, Airports Division, Denver Airports District Office, 26805 E. 68th Avenue, Suite 224, Denver, Colorado 80249–6361.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Troy Stover, Colorado Springs Airport, Colorado Springs, Colorado, at the following address: Mr. Troy Stover, Colorado Springs Airport, 7770 Milton E. Proby Parkway, Suite 50, Colorado Springs, Colorado 80916.
Mr. Marc Miller, Colorado Engineer/Compliance Specialist, Federal Aviation Administration, Northwest Mountain Region, Denver Airports District Office, 26805 E. 68th Avenue, Suite 224, Denver, Colorado 80249–6361.
The request to release property may be reviewed, by appointment, in person at this same location.
The FAA invites public comment on the request to release property at the Colorado Springs Airport under the provisions of the AIR 21 (49 U.S.C. 47107(h)(2)).
On May 16, 2017, the FAA determined that the request to release
The following is a brief overview of the request:
The Colorado Springs Airport is proposing the release from the terms, conditions, reservations, and restrictions on approximately 27.31 acres of federally obligated land at the Colorado Springs Airport. The said parcel is a portion of a larger 110 acre available land mass north of Stewart Road and east of Powers Boulevard. The proposed release would allow for construction of a cargo facility which is consistent with the permitted land use. The airport property being proposed for release is bisected by a roadway and Sand Creek drainage system and does not have access to the airfield, and is currently undeveloped and is not planned or situated for aeronautical activity. The property will be sold at fair market value and the sponsor will reinvest the revenue into the airport. The property release conveyance will include appropriate continuing right of flight and continuing restriction clauses that will prohibit any activity on the land that would interfere with or be a hazard to the flight of aircraft over the land or to and from the airport, or that interferes with air navigation and communications facilities serving the airport.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
In addition, any person may, upon appointment and request, inspect the application, notice and other documents germane to the application in person at the Colorado Springs Airport.
Federal Aviation Administration (FAA), DOT.
Notice and request for comment.
The FAA is requesting public comment for a land release and sale of 11.972 acres of federally obligated airport property at Albany International Airport, Albany, NY, to accommodate the construction of a new highway access ramp connecting Albany Shaker Road to Interstate 87. This acreage was originally purchased with federal financial assistance through the AIP program under Grant Agreements 3–36–0001–062–1999, 3–36–0001–092–2007, and 3–36–0001–105–2009. In accordance with federal regulations, this notice is required to be published in the
Comments must be received on or before July 6, 2017.
Comments on this application may be mailed or delivered to the following address: John O'Donnell, Chief Executive Officer, Albany International Airport, Albany County Airport Authority, Administration Building, Suite 200, Albany, NY 12211–1057, (518) 242–2222.
and at the FAA New York Airports District Office: Evelyn Martinez, Manager, New York Airports District Office, 1 Aviation Plaza, Jamaica, NY 11434, (718) 995–5771.
Ryan Allen, Community Planner, New York Airports District Office, 1 Aviation Plaza, Jamaica, NY 11434. (718) 995–5677.
The land release request for the sale and disposal of 11.972 acres of federally obligated airport property at Albany International Airport, Albany, NY may be reviewed in person at the New York Airports District Office located at 159–30 Rockaway Blvd., Suite 111, Jamaica, NY 11434.
The following is a brief overview of the request:
The Albany County Airport Authority has submitted a land release request seeking FAA approval for the sale and disposal of approximately 11.972 acres of federally obligated airport property to the New York Department of Transportation (NYSDOT) for the purpose of accommodating the construction of a new highway access ramp connecting Albany Shaker Road to Interstate 87, also known as the Adirondack Northway Exit 4 Project. The project will include new highway construction with access improvements, new bridge construction associated with the access improvements, and the replacement of the existing Northway bridges over Albany Shaker Road.
The parcels for this project are known as Tax Lots 30.–5–1, 2, 3, 4, & 9 in Colonie, NY, and will be subdivided to account for a total of 11.972 acres to be released and sold at Fair Market Value (FMV) as determined by a certified appraisal report. The proposed subdivision and sale will subsequently result in the reduction in economic value of a total of 6.420 acres of existing airport property adjacent to the 11.972 acres being released, whereby these 6.420 acres will become landlocked and inaccessible. Due to the reduction in value of these 6.420 acres as a result of the subdivision and sale of the subject parcels, the airport will also be compensated for the reduction in value of these “uneconomic remnants” at FMV. In addition, as a condition of the land release, the airport and prospective buyer have agreed to include an access easement across the road right-of-way to allow for continued access to the aforementioned 6.420 acres by the airport sponsor.
The 11.972 acres of land to be released was originally purchased with federal financial assistance through the AIP program under Grant Agreements 3–36–0001–062–1999, 3–36–0001–092–2007, and 3–36–0001–105–2009. Therefore, the portion of the proceeds of the sale of this acreage, which is proportionate to the United States' share of the cost of acquisition of such land, will be used consistent with the requirements of 49 U.S.C. 47107(c). The remaining portion of the proceeds of the sale, is considered airport revenue, and will be used in accordance with 49 U.S.C. 47107(b) and the FAA's Policy and Procedures Concerning the Use of Airport Revenue published in the
The 11.972 acres to be released are part of previous purchases totaling 189.65 for reasons associated with Runway Protection Zone (RPZ) protection, obstruction control, and noise compatibility in line with a part 150 noise study. The subject area to be released, however, is not located within the RPZ, will not result in any obstructions to part 77 surfaces, and has not been identified as needed for current or future airport development in the current Airport Master Plan or ALP. Furthermore, the proposed use as a highway interchange is considered to be a compatible land use as defined by the part 150 study.
Any person may inspect the request by appointment at the FAA office address listed above. Interested persons are invited to comment. All comments
Issued in Jamaica, New York.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for 11 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.
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 October 14, 2016, FMCSA published a notice announcing its decision to renew exemptions for 11 individuals from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (81 FR 71181). The public comment period ended on November 14, 2016, and no comments were received on January 9, 2017, FMCSA published a second notice announcing its decision to renew exemptions for the same 11 individuals from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (81 FR 71181). The public comment period ended on February 8, 2017, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(8).
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:
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: Section 391.41(b)(8), paragraphs 3, 4, and 5.]
FMCSA received no comments in this preceding.
Based upon its evaluation of the 11 renewal exemption applications and no comments received, FMCSA confirms its' decision to exempt the following drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41 (b)(8), subject to the requirements cited above.
As of April 8, 2016, the following four 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 (81 FR 71181): Jeffrey Ballweg (WI); Michael Ranalli (PA); Lonnie Reicker (IL); and Jay Whitehead (NY). These drivers were included in FMCSA–2011–0389; and FMCSA–2012–0294; FMCSA–2013–0109. The exemptions were effective on April 8, 2016, and will expire on April 8, 2018.
As of April 23, 2016, the following seven 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 (81 FR 71181):
These drivers were included in FMCSA–2013–0442. The exemptions were effective on April 23, 2016, and will expire on April 23, 2018.
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), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 42 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 July 6, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2017–0035 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 42 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. Anthony, 38, has had ITDM since 2006. His endocrinologist examined him in 2017 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. Anthony understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Anthony meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Maryland.
Mr. Arrowood, 39, has had ITDM since 2001. His endocrinologist examined him in 2017 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. Arrowood understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Arrowood meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Mississippi.
Ms. Auwerda, 28, has had ITDM since 2000. Her endocrinologist examined her in 2017 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. Auwerda understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Auwerda meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her ophthalmologist examined her in 2016 and certified that she does not have diabetic retinopathy. She holds a Class A CDL from Colorado.
Mr. Barfield, 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. Barfield understands diabetes management and monitoring,
Mr. Binkley, 49, has had ITDM since 2007. His endocrinologist examined him in 2017 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. Binkley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Binkley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Tennessee.
Mr. Bongiovanni, 47, has had ITDM since 1992. His endocrinologist examined him in 2017 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. Bongiovanni understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bongiovanni meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Massachusetts.
Mr. Branyon, 63, has had ITDM since 2003. His endocrinologist examined him in 2017 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. Branyon understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Branyon 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 South Carolina.
Mr. Brown, 61, has had ITDM since 2012. His endocrinologist examined him in 2017 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 optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.
Mr. Carr, 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. Carr understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Carr meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from California.
Mr. Cartwright, 65, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Cartwright understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cartwright 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 Wisconsin.
Mr. Cline, 52, has had ITDM since 2010. His endocrinologist examined him in 2017 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. Cline understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cline meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Ms. Coffman, 50, has had ITDM since 2008. Her endocrinologist examined her in 2017 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. Coffman understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Coffman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her ophthalmologist examined her in 2016 and certified that she does not have diabetic retinopathy. She holds a Class B CDL from Indiana.
Mr. Cole, 32, has had ITDM since 2016. His endocrinologist examined him
Mr. Cooksey, 23, has had ITDM since 1999. 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. Cooksey understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cooksey meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from California.
Mr. Csaplik, 62, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Csaplik understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Csaplik meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Dence, 48, has had ITDM since 2012. His endocrinologist examined him in 2017 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. Dence understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dence meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Diem, 65, has had ITDM since 2013. His endocrinologist examined him in 2017 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. Diem understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Diem meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Eaves, 49, has had ITDM since 2014. His endocrinologist examined him in 2017 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. Eaves understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Eaves meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Economy, 62, has had ITDM since 2012. His endocrinologist examined him in 2017 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. Economy understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Economy meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Elfman, 79, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Elfman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Elfman meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.
Mr. Grigsby, 59, has had ITDM since 2014. His endocrinologist examined him in 2017 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. Grigsby understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Grigsby meets the requirements of the vision standard at
Mr. Hargrove, 51, has had ITDM since 2014. His endocrinologist examined him in 2017 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. Hargrove understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hargrove meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable proliferative diabetic retinopathy. He holds a Class A CDL from North Carolina.
Mr. Hart, 63, has had ITDM since 1997. His endocrinologist examined him in 2017 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 optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from New York.
Mr. Holland, 24, has had ITDM since 1995. His endocrinologist examined him in 2017 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. Holland understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Holland meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Maryland.
Mr. Jones, 52, has had ITDM since 2015. His endocrinologist examined him in 2017 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 2017 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Massachusetts.
Mr. Kurley, 47, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Kurley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kurley meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Pennsylvania.
Mr. Leach, 65, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Leach understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Leach meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Virginia.
Mr. Long, 56, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Long understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Long meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Lucas, 66, has had ITDM since 1998. 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. Lucas understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lucas meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Osorio Castaneda, 31, 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
Ms. Pierce, 62, has had ITDM since 1997. Her endocrinologist examined her in 2017 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. Pierce understands diabetes management and monitoring, has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Pierce meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2017 and certified that she does not have diabetic retinopathy. She holds an operator's license from North Dakota.
Mr. Reynolds, 52, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Reynolds understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Reynolds 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 C CDL from Michigan.
Mr. Roberts, 38, has had ITDM since 1994. 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. Roberts understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Roberts 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. Shepherd, 41, has had ITDM since 2017. His endocrinologist examined him in 2017 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. Shepherd understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shepherd meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Shiflett, 52, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Shiflett understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shiflett meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from West Virginia.
Mr. Smith, 50, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith 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 A CDL from Oklahoma.
Mr. Snudden, 48, has had ITDM since 2013. His endocrinologist examined him in 2017 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. Snudden understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Snudden meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Missouri.
Ms. Swain-Ogilvie, 38, 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. Swain-Ogilvie understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Swain-Ogilvie meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her ophthalmologist examined her in 2016 and certified that she does not have diabetic retinopathy. She holds a Class B CDL from Pennsylvania.
Mr. Waite, 64, has had ITDM since 2007. His endocrinologist examined him
Mr. Walker, 64, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Walker understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Walker meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Watkins, 49, has had ITDM since 2008. His endocrinologist examined him in 2017 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. Watkins understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Watkins meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from West Virginia.
Mr. Zulla, 54, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Zulla understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Zulla meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Florida.
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
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for an extension of exemption; request for comments; correction.
The FMCSA published a document in the
Comments must be received on or before June 14, 2017.
For information concerning this notice, contact Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (614) 942–6477. Email:
1. In the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA confirms its decision to renew exemptions for 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.
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 October 20, 2016, FMCSA published a notice announcing its decision to renew exemptions for 10 individuals from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (81 FR 72663). The public comment period ended on November 21, 2016, and one comment was received on January 12, 2017, FMCSA published a second notice announcing its decision to renew exemptions for the same 10 individuals from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (81 FR 72663). The public comment period ended on February 13, 2017, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(8).
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:
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.]
In response to the October 20, 2016, notice, FMCSA received one comment in support of Mr. Troff receiving an exemption. No comments were received in response to the January 12, 2017 notice.
Based upon its evaluation of the 10 renewal exemption applications and comments received, FMCSA confirms its' decision to exempt the following drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41 (b)(8), subject to the requirements cited above.
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 (81 FR 72663). This driver was included in FMCSA–2013–0109. This 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 (81 FR 72663):
These drivers were included in FMCSA–2013–0444. These exemptions were effective June 24, 2016, and will expire June 24, 2018.
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), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for four 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.
The exemptions were effective on November 6, 2015. The exemptions expire on November 6, 2017.
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 October 14, 2016, FMCSA published a notice announcing its decision to renew exemptions for four individuals from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (81 FR 71164). The public comment period ended on November 14, 2016, and no comments were received on January 9, 2017, FMCSA published a second notice announcing its decision to renew exemptions for the same four individuals from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (81 FR 71164). The public comment period ended on February 8, 2017, and one comment was received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(8).
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: section 391.41(b)(8), paragraphs 3, 4, and 5.]
FMCSA received no comments in response to the October 14, 2016, notice. FMCSA received one comment in response to the January 9, 2017, notice. This commenter expressed concern for allowing individuals with epilepsy to drive even when taking anti-seizure medication. FMCSA evaluated the medical records of all four applicants
Based upon its evaluation of the four renewal exemption applications FMCSA confirms its decision to exempt the following drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41(b)(8), subject to the requirements cited above: Christopher Bird (OH); Edward Nissenbaum (PA); Stephen Stawinsky (PA); and George Webb (MA).
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), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions of 130 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 December 29, 2016, FMCSA published a notice announcing its decision to renew exemptions for 130 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 96183). The public comment period ended on January 30, 2017, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
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 130 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 391.41(b)(3):
As of January 9, 2017, 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 prohibiting drivers with ITDM from driving CMVs in interstate commerce (77 FR 65931; 78 FR 1926):
The drivers were included in docket No. FMCSA–2012–0347. Their exemptions are effective as of January 9, 2017, and will expire on January 9, 2019.
As of January 10, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 9 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 69734; 76 FR 1495):
The drivers were included in docket No. FMCSA–2010–0355. Their exemptions are effective as of January 10, 2017, and will expire on January 10, 2019.
As of January 15, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 40 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 74159; 80 FR 8926):
The drivers were included in docket No. FMCSA–2014–0310. Their exemptions are effective as of January 15, 2017, and will expire on January 15, 2019.
As of January 25, 2017, 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 70530; 78 FR 5559):
The drivers were included in docket No. FMCSA–2012–0348. Their exemptions are effective as of January 25, 2017, and will expire on January 25, 2019.
As of January 28, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 9 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 77947; 76 FR 5243):
The drivers were included in docket No. FMCSA–2012–0386. Their exemptions are effective as of January 28, 2017, and will expire on January 28, 2019.
As of January 31, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 49 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 78938; 80 FR 12545):
The drivers were included in docket No. FMCSA–2012–0386. Their exemptions are effective as of January 31, 2017, and will expire on January 31, 2019.
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), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant Daimler Trucks North America's (Daimler) application for an exemption to allow a Daimler employee to drive commercial motor vehicles (CMV) in the United States without having a commercial driver's license (CDL) issued by one of the States. The driver, Martin Zeilinger, will test-drive
This exemption is effective June 6, 2017 and expires June 6, 2022.
Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 614–942–6477. Email:
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Daimler has applied for an exemption renewal for one of its engineers from 49 CFR 383.23, which prescribes licensing requirements for drivers operating CMVs in interstate or intrastate commerce. This driver, Martin Zeilinger, holds a valid German commercial license but is unable to obtain a CDL in any of the U.S. States due to residency requirements. A copy of the application is in Docket No. FMCSA–2012–0032.
FMCSA initially granted an exemption to Mr. Zeilinger on March 27, 2015 (80 FR 16511). This exemption was effective March 27, 2015, and expired March 27, 2017. Detailed information about the qualifications and experience of Mr. Zeilinger was provided by Daimler in its original application, a copy of which is in the docket.
The exemption renewal would allow Mr. Zeilinger to operate CMVs in interstate or intrastate commerce to support Daimler field tests designed to meet future vehicle safety and environmental requirements and to develop improved safety and emission technologies. According to Daimler, Mr. Zeilinger will typically drive for no more than 6 hours per day for 2 consecutive days, and 10 percent of the test driving will be on two-lane State highways, while 90 percent will be on interstate highways. The driving will consist of no more than 200 miles per day, for a total of 400 miles during a two-day period on a quarterly basis. He will in all cases be accompanied by a holder of a U.S. CDL who is familiar with the routes to be traveled. Daimler requests that the exemption cover the maximum allowable duration of 5 years.
Daimler has explained in prior exemption requests that the German knowledge and skills tests and training program ensure that Daimler's drivers operating under the exemption will achieve a level of safety that is equivalent to, or greater than, the level of safety obtained by complying with the U.S. requirement for a CDL.
FMCSA has previously determined that the process for obtaining a German commercial license is comparable to, or as effective as, the requirements of part 383, and adequately assesses the driver's ability to operate CMVs in the U.S. Since 2012, FMCSA has granted Daimler drivers similar exemptions [May 25, 2012 (77 FR 31422); July 22, 2014 (79 FR 42626); March 27, 2015 (80 FR 16511); October 5, 2015 (80 FR 60220); December 7, 2015 (80 FR 76059); December 21, 2015 (80 FR 79410); July 12, 2016 (81 FR 45217); July 25, 2016 (81 FR 48496)].
On March 22, 2017, FMCSA published notice of this application and requested public comments (82 FR 14791). One respondent opposed the requested exemption. Mr. Michael Millard wrote, “I feel five years is sufficient for Martin Zeilinger to obtain a US CDL. Please deny Daimler Trucks North America's request.”
Based upon the merits of this application, including Mr. Zeilinger's extensive driving experience and safety record, FMCSA has concluded that the exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption, in accordance with § 381.305(a).
In accordance with 49 U.S.C. 31315 and 31136(e), the exemption will be valid for 5 years unless revoked earlier by the FMCSA. The exemption will be revoked if: (1) Mr. Zeilinger fails to comply with the terms and conditions of the exemption; (2) the exemption results in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would be inconsistent with the goals and objectives of 49 U.S.C. 31315 and 31136.
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation applicable to interstate or intrastate commerce that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions of 134 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. FMCSA has statutory authority to exempt individuals from this rule if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
Each group of renewed exemptions are effective from the dates stated in the discussions below. Comments must be received on or before July 6, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. FMCSA–2007–27387; FMCSA–2008–0137; FMCSA–2009–0122; FMCSA–2011–0143; FMCSA–2013–0018; FMCSA–2015–0060; FMCSA–2015–0061 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 renew an exemption from the Federal Motor Carrier Safety Regulations 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 134 individuals listed in this notice have recently become eligible for a renewed exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. The drivers remain in good standing with the Agency, 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.
This notice addresses 134 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. These 134 drivers remain in good standing with the Agency, 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. Therefore, FMCSA has decided to extend each exemption for a renewable two-year period. Each individual is identified according to the renewal date.
The exemptions are renewed subject to the following conditions: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual submit an annual ophthalmologist's or optometrist's report; and (4) that each
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 for additional two year periods. The following groups of drivers received renewed exemptions in the month of July and are discussed below.
As of July 2, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 24 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (72 FR 27625; 72 FR 36101; 78 FR 26419; 78 FR 39825):
The drivers were included in one of the following docket Nos: FMCSA–2007–27387; FMCSA–2013–0018. Their exemptions are effective as of July 2, 2017, and will expire on July 2, 2019.
As of July 7, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 33 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (80 FR 31949; 80 FR 49299):
The drivers were included in Docket No. FMCSA–2015–0060. Their exemptions are effective as of July 7, 2017, and will expire on July 7, 2019.
As of July 23, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 33 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (80 FR 35705; 80 FR 48393):
The drivers were included in docket No. FMCSA–2015–0061. Their exemptions are effective as of July 23, 2017, and will expire on July 23, 2019.
As of July 26, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 10 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (76 FR 32012; 76 FR 44650):
The drivers were included in docket No. FMCSA–2011–0143. Their exemptions are effective as of July 26, 2017, and will expire on July 26, 2019.
As of July 28, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 34 individuals have satisfied the renewal conditions for obtaining an exemption from the rule prohibiting drivers with ITDM from driving CMVs in interstate commerce (73 FR 33144; 73 FR 43817; 74 FR 26467; 74 FR 37293):
The drivers were included in one of the following docket Nos: FMCSA–2008–0137; FMCSA–2009–0122. Their exemptions are effective as of July 28, 2017, and will expire on July 28, 2019.
Each of the 134 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 134 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–2007–27387; FMCSA–2008–0137; FMCSA–2009–0122; FMCSA–2011–0143; FMCSA–2013–0018; FMCSA–2015–0060; FMCSA–2015–0061.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by July 6, 2017.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 134 individuals from rule prohibiting persons with ITDM from operating CMVs in interstate commerce in 49 CFR 391.41(b)(3). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the medical condition of each applicant for an exemption from rule prohibiting persons with ITDM from operating CMVs in interstate commerce. That information is available by consulting the above cited
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.
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
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 21 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
The exemptions were granted May 13, 2017. The exemptions expire on May 13, 2019.
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 April 12, 2017, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (82 FR 17736). That notice listed 21 applicants' case histories. The 21 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 21 applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their limitation and demonstrated their ability to drive safely. The 21 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, cataract, central artery occlusion, complete loss of vision, corneal laceration, epiretinal membrane, glaucoma, hypertropia, macular scar, prosthetic eye, and retinal detachment. In most cases, their eye conditions were not recently developed. Fourteen of the applicants were either born with their vision impairments or have had them since childhood.
The 7 individuals that sustained their vision conditions as adults have had it for a range of 4 to 16 years.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 21 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision in careers ranging for 3 to 55 years. In the past three years, no drivers were involved in crashes and no drivers were convicted of moving violations in a CMV.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the April 12, 2017 notice (82 FR 17736).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA–1998–3637.
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression
Applying principles from these studies to the past 3-year record of the 21 applicants, no drivers were involved in crashes and no drivers were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 21 applicants listed in the notice of April 12, 2017 (82 FR 17736).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 21 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time oaf the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received four comments in this proceeding. Michael Millard, Mark Skubik, and Misty Pannu all stated that they are against granting the exemptions, citing safety concerns. As stated previously in this notice, FMCSA evaluated each applicant based on their driving histories and medical reports related to their vision deficiencies and have determined that granting the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Robert Bucholz stated he would like to see the results of a study aiming to determine if monocular drivers have higher accident rates, and that this information should be disclosed in the request for comments. An overview of the study that provides justification for granting the vision exemptions is available in section IV of this document.
Based upon its evaluation of the 21 exemption applications, FMCSA exempts the following drivers from the vision requirement in 49 CFR 391.41(b)(10):
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Motor Carrier Safety Administration (FMCSA).
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 29 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 July 6, 2017.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–
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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 29 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. Bren, 21, has had ITDM since 2005. His endocrinologist examined him in 2017 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. Bren understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bren 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 Dakota.
Mr. Brown, 40, has had ITDM since 2015. His endocrinologist examined him in 2017 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 2017 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Georgia.
Mr. Castro, 54, has had ITDM since 2013. His endocrinologist examined him in 2017 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. Castro understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Castro meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Florida.
Mr. Conklin, 68, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Conklin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Conklin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Davidson, 27, has had ITDM since 1991. His endocrinologist examined him in 2017 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. Davidson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Davidson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist
Mr. DePra, 35, has had ITDM since 2006. His endocrinologist examined him in 2017 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. DePra understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. DePra meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Indiana.
Mr. Finan, 63, has had ITDM since 2014. His endocrinologist examined him in 2017 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. Finan understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Finan 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. Garcia, 63, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Garcia understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Garcia meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Jersey.
Mr. Gheen, 23, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Gheen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gheen meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Ohio.
Mr. Hanson, 39, has had ITDM since 2007. His endocrinologist examined him in 2017 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. Hanson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hanson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Hanson, 47, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Hanson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hanson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Idaho.
Mr. Hoes, 41, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Hoes understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hoes meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Maryland.
Mr. Knighten, 67, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Knighten understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Knighten meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Washington.
Mr. Koons, 48, has had ITDM since 2008. His endocrinologist examined him in 2017 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
Mr. Luna, 51, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Luna understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Luna meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Mills, 73, has had ITDM since 2012. 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. Mills understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mills meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from New Hampshire.
Mr. Moe, 53, has had ITDM since 2014. His endocrinologist examined him in 2017 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. Moe understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Moe meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Minnesota.
Mr. Pearson, 58, has had ITDM since 2015. His endocrinologist examined him in 2017 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. Pearson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Pearson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from New York.
Mr. Rentsch, 54, has had ITDM since 2016. His endocrinologist examined him in 2017 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. Rentsch understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Rentsch 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 Dakota.
Mr. Revere, 55, has had ITDM since 1980. His endocrinologist examined him in 2017 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. Revere understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Revere meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Riley, 35, has had ITDM since 2010. His endocrinologist examined him in 2017 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. Riley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Riley 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. Roth, 58, has had ITDM since 2013. His endocrinologist examined him in 2017 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. Roth understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Roth meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Pennsylvania.
Mr. Shaffer, 61, has had ITDM since 2012. His endocrinologist examined him in 2017 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. Shaffer understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Shaffer meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.
Mr. Thornton, 51, has had ITDM since 2017. His endocrinologist examined him in 2017 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. Thornton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Thornton 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 B CDL from Oregon.
Mr. Trayah, 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. Trayah understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Trayah 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 B CDL from Vermont.
Mr. Wagstaff, 47, has had ITDM since 2013. His endocrinologist examined him in 2017 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. Wagstaff understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wagstaff meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Maryland.
Mr. Wildenberg, 46, has had ITDM since 1997. His endocrinologist examined him in 2017 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. Wildenberg understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wildenberg meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Wisconsin.
Mr. Wulf, 66, has had ITDM since 2017. His endocrinologist examined him in 2017 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. Wulf understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wulf meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Zeweldie, 41, has had ITDM since 2017. His endocrinologist examined him in 2017 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. Zeweldie understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Zeweldie meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2017 and certified that he does not have diabetic retinopathy. He holds an operator's license from Georgia.
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
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
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for 64 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirement in one eye.
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 October 21, 2015, FMCSA published a notice announcing its decision to renew exemptions for 64 individuals from the vision requirement in 49 CFR 391.41(b)(10) to operate a CMV in interstate commerce and requested comments from the public (80 FR 63869). The public comment period ended on November 20, 2015, and no comments were received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(10).
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to driver a CMV if that person:
Has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
FMCSA received no comments in this preceding.
As of November 6, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 31 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (68 FR 37197; 68 FR 48989; 70 FR 17504; 70 FR 30997; 70 FR 42615; 70 FR 48797; 70 FR 61493;
The drivers were included in one of the following docket Nos: FMCSA–2003–15268; FMCSA–2005–20560; FMCSA–2005–21711; FMCSA–2006–26653; FMCSA–2007–27515; FMCSA–2007–27897; FMCSA–2009–0121; FMCSA–2009–0154; FMCSA–2009–0206; FMCSA–2011–0057; FMCSA–2011–0124; FMCSA–2011–0189; FMCSA–2013–0028; FMCSA–2013–0029; FMCSA–2013–0030; FMCSA–2013–0165. Their exemptions are effective as of November 6, 2015, and will expire on November 6, 2017.
As of November 25, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, Dennis E. White (PA), has satisfied the conditions for obtaining a renewed exemption from the vision requirements (78 FR 62935; 78 FR 76395; 80 FR 63869):
The driver was included in docket No. FMCSA–2013–0166. His exemption is effective as of November 25, 2015, and will expire on November 25, 2017.
As of November 26, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, Albert M. Divella (NV), has satisfied the conditions for obtaining a renewed exemption from the vision requirements (78 FR 62935; 78 FR 76395; 80 FR 63869).
The driver was included in docket No. FMCSA–2013–0166. His exemption is effective as of November 26, 2015, and will expire on November 26, 2017.
As of November 28, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 17 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (69 FR 33997; 69 FR 61292; 70 FR 48797; 70 FR 61493; 71 FR 55820; 72 FR 39879; 72 FR 52421; 72 FR 54971; 72 FR 58362; 72 FR 67344; 73 FR 65009; 74 FR 41971; 74 FR 49069; 74 FR 57553; 76 FR 4413; 76 FR 62143; 76 FR 70212; 80 FR 63869):
The drivers were included in one of the following docket Nos: FMCSA–2004–17984; FMCSA–2005–21711; FMCSA–2007–27897; FMCSA–2007–29019. Their exemptions are effective as of November 28, 2015, and will expire on November 28, 2017.
As of November 30, 2015, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 14 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (64 FR 27027; 64 FR 40404; 64 FR 51568; 64 FR 66962; 66 FR 63289; 67 FR 68719; 68 FR 2629; 68 FR 52811; 68 FR 61860; 68 FR 64944; 70 FR 48797; 70 FR 61165; 70 FR 61493; 70 FR 67776; 72 FR 64273; 74 FR 62632; 76 FR 70215; 78 FR 64280; 80 FR 63869):
The drivers were included in one of the following docket Nos: FMCSA–1999–5578; FMCSA–1999–5748; FMCSA–2002–12844; FMCSA–2003–15892; FMCSA–2005–21711. Their exemptions are effective as of November 30, 2015, and will expire on November 30, 2017.
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), DOT.
Notice; request for comments.
FMCSA proposes a pilot program to allow temporary regulatory relief from the Agency's sleeper berth regulation, for a limited number of commercial drivers who have a valid commercial driver's license (CDL), and who regularly use a sleeper berth to accumulate their required 10 hours of non-duty work status. During the pilot program, participating drivers would have the option to split their sleeper berth time within parameters specified by FMCSA. Driver metrics would be collected for the duration of the study, and participants' safety performance
The Agency proposes criteria for participating drivers and carriers, outlines procedural steps and a data collection plan, and requests comments on these elements.
Comments must be received on or before August 7, 2017. The implementation date of the Pilot Program will be announced in subsequent
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA–2016–0260 using any of the following methods:
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Nicole Michel, Research Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590–0001, by email at
FMCSA encourages you to participate by submitting comments and related materials. In this notice, FMCSA requests certain information, but comments need not be limited to those requests.
If you submit a comment, please include the docket number for this notice (FMCSA–2016–0260), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online, by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this notice as being available in the docket, go to
On June 9, 1998, the President signed the Transportation Equity Act for the 21st Century (TEA–21) (Pub. L. 105–178, 112 Stat. 107). Section 4007 of TEA–21 amended 49 U.S.C. 31315 and 31136(e) to authorize the Secretary of Transportation (Secretary) to grant waivers and exemptions from some of the Federal Motor Carrier Safety Regulations (FMCSRs). The duration of a waiver is limited to 3 months, and the Secretary may grant the waiver without requesting public comment. By contrast, an exemption may be granted for up to 5 years,
Section 4007 also authorizes the Secretary to conduct pilot programs, which are research studies where one or more exemptions are granted to allow for the testing of innovative alternatives to certain FMCSRs. FMCSA must publish in the
At the conclusion of each pilot program, FMCSA must report to Congress its findings, conclusions, and recommendations, including suggested amendments to laws and regulations that would enhance motor carrier, commercial motor vehicle (CMV), and driver safety, and improve compliance with the FMCSRs.
Section 4007 was implemented as an interim final rule (IFR) that created 49 CFR part 381 (63 FR 67600, Dec. 8, 1998). On August 20, 2004 (69 FR 51589), FMCSA adopted the IFR as a final rule (69 FR 51589). Part 381 established procedures to request waivers, apply for exemptions, and to propose pilot programs. It also required publishing notice of proposed pilot programs in the
In early 2013, FMCSA informally expressed an interest in conducting a pilot program to study variations in the types of “splits” of the required off-duty periods that were allowed when using a sleeper berth. In June 2013, the National Association of Small Trucking Companies advised that it supported such a study and its members would be willing to participate. In December 2013, the American Trucking Associations, Inc. and the Minnesota Trucking Association submitted a joint proposal for a split sleeper-berth pilot program. FMCSA has developed today's proposal based in part on these prior expressions of support and interest. FMCSA also took into account new sleep studies and findings when developing the proposal to ensure valid results, without detrimental safety impacts throughout the program, were reasonably expected.
As described in 49 CFR 395.1(g)(1), a driver who operates a property-carrying CMV equipped with a sleeper berth
The Flexible Sleeper Berth Pilot Program offers participating drivers relief from the requirement for 8 consecutive hours in the sleeper berth.
During listening sessions for the Agency's 2010 notice of proposed hours-of-service rulemaking, many drivers said they would like some regulatory flexibility (
The majority of sleep studies to date demonstrate that well-timed split sleep has either a positive or no effect on subsequent neurobehavioral performance. This supports the theory that the restorative effects of sleep on performance may be maintained when splitting total sleep time into multiple segments. Further, split sleep does not negatively affect daytime neurobehavioral performance when compared to a consolidated sleep period of the same total duration. Table 1 provides a list of selected studies that support the safety benefits of split sleep for transportation operators.
FMCSA sponsored an in-residence laboratory study entitled “Investigation of the Effects of Split Sleep Schedules on Commercial Vehicle Driver Safety and Health.” The study was conducted from January 2010 through May 2011. A copy of the report is filed in the docket identified at the beginning of this notice. Three sleep conditions were examined: Consolidated nighttime sleep, split sleep, and consolidated daytime sleep. With respect to objectively measured sleep, during the 5-day simulated workweek, participants in the nighttime condition slept the most (8.4 hours ± 13.4 minutes), participants in the daytime condition slept the least (6.4 hours ± 15.3 minutes), and participants in the split-sleep condition fell somewhere in between (7.16 hours ± 14.2 minutes). The study found that consolidated daytime sleep resulted in less total sleep time, increased sleepiness, and an increase in blood glucose and testosterone at the end of the workweek. However, performance was not significantly affected by sleep opportunity placement. The findings suggest that, with respect to total sleep time, consolidated sleep is better than split sleep if the consolidated sleep opportunity is placed at night, but that split sleep is better than consolidated sleep if the consolidated sleep opportunity is placed during the day. This laboratory study and the studies referenced in Table 1 (as well as others) provide the scientific basis for the present study.
Previous sleep studies that have shown detrimental effects caused by split sleep are described in Table 2.
Most of these studies
Specific requirements for pilot programs are found in Subparts D and E of 49 CFR part 381. A pilot program is a study in which participants are given exemptions from one or more provisions of the Federal Motor Carrier Safety Regulations (FMCSRs) for up to 3 years to gather data to evaluate alternatives or innovative approaches to regulations, while ensuring that an equivalent level of safety is maintained.
A pilot program must include a program plan that incorporates the following six elements:
(1) A scheduled duration of three years or less;
(2) A specific data collection and safety analysis plan that identifies a method of comparing the safety performance for motor carriers, CMVs, and drivers operating under the terms and conditions of the pilot program, with the safety performance of motor carriers, CMVs, and drivers that comply with the regulation;
(3) A reasonable number of participants necessary to yield statistically valid findings;
(4) A monitoring plan to ensure that participants comply with the terms and conditions of participation in the pilot program;
(5) Adequate safeguards to protect the health and safety of study participants and the general public; and
(6) A plan to inform the States and the public about the pilot program and to identify approved participants to
At the conclusion of each pilot program, the FMCSA will report to Congress the findings and conclusions of the program and any recommendations it considers appropriate, including suggested amendments to laws and regulations that would enhance motor carrier, CMV, and driver safety and improve compliance with the FMCSRs. (49 CFR 381.520)
The purpose of this pilot program is to examine whether regulatory flexibility related to the sleeper berth provision could be used to improve driver rest and alertness. Currently, any interstate driver who (1) operates a property-carrying CMV equipped with a sleeper berth, and (2) uses the sleeper berth provision, must take at least 8 consecutive hours in the sleeper berth, plus a separate 2 consecutive hours either in the sleeper berth, off duty, or any combination of the two, before returning to on-duty status. The pilot program would give participating drivers a temporary exemption from this requirement for consolidated sleeper berth time, within parameters specified by the Agency. For study purposes, drivers would be allowed to split their sleep into no more than two sleeper berth segments. Current regulations allow drivers to use one 10 hour period, or splits of 9 and 1 hours or 8 and 2 hours. Drivers operating under the exemption for this study would be allowed to use any combination of split sleeper periods, totaling 10 hours, with neither period being less than 3 hours,
This pilot program would recruit CDL drivers who operate a CMV equipped with a sleeper berth and who regularly use the sleeper berth provision. The study group would include drivers from small, medium, and large carriers, as well as team drivers and owner-operators. To ensure statistical significance, approximately 200 study group participants are desired. Each participating driver would be recommended, but not required, to complete the Driver Education Module (Module 3) and Driver Sleep Disorders and Management Module (module 8) of the NAFMP before data collection starts to ensure participants are aware of the risks of driving fatigued and have tools available to manage their fatigue throughout the study. Drivers will be asked whether or not they chose to complete these modules, or whether they had completed them prior to study application.
Participating carriers that meet the eligibility criteria, as described later in this notice, may assist in recruiting study group drivers. Drivers will be enrolled in the study contingent upon approval from their carrier, as applicable (owner-operators will not need to meet this requirement).
The pilot program would also collect driver identification details and data on sleep, safety-critical events (SCEs), subjective sleepiness ratings, and behavioral alertness for up to a 90-day period per driver.
FMCSA has designated a project manager for the pilot program. Participating carriers would be publicly announced. FMCSA would develop the applications, agreements, and forms to be used by interested carriers and potential study group members.
Eligibility requirements and procedural matters are discussed in Sections VII and VIII of this notice.
Motor carriers who have drivers participating in the pilot program must meet the following requirements:
• Grant permission for drivers to participate in the Flexible Sleeper Berth Pilot Program.
• Agree to comply with all pilot program procedures, which will be established and made available in written form to carrier-applicants prior to initiation of the pilot program.
• Grant permission for researchers to install an onboard monitoring system (OBMS) and/or electronic logging device (ELD) in each participating driver's vehicle throughout the study duration.
• Grant permission for drivers participating in the study to operate under the flexible sleeper berth exemption, as well as an exemption allowing participating drivers to maintain two hours of service logs (the study-provided ELD system will be the only way to properly track flexible sleeper berth hours of service).
In order to participate in the Flexible Sleeper Berth Pilot Program, drivers must meet the following eligibility requirements:
• Be at least 21 years of age when the pilot begins.
• Operate a CMV equipped with a sleeper berth and regularly use the sleeper berth.
• Have a valid CDL.
• Be medically fit for duty (have a medical certificate that is valid throughout the period of participation).
• Have carrier approval for participation in the study (unless driver is an owner-operator).
• May not be a slip-seat driver who shares use of the same truck or truck-tractor with another driver(s) during separate periods such as shifts, days, or weeks.
• May not drive outside of the United States.
• Agree to the release of specific information
• Agree to study procedures,
• Visit the pilot program Web site (
• The carrier's representative must acknowledge that driver data to include OBMS video, driving data, sleep data, performance data, and caffeine data must remain confidential and will not be shared with the company. The exception to this is ELD data for properly recording a driver's HOS.
• Visit the pilot program Web site (
• Participate in a phone call with a member of the research team to confirm interest and eligibility.
• Obtain carrier permission to participate (unless the individual is an independent owner operator).
• Provide written, informed consent after a briefing session on data collection techniques and methods.
Details of the data collection plan for this pilot program are subject to change based on comments to the docket and further review by analysts. Factors to be collected from each participating carrier and driver before the pilot program begins are discussed in Section VII of this notice. Participating drivers will drive an instrumented vehicle (instrumented by the research team with a study-provided OBMS and custom ELD) for up to 90 days. During a pre-study briefing, participants will receive a study-provided smartphone (installed with a variety of data collection applications), as well as a wrist actigraphy device.
• ELD data, to evaluate duty hours and timing, driving hours and timing, rest breaks, off-duty time, and restart breaks.
• OBMS data, to evaluate driving behaviors, SCEs (crashes, near-crashes, and other safety-related events), reaction time, fatigue, lane deviations, and traffic density (as discerned from viewpoints of the multiple cameras), road curvature, and speed variability.
• Roadside violation data (from carriers and drivers, as well as the Commercial Driver's License Information System (CDLIS)), including vehicle, duty status, hazardous materials, and cargo-related violations (contingent upon inspections).
• Wrist actigraphy data, to evaluate total sleep time, time of day sleep was taken, sleep latency, and intermittent wakefulness.
• Psychomotor Vigilance Test (PVT)
• Subjective sleepiness ratings, using the Karolinska Sleepiness Scale,
• Sleep logs, in which drivers will document when they are going to sleep, when they wake up, and whether they are using the sleeper berth. For split-sleep days, drivers will record how and why they chose to split their sleep.
The pilot program will require participating motor carriers to collect, maintain, and report to FMCSA certain information about their drivers who are participating in the pilot program. This will include identifying information and safety performance data for use in analyzing the drivers' safety history. The Agency will develop forms to promote uniformity in the data collected by the pilot carriers.
The Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501–3520) prohibits agencies from conducting information collection (IC) activities until they analyze the need for the collection of information and how the collected data will be managed. Agencies must also analyze whether technology could be used to reduce the burden imposed on those providing the data. The Agency must estimate the time burden required to respond to the IC requirements, such as the time required to complete a particular form. The Agency submits its IC analysis and burden estimate to the Office of Management and Budget (OMB) as a formal information collection request (ICR); the Agency cannot conduct the information collection until OMB approves the ICR.
Because certain aspects of this pilot program—such as the content of forms and reports—have not been finalized, the Agency is not posting possible IC burden data at this time. When the pilot program is implemented, this information will be posted and additional comments will be taken.
FMCSA reserves the right to remove any motor carrier or driver from the pilot program for reasons related, but not limited to, failure to meet all program requirements.
Instructions for filing comments to the public docket are included earlier in this notice. FMCSA seeks information in the following areas, but responses need not be limited to these questions:
1. Are any additional safeguards needed to ensure that the pilot program provides a level of safety equivalent to that without the consolidated sleeper berth time exemption?
2. Should completion of modules 3 and 8 of the NAFMP be required for study participation (instead of recommended)?
3. Are the data collection efforts proposed for carriers and drivers so burdensome as to discourage participation?
4. How should data collection efforts differ for team drivers?
Maritime Administration, Department of Transportation.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Request (ICR) abstracted below is being forwarded to the Office of Management and Budget (OMB) for review and comments. The Secretary of the U.S. Department of Transportation
Comments must be submitted on or before July 6, 2017.
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW., Washington, DC 20503.
Michael Yarrington, 202–366–1915, Office of Marine Insurance, Maritime Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
The War Risk Insurance program makes it possible for applicants to obtain war risk insurance from the U.S. Government when such insurance is unavailable on reasonable terms from the commercial market. The program is mutually beneficial to the United States and to the ship owner in that it assures continued flow of essential U.S. trade and provides protection for the ship owner from loss by risks of war.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.93.
By Order of the Maritime Administrator.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is removing the names of one individual and one entity, whose property and interests in property have been blocked pursuant to an executive order issued on January 23, 1995, titled “Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process,” from the list of Specially Designated Nationals and Blocked Persons (SDN List).
OFAC's actions described in this notice are effective on June 1, 2017.
Associate Director for Global Targeting, tel.: 202–622–2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202–622–2490, Assistant Director for Licensing, tel.: 202–622–2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202–622–2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
The following persons are removed from the SDN List, effective as of June 1, 2017.
1. NIDAL, Abu (a.k.a. AL BANNA, Sabri Khalil Abd Al Qadir); DOB May 1937; alt. DOB May 1940; POB Jaffa, Israel; Founder and Secretary General of ABU NIDAL ORGANIZATION (individual) [SDT].
1. ABU NIDAL ORGANIZATION (a.k.a. ARAB REVOLUTIONARY BRIGADES; a.k.a. ARAB REVOLUTIONARY COUNCIL; a.k.a. BLACK SEPTEMBER; a.k.a. FATAH REVOLUTIONARY COUNCIL; a.k.a. REVOLUTIONARY ORGANIZATION OF SOCIALIST MUSLIMS; a.k.a. “ANO”) [SDT].
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of persons whose property and interests in property are blocked pursuant to the Foreign Narcotics Kingpin Designation Act (Kingpin Act).
OFAC's actions described in this notice were effective on May 31, 2017.
OFAC: Associate Director for Global Targeting, tel.: 202–622–2420; Assistant Director for Licensing, tel.: 202–622–2480, Assistant Director for Regulatory Affairs, tel.: 202–622–4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202–622–2490; or the
The list of Specially Designated Nationals and Blocked Persons (SDN List) and additional information concerning OFAC sanctions programs are available on OFAC's Web site at
On May 31, 2017, OFAC's Acting Director determined that the property and interests in property of the following persons are blocked pursuant to the Kingpin Act and placed them on the SDN List.
1. AGUILAR RAMIREZ, Gabriel Jaime, Carrera 43 A 7 50, Of. 302, Medellin, Antioquia, Colombia; DOB 13 Nov 1956; POB Medellin, Antioquia, Colombia; Gender Male; Cedula No. 70117121 (Colombia); Matricula Mercantil No 21–291205–01 (Medellin) (individual) [SDNTK]. Designated pursuant to section 805(b)(2) of the Kingpin Act, 21 U.S.C. 1904(b)(2), for materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of Juan Santiago GALLON HENAO, Pedro David GALLON HENAO, and LA OFICINA DE ENVIGADO. Also designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for acting for or on behalf of Juan Santiago GALLON HENAO and Pedro David GALLON HENAO.
2. ALVAREZ CASTRO, Santiago, Colombia; DOB 31 Dec 1956; POB Medellin, Antioquia, Colombia; Gender Male; Cedula No. 70118888 (Colombia) (individual) [SDNTK] (Linked To: CLAMASAN S.A.S.; Linked To: AGROINDUSTRIAS CIMA S.A.S.; Linked To: AGROPECUARIA MAIS SOCIEDAD POR ACCIONES SIMPLIFICADA). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for acting for or on behalf of Juan Santiago GALLON HENAO and Pedro David GALLON HENAO.
3. GALLON ARISTIZABAL, Mariana, Colombia; DOB 04 Nov 1992; POB Medellin, Antioquia, Colombia; Gender Female; Cedula No. 1152443588 (Colombia) (individual) [SDNTK] (Linked To: CLAMASAN S.A.S.; Linked To: GUISANES S.A.S.; Linked To: AGROPECUARIA MAIS SOCIEDAD POR ACCIONES SIMPLIFICADA; Linked To: AGROINDUSTRIAS CIMA S.A.S.). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for acting for or on behalf of Juan Santiago GALLON HENAO.
4. VARGAS GIRALDO, Claudia Mercedes, Colombia; DOB 04 Dec 1964; POB Medellin, Antioquia, Colombia; Gender Female; Cedula No. 42885957 (Colombia) (individual) [SDNTK] (Linked To: CLAMASAN S.A.S.; Linked To: GUISANES S.A.S.; Linked To: C.M.V. CARNES S.A.S.; Linked To: AGROPECUARIA MAIS SOCIEDAD POR ACCIONES SIMPLIFICADA). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for acting for or on behalf of Juan Santiago GALLON HENAO.
1. AGROINDUSTRIAS CIMA S.A.S., Calle 8 B 65 191, Of. 519, Medellin, Antioquia, Colombia; NIT # 900383867–6 (Colombia) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by Mariana GALLON ARISTIZABAL, Claudia Mercedes VARGAS GIRALDO, Juan Santiago GALLON HENAO, and Santiago ALVAREZ CASTRO.
2. AGROPECUARIA MAIS SOCIEDAD POR ACCIONES SIMPLIFICADA (a.k.a. AGROPECUARIA MAIS S.A.S.), Calle 35 85 B 40, Medellin, Antioquia, Colombia; Calle 8B No. 65–191, Ofc. 519, Medellin, Antioquia, Colombia; NIT # 900385162–1 (Colombia) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by Claudia Mercedes VARGAS GIRALDO, Mariana GALLON ARISTIZABAL, Juan Santiago GALLON HENAO, and Santiago ALVAREZ CASTRO.
3. CLAMASAN S.A.S., Calle 8 B 65 191 Of. 519, Medellin, Antioquia, Colombia; La Granja La Primavera, Km. 13 Via Angelopolis-Municipio Amaga, Antioquia, Colombia; Granja Terranova, Via Caracoli-Municipio de San Roque, Antioquia, Colombia; NIT # 811039334–6 (Colombia) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by Santiago ALVAREZ CASTRO and Juan Santiago GALLON HENAO.
4. C.M.V. CARNES S.A.S. (f.k.a. CLAUDIA MERCEDES VARGAS GIRALDO SOCIEDAD POR ACCIONES SIMPLIFICADA), Calle 8 B 65 191, Of. 519, Medellin, Antioquia, Colombia; NIT # 900392593–1 (Colombia) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by Claudia Mercedes VARGAS GIRALDO and Juan Santiago GALLON HENAO.
5. GUISANES S.A.S., Calle 8 B No. 65 191, Oficina 519, Medellin, Antioquia, Colombia; NIT # 811039331–4 (Colombia) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by Claudia Mercedes VARGAS GIRALDO, Mariana GALLON ARISTIZABAL, and Juan Santiago GALLON HENAO.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one individual and one entity whose property and interests in property are blocked pursuant to the executive order of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by the executive order of July 8, 2014, “Taking Additional Steps to Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo.”
OFAC's actions described in this notice were effective June 1, 2017.
Associate Director for Global Targeting, tel.: 202/622–2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622–2490, Assistant Director for Licensing, tel.: 202/622–2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202/622–2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
On June 1, 2017, OFAC blocked the property and interests in property of the following individual and entity pursuant to E.O. 13413, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by E.O. 13671, “Taking Additional Steps to Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo”:
OLENGA, Francois (Latin: OLENGA, François) (a.k.a. OKUNJI, Francois (Latin: OKUNJI, François); a.k.a. OLENGA TATE, Francois; a.k.a. OLENGA TETE, Francois (Latin: OLENGA TETE, François); a.k.a.
SAFARI CLUB (a.k.a. CENTRE DE LOISIR SAFARI CLUB; a.k.a. “SAFARI BEACH”), Nsele, Kinshasa, Congo, Democratic Republic of the; Gombe, Kinshasa, Congo, Democratic Republic of the; Registration ID 1322 (Congo, Democratic Republic of the) [DRCONGO] (Linked To: OLENGA, Francois). Designated pursuant to section 1(a)(ii)(G) of Executive Order 13413, as amended by Executive Order 13671.
As required by Section 9(a)(2) of the Federal Advisory Committee Act, the Department of Veterans Affairs hereby gives notice of the establishment of the Veterans and Community Oversight and Engagement Board. The Veterans and Community Oversight and Engagement Board (Board) is a statutory committee established as required by Section 2(i) of the West Los Angeles Leasing Act of 2016, Public Law 114–226.
The Board will identify the goals of the community and Veteran partnership; provide advice and recommendations to the Secretary to improve services and outcomes for Veterans, members of the Armed Forces, and the families of such Veterans and members; and provide advice and recommendations on the implementation of the Draft Master Plan approved by the Secretary on January 28, 2016, and the implementation of any successor master plans.
Committee members will be appointed by the Secretary and membership will be drawn from various sectors and organizations. Not less than 50 percent of the board members shall be Veterans; the non-Veteran board members shall be family members of the Veterans, Veteran advocates, services providers, real estate professionals familiar with housing development projects, or stakeholders.
Any member of the public seeking additional information should contact Kellie Condon, Designated Federal Officer (DFO), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC, via email at
Notice.
The Department of Veterans Affairs (VA) is seeking nominees to be considered for membership on the Advisory Committee on Women Veterans (Committee) for the 2017 membership cycle. The Committee is authorized by 38 U.S.C. 542 (Statute), to provide advice to the Secretary of Veterans Affairs (Secretary) on: The administration of VA's benefits and services (health care, rehabilitation benefits, compensation, outreach, and other relevant programs) for women Veterans; reports and studies pertaining to women Veterans; and the needs of women Veterans. In accordance with the Statute and the Committee's current charter, the majority of the membership shall consist of non-Federal employees appointed by the Secretary from the general public, serving as special government employees.
The Committee provides a Congressionally-mandated report to the Secretary each even-numbered year, which includes: An assessment of the needs of women Veterans, with respect to compensation, health care, rehabilitation, outreach, and other benefits and programs administered by VA; a review of the programs and activities of VA designed to meet such needs; and other recommendations (including recommendations for administrative and legislative action), as the Committee considers appropriate. The Committee reports to the Secretary, through the Director of the Center for Women Veterans.
The Secretary appoints Committee members, and determines the length of terms in which Committee members serve. A term of service for any member may not exceed 3 years. However, the Secretary can reappoint members for additional terms. Each year, there are several vacancies on the Committee, as members' terms expire.
Self-nominations are acceptable. Any letters of nomination from organizations or other individuals should accompany the package when it is submitted. Non-Veterans are also eligible for nomination.
In accordance with recently revised guidance regarding the ban on lobbyists serving as members of advisory boards and commissions, Federally-registered lobbyists are prohibited from serving on Federal advisory committees in an individual capacity. Additional information regarding this issue can be found at
The Committee is currently comprised of 12 members. By statute, the Committee consists of members appointed by the Secretary from the general public, including: Representatives of women Veterans; individuals who are recognized authorities in fields pertinent to the needs of women Veterans, including the gender specific health-care needs of women; representatives of both female and male Veterans with service-connected disabilities, including at least one female Veteran with a service-connected disability and at least one male Veteran with a service-connected disability; and women Veterans who are recently separated from service in the Armed Forces.
The Committee meets at least two times annually, which may include a site visit to a VA field location. In accordance with Federal Travel Regulation, VA will cover travel expenses—to include per diem—for all members of the Committee, for any travel associated with official Committee duties. A copy of the Committee's most recent charter and a list of the current membership can be found at
The Department makes every effort to ensure that the membership of its advisory committees is fairly balanced, in terms of points of view represented. In the review process, consideration is
Nomination packages must be typed (12 point font) and include: (1) A cover letter from the nominee, and (2) a current resume that is no more than four pages in length. The cover letter must summarize: The nominees' interest in serving on the committee and contributions she/he can make to the work of the committee; any relevant Veterans service activities she/he is currently engaged in; the military branch affiliation and timeframe of military service (if applicable). To promote inclusion and demographic balance of membership, please include as much information related to your race, national origin, disability status, or any other factors that may give you a diverse perspective on women Veterans matters. Finally, please include in the cover letter the nominee's complete contact information (name, address, email address, and phone number); and a statement confirming that she/he is not a Federally-registered lobbyist. The resume should show professional work experience, and Veterans service involvement, especially service that involves women Veterans' issues.
Nominations for membership on the Committee must be received by June 30, 2017, no later than 4:00 p.m., eastern standard time. Packages received after this time will not be considered for the current membership cycle. All nomination packages should be sent to the Advisory Committee Management Office by email (recommended) or mail.
Please see contact information below: Advisory Committee Management Office (00AC), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC, 20420,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; five proposed incidental harassment authorizations; request for comments.
NMFS has received five requests for authorization to take marine mammals incidental to conducting geophysical survey activity in the Atlantic Ocean. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue incidental harassment authorizations (IHA) to incidentally take marine mammals during the specified activities.
Comments and information must be received no later than July 6, 2017.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Comments indicating general support for or opposition to hydrocarbon exploration or any comments relating to hydrocarbon development (
Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401.
Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
In 2014, the Bureau of Ocean Energy Management (BOEM) produced a Programmatic Environmental Impact Statement (PEIS) to evaluate potential significant environmental effects of geological and geophysical (G&G) activities on the Mid- and South Atlantic Outer Continental Shelf (OCS), pursuant to requirements of the National Environmental Policy Act (NEPA). These activities include geophysical surveys in support of hydrocarbon exploration, as are proposed in the MMPA applications before NMFS. The PEIS is available online at:
We will review all comments submitted in response to this notice as we complete the NEPA process, including a final decision of whether to adopt BOEM's PEIS and sign a Record of Decision related to issuance of IHAs, prior to a final decision on the incidental take authorization requests.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
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).
In 2014–15, we received five separate requests for authorization for take of marine mammals incidental to geophysical surveys in support of hydrocarbon exploration in the Atlantic Ocean. The applicants are companies that provide services, such as geophysical data acquisition, to the oil and gas industry. Upon review of these requests, we submitted questions, comments, and requests for additional information to the individual applicant companies. As a result of these interactions, the applicant companies
On August 18, 2014, we received an application from Spectrum Geo Inc. (Spectrum), followed by revised versions on November 25, 2014, May 14, 2015, and July 6, 2015. TGS–NOPEC Geophysical Company (TGS) submitted an application on August 25, 2014, followed by revised versions on November 17, 2014, and July 21, 2015. We also received a request from ION GeoVentures (ION) on September 5, 2014, followed by a revised version on June 24, 2015.
We subsequently posted these applications for public review and sought public input (80 FR 45195; July 29, 2015), stating that we would only consider comments relevant to marine mammal species that occur in U.S. waters of the Mid- and South Atlantic and the potential effects of geophysical survey activities on those species. We stated further that any comments should be supported by data or literature citations as appropriate, that comments indicating general support for or opposition to oil and gas exploration and development would not be considered inasmuch as such comments are not relevant to our consideration of the requests under the MMPA, and that we were particularly interested in information addressing the following topics:
1. Best available scientific information and appropriate use of such information in assessing potential effects of the specified activities on marine mammals and their habitat;
2. Application approaches to estimating acoustic exposure and take of marine mammals; and,
3. Appropriate mitigation measures and monitoring requirements for these activities.
We note that this notice for proposed IHAs does not concern one additional company (TDI-Brooks International, Inc. (TDI Brooks)) whose application was referenced in our July 29, 2015,
The comments and information received during this public review period informed development of the proposed IHAs discussed in this notice, and all letters received are available online at
Following the close of the public review period, we received revised versions of several applications: From Spectrum on September 18, 2015, and from TGS on February 10, 2016. We received additional information from ION on February 29, 2016. Spectrum revised the scope of their proposed survey effort, while TGS and ION revised their estimates of the number of potential incidents of marine mammal exposure to underwater noise. Western submitted a request for authorization on March 3, 2015, followed by a revised version on February 17, 2016, that we determined was adequate and complete. CGG submitted a request for authorization on December 21, 2015, followed by revised versions on February 18, 2016, April 6, 2016, and May 26, 2016. These applications are adequate and complete at this time and are substantially similar to other applications previously released for public review. We do not anticipate offering additional discretionary public review of applications should we receive further requests for authorization related to proposed geophysical survey activity in the Atlantic Ocean.
All requested authorizations would be valid for the statutory maximum of one year from the date of effectiveness. All applicants propose to conduct two-dimensional (2D) marine seismic surveys using airgun arrays. Generally speaking, these surveys may occur within the U.S. Exclusive Economic Zone (
Because the specified activity, specified geographic region, and proposed dates of activity are substantially similar for the five separate requests for authorization, we have determined it appropriate to provide a joint notice for the five proposed authorizations. However, while we provide relevant information together, we consider the potential impacts of the specified activities independently and make preliminary determinations specific to each request for authorization, as required by the MMPA.
In this section, we provide a generalized discussion that is broadly applicable to all five requests for authorization, with project-specific portions indicated.
The five applicants propose to conduct deep penetration seismic surveys using airgun arrays as an acoustic source. Seismic surveys are one method of obtaining geophysical data used to characterize the subsurface structure, in this case in support of hydrocarbon exploration. The proposed surveys would be 2D surveys, designed to acquire data over large areas in order to screen for potential hydrocarbon prospectivity. To contrast, three-dimensional surveys may use similar acoustic sources but are designed to cover smaller areas with greater resolution (
An airgun is a device used to emit acoustic energy pulses into the seafloor, and generally consists of a steel cylinder that is charged with high-pressure air. Release of the compressed air into the water column generates a signal that reflects (or refracts) off of the seafloor and/or subsurface layers having acoustic impedance contrast. When fired, a brief (~0.1 second (s)) pulse of sound is emitted by all airguns nearly simultaneously. The airguns are silent during the intervening periods, with the array typically fired on a fixed distance (or shot point) interval. This interval may vary depending on survey objectives, but a typical interval for a 2D survey in relatively deep water might be 25 m (approximately every 10 s, depending on vessel speed). The return signal is recorded by a listening device and later analyzed with computer interpretation and mapping systems used to depict the subsurface. In this
Individual airguns are available in different volumetric sizes and, for deep penetration seismic surveys, are towed in arrays (
Survey protocols generally involve a predetermined set of survey, or track, lines. The seismic acquisition vessel (source vessel) will travel down a linear track for some distance until a line of data is acquired, then turn and acquire data on a different track. In addition to the line over which data acquisition is desired, full-power operation may include run-in and run-out. Run-in is approximately 1 kilometer (km) of full-power source operation before starting a new line to ensure equipment is functioning properly, and run-out is additional full-power operation beyond the conclusion of a trackline (typically half the distance of the acquisition streamer behind the source vessel) to ensure that all data along the trackline are collected by the streamer. Line turns typically require two to three hours due to the long trailing streamers (
All companies requested IHAs covering the statutory maximum of one year from the date of issuance, but the expected temporal extent of survey activity varies by company and may be subject to unpredictability due to inclement weather days, equipment maintenance and/or repair, transit to and from ports to survey locations, and other contingencies. Spectrum plans a six-month data acquisition program, consisting of an expected 165 days of seismic operations. TGS plans a full year data acquisition program, with an estimated 308 days of seismic operations. ION plans a six-month data acquisition program, with an estimated 70 days of seismic data collection. Western plans a full year data acquisition program, with an estimated 208 days of seismic operations. CGG plans a six-month data acquisition program (July–December), with an estimated 155 days of seismic operations. Seismic operations would typically occur 24 hours per day.
The proposed survey activities would occur off the Atlantic coast of the U.S., within BOEM's Mid-Atlantic and South Atlantic OCS planning areas (
The specific survey areas differ within this region; please see maps provided in the individual applications (Spectrum: Figure 1; Western: Figures 1–1 to 1–4; TGS: Figures 1–1 to 1–4; ION: Figure 1; CGG: Figure 3). A map of all proposed surveys may be viewed online at:
The entire U.S. Atlantic coast region extends from the Gulf of Maine past Cape Hatteras to Florida. The region is characterized by its temperate climate and proximity to the Gulf Stream Current, and is generally considered to be of moderately high productivity, although the portion of the region from Cape Cod to Cape Hatteras is one of the most productive areas in the world due to upwellings along the shelf break created by the western edge of the Gulf Stream. Sea surface temperatures (SST) exhibit a broad range across this region, with winter temperatures ranging from 2–20 °C in the north and 15–22 °C in the south, while summer temperatures, consistent in the south at approximately 28 °C, range from 15–27 °C in the northern portion.
The northern portion of this region (
The MAB includes the continental shelf and slope waters from Georges Bank to Cape Hatteras, NC. The retreat of the last ice sheet shaped the morphology and sediments of this area. The continental shelf south of New England is broad and flat, dominated by fine grained sediments (sand and silt). The shelf slopes gently away from the shore out to approximately 100 to 200 km offshore, where it transforms into the continental slope at the shelf break (at water depths of 100 to 200 m). Along the shelf break, numerous deep-water canyons incise the slope and shelf. The sediments and topography of the canyons are much more heterogeneous than the predominantly sandy top of the shelf, with steep walls and outcroppings of bedrock and deposits of clay.
The southwestern flow of cold shelf water feeding out of the Gulf of Maine and off Georges Bank dominates the circulatory patterns in this area. The countervailing Gulf Stream provides a source of warmer water along the coast as warm-core rings and meanders break off from the Gulf Stream and move shoreward, mixing with the colder shelf and slope water. As the shelf plain narrows to the south (the extent of the continental shelf is narrowest at Cape Hatteras), the warmer Gulf Stream waters run closer to shore.
The southeast continental shelf area extends approximately 1,500 km from Cape Hatteras, NC south to the Straits of Florida (Yoder, 1991). The continental shelf in the region reaches up to approximately 200 km offshore. The Gulf Stream influences the region with minor upwelling occurring along the Gulf Stream front. The area is approximately 300,000 km
Detailed survey descriptions, as given in specific applications, are provided here without regard for the mitigation measures proposed by NMFS. In some cases, our proposed mitigation measures may affect the proposed survey plan (
The acoustic source planned for deployment is a 36-airgun array with a total volume of 6,420 in
The four airgun strings would be distributed across an approximate area of 34 x 15.5 m behind the vessel and would be towed ~50–100 m behind the vessel at 10-m depth. The firing pressure of the array would be 2,000 pounds per square inch (psi). The airgun array would fire every 50 m or 20–24 s, depending on exact vessel speed—a longer interval than is typical of most industry seismic surveys. ION provided modeling results for their array, including notional source signatures, 1/3-octave band source levels as a function of azimuth angle, and received sound levels as a function of distance and direction at 16 representative sites in the proposed survey area. For more detail, please see “Estimated Take by Incidental Harassment,” later in this document, as well as Figures 4–6 and Appendix A of ION's application.
The acoustic source planned for deployment is a 32-airgun array with a total volume of 4,920 in
The four airgun strings would be towed at 6 to 10-m depth and the airgun array would fire every 25 m or 10 s, depending on exact vessel speed (expected to be 4–5 kn). Spectrum provided modeling results for their array, including notional source signatures, 1/3-octave band source levels as a function of azimuth angle, and received sound levels as a function of distance and direction at 16 representative sites in the proposed survey area. For more detail, please see Appendix A of Spectrum's application, as well as “Estimated Take by Incidental Harassment,” later in this document.
The acoustic sources planned for deployment are 48-airgun arrays with a total volume of 4,808 in
The seismic source planned for deployment is a 24-airgun array with a total volume of 5,085 in
The seismic source planned for deployment is a 36-airgun array with a total volume of 5,400 in.
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 and their habitat (50 CFR 216.104(a)(11)). Here we provide a single description of proposed mitigation measures, including those contained in the applicants' requests, as we propose to require the same measures of all applicants.
We reviewed the applicants' proposals, the requirements specified in BOEM's PEIS, seismic mitigation protocols required or recommended elsewhere (
Past mitigation protocols for geophysical survey activities using airgun arrays have focused on avoidance of exposures to received sound levels exceeding NMFS's historical injury criteria (
Monitoring by independent, dedicated, trained marine mammal observers is required. Note that, although we propose requirements related only to observation of marine mammals, we hereafter use the generic term “protected species observer” (PSO) to avoid confusion with protocols that may be required of the applicants pursuant to other relevant statutes. Independent observers are employed by a third-party observer provider; vessel crew may not serve as PSOs. Dedicated observers are those who have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct the seismic survey operator (
NMFS does not currently approve specific training courses; observers may be considered appropriately trained by having satisfactorily completed training that meets all the requirements specified
With regard to specific observational protocols, we largely follow those described in Appendix C of BOEM's PEIS (BOEM, 2014a). The lead PSO shall determine the most appropriate observation posts that will not interfere with navigation or operation of the vessel while affording an optimal, elevated view of the sea surface. PSOs shall coordinate to ensure 360° visual coverage around the vessel, and shall conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner. Within these broad outlines, the lead PSO and PSO team will have discretion to determine the most appropriate vessel- and survey-specific system for implementing effective marine mammal observational effort. Any observations of marine mammals by crew members aboard any vessel associated with the survey, including chase vessels, should be relayed to the source vessel and to the PSO team.
Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset. If any marine mammal is observed at any distance from the vessel, a PSO would record the observation and monitor the animal's position (including latitude/longitude of the vessel and relative bearing and estimated distance to the animal) until the animal dives or moves out of visual range of the observer. A PSO would continue to observe the area to watch for the animal to resurface or for additional animals that may surface in the area. Visual PSOs shall communicate all observations to PAM operators, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
During good conditions (
Following protocols described by the New Zealand Department of Conservation for seismic surveys conducted in New Zealand waters (DOC, 2013), survey activity may continue for brief periods of time when the PAM system malfunctions or is damaged. Activity may continue for 30 minutes without PAM while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring under the following conditions:
• Daylight hours and sea state is less than or equal to Beaufort sea state (BSS) 4;
• No marine mammals (excluding small delphinoids; see below) detected solely by PAM in the exclusion zone (see below) in the previous two hours;
• NMFS is notified via email as soon as practicable with the time and location in which operations began without an active PAM system; and
• Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
As noted previously, all source vessels must carry a minimum of one experienced visual PSO and one experienced PAM operator. Although a given PSO may carry out either visual PSO or PAM operator duties during a survey (assuming appropriate training),
The PSOs shall establish and monitor a 500-m exclusion zone and a 1,000-m buffer zone. These zones shall be based upon radial distance from any element of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source, occurrence of marine mammals within the buffer zone (but outside the exclusion zone) should be communicated to the operator to prepare for the potential shutdown of the acoustic source. Use of the buffer zone in relation to ramp-up is discussed under “Ramp-up.” Further detail regarding the exclusion zone and shutdown requirements is given under “Exclusion Zone and Shutdown Requirements.”
Ramp-up of an acoustic source is intended to provide a gradual increase in sound levels, enabling animals to move away from the source if the signal is sufficiently aversive prior to its reaching full intensity. We infer on the basis of behavioral avoidance studies and observations that this measure results in some reduced potential for auditory injury and/or more severe behavioral reactions. Dunlop
The ramp-up procedure involves a step-wise increase in the number of airguns firing and total array volume until all operational airguns are activated and the full volume is achieved. Ramp-up is required at all times as part of the activation of the acoustic source (including source tests; see “Miscellaneous Protocols” for more detail) and may occur at times of poor visibility, assuming appropriate acoustic monitoring with no detections in the 30 minutes prior to beginning ramp-up. Acoustic source activation should only occur at night where operational planning cannot reasonably avoid such circumstances. For example, a nighttime initial ramp-up following port departure is reasonably avoidable and may not occur. Ramp-up may occur at night following acoustic source deactivation due to line turn or mechanical difficulty. The operator must notify a designated PSO of the planned start of ramp-up as agreed-upon with the lead PSO; the notification time should not be less than 60 minutes prior to the planned ramp-up. A designated PSO must be notified again immediately prior to initiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed.
Ramp-up procedures follow the recommendations of IAGC (2015). Ramp-up would begin by activating a single airgun (
PSOs must monitor a 1,000-m buffer zone for a minimum of 30 minutes prior to ramp-up (
An exclusion zone is a defined area within which occurrence of a marine mammal triggers mitigation action intended to reduce potential for certain outcomes,
This shutdown requirement is in place for all marine mammals, with the exception of small delphinoids under certain circumstances. As defined here, the small delphinoid group is intended to encompass those members of the Family Delphinidae most likely to voluntarily approach the source vessel for purposes of interacting with the vessel and/or airgun array (
We propose this small delphinoid exception because a shutdown requirement for small delphinoids under all circumstances is of known concern regarding practicability for the applicant due to increased shutdowns, without likely commensurate benefit for the animals in question. Small delphinoids are generally the most commonly observed marine mammals in the specific geographic region and would typically be the only marine mammals likely to intentionally approach the vessel. As described below, auditory injury is extremely unlikely to occur for mid-frequency cetaceans (
BOEM's PEIS (BOEM, 2014a) provided modeling results for auditory injury zones on the basis of auditory injury criteria described by Southall
An appropriate exclusion zone based on cumulative sound exposure level (cSEL) criteria would be dependent on the animal's applied hearing range and how that overlaps with the frequencies produced by the sound source of interest (
However, it is important to note that consideration of exclusion zone distances is inherently an essentially instantaneous proposition—a rule or set of rules that requires mitigation action upon detection of an animal. This indicates that consideration of peak pressure thresholds is most relevant, as compared with cumulative sound exposure level thresholds, as the latter requires that an animal accumulate some level of sound energy exposure over some period of time (
In summary, our intent in prescribing a standard exclusion zone distance is to (1) encompass zones for most species within which auditory injury could occur on the basis of instantaneous exposure; (2) provide additional protection from the potential for more severe behavioral reactions (
Shutdown of the acoustic source is also required (at any distance) in other circumstances:
• Upon observation of a right whale at any distance. Recent data concerning the North Atlantic right whale, one of the most endangered whale species (Best
• For TGS only, due to a high predicted amount of exposures (Table 10), we propose that shutdown be required upon observation of a fin whale at any distance. If the observed fin whale is within the behavioral harassment zone, it would still be considered to have experienced harassment, but by immediately shutting down the acoustic source the duration of harassment is minimized and the significance of the harassment event reduced as much as possible. This measure is not proposed for implementation by Spectrum, ION, CGG, or Western.
• Upon observation of a large whale (
• Upon observation of a diving sperm whale at any distance centered on the forward track of the source vessel. Disturbance of deep-diving species such as sperm whales could result in avoidance behavior such as diving and, given their diving capabilities, it is possible that the vessel's course could take it closer to the submerged animals. As noted by Weir and Dolman (2007), a whale diving ahead of the source vessel within 2 km may remain on the vessel trackline until the ship approaches the whale's position before beginning horizontal movement. If undetected by PAM, it is possible that a shutdown might not be triggered and a severe behavioral response caused.
• Upon any observation (visual or acoustic) of a beaked whale or
• Upon observation of an aggregation of marine mammals of any species that does not appear to be traveling. Under these circumstances, we assume that the animals are engaged in some important behavior (
Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source (visual PSOs on duty should be in agreement on the need for delay or shutdown before requiring such action). When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch; hand-held UHF radios are recommended. When both visual PSOs and PAM operators are on duty, all detections must be immediately communicated to the remainder of the on-duty team for potential verification of visual observations by the PAM operator or of acoustic detections by visual PSOs and initiation of dialogue as necessary. When there is certainty regarding the need for mitigation action on the basis of either visual or acoustic detection alone, the relevant PSO(s) must call for such action immediately. When only the PAM operator is on duty and a detection is made, if there is uncertainty regarding species identification or distance to the vocalizing animal(s), the acoustic source must be shut down as a precaution.
Upon implementation of shutdown, the source may be reactivated after the animal(s) has been observed exiting the exclusion zone or following a 30-minute clearance period with no further observation of the animal(s). Where there is no relevant zone (
If the acoustic source is shut down for reasons other than mitigation (
Power-down can be used either as a reverse ramp-up or may simply involve reducing the array to a single element or “mitigation source,” and has been allowed in past MMPA authorizations as a substitute for full shutdown. We address use of a mitigation source below. In a power-down scenario, it is assumed that turning off power to individual array elements reduces the size of the ensonified area such that an observed animal is then outside some designated area. However, we have no information as to the effect of powering down the array on the resulting sound field. In 2012, NMFS and BOEM held a monitoring and mitigation workshop focused on seismic survey activity. Industry representatives indicated that the end result may ultimately be increased sound input to the marine environment due to the need to re-shoot the trackline to prevent gaps in data acquisition (unpublished workshop report, 2012). For this reason and because a power-down may not actually be useful, our proposal requires full shutdown in all applicable circumstances; power-down is not allowed.
Mitigation sources may be separate individual airguns or may be an airgun of the smallest volume in the array, and are often used when the full array is not being used (
In light of the available information, we think it more appropriate to acknowledge the limitations of visual observations—even under good
The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source should be avoided. Firing of the acoustic source at any volume above the stated production volume is not authorized for these proposed IHAs; the operator must provide information to the lead PSO at regular intervals confirming the firing volume.
Testing of the acoustic source involving all elements requires normal mitigation protocols (
We encourage the applicant companies and operators to pursue the following objectives in designing, tuning, and operating acoustic sources: (1) Use the minimum amount of energy necessary to achieve operational objectives (
There has been some attention paid to the establishment of minimum separation distances between operating source vessels, and BOEM may require a minimum 40-km geographic separation distance (BOEM, 2014b). The premise regarding this measure is either to provide a relatively noise-free corridor between vessels conducting simultaneous surveys such that animals may pass through rather than traveling larger distances to go around the source vessels or to reduce the cumulative sound exposure for an animal in a given location. There is no information supporting the effectiveness of this measure, and participants in a 2012 monitoring and mitigation workshop focused on seismic survey activity held by NMFS and BOEM were skeptical regarding potential efficacy of this measure (unpublished workshop report, 2012). Unintended consequences were a concern of some participants, including the possibility that converging sound fields could confuse animals and/or prevent egress from an area. In fact, it may be more effective as a protective measure to group acoustic sources as closely together as possible, in which case the SEL exposure would not be appreciably louder and an animal would have a better chance of avoiding exposure than through the supposed corridor (thus also potentially shortening total duration of sound exposure).
The desired effect of such a measure is too speculative and would impose additional burden on applicants. Therefore, we do not propose to require any minimum separation distance between source vessels. Operators do typically maintain a minimum separation of about 17.5 km between concurrent surveys to avoid interference (
The coastal form of bottlenose dolphin is known to occur further offshore than 20 km, but available information suggests that exclusion of harassing sound from a 20 km coastal zone would avoid the vast majority of impacts. There is generally a discontinuity in bottlenose dolphin distribution between nearshore areas inhabited by coastal ecotype dolphins and the deeper offshore waters inhabited by offshore ecotype dolphins (Kenney, 1990; Roberts
Proposal of this measure should not be interpreted as NMFS's determination that harassment of coastal bottlenose dolphins cannot be authorized. However, when considering the likely benefit to the species against the impact to applicants, we believe that inclusion of this measure is warranted. Approximately 1,650 dolphin carcasses were recovered during the UME, and it is likely that many more dolphins died whose carcasses were not recovered. Considering just the known dead could represent greater than five percent of the pre-UME abundance for all coastal ecotype dolphins within the affected area. Ongoing areas of research related to the UME include understanding its impacts on the status of the affected stocks, as well as continuing monitoring and modeling designed to inform understanding of impacts on the surviving population. Given this uncertainty, a precautionary approach is warranted. We note that three applicants, Spectrum, CGG, and Western, do not propose to conduct survey effort within 30 km of the coast, and effort within 30 km for the other two applicants would represent a small fraction of overall survey effort.
The North Atlantic right whale was severely depleted by historical whaling, and currently has a small population abundance (
Mid-Atlantic SMAs for vessel speed limits are in effect from November 1 through April 30, while southeast SMAs are in effect from November 15 through April 15 (see 50 CFR 224.105). However, as a precautionary approach all areas discussed here for proposed mitigation would be in effect from November 1 through April 30. Because we intend to use these areas to reduce the likelihood of exposing right whales to noise from airgun arrays that might result in harassment, we require that source vessels maintain a minimum standoff of 10 km from the area. Sound propagation modeling results provided for a notional large airgun array in BOEM's PEIS indicate that a 10 km distance would likely contain received levels of sound exceeding 160 dB rms under a wide variety of conditions (
The portion of critical habitat within the proposed survey area includes nearshore and offshore waters of the southeastern U.S., extending from Cape Fear, North Carolina south to 28° N. The specific area designated as critical habitat, as defined by regulation (81 FR 4838; January 27, 2016), is demarcated by rhumb lines connecting the specific points identified in Table 2. This area is depicted in Figure 2, and the restriction on survey effort within 10 km of this area would be in effect from November
A coastal strip containing all SMAs would also be avoided by a minimum standoff distance of 10 km, as would DMAs. These are areas in which right whales are likely to be present when such areas are in effect; mandatory or voluntary speed restrictions for certain vessels are in place in these areas respectively when in effect to reduce the risk of ship strike. Because these areas are intended to reduce the risk of ship strike involving right whales, they are designated in consideration of both right whale presence during migratory periods and commercial shipping traffic. Our concern is not limited to ship strike; therefore the standoff areas based on the SMAs are extended to a continuous coastal strip with a 10 km buffer. Mid-Atlantic SMAs (from Delaware to northern Georgia) are intended to protect whales on the migratory route and are generally defined as a 20 nmi (37 km) radial distance around the entrance to certain ports. Therefore, no survey effort may occur within 47 km of the coast between November and April. This strip is superseded where either designated critical habitat or the southeast SMA provides a larger restricted area. The southeast SMA, intended to protect whales on the calving and nursery grounds, includes the area bounded to the north by 31°27′ N., to the south by 29°45′ N., and to the east by 80°51′36″ W. No survey effort may occur within 10 km of this area between November and April. The combined area of our proposed restriction—composed of the greater of designated critical habitat, the 20 nmi coastal strip, and the southeastern SMA (all buffered by 10 km)—is depicted in Figure 3.
DMAs are also associated with a scheme established by the final rule for vessel speed limits (73 FR 60173; October 10, 2008; extended by 78 FR 73726; December 9, 2013) to reduce the risk of ship strike for right whales. In association with those regulations, NMFS established a program whereby vessels are requested, but not required, to abide by speed restrictions or avoid locations when certain aggregations of right whales are detected outside SMAs. Generally, the DMA construct is intended to acknowledge that right whales can occur outside of areas where they predictably and consistently occur due to,
Designation of DMAs follows certain protocols identified in 73 FR 60173 (October 10, 2008):
1. A circle with a radius of at least 3 nmi (5.6 km) is drawn around each observed group. This radius is adjusted for the number of right whales seen in the group such that the density of four right whales per 100 nmi
2. If any circle or group of contiguous circles includes three or more right whales, this core area and its surrounding waters become a candidate temporary zone. After NMFS identifies a core area containing three or more right whales, as described here, it will expand this initial core area to provide a buffer area in which the right whales could move and still be protected.
NMFS determines the extent of the DMA zone by:
3. Establishing a 15-nmi (27.8-km) radius from the sighting location used to draw a larger circular zone around each core area encompassing a concentration of right whales. The sighting location is the geographic center of all sightings on the first day of an event; and
4. Identifying latitude and longitude lines drawn outside but tangential to the circular buffer zone(s).
NMFS issues announcements of DMAs to mariners via its customary maritime communication media (
Proposal of this measure should not be interpreted as NMFS's determination that harassment of right whales cannot be authorized. However, when considering the current status of the species, likely benefit of the measure to the species, and likely impact to applicants, we believe that inclusion of this measure is warranted.
The restrictions described here are primarily targeted towards protection of sperm whales, beaked whales (
In some cases, we expect substantial subsidiary benefit for additional species that also find preferred habitat in the designated area of restriction. In particular, Area #5 (Figure 4), although delineated in order to specifically provide an area of anticipated benefit to beaked whales, sperm whales, and pilot whales, is expected to host a diverse cetacean fauna (
In order to consider potential restriction of survey effort in time and space, we considered the outputs of habitat-based predictive density models (Roberts
To determine core abundance areas, we follow a three-step process:
• Determine the predicted total abundance of a species/time period by adding up all cells of the density raster (grid) for the species/time period. For the Roberts
• Sort the cells of the species/time period density raster from highest density to the lowest.
• Sum and select the raster cells from highest to lowest until a certain percentage of the total abundance is reached.
The selected cells represent the smallest area that represents a given percentage of abundance. We created a range of core abundance areas for each species of interest, but ultimately determined that 25 percent core abundance area was appropriate in most cases for our purpose. The larger the percentage of abundance captured, the larger the area. Generally speaking, we found that 25 percent core abundance provided the best balance between the areas given by larger (impracticably large areas for purposes of restricting survey effort) and smaller (ineffective areas for purposes of providing meaningful protection) areas. However, for sperm whales, our analysis showed that the 25 percent core abundance area covered a large portion of slope waters in the northern mid-Atlantic region and, therefore, what we believe to be an impracticably large area for potential restriction of survey effort. Although sperm whales are broadly distributed on the slope throughout the year, at the five percent core abundance threshold we found that the model predictions indicate a relatively restricted area of preferred habitat across all seasons in the vicinity of the shelf break to the north of Cape Hatteras. This area, together with spatially separated canyon features contained within the 25 percent core abundance areas and previously identified as preferred habitat for beaked whales, form the basis for our proposed time-space restriction for sperm whales. Core abundance maps are provided online at
In summary, we propose the following closure areas (depicted in Figure 4):
• In order to protect coastal bottlenose dolphins, a 30-km coastal strip (20 km plus 10 km buffer) would be closed to use of the acoustic source year-round.
• An area proposed for protection of the North Atlantic right whale (Figure 3). The area is comprised of the furthest extent at any location of three distinct components: (1) A 47-km coastal strip (20-nmi plus 10 km buffer) throughout the entire Mid- and South Atlantic OCS planning areas; (2) designated critical habitat, buffered by 10 km; and (3) the designated southeastern seasonal management area, buffered by 10 km. This area would be closed to use of the acoustic source from November through April. Dynamic management areas (buffered by 10 km) are also closed to use of the acoustic source when in effect.
The 10-km buffer (intended to reasonably prevent sound output from the acoustic source exceeding received levels expected to result in behavioral harassment from entering the proposed closure areas) is built into the areas defined below and in Table 3. Therefore, we do not separately mention the addition of the buffer.
• An area proposed for protection of Atlantic spotted dolphin (Area #1, Figure 4). The area contains the on-shelf portion of a 25 percent core abundance area for the species, and is comprised of lines that demarcate the northern and southern extent of this area, connected by a line marking 100 km distance from shore (as indicated in Table 3). This area would be closed to use of the acoustic source from June through August. This restriction would not be required for ION or CGG.
• Deepwater canyon areas. Areas #2–4 (Figure 4) are proposed as defined in Table 3 and would be closed to use of
• Shelf break off Cape Hatteras and to the north, including slope waters around “The Point.” Area #5 is proposed as defined in Table 3 and would be closed to use of the acoustic source from July through September. Although this closure is expected to be beneficial for a diverse species assemblage, Area #5 is expected to be particularly beneficial for beaked whales, sperm whales, and pilot whales.
Beaked whales are typically deep divers, foraging for mesopelagic squid and fish, and are often found in deep water near high-relief bathymetric features, such as slopes, canyons, and escarpments where these prey are found (
Submarine canyons are important features of the shelf and slope region from Cape Hatteras to the north, with both major and minor canyons abundant in the region. Roberts
Area #5 (Figure 4) was designed as a multi-species area, primarily focused on pilot whales, beaked whales, and sperm whales. This area is focused on a particularly dynamic and highly productive environment off of Cape Hatteras (sometimes referred to as “Hatteras Corner” or “The Point”) and the shelf break environment running to the north (to the boundary of BOEM's Mid-Atlantic OCS planning area) and to the south. This environment off of Cape Hatteras is created through the confluence of multiple currents and water masses, including the Gulf Stream (SAFMC, 2003), over complex bottom topography and hosts a high density and diversity of cetaceans (
Although beaked whales are likely present in this area year-round, there is significant overlap between this proposed restriction and the area of highest interest by the applicant companies. Therefore, we determined that practicability concerns dictate that we establish a temporal component to this closure rather than designate this area as a year-round closure (as is the case for Areas #2–4). Roberts
Although sperm whales are one of the most widely distributed marine mammals, they are typically more abundant in areas of high primary productivity (Jaquet
As noted above, Area #5 (Figure 4) is a multi-species area, primarily focused on pilot whales, beaked whales, and sperm whales, and is proposed to be in effect from July through September. In particular, Area #5's “bulge” to the north and east of Cape Hatteras was indicated as high-density sperm whale habitat contained within the five percent core abundance area in all months, but as a larger area and with higher predicted density during July through September, as discussed above. During these months, the 25 percent core abundance area for sperm whales is predicted as covering a large swath of the region from the region of The Point off and to the south of Cape Hatteras north to the planning area boundary and including shelf break waters east over the entire slope and into abyssal waters in some locations. As described previously, due to the large size of this area, we based this component of Area #5 on the relevant portion of the five percent core abundance are for sperm whales. This area, predicted to host the highest density of sperm whales, was contiguous to and somewhat overlapping with the shelf break strip suggested by core abundance area analysis for beaked whales and pilot whales. We believe this reflects the appropriate balance between necessary protective measures for this species and practicability for the applicant companies, which would be severely restricted in their ability to survey the area of interest were our proposed closure larger in terms of either space or time.
Pilot whales are distributed primarily along the continental shelf edge, occupying areas of high relief or submerged banks, and are also associated with the Gulf Stream wall and thermal fronts along the shelf edge (Waring
Atlantic spotted dolphins are widely distributed in tropical and warm temperate waters of the western North Atlantic, and regularly occur in continental shelf waters south of Cape Hatteras and in continental shelf edge and continental slope waters north of this region (Payne
Although there are no relevant considerations with regard to population context or specific stressors that lead us to develop mitigation focused on Atlantic spotted dolphins, the predicted amount of acoustic exposure for the species is among the highest for all species across three of the five applicant companies. Therefore, we believe it appropriate to delineate a time-area restriction for the sole purpose of reducing likely acoustic exposures for the species, for those three companies (
Our assumption here is that given the absence of other contextual factors demanding special protection of spotted dolphins, a seasonal restriction would be sufficient to guarantee that the species is afforded some protection from harassment in one of the areas most important for it. Because there is little information about the species migration patterns, and Roberts
• No survey operations within 125 nmi (232 km) of Maryland's coast from April 15 to November 15.
• No survey operations within the 30-m depth isobath off the South Carolina coast.
• No survey operations within 20 nmi (37 km) of Georgia's coast from April 1 to September 15 and within 30 nmi (56 km) of Georgia's coast from November 15 to April 15.
These proposed measures generally follow those described in BOEM's PEIS. These measures apply to all vessels associated with the proposed survey activity (
1. Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down or stop their vessel or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel, according to the parameters stated below, to ensure the potential for strike is minimized. Visual observers monitoring the vessel strike avoidance zone can be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to
2. All vessels, regardless of size, must observe the 10 kn speed restriction in DMAs, the Mid-Atlantic SMA (from November 1 through April 30), and critical habitat and the Southeast SMA (from November 15 through April 15). See
3. Vessel speeds must also be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel. A single cetacean at the surface may indicate the presence of submerged animals in the vicinity of the vessel; therefore, precautionary measures should be exercised when an animal is observed.
4. All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action. The following avoidance measures must be taken if a right whale is within 500 m of any vessel:
a. While underway, the vessel operator must steer a course away from the whale at 10 kn or less until the minimum separation distance has been established.
b. If a whale is spotted in the path of a vessel or within 500 m of a vessel underway, the operator shall reduce speed and shift engines to neutral. The operator shall re-engage engines only after the whale has moved out of the path of the vessel and is more than 500 m away. If the whale is still within 500 m of the vessel, the vessel must select a course away from the whale's course at a speed of 10 kn or less. This procedure must also be followed if a whale is spotted while a vessel is stationary. Whenever possible, a vessel should remain parallel to the whale's course while maintaining the 500-m distance as it travels, avoiding abrupt changes in direction until the whale is no longer in the area.
5. All vessels must maintain a minimum separation distance of 100 m from other whales. The following avoidance measures must be taken if a whale other than a right whale is within 100 m of any vessel:
a. The vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the whale has moved outside of the vessel's path and the minimum separation distance has been established.
b. If a vessel is stationary, the vessel must not engage engines until the whale(s) has moved out of the vessel's path and beyond 100 m.
6. All vessels must maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel. If an animal is encountered during transit, a vessel shall attempt to remain parallel to the animal's course, avoiding excessive speed or abrupt changes in course.
All vessels associated with survey activity (
We have carefully evaluated the suite of mitigation measures described here to preliminarily determine whether they are likely to effect 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: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.
Any mitigation measure(s) we prescribe 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 number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).
(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary 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 these measures, we have preliminarily determined that they 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.
We recognize that BOEM may require more stringent measures through survey-specific permits issued to applicant companies under its authorities pursuant to the OCSLA (43 U.S.C. 1331–1356). NMFS's Endangered Species Act Interagency Cooperation Division (Interagency Cooperation Division) may also require that more stringent or additional measures be included in any issued IHAs via any required consultation pursuant to section 7 of the Endangered Species Act. Please see “Proposed Authorizations,” below, for requirements specific to each proposed IHA.
We have reviewed the applicants' species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the applications, as well as to NMFS's Stock Assessment Reports (SAR;
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. Survey abundance (as compared to stock or species abundance) is the total number of individuals estimated within the survey area, which may or may not align completely with a stock's geographic range as defined in the SARs. These surveys may also extend beyond U.S. waters.
In some cases, species are treated as guilds. In general ecological terms, a guild is a group of species that have similar requirements and play a similar role within a community. However, for purposes of stock assessment or abundance prediction, certain species may be treated together as a guild because they are difficult to distinguish visually and many observations are ambiguous. For example, NMFS's Atlantic SARs assess
Thirty-four species (with 39 managed stocks) are considered to have the potential to co-occur with the proposed survey activities. Extralimital species or stocks unlikely to co-occur with survey activity include nine estuarine bottlenose dolphin stocks, four pinniped species, the white-beaked dolphin (
Estuarine stocks of bottlenose dolphin primarily inhabit inshore waters of bays, sounds, and estuaries, and stocks are defined adjacent to the proposed survey area from Pamlico Sound, North Carolina to Indian River Lagoon, Florida. However, NMFS's SARs generally describe estuarine stock ranges as including coastal waters to 1 km (though North Carolina stocks are described as occurring out to 3 km at certain times of year). Therefore, these stocks would not be impacted by the proposed seismic surveys. In addition, the West Indian manatee (
For the majority of species potentially present in the specific geographic region, NMFS has designated only a single generic stock (
In Table 4 above, we report two sets of abundance estimates: Those from NMFS's SARs and those predicted by Roberts
As a further illustration of the distinction between the SARs and model-predicted abundance estimates, the current NMFS stock abundance estimate for the Atlantic spotted dolphin is based on direct observations from shipboard and aerial surveys conducted in 2011 and corrected for detection bias whereas the exposure estimates presented herein for Atlantic spotted dolphin are based on the abundance predicted by a density
NMFS's abundance estimate for the North Atlantic right whale is based on a census of individual whales identified using photo-identification techniques and is therefore the most appropriate abundance estimate; the current estimate represents whales known to be alive in 2012 (
The 2007 Canadian Trans-North Atlantic Sighting Survey (TNASS), which provided full coverage of the Atlantic Canadian coast (Lawson and Gosselin, 2009), provided abundance estimates for multiple stocks. The abundance estimates from this survey were corrected for perception and availability bias, when possible. In general, where the TNASS survey effort provided superior coverage of a stock's range (as compared with NOAA shipboard survey effort), we elect to use the resulting abundance estimate over either the current NMFS abundance estimate (derived from survey effort with inferior coverage of the stock range) or the Roberts
We use the TNASS abundance estimate for the Canadian North Atlantic stock of minke whales and for the short-beaked common dolphin. The TNASS survey also produced an abundance estimate of 3,522 (CV = 0.27) fin whales. Although Waring
The TNASS also provided an abundance estimate for pilot whales (16,058; CV = 0.79), but covered habitats expected to contain long-finned pilot whales exclusively (Waring
NMFS's current abundance estimate for
Biologically important areas for North Atlantic right whales in the mid- and south Atlantic were further described by LaBrecque
As noted by LaBrecque
Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through North Carolina. Partial or full necropsy examinations have been conducted on approximately half of the 42 known cases. Of the 20 cases examined, 10 cases had evidence of blunt force trauma or pre-mortem propeller wounds indicative of vessel strike, which is over six times above the 16-year average of 1.5 whales showing signs of vessel strike in this region. Because this finding of pre-mortem vessel strike is not consistent across all of the whales examined, more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. Three previous UMEs involving humpback whales have occurred since 2000, in 2003, 2005, and 2006. More information is available at
Beginning in July 2013, elevated strandings of bottlenose dolphins were observed along the Atlantic coast from New York to Florida. The investigation was closed in 2015, with the UME ultimately being attributed to cetacean morbillivirus (though additional contributory factors are under investigation;
Additional recent UMEs include various localized events with undetermined cause involving bottlenose dolphins (
There are several take reduction plans in place for marine mammals in the proposed survey areas of the mid- and south Atlantic. We described these here briefly in order to fully describe, in conjunction with referenced material, the baseline conditions for the affected marine mammal stocks. The Atlantic Large Whale Take Reduction Plan (ALWTRP) was implemented in 1997 to reduce injuries and deaths of large whales due to incidental entanglement in fishing gear. The ALWTRP is an evolving plan that changes as we learn more about why whales become entangled and how fishing practices might be modified to reduce the risk of entanglement. It has several components, including restrictions on where and how gear can be set and requirements for entangling gears (
NMFS implemented a Harbor Porpoise Take Reduction Plan (HPTRP) to reduce interactions between harbor porpoise and commercial gillnet gear in both New England and the mid-Atlantic. The HPTRP has several components including restrictions on where, when, and how gear can be set, and in some areas requires the use of acoustic deterrent devices. More information is available online at:
The Atlantic Trawl Gear Take Reduction Team was developed to address the incidental mortality and serious injury of pilot whales, common dolphins, and white-sided dolphins incidental to Atlantic trawl fisheries. More information is available online at:
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analyses” section will include an analysis of how these specific activities will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks. In the following discussion, we provide general background information on sound and marine mammal hearing before considering potential effects to marine mammals from ship strike and sound produced through use of airgun arrays.
This section contains a brief technical background on sound, the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document.
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)), and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa), while the received level is the SPL at the listener's position (referenced to 1 μPa).
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 μPa
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for pulses produced by the airgun arrays considered here. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson
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The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10–20 dB from day to day (Richardson
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
The active acoustic sound sources proposed for use (
Vessel noise, produced largely by cavitation of propellers and by machinery inside the hull, is considered a non-pulsed sound. Sounds emitted by survey vessels are low frequency and continuous, but would be widely dispersed in both space and time. Survey vessel traffic is of very low density compared to commercial shipping traffic or commercial fishing vessels and would therefore be expected to represent an insignificant incremental increase in the total amount of anthropogenic sound input to the marine environment. We do not consider vessel noise further in this analysis.
Here, we first provide background information on marine mammal hearing before discussing the potential effects of the use of active acoustic sources on marine mammals.
• Low-frequency cetaceans (mysticetes): Generalized hearing is
• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz, with best hearing from 10 to less than 100 kHz;
• High-frequency cetaceans (porpoises, river dolphins, and members of the genera
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Thirty-four marine mammal species, all cetaceans, have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 4. Of the species that may be present, seven are classified as low-frequency cetaceans (
Richardson
We describe the more severe effects certain non-auditory physical or physiological effects only briefly as we do not expect that use of airgun arrays are reasonably likely to result in such effects (see below for further discussion). Potential effects from impulsive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton
When a live or dead marine mammal swims or floats onto shore and is incapable of returning to sea, the event is termed a “stranding” (16 U.S.C. 1421h(3)). Marine mammals are known to strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series (
Use of military tactical sonar has been implicated in a majority of investigated stranding events, although one stranding event was associated with the use of seismic airguns. This event occurred in the Gulf of California, coincident with seismic reflection profiling by the R/V
1.
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans, but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several decibels above (a 40-dB threshold shift approximates PTS onset;
For mid-frequency cetaceans in particular, potential protective mechanisms may help limit onset of TTS or prevent onset of PTS. Such mechanisms include dampening of hearing, auditory adaptation, or behavioral amelioration (
TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Finneran et al. (2015) measured hearing thresholds in three captive bottlenose dolphins before and after exposure to ten pulses produced by a seismic airgun in order to study TTS induced after exposure to multiple pulses. Exposures began at relatively low levels and gradually increased over a period of several months, with the highest exposures at peak SPLs from 196 to 210 dB and cumulative (unweighted) SELs from 193–195 dB. No substantial TTS was observed. In addition, behavioral reactions were observed that indicated that animals can learn behaviors that effectively mitigate noise exposures (although exposure patterns must be learned, which is less likely in wild animals than for the captive animals considered in this study). The authors note that the failure to induce more significant auditory effects likely due to the intermittent nature of exposure, the relatively low peak pressure produced by the acoustic source, and the low-frequency energy in airgun pulses as compared with the frequency range of best sensitivity for dolphins and other mid-frequency cetaceans.
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale, harbor porpoise, and Yangtze finless porpoise (
Critical questions remain regarding the rate of TTS growth and recovery after exposure to intermittent noise and the effects of single and multiple pulses. Data at present are also insufficient to construct generalized models for recovery and determine the time necessary to treat subsequent exposures as independent events. More information is needed on the relationship between auditory evoked potential and behavioral measures of TTS for various stimuli. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Southall
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Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely, and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Visual tracking, passive acoustic monitoring, and movement recording tags were used to quantify sperm whale behavior prior to, during, and following exposure to airgun arrays at received levels in the range 140–160 dB at distances of 7–13 km, following a phase-in of sound intensity and full array exposures at 1–13 km (Madsen
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller
Cerchio
Castellote
Seismic pulses at average received levels of 131 dB re 1 μPa
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
Forney
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Stone (2015) reported data from at-sea observations during 1,196 seismic surveys from 1994 to 2010. When large arrays of airguns (considered to be 500 in
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Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficiently to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
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Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
Vessel collisions with marine mammals, or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface may be struck directly by a vessel, a surfacing animal may hit the bottom of a vessel, or an animal just below the surface may be cut by a vessel's propeller. Superficial strikes may not kill or result in the death of the animal. These interactions are typically associated with large whales (
Pace and Silber (2005) also found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 kn, and exceeded 90 percent at 17 kn. Higher speeds during collisions result in greater force of impact, but higher speeds also appear to increase the chance of severe injuries or death through increased likelihood of collision by pulling whales toward the vessel (Clyne, 1999; Knowlton
In an effort to reduce the number and severity of strikes of the endangered North Atlantic right whale, NMFS implemented speed restrictions in 2008 (73 FR 60173; October 10, 2008). These restrictions require that vessels greater than or equal to 65 ft (19.8 m) in length travel at less than or equal to 10 kn near key port entrances and in certain areas of right whale aggregation along the U.S. eastern seaboard. Conn and Silber (2013) estimated that these restrictions reduced total ship strike mortality risk levels by 80 to 90 percent.
For vessels used in seismic survey activities, vessel speed while towing gear is typically only 4–5 kn. At these speeds, both the possibility of striking a marine mammal and the possibility of a strike resulting in serious injury or mortality are discountable. At average transit speed, the probability of serious injury or mortality resulting from a strike is less than 50 percent. However, the likelihood of a strike actually happening is again discountable. Ship strikes, as analyzed in the studies cited above, generally involve commercial shipping, which is much more common in both space and time than is geophysical survey activity. Jensen and Silber (2004) summarized ship strikes of large whales worldwide from 1975–2003 and found that most collisions occurred in the open ocean and involved large vessels (
It is possible for ship strikes to occur while traveling at slow speeds. For example, a hydrographic survey vessel traveling at low speed (5.5 kn) while conducting mapping surveys off the central California coast struck and killed a blue whale in 2009. The State of California determined that the whale had suddenly and unexpectedly surfaced beneath the hull, with the result that the propeller severed the whale's vertebrae, and that this was an unavoidable event. This strike represents the only such incident in approximately 540,000 hours of similar coastal mapping activity (
Although the likelihood of vessels associated with seismic surveys striking a marine mammal are low, we require a robust ship strike avoidance protocol (see “Proposed Mitigation”), which we believe eliminates any foreseeable risk of ship strike. We anticipate that vessel collisions involving seismic data acquisition vessels towing gear, while not impossible, represent unlikely, unpredictable events for which there are no preventive measures. Given the required mitigation measures, the relatively slow speeds of vessels towing gear, the presence of bridge crew watching for obstacles at all times (including marine mammals), the presence of marine mammal observers, and the small number of seismic survey cruises, we believe that the possibility of ship strike is discountable and, further, that were a strike of a large whale to occur, it would be unlikely to result in serious injury or mortality. No incidental take resulting from ship strike is anticipated, and this potential effect of the specified activity will not be discussed further in the following analysis.
Marine mammals could be affected by accidentally spilled diesel fuel from a vessel associated with proposed survey activities. Quantities of diesel fuel on the sea surface may affect marine mammals through various pathways: Surface contact of the fuel with skin and other mucous membranes, inhalation of concentrated petroleum vapors, or ingestion of the fuel (direct ingestion or by the ingestion of oiled prey) (
Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, or may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of airgun arrays). Anthropogenic noise varies widely in its frequency content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please see also the previous discussion on masking under “Acoustic Effects”), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). For more detail on these concepts see,
Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber, 2013). Although the signals emitted by seismic airgun arrays are generally low frequency, they would also likely be of short duration and transient in any given area due to the nature of these surveys. As described previously, exploratory surveys such as these cover a large area but would be transient rather than focused in a given location over time and therefore would not be considered chronic in any given location.
In summary, activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat or populations of fish species or on the quality of acoustic habitat. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
Except with respect to certain activities not pertinent here, section 3(18) of 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).”
Anticipated takes would primarily be by Level B harassment, as use of the acoustic source (
We have historically used generic acoustic thresholds (see Table 5) to determine when an activity that produces sound might result in impacts to a marine mammal such that a take by harassment might occur. These thresholds should be considered guidelines for estimating when harassment may occur (
However, NMFS has recently introduced new technical guidance for auditory injury (equating to Level A harassment under the MMPA); for more information, please visit
• Dividing sound sources into two groups (
• Choosing metrics that better address the impacts of noise on hearing sensitivity,
• Dividing marine mammals into hearing groups and developing auditory weighting functions based on the science supporting that not all marine mammals hear and use sound in the same manner.
NMFS's new technical guidance (NMFS, 2016) builds upon the foundation provided by Southall
NMFS considers these updated thresholds and associated weighting functions to be the best available information for assessing whether exposure to specific activities is likely to result in changes in marine mammal hearing sensitivity. However, all applications were submitted and declared adequate and complete prior to finalization of the technical guidance, based on the best available information at the time. BOEM's PEIS (BOEM, 2014a) does provide information enabling a reasonable approximation of potential acoustic exposures relative to the “Southall criteria.” While the peer-reviewed criteria provided by Southall
BOEM's PEIS (BOEM, 2014a) provides information related to estimation of the sound fields that would be generated by potential geophysical survey activity on the mid- and south Atlantic OCS. We provide a summary description of that modeling effort here; for more information, please see Appendix D of BOEM's PEIS (Zykov and Carr, 2014 in BOEM, 2014a). The acoustic modeling generated a three-dimensional acoustic propagation field as a function of source characteristics and physical properties of the ocean for later integration with marine mammal density information in an animal movement model to estimate potential acoustic exposures.
The authors selected 15 modeling sites throughout BOEM's Mid-Atlantic and South Atlantic OCS planning areas for use in modeling predicted sound fields resulting from use of the airgun array. The water depth at the sites varied from 30–5,400 m. Two types of bottom composition were considered: Sand and clay, their selection depending on the water depth at the source. Twelve possible sound speed profiles for the water column were used to cover the variation of the sound velocity distribution in the water with location and season. Twenty-one distinct propagation scenarios resulted from considering different sound speed profiles at some of the modeling sites. Two acoustic propagation models were employed to estimate the acoustic field radiated by the sound sources. A version of JASCO Applied Science's Marine Operations Noise Model (MONM), based on the Range-dependent Acoustic Model (RAM) parabolic-equations model, MONM–RAM, was used to estimate the SELs for low-frequency sources (below 2 kHz) such as an airgun array. For more information on sound propagation model types, please see,
The modeling used a 5,400 in
As noted, the AASM was used to predict the directional source level (SL) of the airgun array. The MONM was then used to estimate the acoustic field at any range from the source. MONM–RAM was used to predict the directional transmission loss (TL) footprint from various source locations corresponding to the selected modeling sites. The received level (RL) at any 3D location away from the source is calculated by combining the SL and TL, both of which are direction dependent, using the fundamental relation
The U.S. Naval Oceanographic Office's Generalized Digital Environmental Model database was used to extract sound velocity profiles for the mid- and south Atlantic in order to characterize the entire water body into a discreet number of specific propagation regions. The profiles were selected to reflect the variation of sea water properties at the different locations selected throughout the mid- and south Atlantic OCS as well as seasonal variation at the same location (
Table 7 shows scenario-specific modeling results for distances to the 160 dB level; results presented are for the 95 percent range to threshold. Given a regularly gridded spatial distribution of modeled RLs, the 95 percent range is defined as the radius of a circle that encompasses 95 percent of the grid points whose value is equal to or greater than the threshold value. This definition is meaningful in terms of potential impact to an animal because, regardless of the geometrical shape of the noise footprint for a given threshold level, it always provides a range beyond which no more than five percent of a uniformly distributed population would be exposed to sound at or above that level. The maximum range, which is simply the distance to the farthest occurrence of the threshold level, is the more conservative but may misrepresent the effective exposure zone. For example, there are cases where the volume ensonified to a specific level may not be continuous and small pockets of higher RLs may be found far outside the main ensonified volume (for example, because of convergence). If only the maximum range is presented, a false impression of the extent of the acoustic
We provide this description of the modeling performed for BOEM's PEIS as a general point of reference for the proposed surveys, and also because three of the applicant companies—TGS, CGG, and Western—directly use these results to inform their exposure modeling, rather than performing separate sound field modeling. As described by BOEM (2014a), the modeled array was selected to be representative of the large airgun arrays likely to be used by geophysical exploration companies in the mid- and south Atlantic OCS. Therefore, we use the BOEM (2014a) results as a reasonable proxy for those two companies (please see “Detailed Description of Activities” for further description of the acoustic sources proposed for use by these two companies). ION and Spectrum elected to perform separate sound field modeling efforts, and these are described below. For generally applicable conclusions, as summarized from Appendix A of ION's application, see below.
Generally applicable conclusions were discussed in Appendix A of ION's application, and are summarized here.
The best available scientific information was considered in conducting marine mammal exposure estimates (the basis for estimating take). Historically, distance sampling methodology (Buckland
At the time the applications were initially developed, the best available information concerning marine mammal densities in the proposed survey area was the U.S. Navy's Navy Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 2007). These habitat-based cetacean density models utilized vessel-based and aerial survey data collected by NMFS from 1998–2005 during broad-scale abundance studies. Modeling methodology is detailed in DoN (2007). A more advanced cetacean density modeling effort, described in Roberts
The Roberts
Aerial and shipboard survey data produced by the Atlantic Marine Assessment Program for Protected Species (AMAPPS) program provides an additional source of information regarding marine mammal presence in the proposed survey areas. These surveys represent a collaborative effort between NMFS, BOEM, and the Navy. Although the cetacean density models described above do include survey data from 2010–14, the AMAPPS data was not made available to the model authors. Future model updates will incorporate these data, but as of this writing the AMAPPS data comprises a separate source of information (NMFS, 2010a, 2011, 2012, 2013a, 2014, 2015a).
Here, we provide applicant-specific descriptions of the processes employed to estimate potential exposures of marine mammals to given levels of received sound. The discussions provided here are specific to estimated exposures to NMFS criterion for Level B harassment (
This description builds on the description of sound field modeling provided earlier in this section and in
The results of the acoustic modeling exercise (
Species-specific animats were created with programmed behavioral parameters describing dive depth, surfacing and dive durations, swimming speed, course change, and behavioral aversions (
A model run consists of a user-specified number of steps forward in time, in which each animat is moved according to the rules describing its behavior. For each time step of the model run, the received sound levels at each animat (
Animat positions relative to the acoustic source (
As noted previously, the NODEs models (DoN, 2007) provided the best available information at the time of initial development for these applications. Outputs of the cetacean density models described by Roberts
In order to revise the exposure estimates for Spectrum and ION, we first needed to extract appropriate density estimates from the Roberts
• Roberts
• We converted the Roberts
• As was the case for the NODEs model outputs, the Roberts
• With new density values covering the entire modeling extent, we then calculated the average density for each of the 21 modeling areas (using ArcGIS' Zonal Statistics as Table tool).
As was described for BOEM's PEIS, Spectrum used AIM to model animal movements within the estimated 3D sound field. However, Spectrum elected to seed the simulations with a lower animat density (0.05 animats/km
AIM simulations consisted of 25 hours of survey track for each modeling site and animal group. This duration was selected to use a 24‐hour sound energy accumulation period for exposure estimation. The first hour of model output is then discarded, as animal distributions will be unduly influenced by initial conditions. In addition, there was a difference between the amount of modeled survey trackline within each modeling region and the actual proposed amount of survey trackline. The potential impacts were scaled by the ratio of the total length of proposed trackline to the modeled length of trackline in each modeling region. Spectrum elected to program certain species' animats with one aversion; normally deep-water species were not allowed to move into waters shallower than 100 m. Avoidance of right whales as indicated by the time-area restrictions required by BOEM's ROD (BOEM, 2014b) was also accounted for.
Similar to modeling conducted for BOEM's PEIS, received sound level and 3D position of each animat were recorded to calculate exposure estimates at each time step. Thus unweighted SPL(rms) and SEL values, as well as M‐weighted SEL values, were calculated and compared with their respective criteria. The SEL values at each time step were converted back to intensity and summed, to produce the 24‐hr cSEL value for each individual animat. The numbers of animats with SPL(rms) and cSEL values that exceeded their respective regulatory criteria were considered exposed for that criteria.
Spectrum also included a mitigation simulation in their modeling process,
In summary, the original exposure results were obtained using AIM to model source and animat movements, with received SEL for each animat predicted at a 30-second time step. This predicted SEL history was used to determine the maximum SPL (rms or peak) and cSEL for each animat, and the number of exposures exceeding relevant criteria recorded. The number of exposures are summed for all animats to get the number of exposures for each species, with that summed value then scaled by the ratio of real-world density to the model density value. The final scaling value was the ratio of the length of the modeled survey line and the length of proposed survey line in each modeling region. As described above, the exposure estimates provided in Spectrum's application were based on the NODEs model outputs. In order to make use of the best available information (
The exposure estimation results described in ION's application are based on the NODEs models. The same acoustic propagation regions described for BOEM's PEIS were used by ION for exposure modeling; however, ION limited their analysis to summer and fall seasons and therefore used only 11 of the 21 regions. Whichever season returned the higher number of estimated exposures for a given species was assumed to be the season in which the survey occurred,
As was described for BOEM's PEIS, ION used AIM to model animal movements within the estimated 3D sound field. ION proposes to conduct survey effort along lines roughly parallel to and roughly perpendicular to the east coast. Because a number of these lines are similar to each other in terms of direction and location, a reduced number of modeling lines—five alongshore and five perpendicular to shore—were created to represent all of the proposed survey lines. The lines were then further broken into segments that correspond to the boundaries of the modeling regions (see Figure 4 in Appendix B of ION's application). Simulation durations varied depending on model line length. After models were run for each line segment and subsegment, the results from all segments in each of the survey areas were scaled to reflect the actual length of proposed survey lines and then combined. ION elected to seed the simulations with a variable animat density because of the variable length of the tracks and the varied habitat of some species. ION did not account for potential effectiveness of mitigation in their modeling effort.
In summary, the original exposure results were obtained using AIM to model source and animat movements, with received SEL for each animat predicted at a 30-second time step. This predicted SEL history was used to determine the maximum SPL (rms or peak) and cSEL for each animat, and the number of exposures exceeding relevant criteria recorded. The number of exposures are summed for all animats to get the number of exposures for each species, with that summed value then scaled by the ratio of real-world density to the model density value. The final scaling value was the ratio of the length of the modeled survey line and the length of proposed survey line in each modeling region. As described above, the exposure estimates provided in ION's application were based on the NODEs model outputs. In order to make use of the best available information (
Because both applications were prepared by Smultea Environmental Sciences, LLC (SES) under contract to the applicant companies, in this section we refer hereafter to “SES” rather than to “TGS and Western.” SES considered both the Roberts
• There are very few sightings of some species despite substantial survey effort;
• The modeling approach extrapolates based on habitat associations and assumes some species' occurrence in areas where they have never been or were rarely documented (despite substantial effort);
• In some cases, uniform density models spread densities of species with small sample sizes across large areas of the EEZ without regard to habitat, and;
• The most recent NOAA shipboard and aerial survey data (
In response to these general concerns regarding suitability of model outputs for exposure estimation, SES developed a scheme related to the number of observations in the dataset available to Roberts
As described previously, marine mammal abundance has traditionally been estimated by applying distance sampling methodology (Buckland
Ten species or species groups met SES' requirement of having at least 60 sightings within the proposed survey area in the dataset available to Roberts
• Calculate area of ensonification to ≥160 dB (rms) around the operating acoustic source, including all track lines, run-outs, and ramp-ups/run-ins, assuming depth-specific isopleth distances described above. Overlapping areas were treated as if they did not overlap (
• Calculate species-specific density estimates for each of the 10 km x 10 km grid cells used in the density models. For species with monthly resolution, an annual average was calculated, with the exception of the right whale which used the May–October average only.
• The density models' area of data coverage does not extend outside of the EEZ. As noted previously, although relevant information regarding cetacean densities in areas of the western North Atlantic beyond the EEZ was recently provided by Mannocci
• For each 10 km x 10 km grid cell and for the areas of extrapolation outside the EEZ, SES then multiplied the estimated ensonified area by the appropriate density to produce estimates of exposure exceeding the 160 dB rms criterion.
• The projected ensonified area was mapped relative to right whale closure areas described by BOEM (2014b); therefore, this element of proposed mitigation was accounted for to a certain extent.
Seven species or species groups met SES' criterion for conducting exposure modeling, but did not have the recommended 60 sightings in the survey area: minke whale, fin whale,
• Calculate the transect area, specific to aerial and vessel surveys, that would be considered to include sightings of all animals present for each species based on effective strip widths (ESW; the distance at which missed sightings made inside the distance is equal to detected sightings outside of it) obtained from the literature. The transect area is equal to twice the ESW multiplied by the length of transect (see Table 6–3 in either application for ESW values and citations).
• Calculate the mean density (in groups/km
• Adjust the densities using a correction factor (
• Calculate the number of animals of each species that would potentially occur within the previously determined 160-dB depth-specific radii and sum for an estimate of total incidents of exposure.
To be clear, we believe the density models described by Roberts
As described previously in this document, on July 29, 2015, we published a
Roberts and Halpin raised several key points (we also include any resolution in the bulleted points below):
• The Buckland
• SES does not correct for observation bias, resulting in underestimation of density. SES subsequently corrected this issue by using estimates of
• SES used erroneous or inappropriate ESWs for several species, resulting in an overestimate of effective survey area and therefore an underestimate of density. SES subsequently incorporated additional ESW information and addressed these issues to the extent possible given the available data.
• Following on the first point described above, ESWs used by SES are based on less robust detection functions than those used by Roberts
• SES did not take into account what is known about the habitat of the species it modeled using this method. For example, Roberts
• SES declined to use density models for certain species on the basis of a lack of observations within the proposed survey area, although the models are based on numerous observations overall. Roberts and Halpin state that, because the models incorporate substantial survey effort within the proposed survey area, they are well-informed with regard to the likelihood of species occurrence under relevant environmental conditions. However, this does not alter the fact that these species have only rarely been observed within the proposed survey area and, therefore, SES' contention that use of a predictive density model to estimate potential acoustic exposures is not the most appropriate method for some species.
• SES' combination of aerial and vessel-based densities is inappropriate, due to substantial biases in terms of distribution of survey effort,
• SES does not adequately consider available information (
• A circle with a 6,751 m radius (representing the extent of the average expected 160 dB rms ensonification zone) was drawn around each trackline, effectively resulting in a survey track with 13,502 m total width. Taxon-specific model outputs, averaged over the six-month period planned for the survey (
• The Roberts
• Roberts
As discussed earlier in this document, BOEM's PEIS (2014a) provides auditory injury exposure results on the basis of the Southall
For low-frequency cetaceans, in order to “correct” these estimates of potential Level A exposure to account for NMFS's new technical acoustic guidance, we followed the process outlined previously under “Exclusion Zone and Shutdown Requirements.” We obtained spectrum data (in 1 Hz bands) for a reasonably equivalent acoustic source in order to appropriately incorporate weighting functions (
For mid- and high-frequency cetaceans, we also calculated potential radial distances to auditory injury zones on the basis of the relevant peak pressure thresholds alone, assuming spherical spreading propagation (auditory weighting functions are not used in considering potential injury due to peak pressure received levels). Comparison of the predicted hearing group-specific areas ensonified above thresholds defined by the historical NMFS criterion (
We recognize that the Level A exposure estimates provided here are a rough approximation of actual exposures, for several reasons. First, specific trackline locations proposed by the applicant companies may differ somewhat from those considered in BOEM's PEIS. However, as noted above, BOEM's PEIS assumes a total of 616,174 line-km of 2D survey effort conducted over seven years. Therefore, it is likely that all portions of the proposed survey area are considered in the PEIS analysis. Second, the PEIS exposure estimates are based on outputs of the NODEs models (DoN, 2007) versus the density models described by Roberts
We note here that four of the five applicant companies (excepting Spectrum) declined to request authorization of take by Level A harassment. Although ION's proposed survey is smaller in terms of survey line-km, their source is larger in terms of predicted acoustic output (see Table 1). TGS, CGG, and Western claim, in summary, that Level A exposures will not occur largely due to the effectiveness of proposed mitigation. We do not find this assertion credible and propose to authorize take by Level A harassment, as displayed in Table 11.
Certain species potentially present in the proposed survey areas are expected to be encountered only extremely rarely, if at all. Although Roberts
Table 10 displays the estimated incidents of potential exposures above given received levels of sound that are used to estimate Level B harassment, as derived by various methods described above. We do not include the 11 rarely occurring species described above, because our assumption that a single group of each species would be encountered does not constitute an exposure estimate (however they are considered in Table 11 for our proposed take authorizations). Total applicant-specific exposure estimates as a proportion of the most appropriate abundance estimate are presented. As described previously, for most species these estimated exposure levels apply to a generic western North Atlantic stock defined by NMFS for management purposes. For the humpback and sei whale, any takes are assumed to occur to individuals of the species occurring in the specific geographic region (which may or may not be individuals from the Gulf of Maine and Nova Scotia stocks, respectively). For bottlenose dolphins, NMFS defines an offshore stock and multiple coastal stocks of dolphins, and we are not able to quantitatively determine the extent to which the estimated exposures may accrue to the oceanic versus various coastal stocks. However, because of the spatial distribution of proposed survey effort and our proposed mitigation, we assume that almost all incidents of take for bottlenose dolphins would accrue to the offshore stock.
Table 11 provides the numbers of take by Level A and Level B harassment proposed for authorization. The proposed take authorizations combine the exposure estimates displayed in Table 10, estimated potential incidents of Level A harassment derived as described above, and the average group size information discussed previously in this section for sei whale, Bryde's whale, blue whale, northern bottlenose whale, Fraser's dolphin, melon-headed whale, false killer whale, pygmy killer whale, killer whale, spinner dolphin, and white-sided dolphin. For applicant- and species-specific proposed take authorizations marked by an asterisk, the predicted exposures (Table 10) have been reduced to 30 percent of the abundance estimate. The MMPA limits our ability to authorize take incidental to a specified activity to “small numbers” of marine mammals and, although this concept is not defined in the statute, NMFS interprets the concept in relative terms through comparison of the estimated number of individuals expected to be taken to an estimation of the relevant species or stock size. A relative approach to small numbers has been upheld in past litigation (see,
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.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
We first provide a generic description of our approach to the negligible impact analyses for this action, which incorporates elements of the impact assessment methodology described by Wood
Our analyses incorporate a simple matrix assessment approach to generate relative impact ratings that couple potential magnitude of effect on a stock and likely consequences of those effects for individuals, given biologically relevant information (
We consider authorized Level B take less than five percent of population abundance to be de minimis, while authorized Level B taking between 5‐15 percent is low. A moderate amount of authorized taking by Level B harassment would be from 15–25 percent, and high above 25 percent. Although we do not define quantitative metrics relating to amount of potential take by Level A harassment, for all applicant companies the expected potential for Level A harassment is expected to be low (Table 11).
Spatial extent relates to overlap of the expected range of the affected stock with the expected footprint of the stressor. While we do not define quantitative metrics relative to assessment of spatial extent, a relatively low impact would be a localized effect on the stock's range, a relatively moderate impact would be a regional-scale effect (meaning that the overlap between stressor and range was partial), and a relatively high impact would be one in which the degree of overlap between stressor and range is near total. For a mobile activity occurring over a relatively large, regional-scale area, this categorization is made largely on the basis of the stock range in relation to the action area. For example, the harbor porpoise is expected to occur almost entirely outside of the proposed survey areas (Waring
In Tables 14–18 below, spatial extent is presented as a range for certain species with known migratory patterns. We expect spatial extent (overlap of stock range with proposed survey area) to be low for right whales from May through October but moderate from November through April, due to right
We consider a temporary effect lasting up to one month (prior to the animal or habitat reverting to a “normal” condition) to be short-term, whereas long‐term effects are more permanent, lasting beyond one season (with animals or habitat potentially reverting to a “normal” condition). Moderate‐term is therefore defined as between 1‐3 months. Duration describes how long the effects of the stressor last. Temporal frequency may range from continuous to isolated (may occur one or two times), or may be intermittent. These metrics and their potential combinations help to derive the ratings summarized in Table 12. Temporal extent is not indicated in Tables 14–18 below, as it did not affect the magnitude rating for each applicant.
For example, if a delphinid species is predicted to have a high amount of disturbance and over a high degree of spatial extent, that stock would receive a high magnitude rating for that particular proposed survey. However, we may then assess that the species may have a high degree of compensatory ability; therefore, our conclusion would be that the consequences of any effects are likely low. The overall impact rating in this scenario would be moderate. Table 13 summarizes impact rating scenarios.
Likely consequences, as presented in Tables 14–18 below, are considered medium for each species of mysticete whales with greater than a de minimis amount of exposure, due to the greater potential that survey noise may subject individuals of these species to masking of acoustic space for social purposes (
Here, we reiterate discussion relating to our development of targeted mitigation measures and note certain contextual factors, which are applicable to negligible impact analyses for all five applicant companies. Applicant-specific analyses are provided later.
• We developed mitigation requirements (
These proposed measures benefit both the primary species for which they were designed and the species that may benefit secondarily by reducing the likely number of individuals exposed to survey noise and, for resident species in areas where seasonal closures are proposed, reducing the numbers of times that individuals are exposed to survey noise (also discussed in “Small Numbers Analyses,” below). However, and perhaps of greater importance, we expect that these restrictions will reduce disturbance of these species in the places most important to them for critical behaviors such as foraging and socialization. Area #2 (Figure 4), which is proposed as a year-round closure, is assumed to be an area important for beaked whale foraging, while Areas #3–4 (also proposed as year-round closures) are assumed to provide important foraging opportunities for sperm whales as well as beaked whales. Area #5, proposed as a seasonal closure, is comprised of shelf-edge habitat where beaked whales and pilot whales are believed to be year-round residents as well as slope and abyss habitat predicted to contain high abundance of sperm whales during the period of closure. Further detail regarding rationale for these closures is provided under “Proposed Mitigation.”
• The North Atlantic right whale, sei whale, fin whale, blue whale, and sperm whale are listed as endangered under the Endangered Species Act, and all coastal stocks of bottlenose dolphin are designated as depleted under the MMPA (and have recently experienced an unusual mortality event, described earlier in this document). However, sei whales and blue whales are unlikely to be meaningfully impacted by the proposed activities (see “Rare Species” below). All four mysticete species are also classified as endangered (
Although listed as endangered, the primary threat faced by the sperm whale (
The most recent status review for the species stated that existing regulatory mechanisms appear to minimize threats to sperm whales and that, despite uncertainty regarding threats such as climate change, contaminants, and anthropogenic noise, the significance of threat facing the species should be considered low to moderate (NMFS, 2015b). Nevertheless, existing empirical data (
Although the primary direct threat to fin whales was addressed through the moratorium on commercial whaling, vessel strike and entanglement in commercial fishing gear remain as substantive direct threats for the species in the western North Atlantic. As noted below, the most recent estimate of annual average human-caused mortality for the fin whale in U.S. waters is above the PBR value (Table 4). In addition, the mysticete whales are particularly sensitive to sound in the frequency
• Critical habitat is designated only for the North Atlantic right whale, and there are no biologically important areas (BIA) described within the region (other than for the right whale, and the described BIA is similar to designated critical habitat). Our proposed mitigation is designed to minimize impacts to important habitat for the North Atlantic right whale.
• Average annual human-caused M/SI exceeds the PBR level for the North Atlantic right whale, sei whale, fin whale, and for both long-finned and short-finned pilot whales (see Table 4). Average annual M/SI is considered unknown for the blue whale and the false killer whale (PBR is undetermined for a number of other species (Table 4), but average annual human-caused M/SI is zero for all of these). Although threats are considered poorly known for North Atlantic blue whales, PBR is less than one and ship strike is a known cause of mortality for all mysticete whales. The most recent record of ship strike mortality for a blue whale in the U.S. EEZ is from 1998 (Waring
We addressed our consideration of specific mitigation efforts for the right whale and fin whale above. In response to this population context concern for pilot whales, in conjunction with relatively medium to high amount of predicted exposures to survey noise for pilot whales, we have given special consideration to mitigation focused on pilot whales and have defined time-area restrictions (see “Proposed Mitigation” and Figure 4) specifically designed to reduce such impacts on pilot whales in areas expected to be of greatest importance (
• Beaked whales are considered to be particularly acoustically sensitive (
The North Atlantic right whale is endangered, has a very low population size, and faces significant additional stressors. Therefore, regardless of impact rating, we believe that the proposed mitigation described previously is important in order for us to make the necessary finding and, in consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from Spectrum's proposed survey activities will have a negligible impact on the North Atlantic right whale. The fin whale receives a moderate impact rating overall, but we expect that for two seasons (summer and fall) almost no fin whales will be present in the proposed survey area. For the remainder of the year, it is likely that less than one quarter of the population will be present within the proposed survey area (Roberts
Magnitude ratings for the sperm whale and beaked whales are high and, further, consequence factors reinforce high impact ratings for both. Magnitude rating for pilot whales is medium but, similar to beaked whales, we expect that compensatory ability will be low due to presumed residency in areas targeted by the proposed survey—leading to a moderate impact rating. However, regardless of impact rating, the consideration of likely consequences and contextual factors leads us to conclude that targeted mitigation is important to support a finding that the effects of the proposed survey will have a negligible impact on these species. As described previously, sperm whales are an endangered species with particular susceptibility to disruption of foraging behavior, beaked whales are particularly acoustically sensitive (with presumed low compensatory ability), and pilot whales are sensitive to additional stressors due to a high degree of mortality in commercial fisheries (and also with low compensatory ability). Finally, due to their acoustic sensitivity, we have proposed shutdown of the acoustic source upon observation of a beaked whale at any distance from the source vessel. In consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from Spectrum's proposed survey activities will have a negligible impact on the sperm whale, beaked whales (
Despite medium to high magnitude ratings, remaining delphinid species receive low to moderate impact ratings due to a lack of propensity for behavioral disruption due to geophysical survey activity and our expectation that these species would generally have relatively high compensatory ability. In addition, these species do not have significant issues relating to population status or context. Many oceanic delphinid species are generally more associated with dynamic oceanographic characteristics rather than static physical features, and those species (such as common dolphin) with substantial distribution to the north of the proposed survey area would likely be little affected at the population level by the proposed activity. For example, both species of spotted dolphin and the offshore stock of bottlenose dolphin range widely over slope and abyssal waters (
For those species with de minimis impact ratings we believe that, absent additional relevant concerns related to population status or context, the rating implies that a negligible impact should be expected as a result of the specified activity. No such concerns exist for these species, and we preliminarily find that the total marine mammal take from Spectrum's proposed survey activities will have a negligible impact on the humpback whale, minke whale, and harbor porpoise.
In summary, 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 monitoring and mitigation measures, we preliminarily find that the total marine mammal take from Spectrum's proposed survey activities will have a negligible impact on all affected marine mammal species or stocks.
The North Atlantic right whale is endangered, has a very low population size, and faces significant additional stressors. Therefore, regardless of impact rating, we believe that the proposed mitigation described previously is important in order for us to make the necessary finding and, in consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from TGS's proposed survey activities will have a negligible impact on the North Atlantic right whale. The fin whale receives a high impact rating overall, due to the high amount of exposure predicted for TGS's proposed survey activity. As described previously, we expect that for two seasons (summer and fall) almost no fin whales will be present in the proposed survey area and that, for the remainder of the year, it is likely that less than one quarter of the population will be present within the proposed survey area (Roberts
Magnitude ratings for the sperm whale, beaked whales, and pilot whales are high and, further, consequence factors reinforce high impact ratings for all three. In addition, regardless of impact rating, the consideration of likely consequences and contextual factors leads us to conclude that targeted mitigation is important to support a finding that the effects of the proposed survey will have a negligible impact on these species. As described previously, sperm whales are an endangered species with particular susceptibility to disruption of foraging behavior, beaked whales are particularly acoustically sensitive (with presumed low compensatory ability), and pilot whales are sensitive to additional stressors due to a high degree of mortality in commercial fisheries (and also with low compensatory ability). Finally, due to their acoustic sensitivity, we have proposed shutdown of the acoustic source upon observation of a beaked whale at any distance from the source vessel. In consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from TGS's proposed survey activities will have a negligible impact on the sperm whale, beaked whales (
Despite high magnitude ratings, remaining delphinid species receive moderate impact ratings due to a lack of propensity for behavioral disruption due to geophysical survey activity and our expectation that these species would generally have relatively high compensatory ability. In addition, these species do not have significant issues relating to population status or context. Many oceanic delphinid species are generally more associated with dynamic oceanographic characteristics rather than static physical features, and those species (such as common dolphin) with substantial distribution to the north of the proposed survey area would likely be little affected at the population level by the proposed activity. For example, both species of spotted dolphin and the offshore stock of bottlenose dolphin range widely over slope and abyssal waters (
For those species with de minimis impact ratings we believe that, absent additional relevant concerns related to population status or context, the rating implies that a negligible impact should be expected as a result of the specified activity. No such concerns exist for these species, and we preliminarily find that the total marine mammal take from TGS's proposed survey activities will have a negligible impact on the humpback whale, minke whale, and harbor porpoise.
In summary, 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 monitoring and mitigation measures, we preliminarily find that the total marine mammal take from TGS's proposed survey activities will have a negligible impact on all affected marine mammal species or stocks.
The North Atlantic right whale is endangered, has a very low population size, and faces significant additional stressors. Therefore, regardless of impact rating, we believe that the proposed mitigation described previously is important in order for us to make the necessary finding and, in consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from ION's proposed survey activities will have a negligible impact on the North Atlantic right whale.
Also regardless of impact rating, consideration of assumed behavioral susceptibility and lack of compensatory ability (
For those species with de minimis impact ratings we believe that, absent additional relevant concerns related to population status or context, the rating implies that a negligible impact should be expected as a result of the specified activity. No such concerns exist for these species, and we preliminarily find that the total marine mammal take from ION's proposed survey activities will have a negligible impact on all stocks of bottlenose dolphin, two species of spotted dolphin, rough-toothed dolphin, striped dolphin, common dolphin, Clymene dolphin, Risso's dolphin humpback whale, minke whale, fin whale, and harbor porpoise.
In summary, 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 monitoring and mitigation measures, we preliminarily find that the total marine mammal take from ION's proposed survey activities will have a negligible impact on all affected marine mammal species or stocks.
The North Atlantic right whale is endangered, has a very low population size, and faces significant additional stressors. Therefore, regardless of impact rating, we believe that the proposed mitigation described previously is important in order for us to make the necessary finding and, in consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from Western's proposed survey activities will have a negligible impact on the North Atlantic right whale. The fin whale receives a moderate impact rating overall, but we expect that for two seasons (summer and fall) almost no fin whales will be present in the proposed survey area. For the remainder of the year, it is likely that less than one quarter of the population will be present within the proposed survey area (Roberts
Magnitude ratings for the sperm whale, beaked whales, and pilot whales are high and, further, consequence factors reinforce high impact ratings for all three. In addition, regardless of impact rating, the consideration of likely consequences and contextual factors leads us to conclude that targeted mitigation is important to support a finding that the effects of the proposed survey will have a negligible impact on these species. As described previously, sperm whales are an endangered species with particular susceptibility to disruption of foraging behavior, beaked whales are particularly acoustically sensitive (with presumed low compensatory ability), and pilot whales are sensitive to additional stressors due to a high degree of mortality in commercial fisheries (and also with low compensatory ability). Finally, due to their acoustic sensitivity, we have proposed shutdown of the acoustic source upon observation of a beaked whale at any distance from the source vessel. In consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from Western's proposed survey activities will have a negligible impact on the sperm whale, beaked whales (
Despite medium to high magnitude ratings (with the exception of the Clymene dolphin), remaining delphinid species receive low to moderate impact ratings due to a lack of propensity for behavioral disruption due to geophysical survey activity and our expectation that these species would generally have relatively high compensatory ability. In addition, these species do not have significant issues relating to population status or context. Many oceanic delphinid species are generally more associated with dynamic oceanographic characteristics rather than static physical features, and those species (such as common dolphin) with substantial distribution to the north of the proposed survey area would likely be little affected at the population level by the proposed activity. For example, both species of spotted dolphin and the offshore stock of bottlenose dolphin range widely over slope and abyssal waters (
For those species with de minimis impact ratings we believe that, absent additional relevant concerns related to population status or context, the rating implies that a negligible impact should be expected as a result of the specified activity. No such concerns exist for these species, and we preliminarily find that the total marine mammal take from Western's proposed survey activities
In summary, 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 monitoring and mitigation measures, we preliminarily find that the total marine mammal take from Western's proposed survey activities will have a negligible impact on all affected marine mammal species or stocks.
The North Atlantic right whale is endangered, has a very low population size, and faces significant additional stressors. Therefore, regardless of impact rating, we believe that the proposed mitigation described previously is important in order for us to make the necessary finding and, in consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from CGG's proposed survey activities will have a negligible impact on the North Atlantic right whale.
Magnitude ratings for the sperm whale and beaked whales are high and, further, consequence factors reinforce high impact ratings for both. Magnitude rating for pilot whales is medium but, similar to beaked whales, we expect that compensatory ability will be low due to presumed residency in areas targeted by the proposed survey—leading to a moderate impact rating. However, regardless of impact rating, the consideration of likely consequences and contextual factors leads us to conclude that targeted mitigation is important to support a finding that the effects of the proposed survey will have a negligible impact on these species. As described previously, sperm whales are an endangered species with particular susceptibility to disruption of foraging behavior, beaked whales are particularly acoustically sensitive (with presumed low compensatory ability), and pilot whales are sensitive to additional stressors due to a high degree of mortality in commercial fisheries (and also with low compensatory ability). Finally, due to their acoustic sensitivity, we have proposed shutdown of the acoustic source upon observation of a beaked whale at any distance from the source vessel. In consideration of the proposed mitigation, we preliminarily find that the total marine mammal take from CGG's proposed survey activities will have a negligible impact on the sperm whale, beaked whales (
Despite medium to high magnitude ratings (with the exception of the short-beaked common dolphin), remaining delphinid species receive low to moderate impact ratings due to a lack of propensity for behavioral disruption due to geophysical survey activity and our expectation that these species would generally have relatively high compensatory ability. In addition, these species do not have significant issues
For those species with de minimis impact ratings we believe that, absent additional relevant concerns related to population status or context, the rating implies that a negligible impact should be expected as a result of the specified activity. No such concerns exist for these species, and we preliminarily find that the total marine mammal take from CGG's proposed survey activities will have a negligible impact on the humpback whale, minke whale, fin whale, short-beaked common dolphin, and harbor porpoise.
In summary, 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 monitoring and mitigation measures, we preliminarily find that the total marine mammal take from CGG's proposed survey activities will have a negligible impact on all affected marine mammal species or stocks.
Please see Tables 10 and 11 and the related text for information relating to the basis for our small numbers analyses. Table 10 provides the numbers of predicted exposures above specified received levels, while Table 11 provides numbers of take by Level A and Level B harassment proposed for authorization. The latter is what we consider for purposes of small numbers analysis for each proposed IHA. For the sei whale, Bryde's whale, blue whale, northern bottlenose whale, Fraser's dolphin, melon-headed whale, false killer whale, pygmy killer whale, killer whale, spinner dolphin, and white-sided dolphin, we propose to authorize take resulting from a single exposure of one group of each species or stock, as appropriate (using average group size), for each applicant. We believe that a single incident of take of one group of any of these species represents take of small numbers for that species. Therefore, for each applicant, based on the analyses contained herein of their specified activity, we preliminarily find that small numbers of marine mammals will be taken for each of these 11 affected species or stocks for each specified activity. We do not discuss these 11 species further in the applicant-specific analyses that follow.
As discussed previously, the MMPA does not define small numbers. NMFS compares the estimated numbers of individuals expected to be taken to the most appropriate estimation of the relevant species or stock size in our determination of whether an authorization is limited to small numbers of marine mammals. In that regard, NMFS proposes to limit its authorization of take to 30 percent of the most appropriate stock abundance estimate, assuming no other relevant factors that provide more context for the estimate,
In addition, we have proposed time-area restrictions targeted at certain species (see “Proposed Mitigation”). In particular, one such proposed restriction is targeted towards on-shelf Atlantic spotted dolphins specifically to reduce the likely number of individuals taken. This measure is proposed for implementation for Spectrum, TGS, and Western, due to the uniformly high number of predicted exposures of Atlantic spotted dolphins across all three applicants. In addition, we have proposed time-area restrictions targeted towards sperm whales, beaked whales, and pilot whales. While these restrictions are primarily intended to provide protections important to our preliminary negligible impact findings for each applicant, they would also be expected to reduce the total number of individuals taken (of the three target species/guilds as well as other species likely to be present in those areas). While we are unable to quantify the likely reduction in individuals taken as a result of the proposed mitigation, we believe that the combination of the proposed mitigation and the controls on taking through proposed monitoring and reporting requirements will be effective in limiting the taking of individuals of any species to small numbers. Applicant-specific analyses follow.
Based on the analysis contained herein of Spectrum's specified activity, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we preliminarily find that small numbers of marine mammals will be taken relative to each of the affected species or stocks.
Based on the analysis contained herein of TGS's specified activity, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we preliminarily find that small numbers of marine mammals will be taken relative to each of the affected species or stocks.
Based on the analysis contained herein of Western's specified activity, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we preliminarily find that small numbers of marine mammals will be taken relative to each of the affected species or stocks.
Based on the analysis contained herein of CGG's specified activity, and taking into consideration the implementation of the proposed monitoring and mitigation measures, we preliminarily find that small numbers of marine mammals will be taken relative to each of the affected species or stocks.
In order to issue an IHA 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 incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Any monitoring requirement we prescribe should improve our understanding of one or more of the following:
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) population, species, or stock.
• Effects on marine mammal habitat and resultant impacts to marine mammals.
• Mitigation and monitoring effectiveness.
Proposed monitoring requirements are the same for all applicants (except as noted), and a single discussion is provided here.
All PSO resumes must be submitted to NMFS and PSOs must be approved by NMFS after a review of their qualifications. PSOs should provide a current resume and information related to PSO training, if available. The latter should include (1) a course information packet that includes the name and qualifications (
• A bachelor's degree from an accredited college or university with a major in one of the natural sciences and a minimum of 30 semester hours or equivalent in the biological sciences and at least one undergraduate course in math or statistics;
• Experience and ability to conduct field observations and collect data according to assigned protocols (may include academic experience; required for visual PSOs only) and experience with data entry on computers;
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target (required for visual PSOs only);
• Experience or training in the field identification of marine mammals, including the identification of behaviors (required for visual PSOs only);
• Sufficient training, orientation, or experience with the survey operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; marine mammal behavior; and descriptions of activity conducted and implementation of mitigation;
• Ability to communicate orally, by radio or in person, with survey personnel to provide real-time information on marine mammals observed in the area as necessary; and
• Successful completion of relevant training (described below), including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must include written justification, and prospective PSOs granted waivers must satisfy training requirements described below. Alternate experience that may be considered includes, but is not limited to, the following:
• Secondary education and/or experience comparable to PSO duties.
• Previous work experience conducting academic, commercial, or
• Previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
• Life at sea, duties, and authorities;
• Ethics, conflicts of interest, standards of conduct, and data confidentiality;
• Offshore survival and safety training;
• Overview of oil and gas activities (including geophysical data acquisition operations, theory, and principles) and types of relevant sound source technology and equipment;
• Overview of the MMPA and ESA as they relate to protection of marine mammals;
• Mitigation, monitoring, and reporting requirements as they pertain to geophysical surveys;
• Marine mammal identification, biology and behavior;
• Background on underwater sound;
• Visual surveying protocols, distance calculations and determination, cues, and search methods for locating and tracking different marine mammal species (visual PSOs only);
• Optimized deployment and configuration of PAM equipment to ensure effective detections of cetaceans for mitigation purposes (PAM operators only);
• Detection and identification of vocalizing species or cetacean groups (PAM operators only);
• Measuring distance and bearing of vocalizing cetaceans while accounting for vessel movement (PAM operators only);
• Data recording and protocols, including standard forms and reports, determining range, distance, direction, and bearing of marine mammals and vessels; recording GPS location coordinates, weather conditions, Beaufort wind force and sea state, etc.;
• Proficiency with relevant software tools;
• Field communication/support with appropriate personnel, and using communication devices (
• Reporting of violations, noncompliance, and coercion; and
• Conflict resolution.
PAM operators should regularly refresh their detection skills through practice with simulation-modelling software, and should keep up to date with training on the latest software/hardware advances.
The lead PSO is responsible for establishing and maintaining clear lines of communication with vessel crew. The vessel operator shall work with the lead PSO to accomplish this and shall ensure any necessary briefings are provided for vessel crew to understand mitigation requirements and protocols. While on duty, PSOs would continually scan the water surface in all directions around the acoustic source and vessel for presence of marine mammals, using a combination of the naked eye and high-quality binoculars, from optimum vantage points for unimpaired visual observations with minimum distractions. PSOs would collect observational data for all marine mammals observed, regardless of distance from the vessel, including species, group size, presence of calves, distance from vessel and direction of travel, and any observed behavior (including an assessment of behavioral responses to survey activity). Upon observation of marine mammal(s), a PSO would record the observation and monitor the animal's position (including latitude/longitude of the vessel and relative bearing and estimated distance to the animal) until the animal dives or moves out of visual range of the observer, and a PSO would continue to observe the area to watch for the animal to resurface or for additional animals that may surface in the area. PSOs would also record environmental conditions at the beginning and end of the observation period and at the time of any observations, as well as whenever conditions change significantly in the judgment of the PSO on duty.
The vessel operator must provide bigeye binoculars (
Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to protocol will be coordinated between NMFS and the applicant.
Monitoring of a towed PAM system is required at all times, from 30 minutes prior to ramp-up and throughout all use of the acoustic source. Towed PAM systems generally consist of hardware (
Our requirement to use PAM refers to the use of calibrated hydrophone arrays with full system redundancy to detect, identify and estimate distance and bearing to vocalizing cetaceans, to the extent possible. With regard to calibration, the PAM system should have at least one calibrated hydrophone, sufficient for determining whether background noise levels on the towed PAM system are sufficiently low to meet performance expectations. Additionally, if multiple hydrophone types occur in a system (
In coordination with vessel crew, the lead PAM operator should be responsible for deployment, retrieval, and testing and optimization of the hydrophone array. While on duty, the PAM operator should diligently listen to received signals and/or monitoring display screens in order to detect vocalizing cetaceans, except as required to attend to PAM equipment. The PAM operator should use appropriate sample analysis and filtering techniques and, as described below, must report all cetacean detections. While not required prior to development of formal standards for PAM use, we recommend that vessel self-noise assessments are undertaken during mobilization in order to optimize PAM array configuration according to the specific noise characteristics of the vessel and equipment involved, and to refine expectations for distance/bearing estimations for cetacean species during the survey. Copies of any vessel self-noise assessment reports should be included with the summary trip report.
PSOs must use standardized data forms, whether hard copy or electronic. PSOs will record detailed information about any implementation of mitigation requirements, including the distance of animals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up of the acoustic source to resume survey. If required mitigation was not implemented, PSOs should submit a description of the circumstances. We require that, at a minimum, the following information be reported:
• If a marine mammal is sighted, the following information should be recorded:
PSO effort, survey details, and sightings data should be recorded continuously during surveys and reports prepared each day during which survey effort is conducted. As described previously, applicants with predicted exposures of any species exceeding the 30-percent threshold (
There are multiple reasons why marine mammals may be present and yet be undetected by observers. Animals are missed because they are underwater (availability bias) or because they are available to be seen, but are missed by observers (perception and detection biases) (
• 1/
• The effective strip width was divided by the truncation distance used to calculate
• This value is detection probability or the average probability that an animal would be seen within the truncation distance from the vessel.
• For cryptic species where only sea states 0 to 2 were used to calculate
• Different detection probability values were calculated for groups with 1–16, 17–60 and greater than 60 individuals based on the different
• The mean group size for the species or guild determined the appropriate detection probability that was used for that species or guild.
A draft comprehensive report would be submitted to NMFS within 90 days of the completion of survey effort, and must include all information described above under “Data Collection.” The report will describe the operations conducted and sightings of marine mammals near the operations. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will summarize the dates and locations of survey operations, and all marine mammal sightings (dates, times, locations, activities, associated survey activities); geospatial data regarding locations where the acoustic source was used must be provided as an ESRI shapefile with all necessary files and appropriate metadata. In addition to the report, all raw observational data shall be made available to NMFS. This report must also include a validation document concerning the use of PAM, which should include necessary noise validation diagrams and demonstrate whether background noise levels on the PAM deployment limited achievement of the planned detection goals.
The report will also include estimates of the number of takes based on the observations and in consideration of the detectability of the marine mammal species observed (
In the event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as a serious injury or mortality, the applicant shall immediately cease the specified activities and immediately report the take to NMFS. 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 applicant shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS would work with the applicant to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The applicant may not resume their activities until notified by NMFS.
In the event that the applicant discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the applicant discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the specified activities (
There are no relevant subsistence uses of marine mammals implicated by these actions. Therefore, relevant to the Spectrum, TGS, ION, CGG, and Western proposed IHAs, we have 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.
There are six marine mammal species listed as endangered under the ESA that may occur in the proposed survey areas. Under section 7 of the ESA, BOEM requested initiation of formal consultation (on behalf of itself and BSEE) in 2012 with NMFS's Office of Protected Resources, Endangered Species Act Interagency Cooperation Division (Interagency Cooperation Division) on the proposed authorization of geological and geophysical survey activities under its oil and gas, renewable energy and marine minerals programs. These activities were described in BOEM's Draft PEIS for Atlantic OCS Proposed Geological and Geophysical Activities in the Mid-Atlantic and South Atlantic Planning Areas. NMFS concluded formal consultation by issuing a final Biological Opinion to BOEM and BSEE on July 19, 2013, determining that the proposed activities were not likely to jeopardize the continued existence of threatened or endangered species nor destroy or adversely modify designated critical habitat under NMFS's jurisdiction. On October 16, 2015, BOEM and BSEE reinitiated consultation with NMFS.
NMFS's Office of Protected Resources, Permits and Conservation Division will also consult internally with Interagency Cooperation Division on the proposed issuance of authorizations under section 101(a)(5)(D) of the MMPA. NMFS will conclude the consultation prior to reaching a determination regarding the proposed issuance of the authorizations.
In 2014, the BOEM produced a PEIS to evaluate potential significant environmental effects of G&G activities on the Mid- and South Atlantic OCS, pursuant to requirements of NEPA. These activities include geophysical surveys in support of hydrocarbon exploration, as are proposed in the MMPA applications before NMFS. The PEIS is available at:
As a result of these preliminary determinations, we propose to issue five separate IHAs to the aforementioned applicant companies for conducting the described geophysical survey activities in the Atlantic Ocean within BOEM's Mid- and South Atlantic OCS planning areas, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Specific language from the proposed IHAs is provided next.
This section contains drafts of the IHAs. The wording contained in this section is proposed for inclusion in the IHAs (if issued).
1. This incidental harassment authorization (IHA) is valid for a period of one year from the date of issuance.
2. This IHA is valid only for marine geophysical survey activity, as specified in Spectrum's IHA application and using an array with characteristics specified in the application, in the Atlantic Ocean within BOEM's Mid- and South Atlantic OCS planning areas.
3. General Conditions
(a) A copy of this IHA must be in the possession of Spectrum, the vessel operator and other relevant personnel, the lead protected species observer (PSO), and any other relevant designees of Spectrum operating under the authority of this IHA.
(b) The species authorized for taking are listed in Table 11. The taking, by Level A and Level B harassment only, is limited to the species and numbers listed in Table 11.
(c) The taking by serious injury or death of any of the species listed in Table 11 or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA. Any taking exceeding the authorized amounts listed in Table 11 is prohibited and may result in the modification, suspension, or revocation of this IHA.
(d) Spectrum shall ensure that the vessel operator and other relevant vessel personnel are briefed on all responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements prior to the start of survey activity, and when relevant new personnel join the survey operations. Spectrum shall instruct relevant vessel personnel with regard to the authority of the protected species monitoring team, and shall ensure that relevant vessel personnel and protected species monitoring team participate in a joint onboard briefing led by the vessel operator and lead PSO to ensure that responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements are clearly understood. This briefing must be repeated when relevant new personnel join the survey operations.
(e) During use of the acoustic source, if the source vessel encounters any marine mammal species that are not listed in Table 11, then the acoustic source must be shut down to avoid unauthorized take.
4. Mitigation Requirements
The holder of this Authorization is required to implement the following mitigation measures:
(a) Spectrum must use independent, dedicated, trained PSOs, meaning that the PSOs must be employed by a third-party observer provider, may have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and must have successfully completed an approved PSO training course. NMFS must review and approve PSO resumes accompanied by a relevant training course information packet that includes the name and qualifications (
(b) At least two PSOs must have a minimum of 90 days at-sea experience working as PSOs during a deep penetration seismic survey, with no more than eighteen months elapsed since the conclusion of the at-sea experience. At least one of these must have relevant experience as a visual PSO and at least one must have relevant experience as an acoustic PSO. One “experienced” visual PSO shall be designated as the lead for the entire protected species observation team. The lead shall coordinate duty schedules and roles for the PSO team and serve as primary point of contact for the vessel operator. The lead PSO shall devise the duty schedule such that “experienced” PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience to the maximum extent practicable.
(c) Visual Observation
(i) During survey operations (
(ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset.
(iii) Visual PSOs shall coordinate to ensure 360° visual coverage around the vessel from the most appropriate observation posts, and shall conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner.
(iv) Visual PSOs shall communicate all observations to acoustic PSOs, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(v) Visual PSOs may be on watch for a maximum of two consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(vi) Any observations of marine mammals by crew members aboard any vessel associated with the survey, including chase vessels, shall be relayed to the source vessel and to the PSO team.
(vii) During good conditions (
(d) Acoustic Observation
(i) The source vessel must use a towed passive acoustic monitoring (PAM) system, which must be monitored beginning at least 30 minutes prior to ramp-up and at all times during use of the acoustic source.
(ii) Acoustic PSOs shall communicate all detections to visual PSOs, when visual PSOs are on duty, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(iii) Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(iv) Survey activity may continue for brief periods of time when the PAM system malfunctions or is damaged. Activity may continue for 30 minutes without PAM while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring under the following conditions:
(A) Daylight hours and sea state is less than or equal to BSS 4;
(B) No marine mammals (excluding small delphinoids) detected solely by PAM in the exclusion zone in the previous two hours;
(C) NMFS is notified via email as soon as practicable with the time and location in which operations began without an active PAM system; and
(D) Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
(e) Buffer Zone and Exclusion Zone—The PSOs shall establish and monitor a 500-m exclusion zone and a 1,000-m buffer zone. These zones shall be based upon radial distance from any element
(f) Ramp-up—A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. Ramp-up may not be initiated if any marine mammal is within the designated buffer zone. If a marine mammal is observed within the buffer zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting the buffer zone or until an additional time period has elapsed with no further sightings (
(g) Shutdown Requirements
(i) Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source (visual PSOs on duty should be in agreement on the need for delay or shutdown before requiring such action). When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual observations by the acoustic PSO or of acoustic detections by visual PSOs and initiation of dialogue as necessary. When there is certainty regarding the need for mitigation action on the basis of either visual or acoustic detection alone, the relevant PSO(s) must call for such action immediately. When only the acoustic PSO is on duty and a detection is made, if there is uncertainty regarding species identification or distance to the vocalizing animal(s), the acoustic source must be shut down as a precaution.
(ii) Upon completion of ramp-up, if a marine mammal appears within, enters, or appears on a course to enter the exclusion zone, the acoustic source must be shut down (
(A) This shutdown requirement is waived for dolphins of the following genera:
(iii) Shutdown of the acoustic source is required upon observation of a right whale at any distance.
(iv) Shutdown of the acoustic source is required upon observation of a whale (
(v) Shutdown of the acoustic source is required upon observation of a diving sperm whale at any distance centered on the forward track of the source vessel.
(vi) Shutdown of the acoustic source is required upon observation (visual or acoustic) of a beaked whale or
(vii) Shutdown of the acoustic source is required upon observation of an aggregation (
(viii) Upon implementation of shutdown, the source may be reactivated after the animal(s) has been observed exiting the exclusion zone or following a 30-minute clearance period with no further observation of the animal(s). Where there is no relevant zone (
(ix) If the acoustic source is shut down for reasons other than mitigation (
(h) Miscellaneous Protocols
(i) The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source shall be avoided. Notified operational capacity (not including redundant backup airguns) must not be exceeded during the survey, except where unavoidable for source testing and calibration purposes. All occasions where activated source volume exceeds notified operational capacity must be noticed to the PSO(s) on duty and fully documented. The lead PSO must be granted access to relevant instrumentation documenting acoustic source power and/or operational volume.
(ii) Testing of the acoustic source involving all elements requires normal mitigation protocols (
(i) Closure Areas
(i) No use of the acoustic source may occur within 30 km of the coast.
(ii) From November 1 through April 30, no use of the acoustic source may occur within an area bounded by the greater of three distinct components at any location: (1) A 47-km wide coastal strip throughout the entire Mid- and South Atlantic OCS planning areas; (2) Unit 2 of designated critical habitat for the North Atlantic right whale, buffered by 10 km; and (3) the designated southeastern seasonal management area (SMA) for the North Atlantic right whale, buffered by 10 km. North Atlantic right whale dynamic management areas (DMA; buffered by 10 km) are also closed to use of the acoustic source when in effect. It is the responsibility of the survey operators to monitor appropriate media and to be aware of designated DMAs.
(iii) No use of the acoustic source may occur within the areas designated by coordinates in Table 3 during applicable time periods. Area #1 is in effect from June 1 through August 31. Areas #2–4 are in effect year-round. Area #5 is in effect from July 1 through September 30.
(j) Vessel Strike Avoidance
(i) Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down or stop their vessel or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel according to the parameters stated below. Visual observers monitoring the vessel strike avoidance zone can be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena and broadly to identify a marine mammal as a right whale, other whale, or other marine mammal (
(ii) All vessels, regardless of size, must observe the 10 kn speed restriction in DMAs, the Mid-Atlantic SMA (from November 1 through April 30), and critical habitat and the Southeast SMA (from November 15 through April 15).
(iii) Vessel speeds must also be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.
(iv) All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action. The following avoidance measures must be taken if a right whale is within 500 m of any vessel:
(A) While underway, the vessel operator must steer a course away from the whale at 10 kn or less until the minimum separation distance has been established.
(B) If a whale is spotted in the path of a vessel or within 100 m of a vessel underway, the operator shall reduce speed and shift engines to neutral. The operator shall re-engage engines only after the whale has moved out of the path of the vessel and is more than 100 m away. If the whale is still within 500 m of the vessel, the vessel must select a course away from the whale's course at a speed of 10 kn or less. This procedure must also be followed if a whale is spotted while a vessel is stationary. Whenever possible, a vessel should remain parallel to the whale's course while maintaining the 500-m distance as it travels, avoiding abrupt changes in direction until the whale is no longer in the area.
(v) All vessels must maintain a minimum separation distance of 100 m from other whales. The following avoidance measures must be taken if a whale other than a right whale is within 100 m of any vessel:
(A) The vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the whale has moved outside of the vessel's path and the minimum separation distance has been established.
(B) If a vessel is stationary, the vessel must not engage engines until the whale(s) has moved out of the vessel's path and beyond 100 m.
(vi) All vessels must maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel. If an animal is encountered during transit, a vessel shall attempt to remain parallel to the animal's course, avoiding excessive speed or abrupt changes in course.
(k) All vessels associated with survey activity (
5. Monitoring Requirements
The holder of this Authorization is required to conduct marine mammal monitoring during survey activity. Monitoring shall be conducted in accordance with the following requirements:
(a) The operator must provide bigeye binoculars (
(b) PSOs must also be equipped with reticle binoculars (
(c) PSO Qualifications
(i) PSOs must successfully complete relevant training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
(ii) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences and a minimum of 30 semester hours or equivalent in the biological sciences and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must include written justification. Alternate experience that may be considered includes, but is not limited to (1) secondary education and/or experience comparable to PSO duties; (2) previous work experience conducting academic, commercial, or government-sponsored marine mammal surveys; or (3) previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
(d) Data Collection—PSOs must use standardized data forms, whether hard copy or electronic. PSOs shall record
(i) Vessel names (source vessel and other vessels associated with survey) and call signs
(ii) PSO names and affiliations
(iii) Dates of departures and returns to port with port name
(iv) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort
(v) Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts
(vi) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change
(vii) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon
(viii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
(ix) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
(x) If a marine mammal is sighted, the following information should be recorded:
(A) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform)
(B) PSO who sighted the animal
(C) Time of sighting
(D) Vessel location at time of sighting
(E) Water depth
(F) Direction of vessel's travel (compass direction)
(G) Direction of animal's travel relative to the vessel
(H) Pace of the animal
(I) Estimated distance to the animal and its heading relative to vessel at initial sighting
(J) Identification of the animal (
(K) Estimated number of animals (high/low/best)
(L) Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.)
(M) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics)
(N) Detailed behavior observations (
(O) Animal's closest point of approach (CPA) and/or closest distance from the center point of the acoustic source;
(P) Platform activity at time of sighting (
(Q) Description of any actions implemented in response to the sighting (
(xi) If a marine mammal is detected while using the PAM system, the following information should be recorded:
(A) An acoustic encounter identification number, and whether the detection was linked with a visual sighting
(B) Time when first and last heard
(C) Types and nature of sounds heard (
(D) Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), and any other notable information.
6. Reporting
(a) Spectrum shall submit monthly interim reports detailing the amount and location of line-kms surveyed, all marine mammal observations with closest approach distance, and corrected numbers of marine mammals “taken,” using correction factors given in Table 19.
(b) Spectrum shall submit a draft comprehensive report on all activities and monitoring results within 90 days of the completion of the survey or expiration of the IHA, whichever comes sooner. The report must describe all activities conducted and sightings of marine mammals near the activities, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of survey operations and all marine mammal sightings (dates, times, locations, activities, associated survey activities). Geospatial data regarding locations where the acoustic source was used must be provided as an ESRI shapefile with all necessary files and appropriate metadata. In addition to the report, all raw observational data shall be made available to NMFS. The report must summarize the information submitted in interim monthly reports as well as additional data collected as required under condition 5(d) of this IHA. The draft report must be accompanied by a certification from the lead PSO as to the accuracy of the report, and the lead PSO may submit directly to NMFS a statement concerning implementation and effectiveness of the required mitigation and monitoring. A final report must be submitted within 30 days following resolution of any comments on the draft report.
(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 not prohibited by this IHA (if issued), such as serious injury or mortality, Spectrum shall immediately cease the specified activities and immediately report the incident to NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Name and type of vessel involved;
(C) Vessel's speed during and leading up to the incident;
(D) Description of the incident;
(E) Status of all sound source use in the 24 hours preceding the incident;
(F) Water depth;
(G) Environmental conditions (
(H) Description of all marine mammal observations in the 24 hours preceding the incident;
(I) Species identification or description of the animal(s) involved;
(J) Fate of the animal(s); and
(K) Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take.
(ii) In the event that Spectrum discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
(iii) In the event that Spectrum discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the specified activities (
7. This Authorization 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. TGS
1. This incidental harassment authorization (IHA) is valid for a period of one year from the date of issuance.
2. This IHA is valid only for marine geophysical survey activity, as specified in TGS's IHA application and using an array with characteristics specified in the application, in the Atlantic Ocean within BOEM's Mid- and South Atlantic OCS planning areas.
3. General Conditions
(a) A copy of this IHA must be in the possession of TGS, the vessel operator and other relevant personnel, the lead protected species observer (PSO), and any other relevant designees of TGS operating under the authority of this IHA.
(b) The species authorized for taking are listed in Table 11. The taking, by Level A and Level B harassment only, is limited to the species and numbers listed in Table 11.
(c) The taking by serious injury or death of any of the species listed in Table 11 or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA. Any taking exceeding the authorized amounts listed in Table 11 is prohibited and may result in the modification, suspension, or revocation of this IHA.
(d) TGS shall ensure that the vessel operator and other relevant vessel personnel are briefed on all responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements prior to the start of survey activity, and when relevant new personnel join the survey operations. TGS shall instruct relevant vessel personnel with regard to the authority of the protected species monitoring team, and shall ensure that relevant vessel personnel and protected species monitoring team participate in a joint onboard briefing led by the vessel operator and lead PSO to ensure that responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements are clearly understood. This briefing must be repeated when relevant new personnel join the survey operations.
(e) During use of the acoustic source, if the source vessel encounters any marine mammal species that are not listed in Table 11, then the acoustic source must be shut down to avoid unauthorized take.
4. Mitigation Requirements
The holder of this Authorization is required to implement the following mitigation measures:
(a) TGS must use independent, dedicated, trained PSOs, meaning that the PSOs must be employed by a third-party observer provider, may have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and must have successfully completed an approved PSO training course. NMFS must review and approve PSO resumes accompanied by a relevant training course information packet that includes the name and qualifications (
(b) At least two PSOs must have a minimum of 90 days at-sea experience working as PSOs during a deep penetration seismic survey, with no more than 18 months elapsed since the conclusion of the at-sea experience. At least one of these must have relevant experience as a visual PSO and at least one must have relevant experience as an acoustic PSO. One “experienced” visual PSO shall be designated as the lead for the entire protected species observation team. The lead shall coordinate duty schedules and roles for the PSO team and serve as primary point of contact for the vessel operator. The lead PSO shall devise the duty schedule such that “experienced” PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience to the maximum extent practicable.
(c) Visual Observation
(i) During survey operations (
(ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset.
(iii) Visual PSOs shall coordinate to ensure 360° visual coverage around the vessel from the most appropriate observation posts, and shall conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner.
(iv) Visual PSOs shall communicate all observations to acoustic PSOs, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(v) Visual PSOs may be on watch for a maximum of two consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(vi) Any observations of marine mammals by crew members aboard any vessel associated with the survey, including chase vessels, shall be relayed to the source vessel and to the PSO team.
(vii) During good conditions (
(d) Acoustic Observation
(i) The source vessel must use a towed passive acoustic monitoring (PAM) system, which must be monitored beginning at least 30 minutes prior to ramp-up and at all times during use of the acoustic source.
(ii) Acoustic PSOs shall communicate all detections to visual PSOs, when visual PSOs are on duty, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(iii) Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(iv) Survey activity may continue for brief periods of time when the PAM system malfunctions or is damaged. Activity may continue for 30 minutes without PAM while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring under the following conditions:
(A) Daylight hours and sea state is less than or equal to BSS 4;
(B) No marine mammals (excluding small delphinoids) detected solely by PAM in the exclusion zone in the previous two hours;
(C) NMFS is notified via email as soon as practicable with the time and location in which operations began without an active PAM system; and
(D) Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
(e) Buffer Zone and Exclusion Zone—The PSOs shall establish and monitor a 500-m exclusion zone and a 1,000-m buffer zone. These zones shall be based upon radial distance from any element of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source, occurrence of marine mammals within the buffer zone (but outside the exclusion zone) shall be communicated to the operator to prepare for the potential shutdown of the acoustic source. PSOs must monitor the buffer zone for a minimum of 30 minutes prior to ramp-up (
(f) Ramp-up—A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. Ramp-up may not be initiated if any marine mammal is within the designated buffer zone. If a marine mammal is observed within the buffer zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting the buffer zone or until an additional time period has elapsed with no further sightings (
(g) Shutdown Requirements
(i) Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source (visual PSOs on duty should be in agreement on the need for delay or shutdown before requiring such action). When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual observations by the acoustic PSO or of acoustic detections by visual PSOs and initiation of dialogue as necessary. When there is certainty regarding the need for mitigation action on the basis of either visual or acoustic detection alone, the relevant PSO(s) must call for such action immediately. When only the acoustic PSO is on duty and a detection is made, if there is uncertainty regarding species identification or distance to the vocalizing animal(s), the acoustic source must be shut down as a precaution.
(ii) Upon completion of ramp-up, if a marine mammal appears within, enters, or appears on a course to enter the exclusion zone, the acoustic source must be shut down (
(A) This shutdown requirement is waived for dolphins of the following genera:
(iii) Shutdown of the acoustic source is required upon observation of a right whale or fin whale at any distance.
(iv) Shutdown of the acoustic source is required upon observation of a whale (
(v) Shutdown of the acoustic source is required upon observation of a diving sperm whale at any distance centered on the forward track of the source vessel.
(vi) Shutdown of the acoustic source is required upon observation (visual or acoustic) of a beaked whale or
(vii) Shutdown of the acoustic source is required upon observation of an aggregation (
(viii) Upon implementation of shutdown, the source may be reactivated after the animal(s) has been observed exiting the exclusion zone or following a 30-minute clearance period with no further observation of the animal(s). Where there is no relevant zone (
(ix) If the acoustic source is shut down for reasons other than mitigation (
(h) Miscellaneous Protocols
(i) The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source shall be avoided. Notified operational capacity (not including redundant backup airguns) must not be exceeded during the survey, except where unavoidable for source testing and calibration purposes. All occasions where activated source volume exceeds notified operational capacity must be noticed to the PSO(s) on duty and fully documented. The lead PSO must be granted access to relevant instrumentation documenting acoustic source power and/or operational volume.
(ii) Testing of the acoustic source involving all elements requires normal mitigation protocols (
(i) Closure Areas
(i) No use of the acoustic source may occur within 30 km of the coast.
(ii) From November 1 through April 30, no use of the acoustic source may occur within an area bounded by the greater of three distinct components at any location: (1) A 47-km wide coastal strip throughout the entire Mid- and South Atlantic OCS planning areas; (2) Unit 2 of designated critical habitat for the North Atlantic right whale, buffered by 10 km; and (3) the designated southeastern seasonal management area (SMA) for the North Atlantic right whale, buffered by 10 km. North Atlantic right whale dynamic management areas (DMA; buffered by 10 km) are also closed to use of the acoustic source when in effect. It is the responsibility of the survey operators to monitor appropriate media and to be aware of designated DMAs.
(iii) No use of the acoustic source may occur within the areas designated by coordinates in Table 3 during applicable time periods. Area #1 is in effect from June 1 through August 31. Areas #2–4 are in effect year-round. Area #5 is in effect from July 1 through September 30.
(j) Vessel Strike Avoidance
(i) Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down or stop their vessel or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel according to the parameters stated below. Visual observers monitoring the vessel strike avoidance zone can be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena and broadly to identify a marine mammal as a right whale, other whale, or other marine mammal (
(ii) All vessels, regardless of size, must observe the 10 kn speed restriction in DMAs, the Mid-Atlantic SMA (from November 1 through April 30), and critical habitat and the Southeast SMA (from November 15 through April 15).
(iii) Vessel speeds must also be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.
(iv) All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action. The following avoidance measures must be taken if a right whale is within 500 m of any vessel:
(A) While underway, the vessel operator must steer a course away from the whale at 10 kn or less until the minimum separation distance has been established.
(B) If a whale is spotted in the path of a vessel or within 100 m of a vessel underway, the operator shall reduce speed and shift engines to neutral. The operator shall re-engage engines only after the whale has moved out of the path of the vessel and is more than 100 m away. If the whale is still within 500 m of the vessel, the vessel must select a course away from the whale's course at a speed of 10 kn or less. This procedure must also be followed if a whale is spotted while a vessel is stationary. Whenever possible, a vessel should remain parallel to the whale's course while maintaining the 500-m distance as it travels, avoiding abrupt changes in direction until the whale is no longer in the area.
(v) All vessels must maintain a minimum separation distance of 100 m from other whales. The following avoidance measures must be taken if a whale other than a right whale is within 100 m of any vessel:
(A) The vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the whale has moved outside of the vessel's path and the minimum separation distance has been established.
(B) If a vessel is stationary, the vessel must not engage engines until the whale(s) has moved out of the vessel's path and beyond 100 m.
(vi) All vessels must maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel. If an animal is encountered during transit, a vessel shall attempt to remain parallel to the animal's course, avoiding excessive speed or abrupt changes in course.
(k) All vessels associated with survey activity (
5. Monitoring Requirements
The holder of this Authorization is required to conduct marine mammal monitoring during survey activity. Monitoring shall be conducted in accordance with the following requirements:
(a) The operator must provide bigeye binoculars (
(b) PSOs must also be equipped with reticle binoculars (
(c) PSO Qualifications
(i) PSOs must successfully complete relevant training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
(ii) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences and a minimum of 30 semester hours or equivalent in the biological sciences and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must include written justification. Alternate experience that may be considered includes, but is not limited to (1) secondary education and/or experience comparable to PSO duties; (2) previous work experience conducting academic, commercial, or government-sponsored marine mammal surveys; or (3) previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
(d) Data Collection—PSOs must use standardized data forms, whether hard copy or electronic. PSOs shall record detailed information about any implementation of mitigation requirements, including the distance of animals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up of the acoustic source to resume survey. If required mitigation was not implemented, PSOs should submit a description of the circumstances. We require that, at a minimum, the following information be reported:
(i) Vessel names (source vessel and other vessels associated with survey) and call signs
(ii) PSO names and affiliations
(iii) Dates of departures and returns to port with port name
(iv) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort
(v) Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts
(vi) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change
(vii) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon
(viii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
(ix) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
(x) If a marine mammal is sighted, the following information should be recorded:
(A) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform)
(B) PSO who sighted the animal
(C) Time of sighting
(D) Vessel location at time of sighting
(E) Water depth
(F) Direction of vessel's travel (compass direction)
(G) Direction of animal's travel relative to the vessel
(H) Pace of the animal
(I) Estimated distance to the animal and its heading relative to vessel at initial sighting
(J) Identification of the animal (
(K) Estimated number of animals (high/low/best)
(L) Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.)
(M) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics)
(N) Detailed behavior observations (
(O) Animal's closest point of approach (CPA) and/or closest distance from the center point of the acoustic source;
(P) Platform activity at time of sighting (
(Q) Description of any actions implemented in response to the sighting (
(xi) If a marine mammal is detected while using the PAM system, the following information should be recorded:
(A) An acoustic encounter identification number, and whether the detection was linked with a visual sighting
(B) Time when first and last heard
(C) Types and nature of sounds heard (
(D) Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), and any other notable information.
6. Reporting
(a) TGS shall submit monthly interim reports detailing the amount and location of line-kms surveyed, all marine mammal observations with closest approach distance, and corrected numbers of marine mammals “taken,” using correction factors given in Table 19.
(b) TGS shall submit a draft comprehensive report on all activities and monitoring results within 90 days of the completion of the survey or expiration of the IHA, whichever comes sooner. The report must describe all activities conducted and sightings of marine mammals near the activities, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of
(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 not prohibited by this IHA (if issued), such as serious injury or mortality, TGS shall immediately cease the specified activities and immediately report the incident to NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Name and type of vessel involved;
(C) Vessel's speed during and leading up to the incident;
(D) Description of the incident;
(E) Status of all sound source use in the 24 hours preceding the incident;
(F) Water depth;
(G) Environmental conditions (
(H) Description of all marine mammal observations in the 24 hours preceding the incident;
(I) Species identification or description of the animal(s) involved;
(J) Fate of the animal(s); and
(K) 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 TGS to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. TGS may not resume their activities until notified by NMFS.
(ii) In the event that TGS discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
(iii) In the event that TGS discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the specified activities (
7. This Authorization 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.
1. This incidental harassment authorization (IHA) is valid for a period of one year from the date of issuance.
2. This IHA is valid only for marine geophysical survey activity, as specified in ION's IHA application and using an array with characteristics specified in the application, in the Atlantic Ocean within BOEM's Mid- and South Atlantic OCS planning areas.
3. General Conditions
(a) A copy of this IHA must be in the possession of ION, the vessel operator and other relevant personnel, the lead protected species observer (PSO), and any other relevant designees of ION operating under the authority of this IHA.
(b) The species authorized for taking are listed in Table 11. The taking, by Level A and Level B harassment only, is limited to the species and numbers listed in Table 11.
(c) The taking by serious injury or death of any of the species listed in Table 11 or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA. Any taking exceeding the authorized amounts listed in Table 11 is prohibited and may result in the modification, suspension, or revocation of this IHA.
(d) ION shall ensure that the vessel operator and other relevant vessel personnel are briefed on all responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements prior to the start of survey activity, and when relevant new personnel join the survey operations. ION shall instruct relevant vessel personnel with regard to the authority of the protected species monitoring team, and shall ensure that relevant vessel personnel and protected species monitoring team participate in a joint onboard briefing led by the vessel operator and lead PSO to ensure that responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements are clearly understood. This briefing must be repeated when relevant new personnel join the survey operations.
(e) During use of the acoustic source, if the source vessel encounters any marine mammal species that are not listed in Table 11, then the acoustic source must be shut down to avoid unauthorized take.
4. Mitigation Requirements
The holder of this Authorization is required to implement the following mitigation measures:
(a) ION must use independent, dedicated, trained PSOs, meaning that the PSOs must be employed by a third-party observer provider, may have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and must have successfully completed an approved PSO training course. NMFS must review and approve PSO resumes accompanied by a relevant training course information packet that includes the name and qualifications (
(b) At least two PSOs must have a minimum of 90 days at-sea experience working as PSOs during a deep penetration seismic survey, with no more than 18 months elapsed since the conclusion of the at-sea experience. At least one of these must have relevant experience as a visual PSO and at least one must have relevant experience as an acoustic PSO. One “experienced” visual PSO shall be designated as the lead for
(c) Visual Observation
(i) During survey operations (
(ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset.
(iii) Visual PSOs shall coordinate to ensure 360° visual coverage around the vessel from the most appropriate observation posts, and shall conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner.
(iv) Visual PSOs shall communicate all observations to acoustic PSOs, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(v) Visual PSOs may be on watch for a maximum of two consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(vi) Any observations of marine mammals by crew members aboard any vessel associated with the survey, including chase vessels, shall be relayed to the source vessel and to the PSO team.
(vii) During good conditions (
(d) Acoustic Observation
(i) The source vessel must use a towed passive acoustic monitoring (PAM) system, which must be monitored beginning at least 30 minutes prior to ramp-up and at all times during use of the acoustic source.
(ii) Acoustic PSOs shall communicate all detections to visual PSOs, when visual PSOs are on duty, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(iii) Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(iv) Survey activity may continue for brief periods of time when the PAM system malfunctions or is damaged. Activity may continue for 30 minutes without PAM while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring under the following conditions:
(A) Daylight hours and sea state is less than or equal to BSS 4;
(B) No marine mammals (excluding small delphinoids) detected solely by PAM in the exclusion zone in the previous two hours;
(C) NMFS is notified via email as soon as practicable with the time and location in which operations began without an active PAM system; and
(D) Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
(e) Buffer Zone and Exclusion Zone—The PSOs shall establish and monitor a 500-m exclusion zone and a 1,000-m buffer zone. These zones shall be based upon radial distance from any element of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source, occurrence of marine mammals within the buffer zone (but outside the exclusion zone) shall be communicated to the operator to prepare for the potential shutdown of the acoustic source. PSOs must monitor the buffer zone for a minimum of 30 minutes prior to ramp-up (
(f) Ramp-up—A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. Ramp-up may not be initiated if any marine mammal is within the designated buffer zone. If a marine mammal is observed within the buffer zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting the buffer zone or until an additional time period has elapsed with no further sightings (
(g) Shutdown Requirements
(i) Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source (visual PSOs on duty should be in agreement on the need for delay or shutdown before requiring such action). When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual observations by the acoustic PSO or of acoustic detections by visual PSOs and
(ii) Upon completion of ramp-up, if a marine mammal appears within, enters, or appears on a course to enter the exclusion zone, the acoustic source must be shut down (
(A) This shutdown requirement is waived for dolphins of the following genera:
(iii) Shutdown of the acoustic source is required upon observation of a right whale at any distance.
(iv) Shutdown of the acoustic source is required upon observation of a whale (
(v) Shutdown of the acoustic source is required upon observation of a diving sperm whale at any distance centered on the forward track of the source vessel.
(vi) Shutdown of the acoustic source is required upon observation (visual or acoustic) of a beaked whale or
(vii) Shutdown of the acoustic source is required upon observation of an aggregation (
(viii) Upon implementation of shutdown, the source may be reactivated after the animal(s) has been observed exiting the exclusion zone or following a 30-minute clearance period with no further observation of the animal(s). Where there is no relevant zone (
(ix) If the acoustic source is shut down for reasons other than mitigation (
(h) Miscellaneous Protocols
(i) The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source shall be avoided. Notified operational capacity (not including redundant backup airguns) must not be exceeded during the survey, except where unavoidable for source testing and calibration purposes. All occasions where activated source volume exceeds notified operational capacity must be noticed to the PSO(s) on duty and fully documented. The lead PSO must be granted access to relevant instrumentation documenting acoustic source power and/or operational volume.
(ii) Testing of the acoustic source involving all elements requires normal mitigation protocols (
(i) Closure Areas
(i) No use of the acoustic source may occur within 30 km of the coast.
(ii) From November 1 through April 30, no use of the acoustic source may occur within an area bounded by the greater of three distinct components at any location: (1) A 47-km wide coastal strip throughout the entire Mid- and South Atlantic OCS planning areas; (2) Unit 2 of designated critical habitat for the North Atlantic right whale, buffered by 10 km; and (3) the designated southeastern seasonal management area (SMA) for the North Atlantic right whale, buffered by 10 km. North Atlantic right whale dynamic management areas (DMA; buffered by 10 km) are also closed to use of the acoustic source when in effect. It is the responsibility of the survey operators to monitor appropriate media and to be aware of designated DMAs.
(iii) No use of the acoustic source may occur within Areas #2–5, as designated by coordinates in Table 3 during applicable time periods. Areas #2–4 are in effect year-round. Area #5 is in effect from July 1 through September 30.
(j) Vessel Strike Avoidance
(i) Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down or stop their vessel or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel according to the parameters stated below. Visual observers monitoring the vessel strike avoidance zone can be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena and broadly to identify a marine mammal as a right whale, other whale, or other marine mammal (
(ii) All vessels, regardless of size, must observe the 10 kn speed restriction in DMAs, the Mid-Atlantic SMA (from November 1 through April 30), and critical habitat and the Southeast SMA (from November 15 through April 15).
(iii) Vessel speeds must also be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.
(iv) All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action. The following avoidance measures must be taken if a right whale is within 500 m of any vessel:
(A) While underway, the vessel operator must steer a course away from the whale at 10 kn or less until the minimum separation distance has been established.
(B) If a whale is spotted in the path of a vessel or within 100 m of a vessel underway, the operator shall reduce speed and shift engines to neutral. The operator shall re-engage engines only after the whale has moved out of the path of the vessel and is more than 100 m away. If the whale is still within 500 m of the vessel, the vessel must select a course away from the whale's course at a speed of 10 kn or less. This procedure must also be followed if a
(v) All vessels must maintain a minimum separation distance of 100 m from other whales. The following avoidance measures must be taken if a whale other than a right whale is within 100 m of any vessel:
(A) The vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the whale has moved outside of the vessel's path and the minimum separation distance has been established.
(B) If a vessel is stationary, the vessel must not engage engines until the whale(s) has moved out of the vessel's path and beyond 100 m.
(vi) All vessels must maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel. If an animal is encountered during transit, a vessel shall attempt to remain parallel to the animal's course, avoiding excessive speed or abrupt changes in course.
(k) All vessels associated with survey activity (
5. Monitoring Requirements
The holder of this Authorization is required to conduct marine mammal monitoring during survey activity. Monitoring shall be conducted in accordance with the following requirements:
(a) The operator must provide bigeye binoculars (
(b) PSOs must also be equipped with reticle binoculars (
(c) PSO Qualifications
(i) PSOs must successfully complete relevant training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
(ii) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences and a minimum of 30 semester hours or equivalent in the biological sciences and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must include written justification. Alternate experience that may be considered includes, but is not limited to (1) secondary education and/or experience comparable to PSO duties; (2) previous work experience conducting academic, commercial, or government-sponsored marine mammal surveys; or (3) previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
(d) Data Collection—PSOs must use standardized data forms, whether hard copy or electronic. PSOs shall record detailed information about any implementation of mitigation requirements, including the distance of animals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up of the acoustic source to resume survey. If required mitigation was not implemented, PSOs should submit a description of the circumstances. We require that, at a minimum, the following information be reported:
(i) Vessel names (source vessel and other vessels associated with survey) and call signs
(ii) PSO names and affiliations
(iii) Dates of departures and returns to port with port name
(iv) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort
(v) Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts
(vi) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change
(vii) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon
(viii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
(ix) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
(x) If a marine mammal is sighted, the following information should be recorded:
(A) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform)
(B) PSO who sighted the animal
(C) Time of sighting
(D) Vessel location at time of sighting
(E) Water depth
(F) Direction of vessel's travel (compass direction)
(G) Direction of animal's travel relative to the vessel
(H) Pace of the animal
(I) Estimated distance to the animal and its heading relative to vessel at initial sighting
(J) Identification of the animal (
(K) Estimated number of animals (high/low/best)
(L) Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.)
(M) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics)
(N) Detailed behavior observations (
(O) Animal's closest point of approach (CPA) and/or closest distance from the center point of the acoustic source;
(P) Platform activity at time of sighting (
(Q) Description of any actions implemented in response to the sighting (
(xi) If a marine mammal is detected while using the PAM system, the following information should be recorded:
(A) An acoustic encounter identification number, and whether the detection was linked with a visual sighting
(B) Time when first and last heard
(C) Types and nature of sounds heard (
(D) Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), and any other notable information.
6. Reporting
(a) ION shall submit a draft comprehensive report on all activities and monitoring results within 90 days of the completion of the survey or expiration of the IHA, whichever comes sooner. The report must describe all activities conducted and sightings of marine mammals near the activities, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of survey operations and all marine mammal sightings (dates, times, locations, activities, associated survey activities). Geospatial data regarding locations where the acoustic source was used must be provided as an ESRI shapefile with all necessary files and appropriate metadata. In addition to the report, all raw observational data shall be made available to NMFS. The report must summarize data collected as required under condition 5(d) of this IHA and must provide corrected numbers of marine mammals “taken,” using correction factors given in Table 19. The draft report must be accompanied by a certification from the lead PSO as to the accuracy of the report, and the lead PSO may submit directly to NMFS a statement concerning implementation and effectiveness of the required mitigation and monitoring. A final report must be submitted within 30 days following resolution of any comments on the draft report.
(b) 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 not prohibited by this IHA (if issued), such as serious injury or mortality, ION shall immediately cease the specified activities and immediately report the incident to NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Name and type of vessel involved;
(C) Vessel's speed during and leading up to the incident;
(D) Description of the incident;
(E) Status of all sound source use in the 24 hours preceding the incident;
(F) Water depth;
(G) Environmental conditions (
(H) Description of all marine mammal observations in the 24 hours preceding the incident;
(I) Species identification or description of the animal(s) involved;
(J) Fate of the animal(s); and
(K) 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 ION to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ION may not resume their activities until notified by NMFS.
(ii) In the event that ION discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
(iii) In the event that ION discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the specified activities (
7. This Authorization 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.
1. This incidental harassment authorization (IHA) is valid for a period of one year from the date of issuance.
2. This IHA is valid only for marine geophysical survey activity, as specified in Western's IHA application and using an array with characteristics specified in the application, in the Atlantic Ocean within BOEM's Mid- and South Atlantic OCS planning areas.
3. General Conditions
(a) A copy of this IHA must be in the possession of Western, the vessel operator and other relevant personnel, the lead protected species observer (PSO), and any other relevant designees of Western operating under the authority of this IHA.
(b) The species authorized for taking are listed in Table 11. The taking, by Level A and Level B harassment only, is limited to the species and numbers listed in Table 11.
(c) The taking by serious injury or death of any of the species listed in Table 11 or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA. Any taking exceeding the authorized amounts listed in Table 11 is prohibited and may result in the modification, suspension, or revocation of this IHA.
(d) Western shall ensure that the vessel operator and other relevant vessel personnel are briefed on all responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements prior to the start of survey activity, and when relevant new personnel join the survey operations. Western shall instruct relevant vessel personnel with regard to the authority of the protected species monitoring team, and shall ensure that relevant vessel personnel and protected species monitoring team participate in a joint onboard briefing led by the vessel operator and lead PSO to ensure that responsibilities, communication procedures, marine mammal monitoring
(e) During use of the acoustic source, if the source vessel encounters any marine mammal species that are not listed in Table 11, then the acoustic source must be shut down to avoid unauthorized take.
4. Mitigation Requirements
The holder of this Authorization is required to implement the following mitigation measures:
(a) Western must use independent, dedicated, trained PSOs, meaning that the PSOs must be employed by a third-party observer provider, may have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and must have successfully completed an approved PSO training course. NMFS must review and approve PSO resumes accompanied by a relevant training course information packet that includes the name and qualifications (
(b) At least two PSOs must have a minimum of 90 days at-sea experience working as PSOs during a deep penetration seismic survey, with no more than 18 months elapsed since the conclusion of the at-sea experience. At least one of these must have relevant experience as a visual PSO and at least one must have relevant experience as an acoustic PSO. One “experienced” visual PSO shall be designated as the lead for the entire protected species observation team. The lead shall coordinate duty schedules and roles for the PSO team and serve as primary point of contact for the vessel operator. The lead PSO shall devise the duty schedule such that “experienced” PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience to the maximum extent practicable.
(c) Visual Observation
(i) During survey operations (
(ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset.
(iii) Visual PSOs shall coordinate to ensure 360° visual coverage around the vessel from the most appropriate observation posts, and shall conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner.
(iv) Visual PSOs shall communicate all observations to acoustic PSOs, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(v) Visual PSOs may be on watch for a maximum of two consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(vi) Any observations of marine mammals by crew members aboard any vessel associated with the survey, including chase vessels, shall be relayed to the source vessel and to the PSO team.
(vii) During good conditions (
(d) Acoustic Observation
(i) The source vessel must use a towed passive acoustic monitoring (PAM) system, which must be monitored beginning at least 30 minutes prior to ramp-up and at all times during use of the acoustic source.
(ii) Acoustic PSOs shall communicate all detections to visual PSOs, when visual PSOs are on duty, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(iii) Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(iv) Survey activity may continue for brief periods of time when the PAM system malfunctions or is damaged. Activity may continue for 30 minutes without PAM while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring under the following conditions:
(A) Daylight hours and sea state is less than or equal to BSS 4;
(B) No marine mammals (excluding small delphinoids) detected solely by PAM in the exclusion zone in the previous two hours;
(C) NMFS is notified via email as soon as practicable with the time and location in which operations began without an active PAM system; and
(D) Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
(e) Buffer Zone and Exclusion Zone—The PSOs shall establish and monitor a 500-m exclusion zone and a 1,000-m buffer zone. These zones shall be based upon radial distance from any element of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source, occurrence of marine mammals within the buffer zone (but outside the exclusion zone) shall be communicated to the operator to prepare for the potential shutdown of the acoustic source. PSOs must monitor the buffer zone for a minimum of 30 minutes prior to ramp-up (
(f) Ramp-up—A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. Ramp-up may not be initiated if any marine mammal is within the designated buffer zone. If a marine mammal is observed within the buffer zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting the buffer zone or until an additional time period has elapsed with no further sightings (
(g) Shutdown Requirements
(i) Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source (visual PSOs on duty should be in agreement on the need for delay or shutdown before requiring such action). When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual observations by the acoustic PSO or of acoustic detections by visual PSOs and initiation of dialogue as necessary. When there is certainty regarding the need for mitigation action on the basis of either visual or acoustic detection alone, the relevant PSO(s) must call for such action immediately. When only the acoustic PSO is on duty and a detection is made, if there is uncertainty regarding species identification or distance to the vocalizing animal(s), the acoustic source must be shut down as a precaution.
(ii) Upon completion of ramp-up, if a marine mammal appears within, enters, or appears on a course to enter the exclusion zone, the acoustic source must be shut down (
(A) This shutdown requirement is waived for dolphins of the following genera:
(iii) Shutdown of the acoustic source is required upon observation of a right whale at any distance.
(iv) Shutdown of the acoustic source is required upon observation of a whale (
(v) Shutdown of the acoustic source is required upon observation of a diving sperm whale at any distance centered on the forward track of the source vessel.
(vi) Shutdown of the acoustic source is required upon observation (visual or acoustic) of a beaked whale or
(vii) Shutdown of the acoustic source is required upon observation of an aggregation (
(viii) Upon implementation of shutdown, the source may be reactivated after the animal(s) has been observed exiting the exclusion zone or following a 30-minute clearance period with no further observation of the animal(s). Where there is no relevant zone (
(ix) If the acoustic source is shut down for reasons other than mitigation (
(h) Miscellaneous Protocols
(i) The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source shall be avoided. Notified operational capacity (not including redundant backup airguns) must not be exceeded during the survey, except where unavoidable for source testing and calibration purposes. All occasions where activated source volume exceeds notified operational capacity must be noticed to the PSO(s) on duty and fully documented. The lead PSO must be granted access to relevant instrumentation documenting acoustic source power and/or operational volume.
(ii) Testing of the acoustic source involving all elements requires normal mitigation protocols (
(i) Closure Areas
(i) No use of the acoustic source may occur within 30 km of the coast.
(ii) From November 1 through April 30, no use of the acoustic source may occur within an area bounded by the greater of three distinct components at any location: (1) A 47-km wide coastal strip throughout the entire Mid- and South Atlantic OCS planning areas; (2) Unit 2 of designated critical habitat for the North Atlantic right whale, buffered by 10 km; and (3) the designated southeastern seasonal management area (SMA) for the North Atlantic right whale, buffered by 10 km. North Atlantic right whale dynamic management areas (DMA; buffered by 10 km) are also closed to use of the acoustic source when in effect. It is the responsibility of the survey operators to monitor appropriate media and to be aware of designated DMAs.
(iii) No use of the acoustic source may occur within the areas designated by coordinates in Table 3 during applicable time periods. Area #1 is in effect from June 1 through August 31. Areas #2–4 are in effect year-round. Area #5 is in effect from July 1 through September 30.
(j) Vessel Strike Avoidance
(i) Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down or stop their vessel or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel according to the parameters
(ii) All vessels, regardless of size, must observe the 10 kn speed restriction in DMAs, the Mid-Atlantic SMA (from November 1 through April 30), and critical habitat and the Southeast SMA (from November 15 through April 15).
(iii) Vessel speeds must also be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.
(iv) All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action. The following avoidance measures must be taken if a right whale is within 500 m of any vessel:
(A) While underway, the vessel operator must steer a course away from the whale at 10 kn or less until the minimum separation distance has been established.
(B) If a whale is spotted in the path of a vessel or within 100 m of a vessel underway, the operator shall reduce speed and shift engines to neutral. The operator shall re-engage engines only after the whale has moved out of the path of the vessel and is more than 100 m away. If the whale is still within 500 m of the vessel, the vessel must select a course away from the whale's course at a speed of 10 kn or less. This procedure must also be followed if a whale is spotted while a vessel is stationary. Whenever possible, a vessel should remain parallel to the whale's course while maintaining the 500-m distance as it travels, avoiding abrupt changes in direction until the whale is no longer in the area.
(v) All vessels must maintain a minimum separation distance of 100 m from other whales. The following avoidance measures must be taken if a whale other than a right whale is within 100 m of any vessel:
(A) The vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the whale has moved outside of the vessel's path and the minimum separation distance has been established.
(B) If a vessel is stationary, the vessel must not engage engines until the whale(s) has moved out of the vessel's path and beyond 100 m.
(vi) All vessels must maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel. If an animal is encountered during transit, a vessel shall attempt to remain parallel to the animal's course, avoiding excessive speed or abrupt changes in course.
(k) All vessels associated with survey activity (
5. Monitoring Requirements
The holder of this Authorization is required to conduct marine mammal monitoring during survey activity. Monitoring shall be conducted in accordance with the following requirements:
(a) The operator must provide bigeye binoculars (
(b) PSOs must also be equipped with reticle binoculars (
(c) PSO Qualifications
(i) PSOs must successfully complete relevant training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
(ii) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences and a minimum of 30 semester hours or equivalent in the biological sciences and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver must include written justification. Alternate experience that may be considered includes, but is not limited to (1) secondary education and/or experience comparable to PSO duties; (2) previous work experience conducting academic, commercial, or government-sponsored marine mammal surveys; or (3) previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
(d) Data Collection—PSOs must use standardized data forms, whether hard copy or electronic. PSOs shall record detailed information about any implementation of mitigation requirements, including the distance of animals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up of the acoustic source to resume survey. If required mitigation was not implemented, PSOs should submit a description of the circumstances. We require that, at a minimum, the following information be reported:
(i) Vessel names (source vessel and other vessels associated with survey) and call signs
(ii) PSO names and affiliations
(iii) Dates of departures and returns to port with port name
(iv) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort
(v) Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts
(vi) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change
(vii) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon
(viii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
(ix) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
(x) If a marine mammal is sighted, the following information should be recorded:
(A) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform)
(B) PSO who sighted the animal
(C) Time of sighting
(D) Vessel location at time of sighting
(E) Water depth
(F) Direction of vessel's travel (compass direction)
(G) Direction of animal's travel relative to the vessel
(H) Pace of the animal
(I) Estimated distance to the animal and its heading relative to vessel at initial sighting
(J) Identification of the animal (
(K) Estimated number of animals (high/low/best)
(L) Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.)
(M) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics)
(N) Detailed behavior observations (
(O) Animal's closest point of approach (CPA) and/or closest distance from the center point of the acoustic source;
(P) Platform activity at time of sighting (
(Q) Description of any actions implemented in response to the sighting (
(xi) If a marine mammal is detected while using the PAM system, the following information should be recorded:
(A) An acoustic encounter identification number, and whether the detection was linked with a visual sighting
(B) Time when first and last heard
(C) Types and nature of sounds heard (
(D) Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), and any other notable information.
6. Reporting
(a) Western shall submit monthly interim reports detailing the amount and location of line-kms surveyed, all marine mammal observations with closest approach distance, and corrected numbers of marine mammals “taken,” using correction factors given in Table 19.
(b) Western shall submit a draft comprehensive report on all activities and monitoring results within 90 days of the completion of the survey or expiration of the IHA, whichever comes sooner. The report must describe all activities conducted and sightings of marine mammals near the activities, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of survey operations and all marine mammal sightings (dates, times, locations, activities, associated survey activities). Geospatial data regarding locations where the acoustic source was used must be provided as an ESRI shapefile with all necessary files and appropriate metadata. In addition to the report, all raw observational data shall be made available to NMFS. The report must summarize the information submitted in interim monthly reports as well as additional data collected as required under condition 5(d) of this IHA. The draft report must be accompanied by a certification from the lead PSO as to the accuracy of the report, and the lead PSO may submit directly to NMFS a statement concerning implementation and effectiveness of the required mitigation and monitoring. A final report must be submitted within 30 days following resolution of any comments on the draft report.
(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 not prohibited by this IHA (if issued), such as serious injury or mortality, Western shall immediately cease the specified activities and immediately report the incident to NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Name and type of vessel involved;
(C) Vessel's speed during and leading up to the incident;
(D) Description of the incident;
(E) Status of all sound source use in the 24 hours preceding the incident;
(F) Water depth;
(G) Environmental conditions (
(H) Description of all marine mammal observations in the 24 hours preceding the incident;
(I) Species identification or description of the animal(s) involved;
(J) Fate of the animal(s); and
(K) 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 Western to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Western may not resume their activities until notified by NMFS.
(ii) In the event that Western discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
(iii) In the event that Western discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the specified activities (
7. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if
1. This incidental harassment authorization (IHA) is valid for a period of one year from the date of issuance.
2. This IHA is valid only for marine geophysical survey activity, as specified in CGG's IHA application and using an array with characteristics specified in the application, in the Atlantic Ocean within BOEM's Mid- and South Atlantic OCS planning areas.
3. General Conditions
(a) A copy of this IHA must be in the possession of CGG, the vessel operator and other relevant personnel, the lead protected species observer (PSO), and any other relevant designees of CGG operating under the authority of this IHA.
(b) The species authorized for taking are listed in Table 11. The taking, by Level A and Level B harassment only, is limited to the species and numbers listed in Table 11.
(c) The taking by serious injury or death of any of the species listed in Table 11 or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA. Any taking exceeding the authorized amounts listed in Table 11 is prohibited and may result in the modification, suspension, or revocation of this IHA.
(d) CGG shall ensure that the vessel operator and other relevant vessel personnel are briefed on all responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements prior to the start of survey activity, and when relevant new personnel join the survey operations. CGG shall instruct relevant vessel personnel with regard to the authority of the protected species monitoring team, and shall ensure that relevant vessel personnel and protected species monitoring team participate in a joint onboard briefing led by the vessel operator and lead PSO to ensure that responsibilities, communication procedures, marine mammal monitoring protocol, operational procedures, and IHA requirements are clearly understood. This briefing must be repeated when relevant new personnel join the survey operations.
(e) During use of the acoustic source, if the source vessel encounters any marine mammal species that are not listed in Table 11, then the acoustic source must be shut down to avoid unauthorized take.
4. Mitigation Requirements
The holder of this Authorization is required to implement the following mitigation measures:
(a) CGG must use independent, dedicated, trained PSOs, meaning that the PSOs must be employed by a third-party observer provider, may have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and must have successfully completed an approved PSO training course. NMFS must review and approve PSO resumes accompanied by a relevant training course information packet that includes the name and qualifications (
(b) At least two PSOs must have a minimum of 90 days at-sea experience working as PSOs during a deep penetration seismic survey, with no more than eighteen months elapsed since the conclusion of the at-sea experience. At least one of these must have relevant experience as a visual PSO and at least one must have relevant experience as an acoustic PSO. One “experienced” visual PSO shall be designated as the lead for the entire protected species observation team. The lead shall coordinate duty schedules and roles for the PSO team and serve as primary point of contact for the vessel operator. The lead PSO shall devise the duty schedule such that “experienced” PSOs are on duty with those PSOs with appropriate training but who have not yet gained relevant experience to the maximum extent practicable.
(c) Visual Observation
(i) During survey operations (
(ii) Visual monitoring must begin not less than 30 minutes prior to ramp-up and must continue until one hour after use of the acoustic source ceases or until 30 minutes past sunset.
(iii) Visual PSOs shall coordinate to ensure 360° visual coverage around the vessel from the most appropriate observation posts, and shall conduct visual observations using binoculars and the naked eye while free from distractions and in a consistent, systematic, and diligent manner.
(iv) Visual PSOs shall communicate all observations to acoustic PSOs, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(v) Visual PSOs may be on watch for a maximum of two consecutive hours followed by a break of at least one hour between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(vi) Any observations of marine mammals by crew members aboard any vessel associated with the survey, including chase vessels, shall be relayed to the source vessel and to the PSO team.
(vii) During good conditions (
(d) Acoustic Observation
(i) The source vessel must use a towed passive acoustic monitoring (PAM) system, which must be monitored beginning at least 30 minutes prior to ramp-up and at all times during use of the acoustic source.
(ii) Acoustic PSOs shall communicate all detections to visual PSOs, when visual PSOs are on duty, including any determination by the PSO regarding species identification, distance, and bearing and the degree of confidence in the determination.
(iii) Acoustic PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches and may conduct a maximum of 12 hours observation per 24-hour period.
(iv) Survey activity may continue for brief periods of time when the PAM system malfunctions or is damaged. Activity may continue for 30 minutes without PAM while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring under the following conditions:
(A) Daylight hours and sea state is less than or equal to BSS 4;
(B) No marine mammals (excluding small delphinoids) detected solely by PAM in the exclusion zone in the previous two hours;
(C) NMFS is notified via email as soon as practicable with the time and location in which operations began without an active PAM system; and
(D) Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
(e) Buffer Zone and Exclusion Zone—The PSOs shall establish and monitor a 500-m exclusion zone and a 1,000-m buffer zone. These zones shall be based upon radial distance from any element of the airgun array (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source, occurrence of marine mammals within the buffer zone (but outside the exclusion zone) shall be communicated to the operator to prepare for the potential shutdown of the acoustic source. PSOs must monitor the buffer zone for a minimum of 30 minutes prior to ramp-up (
(f) Ramp-up—A ramp-up procedure, involving a step-wise increase in the number of airguns firing and total array volume until all operational airguns are activated and the full volume is achieved, is required at all times as part of the activation of the acoustic source. Ramp-up may not be initiated if any marine mammal is within the designated buffer zone. If a marine mammal is observed within the buffer zone during the pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting the buffer zone or until an additional time period has elapsed with no further sightings (
(g) Shutdown Requirements
(i) Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source (visual PSOs on duty should be in agreement on the need for delay or shutdown before requiring such action). When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. The operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the acoustic source to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. When both visual and acoustic PSOs are on duty, all detections must be immediately communicated to the remainder of the on-duty PSO team for potential verification of visual observations by the acoustic PSO or of acoustic detections by visual PSOs and initiation of dialogue as necessary. When there is certainty regarding the need for mitigation action on the basis of either visual or acoustic detection alone, the relevant PSO(s) must call for such action immediately. When only the acoustic PSO is on duty and a detection is made, if there is uncertainty regarding species identification or distance to the vocalizing animal(s), the acoustic source must be shut down as a precaution.
(ii) Upon completion of ramp-up, if a marine mammal appears within, enters, or appears on a course to enter the exclusion zone, the acoustic source must be shut down (
(A) This shutdown requirement is waived for dolphins of the following genera:
(iii) Shutdown of the acoustic source is required upon observation of a right whale at any distance.
(iv) Shutdown of the acoustic source is required upon observation of a whale (
(v) Shutdown of the acoustic source is required upon observation of a diving sperm whale at any distance centered on the forward track of the source vessel.
(vi) Shutdown of the acoustic source is required upon observation (visual or acoustic) of a beaked whale or
(vii) Shutdown of the acoustic source is required upon observation of an aggregation (
(viii) Upon implementation of shutdown, the source may be reactivated after the animal(s) has been observed exiting the exclusion zone or following a 30-minute clearance period with no further observation of the animal(s). Where there is no relevant zone (
(ix) If the acoustic source is shut down for reasons other than mitigation (
(h) Miscellaneous Protocols
(i) The acoustic source must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Unnecessary use of the acoustic source shall be avoided.
(ii) Testing of the acoustic source involving all elements requires normal mitigation protocols (
(i) Closure Areas
(i) No use of the acoustic source may occur within 30 km of the coast.
(ii) From November 1 through April 30, no use of the acoustic source may occur within an area bounded by the greater of three distinct components at any location: (1) A 47-km wide coastal strip throughout the entire Mid- and South Atlantic OCS planning areas; (2) Unit 2 of designated critical habitat for the North Atlantic right whale, buffered by 10 km; and (3) the designated southeastern seasonal management area (SMA) for the North Atlantic right whale, buffered by 10 km. North Atlantic right whale dynamic management areas (DMA; buffered by 10 km) are also closed to use of the acoustic source when in effect. It is the responsibility of the survey operators to monitor appropriate media and to be aware of designated DMAs.
(iii) No use of the acoustic source may occur within Areas #2–5, as designated by coordinates in Table 3 during applicable time periods. Areas #2–4 are in effect year-round. Area #5 is in effect from July 1 through September 30.
(j) Vessel Strike Avoidance
(i) Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down or stop their vessel or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel according to the parameters stated below. Visual observers monitoring the vessel strike avoidance zone can be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena and broadly to identify a marine mammal as a right whale, other whale, or other marine mammal (
(ii) All vessels, regardless of size, must observe the 10 kn speed restriction in DMAs, the Mid-Atlantic SMA (from November 1 through April 30), and critical habitat and the Southeast SMA (from November 15 through April 15).
(iii) Vessel speeds must also be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel.
(iv) All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action. The following avoidance measures must be taken if a right whale is within 500 m of any vessel:
(A) While underway, the vessel operator must steer a course away from the whale at 10 kn or less until the minimum separation distance has been established.
(B) If a whale is spotted in the path of a vessel or within 100 m of a vessel underway, the operator shall reduce speed and shift engines to neutral. The operator shall re-engage engines only after the whale has moved out of the path of the vessel and is more than 100 m away. If the whale is still within 500 m of the vessel, the vessel must select a course away from the whale's course at a speed of 10 kn or less. This procedure must also be followed if a whale is spotted while a vessel is stationary. Whenever possible, a vessel should remain parallel to the whale's course while maintaining the 500-m distance as it travels, avoiding abrupt changes in direction until the whale is no longer in the area.
(v) All vessels must maintain a minimum separation distance of 100 m from other whales. The following avoidance measures must be taken if a whale other than a right whale is within 100 m of any vessel:
(A) The vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the whale has moved outside of the vessel's path and the minimum separation distance has been established.
(B) If a vessel is stationary, the vessel must not engage engines until the whale(s) has moved out of the vessel's path and beyond 100 m.
(vi) All vessels must maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel. If an animal is encountered during transit, a vessel shall attempt to remain parallel to the animal's course, avoiding excessive speed or abrupt changes in course.
(k) All vessels associated with survey activity (
5. Monitoring Requirements
The holder of this Authorization is required to conduct marine mammal monitoring during survey activity. Monitoring shall be conducted in accordance with the following requirements:
(a) The operator must provide bigeye binoculars (
(b) PSOs must also be equipped with reticle binoculars (
(c) PSO Qualifications
(i) PSOs must successfully complete relevant training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program.
(ii) PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences and a minimum of 30 semester hours or equivalent in the biological sciences and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such
(d) Data Collection—PSOs must use standardized data forms, whether hard copy or electronic. PSOs shall record detailed information about any implementation of mitigation requirements, including the distance of animals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up of the acoustic source to resume survey. If required mitigation was not implemented, PSOs should submit a description of the circumstances. We require that, at a minimum, the following information be reported:
(i) Vessel names (source vessel and other vessels associated with survey) and call signs
(ii) PSO names and affiliations
(iii) Dates of departures and returns to port with port name
(iv) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort
(v) Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts
(vi) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change
(vii) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon
(viii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
(ix) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
(x) If a marine mammal is sighted, the following information should be recorded:
(A) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform)
(B) PSO who sighted the animal
(C) Time of sighting
(D) Vessel location at time of sighting
(E) Water depth
(F) Direction of vessel's travel (compass direction)
(G) Direction of animal's travel relative to the vessel
(H) Pace of the animal
(I) Estimated distance to the animal and its heading relative to vessel at initial sighting
(J) Identification of the animal (
(K) Estimated number of animals (high/low/best)
(L) Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.)
(M) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics)
(N) Detailed behavior observations (
(O) Animal's closest point of approach (CPA) and/or closest distance from the center point of the acoustic source;
(P) Platform activity at time of sighting (
(Q) Description of any actions implemented in response to the sighting (
(xi) If a marine mammal is detected while using the PAM system, the following information should be recorded:
(A) An acoustic encounter identification number, and whether the detection was linked with a visual sighting
(B) Time when first and last heard
(C) Types and nature of sounds heard (
(D) Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), and any other notable information.
6. Reporting
(a) CGG shall submit monthly interim reports detailing the amount and location of line-kms surveyed, all marine mammal observations with closest approach distance, and corrected numbers of marine mammals “taken,” using correction factors given in Table 19.
(b) CGG shall submit a draft comprehensive report on all activities and monitoring results within 90 days of the completion of the survey or expiration of the IHA, whichever comes sooner. The report must describe all activities conducted and sightings of marine mammals near the activities, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of survey operations and all marine mammal sightings (dates, times, locations, activities, associated survey activities). Geospatial data regarding locations where the acoustic source was used must be provided as an ESRI shapefile with all necessary files and appropriate metadata. In addition to the report, all raw observational data shall be made available to NMFS. The report must summarize the information submitted in interim monthly reports as well as additional data collected as required under condition 5(d) of this IHA. The draft report must be accompanied by a certification from the lead PSO as to the accuracy of the report, and the lead PSO may submit directly to NMFS a statement concerning implementation and effectiveness of the required mitigation and monitoring. A final report must be submitted within 30 days following resolution of any comments on the draft report.
(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 not prohibited by this IHA (if issued), such as serious injury or mortality, CGG shall immediately cease the specified activities and immediately report the incident to NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Name and type of vessel involved;
(C) Vessel's speed during and leading up to the incident;
(D) Description of the incident;
(E) Status of all sound source use in the 24 hours preceding the incident;
(F) Water depth;
(G) Environmental conditions (
(H) Description of all marine mammal observations in the 24 hours preceding the incident;
(I) Species identification or description of the animal(s) involved;
(J) Fate of the animal(s); and
(K) 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 CGG to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. CGG may not resume their activities until notified by NMFS.
(ii) In the event that CGG discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
(iii) In the event that CGG discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the specified activities (
7. This Authorization 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.
We request comment on our analyses, the draft authorizations, and any other aspect of this Notice of Proposed IHAs for the proposed geophysical survey activities. Please include with your comments any supporting data or literature citations to help inform our final decision on the individual requests for MMPA authorization.