Farm Service Agency
Food and Nutrition Service
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
Land Management Bureau
National Park Service
Drug Enforcement Administration
Federal Register Office
Federal Aviation Administration
Pipeline and Hazardous Materials Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Nuclear Regulatory Commission.
Direct final rule; confirmation of effective date.
The U.S. Nuclear Regulatory Commission (NRC) is confirming the effective date of December 11, 2017, for the direct final rule that was published in the
Please refer to Docket ID NRC–2017–0138 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:
•
•
•
Christian Jacobs, Office of Nuclear Material Safety and Safeguards; telephone: 301–415–6825; email:
On September 27, 2017 (82 FR 44879), the NRC published a direct final rule amending its spent fuel storage regulations in part 72 of title 10 of the
In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on December 11, 2017. The NRC received one comment submission on the companion proposed rule (82 FR 44971). An electronic copy of this submission can be obtained from the Federal Rulemaking Web site,
The NRC received one comment submission on the proposed rule from FirstEnergy Nuclear Operating Company (FENOC). The submission contained three comments styled as “comment/questions.” As explained in the September 27, 2017, direct final rule, the NRC would withdraw the direct final rule only if it received a “significant adverse comment.” This is a comment where the commenter explains why the rule would be inappropriate, challenges its underlying premise or approach, or shows why it 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; or
(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or technical specifications (TSs).
In this instance, the NRC determined that none of the comments submitted on the proposed rule are significant adverse comments. The comments either were already addressed by the NRC staff's safety evaluation report (SER) (ADAMS Accession No. ML17131A121), or did not oppose the rule. The NRC has not made any changes to the direct final rule as a result of the public comments. However, the NRC is taking this opportunity to respond to the comments in an effort to clarify information about the direct final rule. The comments and the NRC's responses follow.
The commenter questioned why the proposed renewal of CoC No. 1004 includes a timeframe of 180 days for each general licensee (GL) to establish and implement its AMP procedures, which is shorter than the timeframe of 300 days that was granted for the renewal of CoC No. 1007. The commenter stated that the 180-day implementation period poses a hardship upon GLs with older spent fuel storage systems.
This comment did not raise an issue that was previously unaddressed by the NRC staff. During its review of the renewal application for CoC No. 1004, the NRC staff considered the appropriate timeframe for implementation of the AMP procedures. As stated in the SER, “[t]he timeframe [of 180 days] in the condition is to ensure operating procedures are developed in a timely manner and is consistent with conditions placed in specific licenses that have been renewed.” Specifically, the 180-day timeframe was successfully used for the renewals of the specific licenses under 10 CFR part 72 for the Prairie Island and Calvert Cliffs Independent Spent Fuel Storage Installations (ISFSIs).
The 180-day timeframe is also consistent with the guidance in NUREG–1927, Rev. 1, “Standard Review Plan for Renewal of Spent Fuel Dry Cask Storage System Licenses and Certificates of Compliance.” The commenter points to a statement in the NUREG that “the development of the infrastructure for AMP implementation generally should be no later than one year,” from the date of renewal; however, this does not preclude a shorter timeframe. The cask vendor, TN Americas LLC (TN), is preparing the AMP procedures for the GLs as an update to TN's Final Safety Analysis Report, and plans to provide these procedures within 90 days after the effective date of the renewal. This will allow at least an additional 90 days for the affected GLs to implement the procedures. Accordingly, the comment has not caused the NRC to reevaluate its position that a timeframe of 180 days is sufficient for AMP implementation.
The comment questions why the AMP implementation timeframe for the renewed NUHOMS® CoC is shorter than that for the renewal of CoC No. 1007 for the EnergySolutions
This comment does not meet the criteria for consideration as a significant adverse comment. The comment did not cause the NRC staff to reevaluate or reconsider its position or conduct additional analysis. Nor did the comment cause the NRC staff to make any change to the rule, CoC, or TSs. To the extent that the comment can be interpreted as requesting a change to the rule,
The commenter questioned whether the words “implement these written procedures within 180 days” mean that all required AMP inspections must be performed and the results reported within 180 days.
The answer to the commenter's question is no. Implementing the written procedures does not mean that an affected GL must perform all the SSC inspections required by its AMP and report the results of its inspections within the 180-day implementation period.
This comment does not meet the criteria for consideration as a significant adverse comment. The comment does not oppose the rule, and it did not cause the NRC staff to reevaluate or reconsider its position or conduct additional analysis. Nor did the comment cause the NRC staff to make any change to the rule, CoC, or TSs.
The commenter asked if the language in the revised TSs that “[e]ach general licensee shall have a program to establish, implement, and maintain written procedures . . .” applies to all GLs, including those that have only recently begun loading casks under CoC No. 1004. The commenter further asked if a site that began loading casks in 2014 would be required to have the ISFSI AMP procedure in place after 180 days.
Under the renewed CoC, each GL using NUHOMS® systems will be required to have a program with approved written AMP procedures in place within 180 days after the effective date of the renewal, or 180 days after the 20th anniversary of the loading of the first dry storage system at its site, whichever is later. Thus, if a particular ISFSI has casks that were loaded in 2014, these casks would not be required to have AMP procedures in place until 2034 at the earliest.
This comment does not meet the criteria for consideration as a significant adverse comment. The comment did not oppose the rule, and it did not cause the NRC staff to reevaluate or reconsider its position or conduct additional analysis. Nor did the comment cause the NRC staff to make any change to the rule, CoC, or TSs.
Therefore, because no significant adverse comments were received, this direct final rule will become effective as
For the Nuclear Regulatory Commission.
U.S. Customs and Border Protection, DHS.
Final rule.
This rule amends U.S. Customs and Border Protection (CBP) regulations to adjust for inflation the amounts that CBP can assess as civil monetary penalties for the following three violations—transporting passengers between coastwise points in the United States by a non-coastwise qualified vessel; towing a vessel between coastwise points in the United States by a non-coastwise qualified vessel; and dealing in or using an empty stamped imported liquor container after it has already been used once. These adjustments are being made in in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) which was enacted on November 2, 2015. Other CBP civil penalty amounts were adjusted pursuant to this 2015 Act in previously published rule documents published in the
This rule is effective on December 8, 2017. The adjusted penalty amounts will be applicable for penalties assessed after December 8, 2017 if the associated violations occurred after November 2, 2015.
Millie Gleason, Office of Field Operations, U.S. Customs and Border Protection. Phone: (202) 325–4291.
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114–74 section 701 (Nov. 2, 2015)) (2015 Act).
For the subsequent annual adjustments, the 2015 Act requires agencies to increase the penalty amounts by a cost-of-living adjustment. The 2015 Act directs OMB to provide guidance to agencies each year to assist agencies in making the annual adjustments. The 2015 Act requires agencies to make the annual adjustments no later than January 15 of each year and to publish the adjustments in the
The Department of Homeland Security (DHS) undertook a review of the civil penalties that DHS and its components administer to determine which penalties would need adjustments. On July 1, 2016, DHS published an IFR adjusting the civil monetary penalties with an initial “catch-up” adjustment, as required by the 2015 Act.
As discussed in Section II below, three civil monetary penalties assessed by CBP and subject to the 2015 Act were inadvertently omitted from these DHS rulemakings.
CBP assesses or enforces penalties under various titles of the Unites States Code (U.S.C.) and the Code of Federal Regulations (CFR). These penalties include civil monetary penalties for certain violations of title 8 of the CFR pursuant to the Immigration and Nationality Act of 1952,
However, three non-Tariff Act penalties that are assessed by CBP were inadvertently omitted from the DHS rulemakings. The first is a penalty set forth at 19 U.S.C. 469, and not reflected in the CBP regulations, for dealing in or using already used empty stamped imported liquor containers. The other two penalties are set forth in title 46 of the U.S.C., 46 U.S.C. 55103 and 46 U.S.C. 55111 and reflected in the CBP regulations in 19 CFR part 4. Pursuant to 46 U.S.C. 55103(b) and 19 CFR 4.80(b)(2), CBP assesses penalties for transporting passengers between coastwise points in the United States by a non-coastwise qualified vessel. Pursuant to 46 U.S.C. 55111(c) and 19 CFR 4.92, CBP assesses penalties for towing a vessel between coastwise points in the United States by a non-coastwise qualified vessel.
This final rule adjusts these penalty amounts using the same civil monetary penalty adjustment methodology that DHS announced in the IFR (81 FR 42987) and finalized in the DHS final rule (82 FR 8571), and detailed below.
The 2015 Act provides a new method for calculating inflation adjustments. The new method differs substantially from the methods that agencies used in the past when conducting inflation adjustments pursuant to the 1990 Inflation Adjustment Act. The new method is intended to more accurately reflect inflation. Previously, when agencies conducted adjustments to civil penalties, they did so under rules that required significant rounding of figures. For example, an agency would round a penalty increase that was greater than $1,000, but less than or equal to $10,000, to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that agencies would often not increase penalties at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent, which meant that longer periods without an inflation adjustment could cause a penalty to rapidly lose value in real terms. Over time, the formula used in the 1990 Inflation Adjustment Act calculations frequently caused penalties to lose value relative to actual inflation. The 2015 Act removed these rounding rules, and instead instructs agencies to round penalties to the nearest $1. While this creates penalty values that are no longer round numbers, it does ensure that agencies will increase penalties each year to a figure commensurate with the actual calculated inflation.
To better reflect the original impact of civil penalties, the 2015 Act “resets” the inflation calculations by excluding prior inflationary adjustments under the Inflation Adjustment Act. To do this, the 2015 Act requires agencies to identify, for each penalty, the year that Congress originally enacted the maximum penalty level/range of minimum and maximum penalty levels or the year that the agency last adjusted the penalty amount other than to pursuant to the Inflation Adjustment Act, and the corresponding penalty amount(s). The 2015 Act then requires agencies to perform an initial “catch-up” adjustment, using the original amounts of civil penalties as a baseline, so that the 2016 penalty levels are equal, in real terms, to the penalty amounts as they were originally established. The 2015 Act also requires agencies to make subsequent annual adjustments to increase the penalty amounts by a cost-of-living adjustment.
This section sets forth the initial “catch-up” adjustment for three civil monetary penalties assessed by CBP that were inadvertently omitted from the DHS rulemakings. The catch-up adjustments for these three penalties are listed in Table 1 below. This table shows how DHS would have initially increased the penalties pursuant to the 2015 Act. The table contains the following information:
• In the first column (penalty name), we provide a description of the penalty.
• In the second column (citation), we provide the statutory cite from the United States Code (U.S.C.) and the regulatory cite from the Code of Federal Regulations (CFR).
• In the third column (current penalty), we list the existing penalty in effect on November 2, 2015.
• In the fourth column (baseline penalty (year)), we provide the amount and year of the penalty as enacted by Congress or as last changed through a mechanism other than pursuant to the Inflation Adjustment Act, whichever is later.
• In the fifth column (2016 multiplier), we list the multiplier used to adjust the penalty pursuant to the initial OMB catch-up guidance. The multiplier is determined by the year of enactment or last adjustment of the penalty. The multiplier is based upon the Consumer Price Index (CPI–U) for the month of October 2015, not seasonally adjusted.
• In the sixth column (preliminary new penalty), we list the amount obtained by multiplying the Baseline Penalty from column 4 with the Multiplier from column 5. This amount will be the catch-up adjustment amount, if, in accordance with the 2015 Act, this level does not increase penalty levels by more than 150 percent of the corresponding levels in effect on November 2, 2015.
• In the seventh column (adjusted 2016 penalty), we provide the number for the penalty as it would have been adjusted for 2016. To derive this number, we compare the preliminary new penalty with the current penalty from column 3. The adjusted new penalty is the lesser of either the preliminary new penalty or an amount equal to 150 percent more than the current penalty.
This final rule also makes the 2017 annual inflation adjustment pursuant to the 2015 Act and the guidance OMB issued to agencies on December 16, 2016.
In Table 2 below, we show: (1) The civil penalty (or penalties) name, (2) the penalty statutory and/or regulatory citation, (3) the penalty amount as it would have been adjusted in 2016 (see Table 1), (4) the cost-of-living adjustment multiplier for 2017 that OMB provided in its December 16, 2016 guidance, and (5) the new 2017 adjusted penalty.
Additionally, we have made conforming edits to the regulatory text for the new adjusted penalty amounts in 19 CFR 4.80(b)(2) and 19 CFR 4.92. Because the 19 U.S.C. 469 penalty is not included in the CFR, there are no conforming edits to be made to the regulatory text. However, this penalty is listed in Table 2 for informational purposes.
The Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the
DHS is promulgating this final rule to ensure that the amount of civil penalties that CBP assesses or enforces that was inadvertently omitted from the DHS rulemakings reflects the statutorily mandated ranges as adjusted for inflation. The 2015 Act provides a clear nondiscretionary formula for adjustment of the civil penalties; DHS and CBP have been charged only with performing ministerial computations to determine the amounts of adjustments for inflation to civil monetary penalties. Additionally, although the 2015 Act requires publication of an IFR to take effect not later than August 1, 2016, that date has passed and publishing a separate IFR to account for these inadvertently omitted penalty adjustments would cause unnecessary delay. Further, this final rule merely applies the adjustment methodology
As described in Section I above, the 2015 Act requires agencies to make annual adjustments to civil monetary penalties no later than January 15 of each year and to publish the adjustments in the
Executive Orders 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.”
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 it is not subject to the requirements of Executive Order 13771.
This final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the 2015 Act and OMB guidance.
The Regulatory Flexibility Act applies only to rules for which an agency publishes a notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). See 5 U.S.C. 601–612. The Regulatory Flexibility Act does not apply to this final rule because a notice of proposed rulemaking was not required for the reasons stated above.
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. This final rule will not result in such an expenditure.
The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule, because this final rule does not trigger any new or revised recordkeeping or reporting.
The signing authority for this document falls under 19 CFR 0.2(a). Accordingly, this document is signed by the Secretary of Homeland Security.
Customs duties and inspection, Exports, Freight, Harbors, Maritime carriers, Oil pollution, Reporting and recordkeeping requirements, Vessels.
For the reasons stated in the preamble, CBP amends 19 CFR p art 4 as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 501, 60105.
Sections 4.80, 4.80a, and 4.80b also issued under 19 U.S.C. 1706a; 28 U.S.C. 2461 note; 46 U.S.C. 12112, 12117, 12118, 50501–55106, 55107, 55108, 55110, 55114, 55115, 55116, 55117, 55119, 56101, 55121, 56101, 57109; Pub. L. 108–7, Division B, Title II, § 211;
Section 4.92 also issued under 28 U.S.C. 2461 note; 46 U.S.C. 55111;
(b) * * *
(2) The penalty imposed for the unlawful transportation of passengers between coastwise points is $300 for each passenger so transported and landed on or before November 2, 2015, and $762 for each passenger so transported and landed after November 2, 2015 (46 U.S.C. 55103, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015).
No vessel other than a vessel documented for the coastwise trade, or which would be entitled to be so documented except for its tonnage (see § 4.80), may tow a vessel other than a vessel in distress between points in the U.S. embraced within the coastwise laws, or for any part of such towing (46 U.S.C. 55111). The penalties for violation of this provision occurring on or before November 2, 2015, are a fine of from $350 to $1100 against the owner or master of the towing vessel and a further penalty against the towing vessel of $60 per ton of the towed vessel. The penalties for violation of this provision occurring after November 2, 2015, are a
Office of the General Counsel, DoD.
Final rule.
The Department of Defense is removing its regulations regarding procedures for the conduct of military commissions to try certain terror suspects for war crimes because the subchapter, which contains eleven parts, is outdated and no longer in force.
This rule is effective on December 8, 2017.
Gerald Dziecichowicz at 703–693–9958.
On November 13, 2001, President George W. Bush issued the Military Order titled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” which authorized the use of military commissions to try certain terror suspects for war crimes. Pursuant to section 4 of that order, the Secretary of Defense issued policies and procedures for the conduct of those proceedings, which were codified at 32 CFR chapter I, subchapter B. In 2006, the Supreme Court essentially invalidated that military commissions process. Congress subsequently passed several laws reshaping and reauthorizing the use of military commissions, which required the Secretary of Defense to issue new policies and procedures. These updated directives are publicly available and posted to a department Web site. Accordingly, this subchapter, which contains eleven parts, is outdated, no longer in force, and should be removed from the Code of Federal Regulations.
It has been determined that publication of this CFR subchapter removal for public comment is impracticable, unnecessary, and contrary to public interest because it is based on removing outdated policies and procedures.
As this repeal removes information that is now obsolete from the CFR, there is no cost savings to the public for the repeal of this subchapter.
Military law.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the San Joaquin County (Bacon Island Road) highway Drawbridge across the Middle River, mile 8.6, between Bacon Island and Lower Jones Tract, CA. The deviation is necessary to allow the bridge owner to make emergency structural repairs. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.
This deviation is effective from 6 a.m. on December 18, 2017 through 6 p.m. on December 22, 2017.
The docket for this deviation, USCG–2017–1069, is available at
If you have questions on this temporary deviation, call or email Carl T. Hausner, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510–437–3516; email
San Joaquin County Department of Public Works has requested a temporary change to the operation of the San Joaquin County (Bacon Island Road) highway Drawbridge over the Middle River, mile 8.6, between Bacon Island and Lower Jones Tract, CA. The drawbridge navigation span provides a vertical clearance of 8 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.171(a). Navigation on the waterway is commercial and recreational.
The drawspan will be secured in the closed-to-navigation position from 6 a.m. on December 18, 2017 through 6 p.m. on December 22, 2017, to allow the bridge owner to make emergency structural repairs. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.
Vessels able to pass through the bridge in the closed position may do so at anytime. In the event of an emergency the draw can open if at least 12 hours advance notice is given to the bridge operator. Old River can be used as an alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary interim rule; request for comments.
The Coast Guard has established a temporary safety zone for certain waters within the Sector Key West Captain of the Port (COTP) Zone. Vessels are prohibited from entering into, anchoring, loitering, or movement within a safety zone around salvage or pollution removal vessels in the Florida Keys. These temporary regulations are necessary for the safety of persons, vessels, and property due to the large volume of debris, sunken vessels and salvage operations associated with Hurricane Irma. We invite your comments on this rulemaking.
This rule is effective without actual notice from December 8, 2017 through February 1, 2018. For the purposes of enforcement, actual notice will be used from December 1, 2017 until December 8, 2017. Comments and related materials must be received by the Coast Guard on or before January 8, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rulemaking, call or email Lieutenant Scott Ledee, Waterways Management Division Chief, Sector Key West, FL, U.S. Coast Guard; telephone (305) 292–8768, e-mail
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
COTP Captain of the Port
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 insufficient time remains to publish an NPRM and to receive public comments, as Hurricane Irma has already caused significant damage to vessels and property in the Sector Key West COTP Zone leaving underwater debris and sunken vessels around the Florida Keys. The safety zone is necessary to provide for the safety of persons, vessels, and property from the hazards posed by sunken vessels and debris. For those reasons, it would be impracticable and contrary to the public interest to publish an NPRM.
On October 12, 2017, the Coast Guard published a temporary interim final rule, entitled “Safety Zone; Sector Key West COTP Zone Post Storm Recovery, Atlantic Ocean, FL” in the
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 soliciting public comments on this temporary interim rule. Although we need to make this interim rule effective immediately, we will consider public comments and may issue a temporary final rule that will supersede this interim rule based on comments received.
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231 The COTP Key West has determined that potential hazards associated with salvage operations and hurricane debris will be a safety concern for persons, vessels, and property within the waters of the ports mentioned above. The COTP Key West has determined it is necessary establish a safety zone from December 1, 2017 until February 1,
This rule establishes a temporary safety zone for certain waters within the Sector Key West Captain of the Port (COTP) Zone as salvage and pollution recovery cleanup efforts continue. Vessels are prohibited from entering into, anchoring, loitering, or movement within a safety zone around salvage or pollution removal vessels in the Florida Keys. These temporary regulations are necessary for the safety of persons, vessels, and property due to the large volume of debris, sunken vessels and salvage operations associated with Hurricane Irma.
The COTP Key West will continue to evaluate conditions in the waters in the vicinity of the Florida Keys and may stop enforcing this rule earlier if the conditions permit. The Coast Guard will provide notification of the safety zone to the local maritime community by Marine Safety Information Bulletins, Broadcast Notice to Mariners, and on-scene designated representatives.
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 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the following reasons: The safety zone is of a small diameter around salvage and pollution recovery vessels and wreckage, and the Coast Guard will provide notice of the safety zones to the local maritime community by Marine Safety Information Bulletins, Broadcast Notice to Mariners, and designated on-scene representatives.
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 VI.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 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 involves a safety zone from which vessels are excluded. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination 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.
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, 160.5; and Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the COTP Key West by telephone at (305) 292–8727, or a designated representative via VHF–FM radio on channel 16 to request authorization. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP Key West or a designated representative.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters on the Ohio River from mile marker (MM) 326.5 to MM 327.5. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards associated with the demolition of the Ironton-Russell Bridge. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative.
This rule is effective without actual notice from December 8, 2017 through December 22, 2017. This rule will be enforced from December 8, 2017 through December 4, 2017, unless the demolition is postponed because of adverse weather, in which case this rule will be enforced from 10 a.m. to 3 p.m. on December 5, 2017, December 11–15, 2017, and December 18–22, 2017.
For the purposes of enforcement, actual notice will be used from December 4, 2017 until December 8, 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 Robert Miller, Marine Safety Unit Huntington, U.S. Coast Guard; telephone 304–733–0198, 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 impracticable.
We must establish this safety zone by December 4, 2017 and lack sufficient time to provide responsible comment period and then consider those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule 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 Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the bridge demolition taking place on or over this section of the navigable waterway will be a safety concern for anyone within the area designated as the safety zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the bridge demolition.
This rule establishes a temporary safety zone from 10 a.m. on December 4, 2017 through 3 p.m. on December 22, 2017 for all navigable waters of the Ohio River from mile marker (MM) 326.5 to MM 327.5, for the Ironton-Russell Bridge demolition in Ironton, OH. This
All potential work delay dates are necessary due to inclement weather, river conditions or mechanical issues that could occur preventing the scheduled demolition on December 4, 2017. The waterway users have been briefed on the procedures to be taken in the event of inclement weather or mechanical issues, and are aware that the project dates may be changed. This safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the bridge demolition. No vessel or person will be permitted to enter the safety zone without obtaining permission from the 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 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will not be able to safely transit through this safety zone, which will impact a small designated area of the Ohio River from MM 326.5 through MM 327.5 for five hours on December 4, 2017, during a time of year when vessel traffic is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF–FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.
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 (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 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 involves a safety zone lasting only five hours that will prohibit entry on one day, with alternate work delay dates, that will prohibit entry within MM 326.5 through MM 327.5 on the Ohio River due to demolition project of the Ironton-Russell Bridge. It is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination 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.
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)
(d)
(2) To seek permission to enter, contact the COTP or designated representative via radio on channel 16.
(3) All persons and vessels shall comply with the instruction of the COTP and designated on-scene personnel.
(e)
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) amends its adjudication regulation pertaining to extra-schedular consideration of a service-connected disability in exceptional compensation cases. This rule clarifies that an extra-schedular evaluation is to be applied to an individual service-connected disability when the disability is so exceptional or unusual that it makes application of the regular rating schedule impractical. An extra-schedular evaluation may not be based on the combined effect of more than one service-connected disability. For the reasons set forth in the proposed rule and in this final rule, VA is adopting the proposed rule as final, with two changes, as explained below.
Nora Jimison, Policy Analyst, Regulations Staff (211D), Compensation Service, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–9700. (This is not a toll-free telephone number.)
On April 20, 2016, VA published in the
Interested persons were invited to submit comments to the proposed rule on or before June 20, 2016, and 11 comments were received. Those comments have been organized according to topic in the discussion below.
A commenter stated that VA's rulemaking to overturn
Four commenters stated that amended section 3.321(b)(1) contradicts 38 U.S.C. 1155. One commenter stated that, by limiting an extra-schedular evaluation to an individual rating, an adjudicator is barred from considering a veteran's average earning impairment resulting from a veteran's “injuries” and instead must look to the impairment of each injury. Another commenter stated that the amended rule would render the term “combination of injuries” in section 1155 superfluous. A third commenter stated that the regulation is inconsistent with the plain language of the statute because it applies to a single disability and as a result, the rule will have no controlling weight. The fourth commenter stated that the regulation should compensate for “average impairments of earning capacity” as provided in section 1155 rather than “actual impairment of earning capacity” as provided in amended section 3.321(b)(1).
The rule does not contradict or misinterpret 38 U.S.C. 1155. As explained above, section 1155 authorizes VA to “adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity . . . in civil occupations.” VA has specified how its rating schedule will be applied to determine average impairments in earning capacity due to combinations of injuries. Under the table in 38 CFR 4.25, the ratings for each disability which are based upon the average earning impairment are combined and a rating is assigned for the combined effect of the disabilities. Thus, the terms “injuries” and “combination of injuries” in section 1155 are not rendered superfluous as a result of revised section 3.321(b)(1). Further, section 1155 states that “ratings shall be based, as far as practicable, upon the average impairments of earning capacity.” VA's rule provides for discretion in cases where the schedule is inadequate to compensate for average impairment of earning capacity. Therefore, the regulation is not inconsistent with the statute.
We disagree with the comment that section 3.321(b)(1) must compensate for impairment of “average earning capacity.” Rather, as the commenter acknowledges, an extra-schedular evaluation is intended for “the exceptional case where the schedular evaluation,” which is based on average earning capacity, “is inadequate.” Section 1155 states that the rating schedule is to be “based, as far as practicable, upon the average impairments of earning capacity.” By its terms, the statute leaves to VA's discretion situations where use of a schedule based on average impairments is not practical or feasible. Pursuant to this authority, VA has promulgated section 3.321(b)(1) allowing for an extra-schedular evaluation in cases in which application of the regular schedular standards is impractical because the veteran's disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. In clarifying its longstanding policy in the amended regulation, VA will continue to look to the evidence to determine whether the veteran's service-connected disability causes factors such as marked interference with employment or frequent periods of hospitalization, rather than limiting a veteran to a schedular rating based upon average impairment of earning capacity.
Another commenter stated that the regulation is inconsistent with the congressionally mandated statutory scheme, which is pro-veteran. As explained above, by its terms, 38 U.S.C. 1155 leaves to VA's discretion situations where use of a schedule based on average impairments is not practicable or feasible,
As explained in the notice of proposed rulemaking, 81 FR at 23230, VA has limited extra-schedular consideration to individual disabilities in part due to the substantial difficulty that would accompany efforts to apply such consideration to the combined effects of multiple disabilities in a logical and consistent manner. A determination as to whether existing rating-schedule provisions are inadequate to evaluate a particular claimant's disability requires comparison of the manifestations of the claimant's disability with the types of manifestations listed in the applicable rating schedule provisions. Ratings for combinations of disabilities are determined by application of a standard formula in 38 CFR 4.25, and there are thus no provisions in the rating schedule describing impairments that would be associated with a particular combination of disabilities. Accordingly, VA adjudicators would have no objective standard for determining whether a particular combined rating is adequate or inadequate. Requiring adjudicators to consider the adequacy of combined ratings would lead to inconsistent and highly subjective determinations, and would likely cause delays in the adjudication of claims. These effects would in some respects be detrimental to claimants and to the effective operation of VA's claims-adjudication system.
One commenter disputed VA's statement in the notice of proposed rulemaking that the Department has long interpreted 38 CFR 3.321(b)(1) to provide an extra-schedular evaluation for only one service-connected disability. The commenter cited to the dissenting opinion in the Veterans Court's
We respectfully disagree with the analysis of VA's interpretation of the regulation over time. As we stated in the notice of proposed rulemaking, VA, since 1936, has interpreted section 3.321(b)(1) to provide for an extra-schedular evaluation for each service-connected disability for which the schedular evaluation is inadequate based upon the regulatory criteria. The original rule which was promulgated in 1930, R & PR 1307(B), required that a recommendation from a field office alleging that the rating schedule provides inadequate or excessive ratings in an individual case include a statement of findings regarding the
The Federal Circuit has previously recognized that VA's interpretation of section 3.321(b)(1) is found in the VBA Manual.
Two commenters pointed out that section 3.321(b)(1) is intended “[t]o accord justice,” and that the proposed rule is unjust and inequitable because it ignores the cumulative effects of multiple conditions on a veteran's earning capacity.
The commenters mistakenly assume that VA may only “accord justice” if all service-connected disabilities are considered collectively for deciding entitlement to an extra-schedular evaluation. There is no dispute that 3.321(b)(1) accords justice by authorizing extra-schedular ratings based upon the effect of a service-connected disability upon an individual veteran rather than limiting the veteran to a schedular rating based upon average impairment of earning capacity. Also, the phrase “[t]o accord justice” is given context in section 3.321(b)(1) by the sentence that precedes it: “[r]atings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.” The rule thus authorizes VA to assign ratings beyond those provided in the schedule even in advance of any necessary revision to the rating schedule. Further, there is a policy reason for limiting an extra-schedular evaluation under section 3.321(b)(1) to a single service-connected disability. As explained above, VA believes that the rule is consistent with the regulatory scheme, under which there is a distinction between application of the schedular criteria relating to specific disabilities and the application of the formula in 38 CFR 4.25 for combining individual disability ratings.
A commenter inquired about whether a veteran would be entitled to an extra-schedular rating for each service-connected disability. A veteran would be entitled to an extra-schedular rating for each service-connected disability that satisfies the criteria in the rule,
One commenter stated that the rule appears to conflict with 38 CFR 3.102, which provides that VA will “administer the law under a broad interpretation.” We do not believe that there is a conflict because, rather than limit a veteran to a schedular rating that is “inadequate,” 38 CFR 3.321(b)(1) provides for an extra-schedular evaluation to account for an “exceptional or unusual disability” involving “marked interference with employment or frequent periods of hospitalization.”
One commenter wrote that the rule is inconsistent with VA's regulatory scheme for evaluating disabilities because it considers a disability in a vacuum, pointing to 38 CFR 4.10 regarding functional impairment and 38 CFR 3.383, which pertains to special consideration if a veteran has suffered loss of certain paired organs or extremities as a result of service-connected disabilities and non-service-connected disabilities.
The regulations cited by the commenter do not support the comment. Section 4.10 states that “[t]he basis of disability evaluations is the ability of the body as a whole . . . to function under the ordinary conditions of daily life including employment.” The cited statement, however, falls within Subpart A of the Part 4 regulations, which provides “regulations prescribing the policies and procedures for conducting VA medical examinations,” which are not considered a part of the rating schedule because “[t]he rating schedule consists only of those regulations that establish disabilities and set forth the terms under which compensation shall be provided.”
Section 3.383 of title 38, Code of Federal Regulations, implements 38 U.S.C. 1160, which provides that, in certain cases of paired organs or
One commenter stated that VA's proposed regulation does not take into account veterans who do not qualify for consideration of entitlement to a rating of total disability based upon individual unemployability (TDIU) under 38 CFR 4.16(b). The commenter states that a veteran may be forced to drop out of the workforce and apply for TDIU as a result of extra-schedular evaluations based upon a single disability.
Section 3.321(b)(1) addresses a different issue than section 4.16(a) and (b) were written to address. Section 3.321(b)(1) provides an exception to reliance upon a particular rating contained in the rating schedule where the schedule is determined to be inadequate in a particular case and examines the rating issue from the perspective of the schedule in rating a veteran's disability and provides adjustments to the schedule based on the veteran's disability. Section 4.16, on the other hand, looks at the situation from the perspective of the unemployability of an individual veteran. Under section 4.16(a) and (b), the deciding official looks at the overall impairment of a veteran to determine whether the veteran is employable regardless of the particular disability rating or combination of disability ratings awarded. Thus, section 3.321(b)(1) focuses on the schedule's failure to address the effect of a veteran's particular disability and the latter focuses upon the veteran's overall employability. Amending section 3.321(b)(1) based on this comment would also render section 4.16 superfluous because section 3.321(b)(1) could be the basis for a 100 percent extra-schedular rating which would be equivalent to a TDIU rating.
Another commenter stated that the combined ratings table is inadequate to compensate for the vast array of potential interactions between multiple disabilities. The commenter disputed VA's statement in the notice of proposed rulemaking that there is no mechanism for comparing the combined effects of multiple service-connected disabilities with the schedular criteria and contends, citing
The commenter misunderstands VA's statement. In
If, in a particular case, evidence indicated that two or more service-connected disabilities combined to produce a symptom the claimant believed was not adequately addressed by the rating criteria for any of the individual disabilities at issue, the claimant could, under this rule, seek extra-schedular ratings for the individual conditions and VA would be required to evaluate the medical evidence in determining whether the rating schedule was adequate to evaluate each disabling condition, but would not be required to separately determine whether the combined rating resulting from 38 CFR 4.25 was adequate to evaluate the combined effects of the multiple disabilities.
A commenter stated that, to the extent that extraschedular evaluation of the combined effect of multiple disabilities may impose an additional burden on the Director of the Compensation Service, the decision should instead be made by regional offices (RO) and the Board of Veterans' Appeals. We agree that the ROs should make these fact-intensive decisions in the first instance, and we have therefore revised the rule by eliminating the phrase “upon field station submission” and the word “referred.”
Three commenters criticized the proposed rule on the basis that it does not provide guidance about how to apply the proposed rule or to the Board about how to review the Director's finding.
The standards for awarding an extra-schedular award are set forth in section 3.321(b) and have been included in the regulation since 1961.
One commenter stated that, in
Another commenter stated that VA does not explain how it is possible to “'ensure fair and consistent application of rating standards'” given that 38 CFR 3.321(b)(1) requires an initial finding that the “schedular evaluation is inadequate.” (Quoting 81 FR 23231). The rating standards to which VA referred relate to a determination about whether a veteran is entitled to an extra-schedular evaluation, and as explained in the notice of proposed rulemaking, VA believes that the Department is able to fairly and consistently apply rating standards if consideration under section 3.321(b)(1) is limited to whether a rating for an individual disability is adequate as opposed to deciding whether a combined rating based upon residual work efficiency is adequate to rate multiple service-connected disabilities.
One commenter stated that the definition of the term “disability” in amended section 3.321(b)(1) is unclear and that an extra-schedular evaluation should be available for disability arising from a common disease entity or etiology. The commenter states that, if a veteran has a knee disability that causes both limitation or motion and instability, both effects of the disability should be evaluated together for purposes of entitlement to an extra-schedular rating.
“Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used.”
Another commenter stated that the rule does not define “actual impairment in earning capacity” and posed a series of questions about how the term will be defined,
A commenter criticized the algorithm used to combine disabilities in 38 CFR 4.25. Another commenter remarked on the inadequacy of the rates in 38 U.S.C. 1114, but acknowledged that this comment is beyond the scope of the rulemaking. These comments are beyond the scope of the rulemaking, and we therefore make no change based on these comments.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601–612). This final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.
This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521).
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.109, Veterans Compensation for Service-Connected Disability.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication
Administrative practice and procedure, Claims, Disability benefits, Veterans.
For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 3 as set forth below:
38 U.S.C. 501(a), unless otherwise noted.
(b)
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the October 18, 2017, direct final rule approving the Michigan regional haze progress report under the Clean Air Act (CAA) as a revision to the Michigan State Implementation Plan (SIP).
The direct final rule published at 82 FR 48435 on October 18, 2017, is withdrawn effective December 8, 2017.
Gilberto Alvarez, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6143,
In the direct final rule, EPA stated that if adverse comments were submitted by November 17, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed action also published on October 18, 2017 (82 FR 48473). EPA will not institute a second comment period on this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to receipt of adverse comment, the Environmental Protection Agency (EPA) is withdrawing the direct final rule to approve revisions to the District of Columbia state implementation plan (SIP) pertaining to the infrastructure requirement for interstate transport of pollution with respect to the 2010 1-hour sulfur dioxide (SO
The direct final rule published at 82 FR 48439 on October 18, 2017 is withdrawn effective December 8, 2017.
Joseph Schulingkamp, (215) 814–2021, or by email at
On July 17, 2014, the District of Columbia (the District) through the District Department of Energy and the Environment (DDOEE) submitted a SIP revision addressing the infrastructure requirements under section 110(a)(2) of the Clean Air Act (CAA) for the 2010 1-hour SO
Because adverse comments were received, EPA is withdrawing the direct final rule approving the revision to the District of Columbia SIP pertaining to the interstate transport requirements for the SO
Environmental protection, Air pollution control, Incorporation by reference, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the October 20, 2017, direct final rule approving the Wisconsin regional haze progress report under the Clean Air Act as a revision to the Wisconsin State Implementation Plan (SIP).
The direct final rule published at 82 FR 48766 on October 20, 2017, is withdrawn effective December 8, 2017.
Gilberto Alvarez, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6143,
In the direct final rule, EPA stated that if adverse comments were submitted by November 20, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed action also published on October 20, 2017 (82 FR 48780). EPA will not institute a second comment period on this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the October 18, 2017, direct final rule approving the Illinois regional haze progress report under the Clean Air Act as a revision to the Illinois State Implementation Plan (SIP).
The direct final rule published at 82 FR 48431 on October 18, 2017, is withdrawn effective December 8, 2017.
Charles Hatten, Environmental Engineer, Control Strategy Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6031,
In the direct final rule, EPA stated that if adverse comments were submitted by November 17, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed action also published on October 18, 2017 (82 FR 48473). EPA will not institute a second comment period on this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule; administrative change.
The Environmental Protection Agency (EPA) is updating the materials that are incorporated by reference (IBR) into the Alaska State Implementation Plan (SIP). The regulations affected by
This rule is effective on December 8, 2017.
SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, Region 10 Office of Air and Waste (OAW–150), 1200 Sixth Avenue, Seattle, WA 98101, or the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Kristin Hall, EPA Region 10, (206) 553–6357,
The SIP is a living document that a state revises as necessary to address its unique air pollution problems. Therefore, from time to time, the EPA must take action on SIP revisions containing new and/or revised regulations, approving and incorporating them into the SIP. On May 22, 1997, the EPA revised the procedures for incorporating by reference federally-approved SIPs, as a result of consultations between the EPA and the Office of the Federal Register (OFR) (62 FR 27968). The description of the revised SIP document, IBR procedures and “Identification of plan” format is discussed in further detail in the May 22, 1997,
In this action, the EPA is announcing the update to the IBR material as of September 8, 2017. The EPA is correcting minor typographical errors and rearranging and republishing the contents of subsection 52.70(c). The EPA is also rearranging and republishing the contents of subsection 52.70(e) to align the contents with the outline of the Alaska state plan volumes and sections. We note we are correcting entries 18 AAC 50.075 and 18 AAC 50.077 in subsection 52.70(c) to accurately reflect the portions of these rule sections that were withdrawn by the State and not approved into the SIP (September 8, 2017, 82 FR 42457). We are also correcting the table in subsection 52.70(e) to reflect our approval of the appendices to the Regional Haze Plan at entry III.III.K. (February 14, 2013, 78 FR 10546) and our most recent approval of the State Air Statutes at entry III.II.A. (September 19, 2014, 79 FR 56268).
The EPA has determined that this rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of previously EPA-approved regulations promulgated by Alaska and federally-effective prior to September 8, 2017. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 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 this action does not involve technical standards; 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, 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Alaska regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through
The Congressional Review Act, 5 U.S.C. 801
The EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Alaska SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, the EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” update action for Alaska.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and record keeping requirements, Sulfur oxides, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations, is amended as follows:
42 U.S.C. 7401
(b)
(2) The EPA Region 10 certifies that the rules and regulations provided by the EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State rules/regulations which have been approved as part of the State Implementation Plan as of September 8, 2017.
(3) Copies of the materials incorporated by reference may be inspected at the EPA Region 10 Office at 1200 Sixth Avenue, Seattle WA, 98101; or the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
(c) EPA approved regulations.
(d) EPA approved state source-specific requirements.
(e) EPA approved nonregulatory provisions and quasi-regulatory measures.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the October 18, 2017, direct final rule approving the Minnesota regional haze progress report under the Clean Air Act as a revision to the Minnesota State Implementation Plan (SIP).
The direct final rule published at 82 FR 48425 on October 18, 2017, is withdrawn effective December 8, 2017.
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6524,
In the direct final rule, EPA stated that if adverse comments were submitted by November 17, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed action also published on October 18, 2017 (82 FR 48472). EPA will not institute a second comment period on this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to adverse comments, the Environmental Protection Agency (EPA) is withdrawing the direct final rule for “Approval of Missouri Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard” published in the
The direct final rule published at 82 FR 47154 on October 11, 2017 is withdrawn effective December 8, 2017.
Tracey Casburn, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7016, or by email at
Due to adverse comments, EPA is withdrawing the direct final rule to approve the states “infrastructure” SIP revision for the 2010 NO
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to adverse comments, the Environmental Protection Agency (EPA) is withdrawing the direct final rule for “Approval of Missouri Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM
The direct final rule published at 82 FR 47147 on October 11, 2017 is withdrawn effective December 8, 2017.
Tracey Casburn, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7016, or by email at
Due to adverse comments, EPA is withdrawing the direct final rule to approve the states “infrastructure” SIP revision for the 2012 PM
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Delaware. This revision pertains to reasonably available control technology (RACT) requirements under the 2008 8-hour ozone national ambient air quality standard (NAAQS). Delaware's submittal for RACT for the 2008 ozone NAAQS includes certification that, for certain categories of sources, RACT controls approved by EPA into Delaware's SIP for previous ozone NAAQS are based on currently available technically and economically feasible controls and continue to represent RACT for 2008 8-hour ozone NAAQS implementation purposes; the adoption of new or more stringent regulations or controls that represent RACT control levels for certain other categories of sources; and a negative declaration that certain categories of sources do not exist in Delaware. EPA is approving these revisions to the Delaware SIP addressing 2008 8-hour ozone RACT in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on January 8, 2018.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2015–0656. All documents in the docket are listed on the
Leslie Jones Doherty, (215) 814–3409, or by email at
On September 12, 2017 (82 FR 42767), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. In the NPR, EPA proposed approval of Delaware's SIP revision pertaining to the RACT requirements under the 2008 8-hour ozone NAAQS. The formal SIP revision was submitted by Delaware on May 4, 2015.
On May 4, 2015, Delaware submitted a SIP revision to address all the requirements of RACT set forth by the CAA under the 2008 8-hour ozone NAAQS (the 2015 RACT Submission). Specifically, Delaware's 2015 RACT Submission includes: (1) A certification that for certain categories of sources previously adopted nitrogen oxide (NO
EPA has reviewed Delaware's 2015 RACT Submission and finds Delaware's certification of the RACT regulations for major sources of VOC and NO
With respect to the previous case by case RACT determinations submitted by Delaware and approved by EPA for the Delaware SIP, the CAA section 110(l) states “The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any applicable requirement of the CAA.” EPA finds that the removal of the emission limits for (1) the Polyhydrate Alcohol Catalyst Regenerative process SPI Polyols, Incorporated, (2) the sulfuric acid process and inter-stage absorption system at General Chemical Corporation and (3) the metallic nitrite process at General Chemical Corporation from the Delaware SIP will not interfere with attainment of any NAAQS or with RFP or any applicable requirement of the CAA because these sources have permanently shut down and thus emissions have been completely eliminated. EPA finds the NO
Other specific requirements of Delaware's SIP submission addressing 2008 8-hour ozone RACT and the rationale for EPA's proposed action are explained in the NPR and technical support document (TSD) and will not be restated here.
On May 22, 2015, the EPA Administrator signed a final action, EPA's SSM SIP Call (formally, the “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction”). 80 FR 33839. As discussed in the NPR, Delaware relies upon both Regulation 1124 and Regulation 1142 to meet its RACT obligations for the 2008 ozone NAAQS. Therefore, our review of the Delaware 2015 RACT Submission necessarily included our review of Regulation 1124 and 1142, which were subject to EPA's SSM SIP Call because at the time EPA found that the provisions gave the State discretion to create exemptions allowing excess emissions during startup and shutdown. In 2016, Delaware revised Regulations 1124 and 1142 in the State law to remove the provisions identified by EPA in EPA's SSM SIP Call, and Delaware subsequently submitted, on November 21, 2016, a SIP revision to address EPA's SSM SIP Call for Regulation 1124 (subsection 1.4) and Regulation 1142 (subsection 2.3.1.6). EPA has not yet taken final action on that submittal; any action on Delaware's November 21, 2016 SSM SIP revision would be done through a separate rulemaking action.
As stated in the NPR, the EPA is actively reviewing the SSM SIP Call. Therefore, in the NPR, EPA proposed to approve the 2015 RACT Submission under two alternative bases.
EPA proposed to approve Delaware's 2015 RACT Submission on the basis that either (1) a change in EPA's SSM policy and withdrawal of the SSM SIP Call as to Delaware Regulations 1124 and 1142 would occur, or (2) a separate final rulemaking action approving the revised versions of Regulations 1124 and 1142 as revised in Delaware's response to the SSM SIP Call would occur. Under either basis, EPA proposed to find that Delaware's 2015 RACT Submission is fully consistent with CAA requirements for RACT. EPA was clear that either alternative basis for approval of the Delaware RACT assumed a separate Agency action. EPA did not propose to effectuate either action in this rulemaking. Therefore, EPA did not consider those issues open for public comment as part of this rulemaking action. Any comments filed on this rulemaking that relate to the possibility of EPA changing the SSM Guidance generally, a possible withdrawal of EPA's SSM SIP Call as to Delaware Regulations 1124 and 1142, or a possible action by EPA on Delaware's SIP submittal in response to the SSM SIP call are outside the scope of this rulemaking, which is limited to EPA's action on Delaware's 2015 RACT Submission.
In the proposal, EPA made clear that under either alternative scenario regarding the SSM SIP Call, EPA would deem approval of Delaware's RACT SIP appropriate. Therefore, although EPA has not yet taken separate action related to the SSM SIP Call (to either withdraw the SIP Call as to Regulations 1124 and 1142 or to act on Delaware's SSM SIP submittal), we are approving today Delaware's 2015 RACT Submission because it meets RACT requirements under the CAA for the 2008 8-hour ozone NAAQS for the reasons discussed herein and as proposed in the NPR and in the TSD for this rulemaking.
EPA received adverse public comments on the NPR. EPA has summarized the comments and provides responses to the adverse comments below. All other comments received
Contrary to the commenter's assertion that EPA made “no claim” that Delaware's emission limits and control measures containing SSM constitute RACT, EPA explained in detail in both the NPR and in the TSD prepared in support of the rulemaking how Regulations 1124 and 1142 address RACT requirements for the 2008 ozone NAAQS.
Finally, as specifically stated in the NPR, EPA noted that we cannot prejudge a final approval on Delaware's November 2016 SSM SIP Call submission. EPA explained in the NPR we would take public comment on any proposal to act on that November 2016 SIP and that if EPA would change direction based on comments received on any such proposed rulemaking to approve that SIP submission, we would not be able to approve the SSM SIP Call submission.
EPA is approving the State of Delaware's May 4, 2015 SIP revision submittal (the 2015 RACT Submission) which addresses the 2008 8-hour ozone NAAQS RACT requirements as a revision to the Delaware SIP.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of source specific RACT determinations under the 2008 8-hour ozone NAAQS for certain major sources of NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.
• 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 (Public Law 104–4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 6, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the Delaware RACT requirements under the 2008 8-hour ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revision and addition reads as follows:
(d) * * *
(e) * * *
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the October 18, 2017, direct final rule approving the Illinois Environmental Protection Agency's request to redesignate the Chicago and Granite City nonattainment areas to attainment for the 2008 national ambient air quality standards for lead, the state's maintenance plans for the areas, and rules applying emission limits and other control requirements to lead sources in the areas.
The direct final rule published at 82 FR 48448 on October 18, 2017, is withdrawn effective December 8, 2017.
Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–4489,
In the direct final rule, EPA stated that if adverse comments were submitted by November 17, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed action also published on October 18, 2017 (82 FR 48475). EPA will not institute a second comment period on this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the October 18, 2017, direct final rule approving the State of Ohio's request to redesignate the Fulton County nonattainment area (Fulton County) to attainment of the 2008 National Ambient Air Quality Standards for lead.
The direct final rule published at 82 FR 48442 on October 18, 2017, is withdrawn effective December 8, 2017.
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6524,
In the direct final rule, EPA stated that if adverse comments were submitted by November 17, 2017, the rule would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period and, therefore, is withdrawing the direct final rule. EPA will address the comment in a subsequent final action based upon the proposed action also published on October 18, 2017 (82 FR 48474). EPA will not institute a second comment period on this action.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of ziram in or on hazelnut. United Phosphorus, Inc. requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective December 8, 2017. Objections and requests for hearings must be received on or before February 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2016–0536, is available at
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2016–0536 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2016–0536, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has revised the tolerance value to add an additional significant figure and also revised the commodity term from filbert (hazelnut) to hazelnut. The reason for this change is explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for ziram including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with ziram follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The primary target organs of ziram are the nervous system, liver, and thyroid. A single oral dose causes neurological impairments (ataxia and slight impaired gait) while repeated short-term exposure results in inhibition of brain cholinesterase and brain neurotoxic esterase in rats. Developmental neurotoxic effects were not observed in offspring of the most recent DNT study. Liver histopathology was identified throughout the database at various doses in the rat subchronic and chronic studies and the mouse carcinogenicity study, and at times is accompanied by increases in hepatic serum enzyme levels. Chronic studies also included thyroid effects, specifically follicular cell hypertrophy and c-cell carcinoma. When ziram was administered orally in rats, it was rapidly absorbed, distributed, and excreted via urine, expired air, and excreted feces within 72 hours. Small amounts were widely distributed in the body with the highest tissue concentrations in the liver, fat, kidney, spleen, lung, thyroid, and adrenals. Metabolites were not identified.
There is no quantitative or qualitative evidence of increased susceptibility following
Based on the occurrence of benign tumors (hemangiomas) in male CD (SD) BR male rats, supported by an increasing trend in preputial gland adenomas in male F344 rats. However, since no hemangiosarcomas or preputial gland carcinomas were observed, no treatment-related increase in tumors was identified in the female CD(SD) BR or female F344/N rat, and because ziram was not carcinogenic to CD–1 mice (both genders), and there is no concern regarding mutagenicity, the EPA has determined that quantification of risk using a non-linear approach (
Ziram has low acute toxicity via the dermal and oral routes. However, ziram is classified as Toxicity Category I for eye irritation and a Category II for the acute inhalation study. Ziram is also a moderate dermal sensitizer. Specific information on the studies received and the nature of the adverse effects caused by ziram as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards
A summary of the toxicological endpoints for ziram used for human risk assessment is shown in the Table of this unit.
1.
i.
Such effects were identified for ziram. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) Nationwide Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA) conducted from 2003–2008. As to residue levels in food, the acute dietary analysis was obtained from the Dietary Exposure
ii.
iii.
iv.
Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
•
•
•
In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
The Agency estimated the maximum PCT for existing uses as follows in the acute dietary risk assessment: Almonds: 35%; apples: 20%; apricots: 70%; blueberries: 40%; cherries: 15%; grapes: 10%; nectarines: 65%; peaches: 40%; pears: 35%; pecans: 2.5%; and tomatoes: 6%.
The following average percent crop treated estimates were used in the chronic dietary risk assessments for the following crops that are currently registered for ziram: almonds: 15%; apples: 15%; apricots: 35%; blueberries: 30%; cherries: 5%; grapes: 5%; nectarines: 45%; peaches: 25%; pears: 15%; pecans: 2.5%; and tomatoes: 6%.
For strawberries, the Agency calculated percent detectable residue values from the FDA samples and used that number (4.5%) in the acute and chronic evaluations.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6–7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 5%. In those cases, EPA rounds to either 2.5% or 1%, whichever is appropriate. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, except when the maximum PCT is less than 5%; then EPA uses 2.5%.
The Agency believes that the three conditions discussed in Unit III.C.1. iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which ziram may be applied in a particular area.
2.
Based on the Pesticide Water Calculator (PWC 1.52) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of ziram for acute exposures are estimated to be 103.7 parts per billion (ppb) for surface water and <0.001 ppb for ground water. For chronic exposures for non-cancer assessments are estimated to be 2.74 ppb for surface water and <0.001 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 103.7 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 2.74 ppb was used to assess the contribution to drinking water.
3.
There are no conventional residential uses of ziram. However, there is a registered use of exterior latex paint, an antimicrobial use, for ziram which could result in residential exposures. The registered antimicrobial use in exterior latex paint (in-can-preservative) may be used by a homeowner and applied either by airless sprayer or by brush. Short-term aggregate risk assessments were previously conducted for adults only; the sole registered scenario resulting in residential exposures. Residential handler risks are not of concern for the loading/application of exterior latex paints either by airless spray or brush (
4.
The Agency reevaluated the existing data suggesting that the dithiocarbamates can be grouped based on a common mechanism of toxicity. The dithiocarbamates included were mancozeb, maneb, metiram, Na-dimethyldithiocarbamate, ziram, thiram, ferbam, and metam sodium. EPA concluded that the available evidence shows that the neuropathology induced by treatment of rats with the dithiocarbamates cannot be linked with the formation of carbon disulfide because: (a) The neuropathology induced by the dithiocarbamates is not consistent with the neuropathology induced by exposure to carbon disulfide, (b) there is a lack of concordance between doses of the dithiocarbamates that induce neuropathology and the amounts of carbon disulfide formed during metabolism and (c) there is evidence that more than one mechanism of toxicity could be operative that accounts for dithiocarbamate induced neuropathology because there is no consistent pattern of neuropathology reported in studies with this subgroup of carbamates. Accordingly, the available evidence does not support grouping the dithiocarbamates based on a common mechanism for neuropathology. For the purposes of this tolerance action, therefore, EPA has assumed that ziram does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for ziram is adequate for evaluating and characterizing its toxicity, except for where a NOAEL is extrapolated from a LOAEL in the acute neurotoxicity study used as the endpoint for assessing acute dietary exposure. EPA has determined that a 3x FQPA SF to account for the extrapolation is sufficient to protect infants and children because of the impacts observed at the LOAEL were minimal and other studies did not show effects occurring at similar doses.
ii. There is indication that ziram is a neurotoxic chemical and an acceptable developmental neurotoxicity study has been submitted. A single oral dose resulted in ataxia in both sexes and slight impaired gait in males. Repeated short term oral exposure resulted in inhibition of brain cholinesterase in both sexes and brain neurotoxic esterase activity in male rats. Developmental neurotoxic effects were not observed in offspring of the most recent DNT study. Chronic dietary exposure in adult rats resulted in atrophy and reductions in crural muscle weights. Crural muscles function in the motion of the rodent's grasping foot claw.
iii. There is no evidence that ziram results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary and non-dietary exposure estimates were based on several conservative assumptions and will not underestimate the exposure and risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to ziram in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by ziram.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
Ziram is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to ziram.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 170 for adults. Because EPA's level of concern for ziram is a MOE of 100 or below, these MOEs are not of concern.
4.
5.
6.
Adequate enforcement methodology (colorimetric method, Method I) is available to enforce the tolerance expression.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for ziram.
EPA revised the 0.1 ppm value to 0.10 ppm based on the practice to add the additional significant figure to provide clarity about permissible residues. In addition, the commodity term for the tolerance was revised from filbert (hazelnut) to hazelnut to be consistent with the general food and feed commodity vocabulary EPA uses for tolerances and exemptions.
Therefore, tolerance is established for residues of ziram, zinc dimethyldithiocarbamate, in or on hazelnut at 0.10 ppm.
In addition, EPA is making a number of housekeeping adjustments to this rule. First, consistent with the Agency's policy for drafting the tolerance expression, EPA is revising the tolerance expression to clarify that the tolerance covers residues of the parent as well as metabolites and degradates of the pesticide chemical in accordance with section 408(a)(3) of the FFDCA, and to clarify how residues of the chemical are to be measured to determine compliance with the tolerance levels. Second, because the tolerance for blackberries has expired by its terms, EPA is removing that tolerance from section 180.116. Finally, because no current tolerances have an expiration date, the third column is not necessary, so EPA is removing that column.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of indoxacarb in or on corn, field, forage; corn, field, stover; corn, field, grain. E. I. du Pont de Nemours and Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective December 8, 2017. Objections and requests for hearings must be received on or before February 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2017–0095, is available at
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2017–0095 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified
•
•
•
In the
Based on available information, EPA is establishing some tolerances that vary from what the petitioner requested. The reasons for these changes are discussed in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for indoxacarb including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with indoxacarb follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The most common effects resulting from exposure to indoxacarb (defined by the lowest-observed-adverse-effect-level (LOAEL)) were non-specific, and included decreases in body weight, food consumption, and food efficiency. Indoxacarb also affected the hematopoietic system by decreasing the red blood cell count, hemoglobin, and hematocrit in rats, dogs, and mice.
There was no evidence of reproductive effects in rats resulting from exposure to indoxacarb. There was no evidence of increased susceptibility in developing fetuses or in offspring following prenatal and/or postnatal exposure to indoxacarb in rats or rabbits. There was no evidence of increased susceptibility in the young in the developmental neurotoxicity study in rats. Neurotoxicity was observed in rats and mice, but at doses much higher than those selected for points of departure (PoDs) (which are based on changes in body weight, food consumption and changes in hematology). There is no evidence indoxacarb is carcinogenic, teratogenic, mutagenic, or immunotoxic.
Specific information on the studies received and the nature of the adverse effects caused by indoxacarb as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (PoD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological PoD is used as the basis for derivation of reference values for risk assessment. PoDs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the PoD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk
A summary of the toxicological endpoints for indoxacarb used for human risk assessment is shown in Table 1 of this unit.
1.
i.
ii.
iii.
iv.
Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.
Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
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•
•
In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
The Agency estimated maximum and average PCT values for the acute and chronic dietary assessments, as follows:
•
•
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6 to 7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 2.5%. In those cases, estimates of average PCT between 1% and 2.5% are rounded to 2.5% and estimates of average PCT less than 1% are rounded to 1%. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, except for those situations in which the maximum PCT is less than 2.5%. In those cases, EPA uses a maximum PCT value of 2.5%.
The Agency believes the three conditions discussed in Unit III.C.1.iv.
2.
Based on the Surface Water Concentration Calculator (SWCC) model and the Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of indoxacarb for acute exposures are 39 parts per billion (ppb) for surface water and 131 ppb for ground water; for chronic exposures the EDWCs are 11 ppb for surface water and 123 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, a time series distribution of ground water modeled residues was used to assess the contribution to drinking water. For the chronic dietary risk assessment, a single point water concentration value of 123 ppb was used to assess the contribution to drinking water.
3.
Based on these use scenarios, EPA assessed residential exposure using the following assumptions:
• Spot and crack and crevice exposures were not assessed due to formulation types that minimize the potential for handler and post-application exposures (
•
•
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found indoxacarb to share a common mechanism of toxicity with any other substances, and indoxacarb does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA assumed that indoxacarb does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for indoxacarb is complete.
ii. The acute neurotoxicity, subchronic toxicity, and developmental neurotoxicity studies for indoxacarb are available and all endpoints used in the risk assessment are protective of neurotoxic effects.
iii. There is no evidence that indoxacarb results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The Agency estimated maximum and average PCT values for the acute and chronic dietary assessments, respectively, as shown in unit III.C.i., and unit III.C.ii.
Food residues were taken from the results of supervised field trial studies reflecting maximum use patterns. Drinking water residues were included in the dietary assessments as follows: A point estimate of 123 ppb was used for the chronic assessment and the time series distribution of ground water modeled residues was used in the acute assessment as a residue distribution file (RDF) in the Monte Carlo analysis. For food commodities, RDFs were constructed for the probabilistic acute dietary assessment as appropriate, and average residues were computed for blended commodities and for the chronic dietary assessment.
EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by indoxacarb.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PoDs to ensure that an adequate MOE exists.
1.
2.
3.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 120 (food, water, and residential) for children aged 1–2. Because EPA's level of concern for indoxacarb is a MOE of 100 or below, this MOEs is not of concern.
4.
Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures for children aged 1–2 years result in aggregate MOEs of 260. Because EPA's level of concern for indoxacarb is a MOE of 100 or below, this MOE is not of concern.
5.
6.
For the enforcement of tolerances established on crops, two High Performance Liquid Chromatograph/Ultraviolet Detection (HPLC/UV) methods, DuPont protocols AMR 2712–93 and DuPont–11978, are available for use. The limits of quantitation (LOQs) for these methods range from 0.01 to 0.05 ppm for a variety of plant commodities. A third procedure, Gas Chromatograph/Mass-Selective Detection (GC/MSD), DuPont method AMR 3493–95 Supplement No. 4, is also available for the confirmation of residues in plants.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food
The Codex has not established MRLs in field corn for indoxacarb.
Based on available data and using the Organisation for Economic Co-operation and Development (OECD) maximum residue limit (MRL) calculation procedures, EPA determined that the appropriate tolerance level for corn, field, forage is 6.0 ppm. Based on the corn processing studies, the Agency determined that there is a low level of residue concentration from processing; therefore, separate tolerances are not needed for the processed corn commodities of flour, meal, or oil because these commodities are covered by the tolerance for corn, field, grain. The “grain, aspirated fractions” tolerance does not need to be modified for field corn because 40 CFR 180.564(a) currently lists a tolerance level of 45 ppm for “grain, aspirated fractions,” and this tolerance covers potential indoxacarb residues in aspirated grain fractions derived from corn.
Therefore, tolerances are established for residues of indoxacarb, [(S)-methyl 7-chloro-2,5-dihydro-2-[[(methoxycarbonyl)[4-(trifluoromethoxy)-phenyl] amino]carbonyl] indeno[1,2e][1,3,4]oxadiazine-4a(3H)-carboxylate], and [(R)-methyl 7 chloro-2,5-dihydro-2[[(methoxycarbonyl)[4-(trifluoromethoxy)phenyl] amino]carbonyl] indeno [1,2-e][1,3,4] oxadiazine-4a(3H)-carboxylate], in or on corn, field, forage at 6.0 ppm; corn, field, stover at 15 ppm; and corn, field, grain at 0.02 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of sedaxane in or on grain, cereal, forage, fodder and straw, group 16; grain, cereal, group 15; peanut; and peanut, hay. Syngenta Crop Protection, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective December 8, 2017. Objections and requests for hearings must be received on or before February 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2016–0537, is available at
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2016–0537 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2016–0537, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA is establishing tolerances and removing tolerances as requested in the petition, with one exception. The tolerance for crop group 16 is being established at 0.10 ppm to harmonize with Codex Alimentarius Commission maximum residue level (MRL).
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for sedaxane including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with sedaxane follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The main target tissue for sedaxane was found to be the liver. Sedaxane also caused thyroid hypertrophy/hyperplasia in male rats. In the acute neurotoxicity (ACN) and sub-chronic neurotoxicity (SCN) studies, sedaxane caused decreased activity, muscle tone, rearing and grip strength; however, because no specific neurotoxic effects or adverse histopathology were observed, EPA has concluded that there is low concern for neurotoxicity.
In the rat, no adverse effects in fetuses were seen in developmental toxicity studies at maternally toxic doses. In the rabbit, fetal toxicity was observed at the same doses as the dams. Offspring effects in the rat reproduction study occurred at the same doses causing parental effects.
The available data show evidence of high dose liver tumors (in male rats and mice), thyroid tumors (in male rats), and uterine tumors (in female rats) resulting from exposure to sedaxane. Based on a weight of evidence of the available data, a constitutive androstane receptor/pregnane-X receptor (CAR/PXR)-mediated mitogenic mode-of action (MOA) was established for liver tumors in male mice and rats and a liver-mediated altered thyroid hormone homeostasis MOA was established for thyroid tumors in male rats. At this time, a MOA for the uterine tumors has not been identified.
To assess the carcinogenic potential for sedaxane, EPA has concluded that a non-linear approach (
Sedaxane has low acute toxicity by the oral, dermal, and inhalation routes. It is not a dermal sensitizer, causes no skin irritation, and only slight eye irritation.
Specific information on the studies received and the nature of the adverse effects caused by sedaxane as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for sedaxane used for human risk assessment is shown in the Table of this unit.
1.
i.
Such effects were identified for sedaxane. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) under the Continuing Surveys of Food Intake by Individuals (CSFII) and the CDC under the National Health and Nutrition Examination Survey What We Eat in America (NHANES/WEIA) 2003–2008. EPA assumed tolerance-level residues for all commodities and 100% crop treated. Default processing factors were used with the exception of peanut butter.
ii.
iii.
iv.
2.
Based on the FQPA Index Reservoir Screening Tool (FIRST) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of sedaxane for acute exposures are estimated to be 4.1 parts per billion (ppb) for surface water and 15.1 ppb for ground water and for chronic exposures for non-cancer assessments are estimated to be 1.2 ppb for surface water and 13.0 ppb for ground water. The surface water estimates include contributions from all drinking water residues of concern identified for risk assessment purposes; nevertheless, the ground water EDWCs were higher than the surface water EDWCs and were selected for use in the dietary exposure assessments.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 15.1 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 13.0 ppb was used to assess the contribution to drinking water.
3.
4.
Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to sedaxane and any other substances, and sedaxane does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that sedaxane does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for sedaxane is complete.
ii. Given the available information, there is low concern that sedaxane is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity.
iii. In the rat, no adverse effects in fetuses were seen in developmental toxicity at maternally toxic doses. In the rabbit, fetal toxicity was observed at the same doses as the dam (increased unossified sternebrae and 13th rudimentary ribs and a decrease in fetal weights of −9% and increased abortions). In the dam, at the same doses, the effects were decreased body weight, reduced food consumption, and decreased defecation. In reproduction studies, offspring effects occurred at the same doses causing parental effects; thus, there was no quantitative increase in sensitivity in rat pups. The LOAELs and NOAELs for the developmental and reproduction studies were clearly defined. The NOAEL used for the acute dietary risk assessment (30 mg/kg/day), based on effects observed in the ACN study, is protective of the developmental and offspring effects seen in rabbits and rats with the NOAELs of 100–200 mg/kg/day. Based on these considerations, there are no residual uncertainties for pre-and/or post-natal susceptibility.
iv. There were no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to sedaxane in drinking water. These assessments will not underestimate the exposure and risks posed by sedaxane.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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6.
An adequate analytical method is available to enforce the proposed tolerances for sedaxane in plant commodities. A modification of the Quick, Easy, Cheap, Effective, Rugged, and Safe (QuEChERS) method was developed for the determination of residues of sedaxane (as its isomers SYN508210 and SYN508211) in/on various crops. The sedaxane isomers (SYN508210 and SYN508211) are quantitatively determined by LC/MS/MS. The validated limit of quantitation (LOQ) reported in the method is 0.005 ppm for both sedaxane isomers.
The analytical standard for sedaxane, with an expiration date of February 28, 2018, is currently available in the EPA National Pesticide Standards Repository.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international MRL established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
Codex has established MRLs for sedaxane in or on grain, cereal, forage, fodder and straw, group 16 at 0.10 ppm and grain, cereal, group 15 at 0.01 ppm. Codex has not established a MRL for sedaxane in or on peanut. Tolerances are harmonized with the Codex MRLs for groups 16 and 15.
Therefore, tolerances are established for residues of sedaxane in or on grain, cereal, forage, fodder and straw, group 16 at 0.10 ppm; grain, cereal, group 15 at 0.01 ppm; peanut at 0.01 ppm; and peanut, hay at 0.08 ppm. In addition, EPA is removing the following existing tolerances for residues of sedaxane as they are superseded by the tolerances established in this rulemaking: Barley, grain at 0.01 ppm; barley, hay at 0.04 ppm; barley, straw at 0.01 ppm; corn, field, forage at 0.01 ppm; corn, field, grain at 0.01 ppm; corn, field, stover at 0.01 ppm; corn, pop, grain at 0.01 ppm; corn, pop, stover at 0.01 ppm; corn, sweet, forage at 0.01 ppm; corn, sweet, kernel plus cob with husks removed at 0.01 ppm; corn, sweet, stover at 0.01 ppm; oat, forage at 0.015 ppm; oat, grain at 0.01 ppm; oat, hay at 0.06 ppm; oat, straw at 0.01 ppm; rye, forage at 0.015 ppm; rye, grain at 0.01 ppm; rye, straw at 0.01 ppm; sorghum, grain, forage at 0.01 ppm; sorghum, grain, grain at 0.01 ppm; sorghum, grain, stover at 0.01 ppm; wheat, forage at 0.015 ppm; wheat, grain at 0.01 ppm; wheat, hay at 0.06 ppm; and wheat, straw at 0.01 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective December 8, 2017. Objections and requests for hearings must be received on or before February 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2016–0687, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2016–0687 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2016–0687, by one of the following methods:
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”
EPA evaluated the available toxicity and exposure data on
An analytical method is not required because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.
This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of
Environmental Protection Agency (EPA).
Direct final rule; withdrawal.
In the
Effective December 8, 2017, the direct final rule published in the
A list of potentially affected entities is provided in the
In the October 25, 2017
Since the direct final rule and proposed rule's publication, EPA has received a comment on the proposed amendments to the voluntary consensus standard updating action that the Agency considers to be adverse. As a result of receiving an adverse comment, EPA is withdrawing the direct final rule published in the
To access the docket, please go to
EPA finds that there is “good cause” under the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) to withdraw the direct final rule discussed in this document without prior notice and comment. For this document, notice and comment is impracticable and unnecessary because EPA is under a time limit to publish this withdrawal. It was determined that this document is not subject to the 30-day delay of effective date generally required by 5 U.S.C. 553(d) as there is good cause for the withdrawal to be effective immediately. This withdrawal must become effective prior to the effective date of the direct final rule being withdrawn, as EPA explained in the direct final rule itself.
This document withdraws regulatory requirements that have not gone into effect. As such, the Agency has determined that this withdrawal will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the direct final rule being withdrawn were discussed in the October 25, 2017 (82 FR 49287)
Pursuant to the CRA (5 U.S.C. 801
Environmental protection, Formaldehyde, Incorporation by reference, Reporting and recordkeeping requirements, Third-party certification, Toxic substances, Wood.
Chemical Safety and Hazard Investigation Board.
Final rule.
The Chemical Safety and Hazard Investigation Board (CSB) published an interim final Freedom of Information Act (FOIA) rule in the
This rule is effective December 8, 2017.
Kara Wenzel, Acting General Counsel, 202–261–7600, or
The CSB published an interim final FOIA rule in the
The CSB's previous implementation of this rule as an interim final rule, with provision for post-promulgation public comment, was based on section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b). Under section 553(b), an agency may issue a rule without notice of proposed rulemaking and the pre-promulgation opportunity for public comment, with regard to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” The CSB determined that many of the revisions were to interpretive rules issued by the CSB. Moreover, the CSB determined that the remaining revisions were rules of agency procedure or practice, as they did not change the substantive standards the agency applies in implementing the FOIA. The CSB also concluded that a pre-publication public comment period was unnecessary. The revisions in 40 CFR part 1601 merely implemented statutory changes, aligned the CSB's regulations with controlling judicial decisions, and clarified agency procedures.
This rule is not subject to the Unfunded Mandates Reform Act because it does not contain a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000.00 or more in any one year. Nor will it have a significant or unique effect on small governments.
This rule is not subject to the Regulatory Flexibility Act. The CSB has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The rule implements the procedures for processing FOIA requests within the CSB. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for the requesters. Thus, fees accessed by CSB will be nominal. Further, the “small entities” that make FOIA requests, as compared with individual and other requesters, are relatively few in number.
This rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. The Paperwork Reduction Act imposes certain requirements on Federal agencies in connection with the conducting or sponsoring of any collection of information. This rule does not contain any new collection of information requirement within the meaning of the Act.
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000.00 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
This rule will not have a significant effect on the human environment. Accordingly, this rule is categorically excluded from environmental analysis under 43 CFR 46.210(i).
Section 206 of the E-Government Act requires agencies, to the extent practicable, to ensure that all information about that agency required to be published in the
Under this Act, the term “plain writing” means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience. To ensure that this rulemaking was written in plain and clear language so that it can be used and understood by the public, the CSB modeled the
Administrative practice and procedure, Archives and records, Confidential business information, Freedom of information, Privacy.
Accordingly, the interim rule amending 40 CFR part 1601, which was published at 82 FR 45502 on September 29, 2017, is adopted as final without change.
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC or Commission) eliminates the rule that requires each AM, FM, and television broadcast station to maintain a main studio located in or near its community of license. The FCC also eliminates existing requirements associated with the rule, including the requirement that the main studio have full-time management and staff present during normal business hours, and that it have program origination capability.
Effective January 8, 2018, except for §§ 73.3526(c)(1) and 73.3527(c)(1), which contain new or modified information collection requirements, and which shall become effective after the Commission publishes a document in the
For additional information on this proceeding, contact Diana Sokolow,
This is a summary of the Commission's Report and Order (R&O), FCC 17–137, adopted and released on October 24, 2017. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., Room CY–A257, Washington, DC 20554. This document will also be available via ECFS at
1. The Commission in this R&O adopts the proposal in the Notice of Proposed Rulemaking (NPRM), 82 FR 25590 (June 2, 2017), to eliminate the Commission rule requiring AM, FM, and television broadcast stations to maintain a local main studio.
2. We agree with the vast majority of commenters
3. We affirm the tentative conclusion in the NPRM that technological innovations have rendered local studios unnecessary as a means for viewers and listeners to communicate with or access their local stations and to carry out the other traditional functions that they have served. The record shows that it is exceedingly rare for a member of the public to visit a station's main studio, with community members overwhelmingly choosing instead to communicate with stations through more efficient means such as email, station Web sites, social media, mail, or telephone.
4. We disagree with arguments that in the absence of a local main studio, the Commission will be unable to ensure that a station serves its local community. Broadcast licensees still will be required to include in their public inspection files, on a quarterly basis, a list of those “programs that have provided the station's most significant treatment of community issues during the preceding three month period,” including a brief description of each relevant program. Further, as part of the broadcast station license renewal process, the Commission is required to find that “the station has served the public interest, convenience, and necessity” during its preceding license term. In particular, “[o]ne of a television broadcaster's fundamental public interest obligations is to air programming responsive to the needs and interests of its community of license.”
5. We also are not persuaded by contentions that broadcasters' local community involvement or the provision of local news will significantly decline if we eliminate the main studio rule. Broadcast commenters explain that they keep apprised of local needs and issues to distinguish themselves from their competitors, to gain popularity and thus advertising dollars or, in the case of noncommercial educational (NCE) stations, contributions, and to fulfill their public interest obligations.
6. We reject claims that the elimination of the main studio rule will have a negative impact on broadcasters' ability to broadcast emergency and time-sensitive information. One commenter explains that in terms of “a station's ability to communicate time-sensitive or emergency information to the public,” today telephone and Internet communications are more efficient than an in-person interaction at a local studio. In furtherance of their obligation to serve their communities of license, commenters state that broadcasters will continue providing timely emergency information to their viewers and listeners. Additionally, we note that the elimination of the main studio rule will not in any way alter a station's obligations to transmit emergency alerts received via the emergency alert system (EAS).
7. Because we find that technological innovations have eliminated the need for a local main studio, the costs of complying with the main studio rule substantially outweigh any benefits.
8. The cost savings broadcasters may achieve following elimination of the main studio rule will enable them to allocate greater resources to local programming and other matters such as community outreach, newsgathering, equipment upgrades, and attracting new talent and personnel. According to some commenters, such savings could even prevent some stations from going dark. Stations will have the flexibility to operate studios in the most efficient manner, and some stations that are co-owned or jointly operated may find it to be more efficient for them to co-locate their studios.
9. Eliminating the main studio rule and associated requirements is not inconsistent with section 307(b) of the Communications Act of 1934, as amended (the Act), which requires the Commission to “make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide for a fair, efficient, and equitable distribution of radio service to each of the same.” In the absence of the main studio rule, broadcast stations still will be licensed to a specific community of license, and they will be obligated to place a certain signal contour over that community. As noted above, broadcasters also will remain subject to license renewal and quarterly issues/programs list requirements. Moreover, programming designed to meet a community's needs and interests can be produced anywhere today. For the reasons discussed herein, the record supports our finding that a local main studio is no longer necessary to ensure that broadcast stations serve their local communities,
10. We note that the Commission or Media Bureau has previously granted waivers of the main studio rule. Our decision to eliminate the main studio requirement supersedes these waiver grants, including pledges that the licensees made in connection with those waivers, with one exception discussed below.
11. In addition to eliminating the main studio rule itself, we adopt our NPRM proposal to eliminate the staffing requirements currently associated with the rule. This will provide broadcasters with more flexibility to staff their operations as they see fit. Pursuant to Commission precedent, there currently must be two employees (one management and one staff) present on a full-time basis at a main studio during normal business hours. Given the technological advances that enable remote monitoring and control of broadcast stations, commenters attest that some main studio employees have nothing to do but sit at the main studio in fulfillment of this requirement. Commenters persuasively state that it can be difficult for small or rural stations and for financially-challenged AM stations to support two full-time employees. For example, station KIHT(FM) is licensed to Amboy, California (population: four) and serves motorists traveling through the Mojave Desert. One employee travels over an hour each way each day to staff the main studio.
12. We find that decisions regarding location and number of staff members should be left to broadcast licensees.
13. In addition to the foregoing, we also adopt our NPRM proposal to eliminate the program origination capability requirement currently associated with the main studio rule. This will provide broadcasters greater flexibility with respect to their programming operations. Pursuant to Commission precedent, the main studio currently must be capable of transmitting programming and must be equipped with production and transmission facilities. When the Commission decided thirty years ago to eliminate its rule requiring stations to actually originate programming at their main studios, it concluded that “the main studio no longer plays the central role in the production of a station's programming and programming originated from within the political boundaries of the community is not necessarily responsive to the needs and interests of the community.”
14. There is no evidence in the record that the current program origination capability requirement has enhanced local programming or otherwise served the public interest. Commenters state that many broadcasters that currently originate programming locally will continue to do so in the absence of the current program origination capability requirement. In any case, it appears that the location from which programming is originated is irrelevant to whether the programing serves a community's needs and interests. We agree with broadcast commenters “that a licensee's understanding of the needs and concerns of its station's audience,” not the physical location of its studio or program production equipment, “promotes the broadcast of issue-responsive programming.”
15. As proposed in the NPRM, we retain § 73.1125(e) of our rules, which requires “[e]ach AM, FM, TV and Class A TV broadcast station [to] maintain a local telephone number in its community of license or a toll-free number.” NAB supports this requirement, which it says “keep[s] the community well-informed and [is] not unduly burdensome.” The telephone number rule permits station owners to provide one telephone number for multiple stations, provided that the number is toll-free or local to each station's community of license.
16. Stations currently are required to post their telephone numbers in their online public files.
17. Furthermore, in the NPRM, the Commission sought comment on whether additional requirements are needed to ensure that broadcasters are responsive to time-sensitive and emergency information. Because broadcasters already coordinate with federal, state, and local emergency management officials, as well as law enforcement officials, to address emergencies that occur at any time of day, we conclude that there is no need to adopt additional requirements pertaining to broadcast station responsiveness to time-sensitive or emergency information.
18. As discussed below, and as supported by NAB and other broadcasters, we require every broadcast station applicant, permittee, or licensee to maintain any portion of its public file that is not part of the online public file at an accessible place within its community of license. Pursuant to the Commission's online public file rules, in the very near future there will be only limited instances in which any portion of a station's public inspection file will be permitted to be maintained at the station's main studio rather than online.
19. Nonetheless, we recognize the need to ensure that community members have local access to a station's public file for any timeframe during which all or a portion of that file is not available via the online public file. Accordingly, we require every broadcast station applicant, permittee, or licensee to maintain any portion of its public file that is not part of the online public file at an accessible place within its community of license. NAB and other broadcasters support this approach. The “accessible place” could be a station office or studio, if it is located within the community of license, or it could be a different location such as a local library or another station's office or studio. The file must be available for public inspection at any time during regular business hours, as is currently the case with regard to access to a public file maintained at a station's main studio.
20. In addition, if a broadcast station currently maintains its local public file at a main studio that complies with the current main studio rule but is not within the station's community of license, and if the station retains that studio, we will grandfather that studio as a permissible location for the station's local public file for the period before completion of the station's transition to the online public file.
21. A community member seeking access to a station's public inspection file in the community of license may contact the station to inquire as to the location of the file, for example via its required telephone number or email. Stations must promptly provide information regarding the location of the file within one business day of a request. In addition, we encourage stations that make public file materials available at an accessible place in the community to provide that location on their Web site, if they have a Web site, and by any other means that the station deems effective.
22. In the NPRM, the Commission sought comment on whether alternatively it should only eliminate the main studio rule for stations that have fully transitioned all public file material to the online public file, including existing political file materials. While some commenters support this alternate approach, we agree with NAB that we should not limit in this manner the public interest benefits that will follow the elimination of the main studio rule.
23. As a result of our repeal of the main studio rule, we also will make the following conforming rule revisions as shown in the Final Rules:
• In § 1.80, delete the row of the chart detailing the base forfeiture amount for violations of the main studio rule.
• In § 1.1104, delete the four rows detailing the schedule of charges for a “Main Studio Request,” and re-letter the remaining listings accordingly.
• In the definition of “equipment performance measurements” in § 73.14 of our rules, delete “at main studio.”
• Delete § 73.761(d) of our rules, which currently governs formal applications for a change in main studio location, and renumber the remainder of the rule.
• In § 73.1400(a)(1)(ii) of our rules, change the reference to “the main studio or other location” to “a studio or other location.”
• Delete § 73.1690(c)(8)(ii) of our rules, which currently states that both commercial and NCE FM stations must comply with the main studio rule, and renumber the remainder of the rule.
• Delete § 73.1690(d)(1) of our rules, which currently governs permissive changes in studio location, and renumber the remainder of the rule.
• Modify §§ 73.3526(b)(2)(ii) and 73.3527(b)(2)(iii) of our rules, which currently require the public file to include the station's main studio address and telephone number, instead to require the public file to include the station's address and telephone number.
• Delete the reference to “main studio” in §§ 73.3526(e)(4) and 73.3527(e)(3) of our rules, which currently require inclusion of information showing service contours and/or main studio and transmitter location in the public file.
• Delete § 73.3538(b)(2) of our rules, which currently governs informal applications to relocate a main studio, and renumber the remainder of the rule.
• Delete § 73.3544(b)(3) of our rules, which currently governs informal applications for a change in location of the main studio, and renumber the remainder of the rule.
• In the alphabetical index to part 73, delete the four rows that reference § 73.1125.
24. We also will delete § 73.6000(3) of our rules and will require Class A stations to meet the required quantity of “locally produced programming” through programming that complies with § 73.6000(1) or (2). Consistent with the Community Broadcasters Protection Act of 1999, § 73.6001(b)(2) requires Class A stations to broadcast an average of at least three hours of locally produced programming per week each quarter. Section 73.6000 defines locally produced programming for these purposes as programming that is:
(1) Produced within the predicted Grade B contour of the station broadcasting the program or within the contiguous predicted Grade B contours of any of the stations in a commonly owned group; or
(2) Produced within the predicted DTV noise-limited contour . . . of a digital Class A station broadcasting the program or within the contiguous predicted DTV noise-limited contours of any of the digital Class A stations in a commonly owned group; or
(3) Programming produced at the station's main studio.
25. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. The Commission sought written public comments on proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA, although some commenters discussed the effect of the proposals on smaller entities. The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. In summary, the R&O adopts the proposal to eliminate the Commission's main studio rule and existing requirements associated with the main studio rule. The R&O is authorized pursuant to sections 4(i), 4(j), 303, 307(b), and 336(f) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 307(b), 336(f). The types of small entities that may be affected by the R&O fall within the following categories: Television Broadcasting, Radio Stations. The projected reporting, recordkeeping, and other compliance requirements are: (1) The elimination of the rule requiring each AM, FM, and television broadcast station to maintain a local main studio; (2) the elimination of the associated staffing and program origination capability requirements; (3) retention of the existing requirement that broadcasters maintain a local or toll-free telephone number; (4) a requirement that stations maintain any portion of their public file that is not part of the online public file at a publicly accessible location within the community of license, unless the current main studio is grandfathered as a permissible location for the station's local public file for the period before completion of the station's transition to the online public file because (a) the station currently maintains its local public file at a main studio that complies with the current main studio rule but is not within the station's community of license, or (b) the station has an existing waiver of the main studio rule that permits the station to maintain its public files at the station's main studio outside the community of license. The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file any comments in response to the proposed rules in this proceeding. Elimination of the existing requirements pertaining to the location of the main studio of each AM, FM, and television broadcast station, as well as the elimination of associated staffing and program origination requirements, will eliminate requirements that may be outdated and unnecessarily burdensome on all broadcast stations, including small entities. The Commission considered whether it should adopt additional requirements pertaining to publicizing or staffing the required telephone number or responding to time-sensitive or emergency information. While some commenters advocated such alternative approaches, the Commission concluded that the burdens of any such additional requirements are unjustified. Separately, while the Commission could simply adopt the requirement pertaining to the location of the public file, instead it has taken the alternate approach of providing broadcast stations with additional flexibility that will reduce costs by grandfathering certain existing studios as a permissible location for the station's local public file. In the R&O, the Commission explains its rejection of an alternate approach pursuant to which it could only eliminate the main studio rule for stations that have fully transitioned all public file material to the online public file material, stating that such an approach would disadvantage the smaller entities that may be most impacted by the costs of complying with the current main studio rule.
26. This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13.
27. The Commission will send a copy of this R&O in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
28. Accordingly,
29.
30.
Administrative practice and procedure, Penalties, Radio, Reporting and recordkeeping requirements, Television.
Radio, Reporting and recordkeeping requirements, Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1 and 73 as follows:
47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 1452, and 1455.
47 U.S.C. 154, 303, 309, 310, 334, 336, and 339.
Each AM, FM, TV, and Class A TV broadcast station shall maintain a local telephone number in its community of license or a toll-free number.
(a) * * *
(1) * * *
(ii) Remote control of the transmission system by a person at a studio or other location. The remote control system must provide sufficient transmission system monitoring and control capability so as to ensure compliance with § 73.1350.
The revisions read as follows.
(c) * * *
(8) FM commercial stations and FM noncommercial educational stations may decrease ERP on a modification of license application provided that exhibits are included to demonstrate that all five of the following requirements are met:
(d) * * *
(1) Commencement of remote control operation pursuant to § 73.1400.
The revisions read as follows:
(b) * * *
(1) For radio licensees temporarily exempt from the online public file hosted by the Commission, as discussed in paragraph (b)(2) of this section, a hard copy of the public inspection file shall be maintained at an accessible place in the community of license, unless the licensee elects voluntarily to place the file online as discussed in paragraph (b)(2) of this section. An applicant for a new station or change of community shall maintain its file at an accessible place in the proposed community of license. If as of January 8, 2018 a broadcast station maintains a hard copy of all or a portion of its public inspection file at a main studio that either complied with the Commission's main studio rule (47 CFR 73.1125 (2016)) but is not within the station's community of license, or was deemed a permissible location for the station's public inspection file pursuant to a waiver of the main studio rule, and if the station retains that studio, then that studio is a permissible location for the station's hard copy public inspection file. Any reference in this section to “an accessible place in the community of license” shall be deemed to include such a studio.
(2)(i) A television station licensee or applicant, and any radio station licensee or applicant not temporarily exempt as described in this paragraph (b)(2)(i), shall place the contents required by paragraph (e) of this section of its public inspection file in the online public file hosted by the Commission, with the exception of the political file as required by paragraph (e)(6) of this section, as discussed in paragraph (b)(3) of this
(ii) A station must provide a link to the public inspection file hosted on the Commission's Web site from the home page of its own Web site, if the station has a Web site, and provide contact information on its Web site for a station representative that can assist any person with disabilities with issues related to the content of the public files. A station also is required to include in the online public file the station's address and telephone number, and the email address of the station's designated contact for questions about the public file. To the extent this section refers to the local public inspection file, it refers to the public file of an individual station, which is either maintained at an accessible place in the community of license or on the Commission's Web site, depending upon where the documents are required to be maintained under the Commission's rules.
(3) * * *
(ii) Any television station not in the top 50 DMAs, and any station not affiliated with one of the top four broadcast networks, regardless of the size of the market it serves, shall continue to retain the political file at the station in the manner discussed in paragraph (b)(1) of this section until July 1, 2014. For these stations, effective July 1, 2014, any new political file material shall be placed in the online file hosted by the Commission, while the material in the political file as of July 1, 2014, if not placed in the Commission's Web site, shall continue to be retained at the station in the manner discussed in paragraph (b)(1) of this section until the end of its retention period. However, any station that is not required to place its political file in the online file hosted by the Commission before July 1, 2014 may choose to do so, instead of retaining the political file at the station in the manner discussed in paragraph (b)(1) of this section. For purposes of this paragraph (b)(3)(ii), the “manner discussed in paragraph (b)(1) of this section” refers to maintaining a hard copy of the public inspection file at the main studio of the station as described in paragraph (b)(1) prior to January 8, 2018.
(iii) Any radio station not in the top 50 Nielsen Audio markets, and any radio station with fewer than five full-time employees, shall continue to retain the political file at an accessible place in the community of license in the manner discussed in paragraph (b)(1) of this section until March 1, 2018. For these stations, effective March 1, 2018, any new political file material shall be placed in the online public file hosted by the Commission, while the material already existing in the political file as of March 1, 2018, if not placed in the online public file hosted by the Commission, shall continue to be retained at an accessible place in the community of license in the manner discussed in paragraph (b)(1) of this section until the end of its retention period. However, any station that is not required to place its political file on the Commission's Web site before March 1, 2018, may choose to do so, instead of retaining the political file at an accessible place in the community of license in the manner discussed in paragraph (b)(1) of this section.
(c) * * *
(1) For any applicant, permittee, or licensee that does not include all material described in paragraph (e) of this section in the online public file hosted by the Commission, the portion of the file that is not included in the online public file shall be available for public inspection at any time during regular business hours at an accessible place in the community of license. The applicant, permittee, or licensee must provide information regarding the location of the file, or the applicable portion of the file, within one business day of a request for such information. All or part of the file may be maintained in a computer database, as long as a computer terminal is made available, at the location of the file, to members of the public who wish to review the file. Material in the public inspection file shall be made available for printing or machine reproduction upon request made in person. The applicant, permittee, or licensee may specify the location for printing or reproduction, require the requesting party to pay the reasonable cost thereof, and may require guarantee of payment in advance (
(2) The applicant, permittee, or licensee who maintains its public file outside its community of license (see paragraph (b)(1) of this section) shall:
(e) * * *
(4)
(b) * * *
(1) For radio licensees, a hard copy of the public inspection file shall be maintained at an accessible place in the community of license until March 1, 2018, except that, as discussed in paragraph (b)(2)(ii) of this section, any radio station may voluntarily place its public inspection file in the online public file hosted by the Commission before March 1, 2018, if it chooses to do so, instead of retaining the file at an accessible place in the community of license. An applicant for a new station or change of community shall maintain its file at an accessible place in the proposed community of license. If as of January 8, 2018 a broadcast station maintains a hard copy of all or a portion of its public inspection file at a main studio that either complied with the Commission's main studio rule (47 CFR 73.1125 (2016)) but is not within the station's community of license, or was deemed a permissible location for the station's public inspection file pursuant to a waiver of the main studio rule, and if the station retains that studio, then that studio is a permissible location for the station's hard copy public inspection file. Any reference in this section to “an accessible place in the community of license” shall be deemed to include such a studio.
(2)(i) A noncommercial educational television station licensee or applicant shall place the contents required by paragraph (e) of this section of its public inspection file in the online public file
(ii) Beginning March 1, 2018, noncommercial educational radio station licensees and applicants shall place the contents required by paragraph (e) of this section in the online public inspection file hosted by the Commission. For these stations, effective March 1, 2018, any new political file material shall be placed in the Commission's online public file, while the material in the political file as of March 1, 2018, if not placed in the Commission's online public file, shall continue to be retained at an accessible place in the community of license in the manner discussed in paragraph (b)(1) of this section until the end of its retention period. However, any radio station that is not required to place its public inspection file in the online public file hosted by the Commission before March 1, 2018, may choose to do so, instead of retaining the public inspection file at an accessible place in the community of license in the manner discussed in paragraph (b)(1) of this section.
(iii) A station must provide a link to the online public inspection file hosted by the Commission from the home page of its own Web site, if the station has a Web site, and provide contact information for a station representative on its Web site that can assist any person with disabilities with issues related to the content of the public files. A station also is required to include in the online public file hosted by the Commission the station's address and telephone number, and the email address of the station's designated contact for questions about the public file. To the extent this section refers to the local public inspection file, it refers to the public file of an individual station, which is either maintained at an accessible place in the community of license or on the Commission's Web site, depending upon where the documents are required to be maintained under the Commission's rules.
(c) * * *
(1) For any applicant, permittee, or licensee that does not include all material described in paragraph (e) of this section in the online public file hosted by the Commission, the portion of the file that is not included in the online public file shall be available for public inspection at any time during regular business hours at an accessible place in the community of license. The applicant, permittee, or licensee must provide information regarding the location of the file, or the applicable portion of the file, within one business day of a request for such information. All or part of the file may be maintained in a computer database, as long as a computer terminal is made available, at the location of the file, to members of the public who wish to review the file. Material in the public inspection file shall be made available for printing or machine reproduction upon request made in person. The applicant, permittee, or licensee may specify the location for printing or reproduction, require the requesting party to pay the reasonable cost thereof, and may require guarantee of payment in advance (
(2) The applicant, permittee, or licensee who maintains its public file outside its community of license (see paragraph (b)(1) of this section) shall:
(e) * * *
(3)
(b) An informal application filed in accordance with § 73.3511 is to be used to obtain authority to modify or discontinue the obstruction marking or lighting of the antenna supporting structure where that specified on the station authorization either differs from that specified in 47 CFR part 17, or is not appropriate for other reasons.
For the purpose of this subpart, the following definition applies:
(1) Produced within the predicted Grade B contour of the station broadcasting the program or within the contiguous predicted Grade B contours of any of the stations in a commonly owned group; or
(2) Produced within the predicted DTV noise-limited contour (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure of the General category fishery.
NMFS closes the General category fishery for large medium and giant (
Effective 11:30 p.m., local time, December 6, 2017, through December 31, 2017.
Sarah McLaughlin or Brad McHale, 978–281–9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
NMFS is required, under § 635.28(a)(1), to file a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year or for a specified period as indicated in the notification, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.
The base quota for the General category is 466.7 mt. See § 635.27(a). To date this year, NMFS has adjusted the General category base quota for 2017 three times, including a transfer of 40 mt from the Reserve category effective March 2 (82 FR 12747, March 7, 2017), a transfer of 156.4 mt from the Reserve category effective September 28 (82 FR 46000, October 3, 2017), and a transfer of 25.6 mt from the Harpoon category effective December 1 (82 FR 55520, November 22, 2017). The third transfer resulted in an adjusted General category December subquota of 12.7 mt and an adjusted 2017 General category quota of 688.7 mt.
Based on the best available landings information for the General category BFT fishery, NMFS has determined that the available December subquota of 12.7 mt has been reached, as has the overall adjusted General category quota of 688.7 mt. Therefore, retaining, possessing, or landing large medium or giant BFT by persons aboard vessels permitted in the Atlantic tunas General and HMS Charter/Headboat categories must cease at 11:30 p.m. local time on December 6, 2017. The General category will reopen automatically on January 1, 2018, for the January through March 2018 subperiod. This action applies to Atlantic tunas General category (commercial) permitted vessels and Highly Migratory Species (HMS) Charter/Headboat category permitted vessels and is taken consistent with the regulations at § 635.28(a)(1). The intent of this closure is to prevent overharvest of the available 2017 General category quota.
Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at
NMFS will continue to monitor the BFT fisheries closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. General and Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing
The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. These fisheries are currently underway and delaying this action would be contrary to the public interest as it could result in excessive BFT landings that may result in future potential quota reductions for the General category. NMFS must close the General category fishery for 2017 to prevent overharvest of the available quota. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
This action is being taken under § 635.28(a)(1) (BFT Fishery Closures), and is exempt from review under Executive Order 12866.
16 U.S.C. 971
Board of Governors of the Federal Reserve System.
Notice of proposed rulemaking.
The Board of Governors of the Federal Reserve System (“Board”) is proposing to amend its Regulation A to; revise the provisions regarding the establishment of the primary credit rate in a financial emergency, and to delete the provisions relating to the use of credit ratings for collateral for extensions of credit under the former Term Asset-Backed Securities Loan Facility (TALF). The proposed amendments are intended to allow the regulation to address circumstances in which the Federal Open Market Committee has established a target range for the federal funds rate rather than a single target rate, and to reflect the expiration of the TALF program.
Comments must be received no later than January 8, 2018.
You may submit comments, identified by Docket Number R–1585; RIN 7100 AE–90, by any of the following methods:
•
•
•
•
•
All public comments are available from the Board's Web site at
Sophia H. Allison, Special Counsel, (202–452–3565), Legal Division, or Lyle Kumasaka, Senior Financial Analyst, 202–452–2382), Division of Monetary Affairs; for users of Telecommunications Device for the Deaf (TDD) only, contact 202/263–4869; Board of Governors of the Federal Reserve System, 20th and C Streets, NW., Washington, DC 20551.
The Federal Reserve Banks make primary, secondary, and seasonal credit available to depository institutions subject to rules and regulations prescribed by the Board. The primary, secondary, and seasonal credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. Under the primary credit program, Federal Reserve Banks may extend credit on a very short-term basis, typically overnight, to depository institutions that are in generally sound condition in the judgment of the Federal Reserve Bank. In accordance with the Federal Reserve Act, the primary credit rate is established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board. The primary credit rate is set forth in section 201.51 of Regulation A.
Regulation A currently provides a procedure for establishing the primary credit rate in a financial emergency. Section 201.51(d) of Regulation A currently provides that the primary credit rate at a Federal Reserve Bank is “the target federal funds rate of the Federal Open Market Committee” if two conditions are met.
The Federal Open Market Committee (FOMC) currently establishes a target range for the federal funds rate. Accordingly, the Board proposes to amend section 201.51(d)(1) of Regulation A to provide that, in a financial emergency, the primary credit rate is the target federal funds rate or, if the FOMC has established a target range for the federal funds rate, a rate corresponding to the top of the target range.
On November 25, 2008, the Board and Treasury announced the establishment of the TALF. The TALF was intended to assist financial markets in accommodating the credit needs of consumers and businesses of all sizes during the financial crisis by facilitating the issuance of asset-backed securities (“ABS”) collateralized by a variety of consumer and business loans; it was also intended to improve market conditions for ABS more generally. The Board authorized the TALF pursuant to the then-current provisions of section 13(3) of the Federal Reserve Act.
On December 9, 2009, the Board adopted an amendment to Regulation A to provide a process by which the FRBNY could determine the eligibility of credit rating agencies and the ratings
On June 30, 2010, the TALF was closed for new loan extensions, and the final outstanding TALF loan was repaid in full in October 2014.
Congress enacted the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
The Board certifies that the proposed amendments will have no economic impacts on any small entities.
Office of Management and Budget (OMB) regulations implementing the Paperwork Reduction Act (PRA) state that agencies must submit “collections of information” contained in proposed rules published for public comment in the
In accordance with the PRA, the Board reviewed the proposed rule under the authority delegated to the Board by OMB.
Each Federal banking agency, including the Board, is required to use plain language in all proposed and final rulemakings published after January 1, 2000. 12 U.S.C. 4809. The Board has sought to present the proposed amendments, to the extent possible, in a simple and straightforward manner. The Board invites comment on whether there are additional steps that could be taken to make the proposed amendments easier to understand, such as with respect to the organization of the materials or the clarity of the presentation.
Banks, Banking, Federal Reserve System, Reporting and recordkeeping.
For the reasons set forth in the preamble, the Board proposes to amend 12 CFR Chapter II as follows:
12 U.S.C. 248(i)–(j) and (s), 343
(d) * * *
(1) The primary credit rate at a Federal Reserve Bank is the target federal funds rate of the Federal Open Market Committee or, if the Federal Open Market Committee has set a target range for the federal funds rate, the rate corresponding to the top of the target range, if:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E surface airspace and Class E airspace extending upward from 700 feet above the surface at Massena, NY, as the Massena collocated VHF omnidirectional range tactical air navigation system (VORTAC) has been decommissioned, requiring airspace reconfiguration at Massena International-Richards Field Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also would update the geographic coordinates of the airport.
Comments must be received on or before January 22, 2018.
Send comments on this rule 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–2017–0953; Airspace Docket No. 17–AEA–15, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.11B, 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 amend Class E surface airspace and Class E airspace extending upward from 700 feet above the surface at Massena International-Richards Field Airport, Massena, NY, to support IFR operations at the airport.
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 (FAA Docket No. FAA–2017–0953; Airspace Docket No. 17–AEA–15) and be submitted in triplicate to the Docket Management System (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–2014–0953; Airspace Docket No. 17–AEA–15.” 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 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B 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 surface airspace and Class E airspace extending upward from 700 feet above the surface at Massena International-Richards Field Airport, Massena, NY. The segment within 1.8 miles each side of the Massena VORTAC 286° radial extending from the 4-mile radius to the VORTAC would be removed in Class E surface airspace; and the segment within 2.7 miles each side of the Massena VORTAC 106° radial extending from the 7.4-mile radius to 7 miles east of the VORTAC would be removed in Class E airspace extending upward from 700 feet above the surface, due to the decommissioning of the Massena VORTAC, and cancelation of associated approaches. This action would enhance the safety and management of IFR operations at the airport. The geographic coordinates of the airport also would be adjusted to coincide with the FAAs aeronautical database.
Class E airspace designations are published in Paragraphs 6002 and 6005 respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, 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.
Within a 4-mile radius of the Massena International-Richards Field Airport, excluding the airspace within Canada.
That airspace extending upward from 700 feet above the surface within a 7.4-mile radius of Massena International-Richards Field Airport, excluding the airspace within Canada.
Federal Trade Commission.
Public workshop and request for public comment.
The Federal Trade Commission (“FTC” or “Commission”) is holding a public workshop relating to its December 7, 2016 Notice of Proposed Rulemaking (“NPRM”) announcing proposed changes to the Contact Lens Rule. The workshop will explore issues relating to competition in the contact lens marketplace, consumer access to contact lenses, prescription release and portability, and other issues raised in comments received in response to the NPRM.
The public workshop will be held on March 7, 2018, from 9:00 a.m. until 5:00 p.m., at the Constitution Center Conference Center, located at 400 7th Street SW., Washington, DC. Requests to participate as a panelist must be received by January 5, 2018. Any written comments related to the agenda topics or the issues discussed by the panelists at the workshop must be received by April 6, 2018.
Interested parties may file a comment or a request to participate as a panelist online or on paper, by following the instructions in the Filing Comments and Requests to Participate
Elizabeth Delaney, Attorney, 202–326–2903, or Alysa Bernstein, Attorney, 202–326–3289, Federal Trade Commission, Division of Advertising Practices, Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.
In 2003, Congress enacted the Fairness to Contact Lens Consumers Act.
In addition, the Rule places certain requirements on sellers. It mandates that sellers dispense contact lenses only in accordance with a valid prescription that is either presented to the seller or verified by direct communication with the prescriber.
As part of its ongoing regulatory review program, the Commission published a Request for Comment in September 2015 seeking comment on: The economic impact of, and the continuing need for, the Rule; the benefits of the Rule to consumers; the burdens the Rule places on entities subject to its requirements; the impact the Rule has had on the flow of information to consumers; the degree of industry compliance with the Rule; the need for any modifications to increase its benefits or reduce its burdens or to account for changes in relevant technology; and any overlap or conflict with the Rule and other federal, state, or local laws or regulations.
After reviewing the comments, the Commission published a Notice of Proposed Rulemaking (“NPRM”) proposing to amend the Rule to require that prescribers obtain a signed acknowledgment after releasing a contact lens prescription to a patient, and maintain each such acknowledgment for a period of not less than three years.
As part of the Contact Lens Rule rulemaking, the FTC is hosting a public workshop to explore issues relating to competition in the contact lens marketplace, consumer access to contact lenses, prescription release and portability, and other issues raised in comments to the NPRM. The workshop will cover topics including: (1) Consumers' ability to comparison shop for contact lenses; (2) the use of electronic health records, patient portals, and other technology to improve prescription portability; (3) the interaction between the Contact Lens Rule and emerging telehealth business models; (4) the potential for new technology to improve the prescription verification process; and (5) modifications to the Contact Lens Rule to foster competition and maximize consumer benefits, including benefits to eye health.
A more detailed agenda will be published at a later date, in advance of the scheduled workshop.
The workshop is free and open to the public, and will be held at the Constitution Center, 400 7th Street SW., Washington, DC. It will be webcast live on the FTC's Web site. For admittance to the Constitution Center, all attendees must show valid government-issued photo identification, such as a driver's license. Please arrive early enough to allow adequate time for this process.
This event may be photographed, videotaped, webcast, or otherwise recorded. By participating in this event, you are agreeing that your image—and anything you say or submit—may be posted indefinitely at
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By direction of the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to find that the St. Louis-St. Charles-Farmington, Missouri-Illinois (MO–IL) area, “the St. Louis area,” is attaining the 2008 ozone National Ambient Air Quality Standard (NAAQS or standard) based on 2014–2016 monitoring data. EPA is further proposing to redesignate the Illinois portion of the St. Louis area, “the Metro-East area,” to attainment for the 2008 ozone NAAQS because the Metro-East area meets the statutory requirements for redesignation under the Clean Air Act (CAA). (EPA will address the Missouri portion of the St. Louis area in a separate rulemaking action.) The St. Louis area includes Madison, Monroe and St. Clair Counties in Illinois (the Metro-East area), and Franklin, Jefferson, St. Charles, and St. Louis Counties and the City of St. Louis in Missouri. The Illinois Environmental Protection Agency (IEPA) submitted a request to redesignate the Metro-East area on May 8, 2017. EPA is also proposing to approve, as a revision to the Illinois State Implementation Plan (SIP), the State's plan for maintaining the 2008 ozone standard through 2030 in the St. Louis area. Finally, EPA finds adequate and is proposing to approve, as a SIP revision, the State's 2030 volatile organic compound (VOC) and oxides of nitrogen (NO
Comments must be received on or before January 8, 2018.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2017–0277 at
Kathleen D'Agostino, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–1767,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
EPA is proposing to take several related actions. EPA is proposing to determine that the St. Louis nonattainment area is attaining the 2008 ozone standard, based on quality-assured and certified monitoring data for 2014–2016 and that the Metro-East area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to change the legal designation of the Metro-East area from nonattainment to attainment for the 2008 ozone standard.
EPA is also proposing to approve, as a revision to the Illinois SIP, the State's maintenance plan for the area (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the St. Louis area in attainment of the 2008 ozone NAAQS through 2030.
Finally, EPA finds adequate and is proposing to approve into the SIP the newly-established 2030 MVEBs for the Metro-East area. The adequacy comment period for the MVEBs began on August 21, 2017, with EPA's posting of the availability of Illinois' submittal on EPA's Adequacy Web site (at
EPA has determined that ground-level ozone is detrimental to human health. On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.075 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area.
Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the CAA requires EPA to designate as nonattainment any areas that are violating the NAAQS, based on the most recent three years of quality-assured ozone monitoring data. The St. Louis area was designated as a marginal nonattainment area for the 2008 ozone NAAQS on May 21, 2012 (77 FR 30088) (effective July 20, 2012) based on 2008–2010 monitoring data.
In a final implementation rule for the 2008 ozone NAAQS (SIP Requirements Rule),
On May 8, 2017, Illinois submitted to EPA a request to redesignate the Illinois portion of the St. Louis area, also called the Metro-East area, to attainment for the 2008 ozone NAAQS, and to approve the maintenance place for the area, including the 2030 MVEBs, as a revision to the Illinois SIP.
Section 107(d)(3)(E) of the CAA allows redesignation of an area to attainment of the NAAQS provided that: (1) The Administrator (EPA) determines that the area has attained the NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollutant control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA; and (5) the state containing the area has met all requirements applicable to the area for the purposes of redesignation under section 110 and part D of the CAA.
On April 16, 1992, EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (57 FR 13498) and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
1. “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton. Director, Technical Support Division, June 18, 1990;
2. “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
3. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;
4. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (the “Calcagni Memorandum”);
5. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;
6. “Technical Support Documents (TSDs) for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
7. “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;
8. “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993;
9. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and
10. “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.
For redesignation of a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). An area is attaining the 2008 ozone NAAQS if it meets the 2008 ozone NAAQS, as determined in accordance with 40 CFR 50.15 and appendix P of part 50, based on three complete, consecutive calendar years of quality-assured air quality data for all monitoring sites in the area. To attain the NAAQS, the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations (ozone design values) at each monitor must not exceed 0.075 ppm. The air quality data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). Ambient air quality monitoring data for the 3-year period must also meet data completeness requirements. An ozone design value is valid if daily maximum 8-hour average concentrations are available for at least 90 percent of the days within the ozone monitoring seasons,
On June 27, 2016, in accordance with section 181(b)(2)(A) of the CAA and the provisions of the SIP Requirements Rule (40 CFR 51.1103), EPA made a determination that the St. Louis area attained the standard by its July 20, 2016 attainment date for the 2008 ozone NAAQS. (81 FR 41444). This determination was based upon three
The 3-year ozone design values for 2013–2015 and 2014–2016 are 0.071 ppm and 0.072 ppm, respectively,
EPA will not take final action to determine that the St. Louis area is attaining the NAAQS nor approve the redesignation of this area if the design value of a monitoring site in the area exceeds the NAAQS after proposal but prior to final approval of the redesignation. Preliminary 2017 data indicate that this area continues to attain the 2008 ozone NAAQS. As discussed in section IV.D.3. below, IEPA has committed to continue monitoring ozone in this area to verify maintenance of the ozone standard.
As criteria for redesignation of an area from nonattainment to attainment of a NAAQS, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (
The September 4, 1992 Calcagni memorandum (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E)(v) of the CAA. Under this interpretation, a state and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the state's submittal of a complete redesignation request for the area.
Section 110(a)(2) of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the SIP must have been adopted by the state after reasonable public notice and hearing, and that, among other things, it must: (1) Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; (2) provide for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; (3) provide for implementation of a source permit program to regulate the modification and construction of stationary sources within the areas covered by the plan; (4) include provisions for the implementation of part C prevention of significant deterioration (PSD) and part D new source review (NSR) permit programs; (5) include provisions for stationary source emission control measures, monitoring, and reporting; (6) include provisions for air quality modeling; and, (7) provide for public
Additionally, Section 110(a)(2)(D) of the CAA requires SIPs to contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address transport of certain air pollutants,
Similarly, other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's ozone attainment status are not applicable requirements for purposes of redesignation. The area will remain subject to these requirements after the area is redesignated to attainment of the 2008 ozone NAAQS. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (
We have reviewed the Illinois SIP and conclude that it meets the general SIP requirements under section 110 of the CAA, to the extent those requirements are applicable for purposes of redesignation.
Section 172(c) of the CAA sets forth the basic requirements of air quality plans for states with nonattainment areas that are required to submit plans pursuant to section 172(b). Subpart 2 of part D, which includes section 182 of the CAA, establishes specific requirements for ozone nonattainment areas depending on the areas' nonattainment classifications.
The St. Louis area was classified as marginal under subpart 2 for the 2008 ozone NAAQS. As such, the area is subject to the subpart 1 requirements contained in section 172(c) and section 176. The area is also subject to the subpart 2 requirements contained in section 182(a) (marginal nonattainment area requirements). A thorough discussion of the requirements contained in section 172(c) and 182 can be found in the General Preamble for Implementation of Title I (57 FR 13498).
As provided in subpart 2, for marginal ozone nonattainment areas such as the St. Louis area, the specific requirements of section 182(a) apply in lieu of the attainment planning requirements that would otherwise apply under section 172(c), including the attainment demonstration and reasonably available control measures (RACM) under section 172(c)(1), reasonable further progress (RFP) under section 172(c)(2), and contingency measures under section 172(c)(9). 42 U.S.C. 7511a(a).
Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. This requirement is superseded by the inventory requirement in section 182(a)(1) discussed below.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved the Illinois nonattainment NSR program as meeting the requirements of section 172(c)(4) and 172(c)(5) on December 17, 1992 (57 FR 59928), September 27, 1995 (60 FR 49780) and May 13, 2003 (68 FR 25504). Nonetheless, EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Illinois has shown that the St. Louis area can demonstrate maintenance of the standard without part D NSR in effect; therefore, EPA concludes that the State need not have a fully approved part D NSR program prior to approval of the redesignation request.
Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, the Illinois SIP meets the requirements of section 110(a)(2) for purposes of redesignation.
Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs and projects that are developed, funded or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other Federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that EPA promulgated pursuant to its authority under the CAA.
EPA interprets the conformity SIP requirements
EPA approved Illinois's general conformity SIP on December 23, 1997 (62 FR 67000). Illinois does not have a Federally approved transportation conformity SIP. However, Illinois performs conformity analyses pursuant to EPA's Federal conformity rules. Illinois has submitted 2030 on-road MVEBs for the Metro-East area of 9.05 tons per day (tpd) VOC and 16.68 tpd NO
Section 182(a)(1) requires states to submit a comprehensive, accurate, and current inventory of actual emissions from sources of VOC and NO
Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC reasonably available control technology (RACT) rules that were required under section 172(b)(3) prior to the 1990 CAA amendments. The Metro-East area is not subject to the section 182(a)(2) RACT “fix up” requirement for the 2008 ozone NAAQS because it was designated as nonattainment for this standard after the enactment of the 1990 CAA amendments and because Illinois complied with this requirement for the Metro-East area under the prior 1-hour ozone NAAQS.
Section 182(a)(2)(B) requires each state with a marginal ozone nonattainment area that implemented or was required to implement a vehicle inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision for an I/M program no less stringent than that required prior to the 1990 CAA amendments or already in the SIP at the time of the CAA amendments, whichever is more stringent. For the purposes of the 2008 ozone standard and IEPA's redesignation request for this standard, the Metro-East area is not subject to the section 182(a)(2)(B) requirement because the Metro-East area was designated as nonattainment for the 2008 ozone standard after the enactment of the 1990 CAA amendments.
The source permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4) are included in Illinois' nonattainment NSR program, which EPA approved on December 17, 1992 (57 FR 59928), September 27, 1995 (60 FR 49780) and May 13, 2003 (68 FR 25504). As discussed above, Illinois has demonstrated that the Metro-East area can demonstrate maintenance of the standard without part D NSR in effect; therefore, EPA concludes that the state need not have a fully approved part D NSR program prior to approval of the redesignation request. IEPA has been delegated the authority to implement the Federal PSD program, which will become effective in the Metro-East area upon redesignation to attainment.
Section 182(a)(3) requires states to submit periodic emission inventories and a revision to the SIP to require the owners or operators of stationary sources to annually submit emission statements documenting actual VOC and NO
Therefore, the Metro-East area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.
At various times, Illinois has adopted and submitted, and EPA has approved, provisions addressing the various SIP elements applicable for the ozone NAAQS. As discussed above, EPA has fully approved the Illinois SIP for the Metro-East area under section 110(k) for all requirements applicable for purposes of redesignation under the 2008 ozone NAAQS. EPA may rely on prior SIP approvals in approving a redesignation request (
To redesignate an area from nonattainment to attainment, section 107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from the implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable emission reductions. Illinois has demonstrated that the observed ozone air quality improvement in the St. Louis area is due to permanent and
In making this demonstration, IEPA has calculated the change in emissions between 2011 and 2014. IEPA attributes the reduction in emissions and corresponding improvement in air quality over this time period to a number of regulatory control measures that have been implemented in the St. Louis area and upwind areas in recent years. In addition, IEPA provided an analysis to demonstrate the improvement in air quality was not due to unusually favorable meteorology. Based on the information summarized below, Illinois has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions.
Clean Air Interstate Rule (CAIR)/Cross State Air Pollution Rule (CSAPR).
CAIR created regional cap-and-trade programs to reduce sulfur dioxide (SO
Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR's cap-and-trade programs would have superseded the CAIR cap and trade programs. Numerous parties filed petitions for review of CSAPR, and on December 30, 2011, the D.C. Circuit issued an order staying CSAPR pending resolution of the petitions and directing EPA to continue to administer CAIR.
On August 21, 2012, the D.C. Circuit issued its ruling, vacating and remanding CSAPR to EPA and once again ordering continued implementation of CAIR.
On April 29, 2014, the Supreme Court vacated and reversed the D.C. Circuit Court's decision regarding CSAPR, and remanded that decision to the D.C. Circuit Court to resolve remaining issues in accordance with its ruling.
Reductions in VOC and NO
Illinois Administrative Code (IAC) rule 219.187 controls VOC emissions from industrial solvent cleaning operations and required compliance by January 1, 2012. IEPA did not quantify the emission reductions expected from this category.
IAC rules 219.204–205, 219.207–208, 219.210–212, and 219.217–219.219 require the control of emissions from coating operations including flat wood paneling; large appliance coatings; metal furniture coatings; paper, film, and foil coatings; miscellaneous metal and plastic parts coatings; and automobile and light-duty truck assembly coatings. Compliance with the regulations pertaining to paper, film, and foil coatings; large appliance coatings; and metal furniture coatings was required by May 1, 2011.
IAC rules 219.401–404 control VOC emissions from flexible package printing lines; 219.405–411 control VOC emissions from lithographic printing lines; and 219.412–417 control VOC emissions from letterpress printing lines. These rules required compliance by August 1, 2010.
IAC rules 219.890–894 control VOC emissions from fiberglass boat manufacturing and required compliance by May 1, 2012. IEPA did not identify a reduction in VOC emissions from this source category. IAC rules 219.900–904 control VOC emissions from miscellaneous industrial adhesives and required compliance by May 1, 2012. IEPA estimated a 40% reduction in VOC emissions from this source category.
Illinois is using the 2011 base year emissions inventory, approved by EPA as meeting the requirements of CAA Section 182(a)(1), as the nonattainment inventory.
For the attainment inventory, Illinois is using 2014, one of the years the St. Louis area monitored attainment of the 2008 ozone standard. IEPA compiled point source emission information from 2014 annual emission reports submitted by sources. IEPA calculated area source emissions primarily using an emission factor multiplied by an activity rate (
Using the inventories described above, along with 2011 and 2014 emissions inventories provided by the Missouri Department of Natural Resources (MDNR) for the Missouri portion of the St. Louis area, IEPA's submittal documents changes in VOC and NO
Table 5 shows that emissions of VOC and NO
As discussed above, Illinois identified numerous Federal rules and state rules approved into the Illinois SIP that resulted in the reduction of VOC and NO
To further support IEPA's demonstration that the improvement in air quality is due to permanent and enforceable emission reductions, LADCO performed a meteorology analysis. The analysis concluded that the improvement in air quality was not due to favorable meteorology. LADCO conducted a classification and regression tree (CART) analysis with 2000 through 2015 data from three Metro-East area ozone sites. The goal of the analysis was to determine the meteorological and air quality conditions associated with ozone episodes, and construct trends for the days identified as sharing similar meteorological conditions.
LADCO developed regression trees for the three monitors to classify each summer day by its ozone concentration and associated meteorological conditions. By grouping days with similar meteorology, the influence of meteorological variability on the underlying trend in ozone concentrations is partially removed, and the remaining trend is presumed to be due to trends in precursor emissions or other non-meteorological influences. The CART analysis showed the resulting trends in ozone concentrations declining over the period examined, supporting the conclusion that the improvement in air quality was not due to unusually favorable meteorology.
As one of the criteria for redesignation to attainment, section 107(d)(3)(E)(iv) of the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the maintenance plan must demonstrate continued attainment of the NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment of the NAAQS will continue for an additional 10 years beyond the initial 10 year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, as EPA deems necessary, to assure prompt correction of the future NAAQS violation.
The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emission inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan.
In conjunction with its request to redesignate the Metro-East area to attainment for the 2008 ozone standard, IEPA submitted, as a SIP revision, a plan to provide for maintenance of the 2008 ozone standard through 2030, more than 10 years after the expected effective date of the redesignation to attainment. As discussed below, EPA proposes to find that the Illinois ozone maintenance plan includes the necessary components and approve the maintenance plan as a revision to the Illinois SIP.
EPA is proposing to determine that the St. Louis area has attained the 2008 ozone NAAQS based on monitoring data for the period of 2014–2016. IEPA selected 2014 as the year to establish attainment emission levels for VOC and NO
Illinois has demonstrated maintenance of the 2008 ozone standard through 2030 by ensuring that current and future emissions of VOC and NO
Illinois is using emissions inventories for the years 2020 and 2030 to demonstrate maintenance. 2030 is more than 10 years after the expected effective date of the redesignation to attainment, and 2020 was selected to demonstrate that emissions are not expected to increase in the interim between the attainment year and the final maintenance year.
To develop the 2020 and 2030 inventories, the state collected data from the EPA's Air Emissions Modeling platform (2011v6.2) inventories for years 2011, 2017 and 2025. For year 2020, emissions for point and area source sectors, as well as nonroad mobile categories not calculated by the MOVES model, were derived by interpolating between 2017 and 2025. For year 2030, emissions for point and area source sectors, as well as nonroad mobile categories not calculated by the MOVES model, were derived using the TREND function in Excel. Finally, onroad and nonroad mobile source emissions were calculated for 2020 and 2030 using the MOVES2014a model. Total VMT for 2020 and 2030 were assumed to increase at a rate of 1.012 percent per year from 2014. Emissions data are shown in Tables 6 through 9 below.
In summary, the maintenance demonstration for the St. Louis area shows maintenance of the 2008 ozone standard by providing emissions information to support the demonstration that future emissions of VOC and NO
IEPA has committed to continue to monitor ozone levels according to an EPA approved monitoring plan to ensure maintenance of the 2008 ozone standard. Illinois remains obligated to meet monitoring requirements and continue to quality assure monitoring data in accordance with 40 CFR part 58, and to enter all data into AQS in accordance with Federal guidelines.
The State of Illinois has the legal authority to enforce and implement the requirements of the maintenance plan for the Metro-East area. This includes the authority to adopt, implement, and enforce any subsequent emission control measures determined to be necessary to correct future ozone attainment problems.
Verification of continued attainment is accomplished through operation of the ambient ozone monitoring network and the periodic update of the area's emissions inventory. IEPA has committed to continue monitoring ozone levels according to an EPA approved monitoring plan. Should changes in the location of an ozone monitor become necessary, IEPA will work with EPA to ensure the adequacy of the monitoring network. IEPA has further committed to continue to quality assure the monitoring data to meet the requirements of 40 CFR part 58 and enter all data into AQS in accordance with Federal guidelines.
In addition, to track future levels of emissions, IEPA will continue to develop and submit to EPA updated emission inventories for all source categories at least once every three years, consistent with the requirements of 40 CFR part 51, subpart A, and in 40 CFR 51.122. The Consolidated Emissions Reporting Rule (CERR) was promulgated by EPA on June 10, 2002 (67 FR 39602). The CERR was replaced by the Annual Emissions Reporting Requirements (AERR) on December 17, 2008 (73 FR 76539). The most recent triennial inventory for Illinois was compiled for 2014. Point source facilities covered by the Illinois emission statement rule will continue to submit VOC and NO
Section 175A of the CAA requires that the state must adopt a maintenance plan, as a SIP revision, that includes such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation of the area to attainment of the NAAQS. The maintenance plan must identify: The contingency measures to be considered and, if needed for maintenance, adopted and implemented; a schedule and procedure for adoption and implementation; and, a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be considered, adopted, and implemented. The maintenance plan must include a commitment that the state will implement all measures with respect to the control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d) of the CAA.
As required by section 175A of the CAA, Illinois has adopted a contingency plan for the St. Louis area to address possible future ozone air quality problems. The contingency plan adopted by Illinois has two levels of response, Level I and Level II.
A Level I response is triggered in the event that: (1) The fourth highest 8-hour ozone concentration at any monitoring site in the St. Louis area exceeds 0.075 parts ppm in any year, or (2) VOC or NO
A Level II response is triggered in the event that a violation of the 2008 ozone standard is monitored within the St. Louis area. To select appropriate corrective measures, IEPA will work with the MDNR to conduct a comprehensive study to determine the causes of the violation and the control measures necessary to mitigate the problem. Implementation of necessary controls in response to a Level II trigger must take place as expeditiously as possible, but in no event later than 18 months after IEPA makes a determination, based on quality-assured ambient monitoring data, that a violation of the NAAQS has occurred.
IEPA included the following list of potential contingency measures that could be implemented if a Level I or Level II response is triggered:
a. Continued phasing in of Mercury and Air Toxics Standards, Reciprocating Internal Combustion Engines NESHAP and Industrial/Commercial/Institutional Boilers and Process Heaters NESHAP;
b. CSAPR update after promulgation by EPA;
c. NESHAP risk and technology review including: Mineral Wool Production 40 CFR 63 subpart DDD, Ferroalloys Production 40 CFR 63 subpart XXX, Petroleum Refineries 40 CFR 63 subparts CC and UUU;
d. New Source Performance Standards—Petroleum Refineries 40 CFR subpart Ja;
e. Broader geographic applicability of existing measures;
f. Implementation of oil and gas sector emission guidelines, once finalized by EPA;
g. Conversion of coal-fired EGUs to natural gas and from baseload units to intermittent units;
h. Implementation of ozone transport commission model rules for above ground storage tanks;
i. Implementation of the Clean Power Plan, once stay is lifted;
j. Implementation of the 2017 light-duty vehicle greenhouse gas and corporate average fuel economy standards;
k. Mobile source air toxics rule;
l. Tier 3 Vehicle emissions and fuel standards;
m. Heavy-duty vehicle greenhouse gas rules;
n. Regulations on the sale of aftermarket catalytic converters;
o. Adopting standards and limitations for organic material emissions for area sources (consumer and commercial products and architectural and industrial maintenance coatings rule), current California commercial and consumer products—aerosol adhesive coatings, dual purpose air freshener/disinfectant, etc.
EPA has concluded that Illinois' maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. In addition, as required by section 175A(b) of the CAA, IEPA has committed to submit to EPA an updated ozone maintenance plan eight years after redesignation of the Metro-East area to cover an additional ten years beyond the initial 10-year maintenance period. Thus, the maintenance plan SIP revision submitted by IEPA meets the requirements of section 175A of the CAA and EPA proposes to approve it as a revision to the Illinois SIP.
Under section 176(c) of the CAA, new transportation plans, programs, or projects that receive Federal funding or support, such as the construction of new highways, must “conform” to (
Under the CAA, states are required to submit, at various times, control strategy SIPs for nonattainment areas and maintenance plans for areas seeking redesignations to attainment of the ozone standard and maintenance areas.
Under 40 CFR part 93, a MVEB for an area seeking a redesignation to attainment must be established, at minimum, for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB, if needed, subsequent to initially establishing a MVEB in the SIP.
When reviewing submitted control strategy SIPs or maintenance plans containing MVEBs, EPA must affirmatively find that the MVEBs contained therein are adequate for use in determining transportation conformity. Once EPA affirmatively finds that the submitted MVEBs are adequate for transportation purposes, the MVEBs must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: Public notification of a SIP submission; provision for a public comment period; and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM
As discussed earlier, IEPA's maintenance plan includes VOC and NO
The EPA public comment period on adequacy of the 2030 MVEBs for the Metro-East area closed on September 20, 2017. No comments on the submittal were received during the adequacy comment period. The submitted maintenance plan, which included the MVEBs, was endorsed by the Governor (or his or her designee) and was subject to a state public hearing. The MVEBs were developed as part of an interagency consultation process which includes Federal, state, and local agencies. Additionally, the MVEBs were clearly identified and precisely quantified. These MVEBs, when considered together with all other emissions sources, are consistent with maintenance of the 2008 ozone standard.
As shown in Table 10, the 2030 MVEBs exceed the estimated 2030 on-road sector emissions. In an effort to accommodate future variations in travel demand models and vehicle miles traveled forecast, IEPA allocated a portion of the safety margin (described further below) to the mobile sector. Illinois has demonstrated that the St. Louis area can maintain the 2008 ozone NAAQS with mobile source emissions in the Metro-East portion of the area of 9.05 TPSD of VOC and 16.68 TPSD of NO
Therefore, EPA has found that the MVEBs are adequate and is proposing to approve the MVEBs for use in determining transportation conformity in the Metro-East portion of the St. Louis area.
EPA's transportation conformity regulations allow for the use of a safety margin in the development of MVEBs for maintenance plans. A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. As noted in Table 8, the emissions in the Metro-East area are projected to have safety margins of 10.59 TPSD for VOC and 39.92 TPSD for NO
As shown in Table 10 above, Illinois is allocating a portion of that safety margin to the mobile source sector. Specifically, in 2030, Illinois is allocating 5.30 TPSD and 9.98 TPSD of the VOC and NO
EPA is proposing to determine that the St. Louis nonattainment area is attaining the 2008 ozone standard, based on quality-assured and certified monitoring data for 2014–2016 and that the Metro-East portion of this area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve IEPA's request to change the legal designation of the Metro-East portion of the St. Louis area from nonattainment to attainment for the 2008 ozone standard. EPA is also proposing to approve, as a revision to the Illinois SIP, the state's maintenance plan for the area. The maintenance plan is designed to keep the St. Louis area in attainment of the 2008 ozone NAAQS through 2030. Finally, EPA finds adequate and is proposing to approve the newly-established 2030 MVEBs for the Metro-East area.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Volatile organic compounds.
Office of Head Start (OHS), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).
Request for comments.
OHS invites public comment on several specific changes being considered for the CLASS condition of the Designation Renewal System (DRS) as outlined in the Head Start Program Performance Standards. We are considering changes to the CLASS condition with a goal of improving implementation and transparency of the DRS. Changes being considered include removal of the “lowest 10 percent” provision of the CLASS condition, an increase of the minimum thresholds for the Emotional Support and Classroom Organization domains to a score of 5, removal of the minimum threshold for the Instructional Support domain, and establishment of authority for the Secretary to set an absolute minimum threshold for the Instructional Support domain prior to the start of each fiscal year to be applied for DRS CLASS reviews in the same fiscal year. OHS requests feedback on these possible changes as well as alternative changes to the CLASS condition, particularly ways the Instructional Support threshold could be set and/or adjusted that would incentivize program improvement while acknowledging the current state of the field. OHS also invites feedback on other conditions of the DRS.
Submit comments by February 6, 2018.
You may send comments, identified by [docket number and/or RIN number], by either of the following methods:
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Colleen Rathgeb, Director, Division of Planning, Oversight and Policy, Office of Head Start, [
The Head Start program provides grants to local public and private non-profit and for-profit agencies to provide comprehensive education and child development services to economically disadvantaged children, from birth to age five, and families and to help young children develop the skills they need to be successful in school. Our agencies provide these families comprehensive services to support children's cognitive, social, and emotional development. In addition to education services, agencies provide children and their families with health, nutrition, social, and other services.
To drive program quality improvement, the
To meet the requirement in the Act, HHS established the DRS, which is described in 45 CFR 1304.10 through 16. The DRS includes seven conditions. If an agency meets any of the seven conditions, it must compete with other providers in the community for renewed grant funding. The seven conditions are: (1) A deficiency under section 641A(c)(1)(A), (C), or (D) of the Act; (2) failure to establish, utilize, and analyze children's progress on agency-established School Readiness goals; (3) scores below minimum thresholds in the Classroom Assessment Scoring System: Pre-K (CLASS) domains or in the lowest 10 percent in any of the three domains of the agencies monitored in a given year unless the average score is equal to or above the standard of excellence; (4) revocation of a license to operate a center or program; (5) suspension from the program; (6) debarment from receiving federal or state funds or disqualified from the Child and Adult Care Food Program; or (7) an audit finding of at risk for failing to continue as “a going concern.” The Act also requires HHS to periodically evaluate whether or not the DRS criteria are applied in a manner that is transparent, reliable, and valid.
Section 641(c)(1)(D) of the Act requires the DRS to be based in part on classroom quality as measured under section 641A(c)(2)(F), which refers to a valid and reliable research-based observational instrument, implemented by qualified individuals with demonstrated reliability, that assesses classroom quality, including assessing multiple dimensions of teacher-child interactions that are linked to positive child development and later achievement. The third condition of the DRS is based on use of the CLASS, which is an observational measurement tool for assessing the quality of teacher-
Since HHS established the DRS, all grantees that had indefinite project periods have completed the DRS process. Based on CLASS data, observations collected throughout these cohorts, results of a recent evaluation, and feedback from the community, we are considering changes to the CLASS condition of the DRS in order to better improve implementation of the system. There are concerns about some aspects of the CLASS condition of the DRS that have been raised by Head Start grantees as well as in the recent evaluation. First, the requirement for grantees with the lowest 10 percent of scores on any of the three CLASS domains to compete may not be optimally targeting the grantees for competition with the lowest measures of classroom quality. For example, grantees have been required to compete due to an Emotional Support score of 5.69, which is very close to the Standard of Excellence (a 6—which developers of the CLASS deem the highest quality), while grantees very close to the minimum threshold in Instructional Support (
Second, we understand that the delay between completion of the CLASS review and grantees knowing their DRS designation status, due to the need to collect and analyze a full monitoring year's CLASS scores to determine the lowest 10 percent, creates uncertainty, stress, and concern among grantees, grantee staff, and families. Because classroom quality in Head Start programs is improving, as demonstrated by recent analysis of data from the 2006, 2009, and 2014 cohorts of the Head Start Family and Child Experiences Survey (FACES),
To inform our development of a notice of proposed rulemaking to change the DRS CLASS condition to meet the objectives described above, we are requesting public comments on several specific changes being considered. The changes under consideration are as follows:
1. Remove the “lowest 10 percent” provision of the CLASS condition described in 45 CFR 1304.11(c)(2).
2. Increase the minimum threshold described in 45 CFR 1304.11(c)(1)(i) for the Emotional Support domain from 4 to 5.
3. Increase the minimum threshold described in 45 CFR 1304.11(c)(1)(ii) for Classroom Organization from 3 to 5.
4. Remove the minimum threshold for the Instructional Support domain described in 45 CFR 1304.11(c)(1)(iii) and instead provide authority for the Secretary to set an absolute minimum threshold for the Instructional Support domain, considering the most recent CLASS data, by August 1 of each year to be used for CLASS Reviews conducted in the following fiscal year (October 1 through September 30).
Together, these changes would allow grantees to know by August 1, before CLASS Reviews are conducted for the coming fiscal year, the exact threshold of classroom quality in each of the three domains that will be used to determine which grantees will be subject to an open competition for funding and which grantees will receive renewed funding non-competitively. Grantees would no longer have to wait until several months following the conclusion of the CLASS reviews for the fiscal year (September 30) to learn the lowest 10 percent cutoff in each of the 3 domains. Setting minimum thresholds of 5 in the Emotional Support and Classroom Organization domains would set a clear and consistent expectation of quality for all Head Start programs. Allowing the Secretary to set the minimum threshold in the Instructional Support domain prior to the start of each program year and monitoring year would allow for consideration of the most recent CLASS data for Head Start grantees while still supporting continuous quality improvement across the program as a whole.
We invite comments about the specific changes being considered for the DRS CLASS condition. We also invite comments about any unintended consequences of removing the lowest 10 percent condition and whether an absolute threshold could influence scores. We are particularly interested in recommendations related to how the Secretary would consider establishing the minimum threshold for Instructional Support each year. For example, the regulation could establish an initial Instructional Support threshold (
If commenters do not support the changes being considered, comments offering alternative proposals to the CLASS condition or to other conditions of the DRS would be particularly helpful.
National Marine Fisheries Service (NMFS), National Oceanic and
Proposed rule; request for comments.
NMFS proposes 2018 and 2019 harvest specifications, apportionments, and prohibited species catch allowances for the groundfish fisheries of the Bering Sea and Aleutian Islands (BSAI) management area. This action is necessary to establish harvest limits for groundfish during the 2018 and 2019 fishing years, and to accomplish the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. The intended effect of this action is to conserve and manage the groundfish resources in the BSAI in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.
Comments must be received by January 8, 2018.
Submit your comments, identified by NOAA–NMFS–2017–0108, by either of the following methods:
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Electronic copies of the Alaska Groundfish Harvest Specifications Final Environmental Impact Statement (Final EIS), Record of Decision (ROD), Supplementary Information Report (SIR) to the EIS, and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action may be obtained from
Steve Whitney, 907–586–7228.
Federal regulations at 50 CFR part 679 implement the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations governing U.S. fisheries also appear at 50 CFR part 600.
The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species category. The sum of TACs for all groundfish species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A)). Section 679.20(c)(1) further requires NMFS to publish proposed harvest specifications in the
Under § 679.20(c)(3), NMFS will publish the final harvest specifications for 2018 and 2019 after (1) considering comments received within the comment period (see
In June 2017, the Council recommended for Secretarial review Amendment 117 to the FMP. Amendment 117 would reclassify squid in the FMP as an “Ecosystem Component” species, which is a category of non-target species that are not in need of conservation and management. Currently, NMFS annually sets an Overfishing Level (OFL), ABC, and TAC for squid in the BSAI groundfish harvest specifications. Under Amendment 117, OFL, ABC, and TAC specifications would no longer be required. Proposed regulations to implement Amendment 117 would prohibit directed fishing for squid, require recordkeeping and reporting to monitor and report catch of squid species annually, and establish a squid maximum retainable amount when directed fishing for groundfish species at 20 percent to discourage retention, while allowing flexibility to prosecute groundfish fisheries. Further details will be available on publication of the proposed rule for Amendment 117. If Amendment 117 and its implementing regulations are approved by the Secretary of Commerce, Amendment 117 and its implementing regulations are anticipated to be effective by 2019. Until Amendment 117 is effective, NMFS will continue to publish OFLs, ABCs, and TACs for squid in the BSAI groundfish harvest specifications.
The Alaska Board of Fisheries (BOF), a regulatory body for the Alaska Department of Fish and Game, established a guideline harvest level (GHL) in State of Alaska (State) waters between 164 and 167 degrees west longitude in the Bering Sea subarea (BS) equal to 6.4 percent of the Pacific cod ABC for the BS. The Council recommends that the proposed 2018 and 2019 Pacific cod TACs accommodate the State's GHLs for Pacific cod in State waters in the BS. The Council and its BSAI Groundfish Plan Team (Plan Team), Scientific and Statistical Committee (SSC), and Advisory Panel (AP) recommended that the sum of all State and Federal water Pacific cod removals from the BS not exceed the proposed ABC recommendations of 208,265 mt.
For 2018 and 2019, the BOF established a GHL in State waters in the Aleutian Islands subarea (AI) equal to 27 percent of the Pacific cod ABC for the AI. The Council recommends that the proposed 2018 and 2019 Pacific cod TACs accommodate the State's GHLs for Pacific cod in State waters in the AI. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the AI not exceed the proposed ABC recommendations of 21,500 mt. Accordingly, the Council recommends that the proposed 2018 and 2019 Pacific cod TACs in the AI account for State GHLs.
At the October 2017 Council meeting, the SSC, AP, and Council reviewed the most recent biological and harvest information on the condition of the BSAI groundfish stocks. The Plan Team compiled and presented this information, which was initially compiled by the Plan Team and presented in the final 2016 SAFE report for the BSAI groundfish fisheries, dated November 2016 (see
The Council recommends and NMFS proposes a reduction in the Pacific cod OFL, ABC, and TAC levels as compared to those levels implemented for Pacific cod in the 2017 and 2018 final BSAI groundfish harvest specifications published in February 2017 (82 FR 11826, February 27, 2017). The only changes to the proposed 2018 and 2019 harvest specifications from the final 2018 harvest specifications are associated with a decrease in Pacific cod OFL, ABC, and TAC in the BS and increases in pollock TAC amounts in the BS, Atka mackerel, Pacific ocean perch, and rock sole TAC amounts in the BSAI. The net increases of TAC equal the decrease of Pacific cod TAC, and leave the sum of the TACs equal to 2.0 million mt. The Council concurred with its SSC's recommendation to reduce the Pacific cod OFL and ABC, as well as its AP's recommendation for a corresponding reduction in the Pacific cod TAC. The reductions to the Pacific cod OFL, ABC, and TAC are the result of preliminary 2017 BSAI bottom trawl survey data, as well as other data, that recently became available to stock assessment scientists.
Based on the results of the 2017 BSAI bottom trawl survey estimates and preliminary modeling for the Pacific cod stock assessment, the Pacific cod biomass and abundance has decreased significantly since the 2016 BSAI bottom trawl survey. This decrease is corroborated by additional data sets that appear to support the trawl survey results associated with a decrease in the Pacific cod biomass. This information led to the recommended reduction in the proposed 2018 and 2019 Pacific cod OFL and ABC. The SSC opted to recommend a proposed 2018 OFL and ABC based on the average of the current 2018 OFL and ABC amounts and preliminary Tier 5 OFL and ABC amounts provided by the Pacific cod stock assessment author. This precautionary approach provides a strong indication of decreases in the OFL and ABC amounts for the final harvest specifications. However, this was a temporary approach used only for these proposed specifications, and Pacific cod remains in Tier 3a. The SSC also strongly noted that the final 2018 and 2019 harvest specifications for Pacific cod could be even lower than those recommended in the proposed 2018 and 2019 harvest specifications once the stock assessment process has been completed and reviewed by December 2017.
The proposed Pacific cod OFL, ABC, and TAC amounts likely will further change once the Pacific cod stock assessment is finalized, reviewed by the Council's groundfish Plan Team in November, and then subsequently reviewed by the SSC, AP, and Council in December 2017. The proposed reductions to Pacific cod OFL, ABC, and TAC amounts apply in the BS, while for the AI, the proposed OFL, ABC, and TAC amounts are unchanged from the final 2018 amounts. The Council increased the proposed TACs of Atka mackerel, Pacific ocean perch, pollock, and rock sole to match the decrease of Pacific cod TAC in the BS, and these TACs could also change in the final specifications based on the final Pacific cod harvest amounts.
The amounts proposed for the 2018 and 2019 harvest specifications are based on the 2016 SAFE report, and initial survey data, and are subject to change in the final harvest specifications to be published by NMFS following the Council's December 2017 meeting. In November 2017, the Plan Team will update the 2016 SAFE report to include new information collected during 2017, such as NMFS stock surveys, revised stock assessments, and catch data. At its December 2017 meeting, the Council will consider information contained in the final 2017 SAFE report, recommendations from the November 2017 Plan Team meeting, public testimony from the December 2017 SSC and AP meetings, and relevant written comments in making its recommendations for the final 2018 and 2019 harvest specifications.
In previous years, the OFLs and ABCs that have had the most significant changes (relative to the amount of assessed tonnage of fish) from the proposed to the final harvest specifications have been for OFLs and ABCs that are based on the most recent NMFS stock surveys, which provide updated estimates of stock biomass and spatial distribution, and changes to the models used in the stock assessments. Any changes will be recommended by the Plan Team in November 2017 and then included in the final 2017 SAFE report. The final 2017 SAFE report will include the most recent information, such as catch data.
The final harvest specification amounts for these stocks are not expected to vary greatly from the proposed harvest specification amounts published here, except that Pacific cod harvest amounts could change and even decrease further, which could impact other TAC amounts in order to achieve OY, as explained earlier in this preamble. If the final 2017 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2018 and 2019 harvest specifications may reflect an increase from the proposed harvest specifications. Conversely, if the final 2017 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2018 and 2019 harvest specifications may reflect a decrease from the proposed harvest specifications. In addition to changes driven by biomass trends, there may be changes in TACs due to the sum of ABCs exceeding 2 million mt. Since the regulations require TACs to be set to an OY between 1.4 and 2 million mt, the Council may be required to recommend TACs that are lower than the ABCs recommended by the Plan Team and the SSC, if setting TACs equal to ABCs would cause total TACs to exceed an OY of 2 million mt. Generally, total ABCs greatly exceed 2 million mt in years with a large pollock biomass. NMFS anticipates that, both for 2018 and 2019, the sum of the ABCs will exceed 2 million mt. NMFS expects that the final total TAC for the BSAI for both 2018 and 2019 will equal 2 million mt each year.
The proposed OFLs, ABCs, and TACs are based on the best available biological and socioeconomic data, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock
In October 2017, the SSC adopted the proposed 2018 and 2019 OFLs and ABCs recommended by the Plan Team for all groundfish species, with the exception of the decreases for Pacific cod OFL and ABC in the BS. The Council adopted the SSC's OFL and ABC recommendations. These amounts are unchanged from the final 2018 harvest specifications published in the
The Council recommended proposed TACs for 2018 and 2019 Bering Sea and Eastern Aleutian Islands Atka mackerel that are equal to the proposed ABCs. The Council recommended proposed TACs less than the respective proposed ABCs for all other TACs. Section 679.20(a)(5)(iii)(B)(
The proposed groundfish OFLs, ABCs, and TACs are subject to change pending the completion of the final 2017 SAFE report and the Council's recommendations for final 2018 and 2019 harvest specifications during its December 2017 meeting. These proposed amounts are consistent with the biological condition of groundfish stocks as described in the 2016 SAFE report, and have been adjusted for other biological and socioeconomic considerations. Pursuant to Section 3.2.3.4.1 of the FMP, the Council could recommend adjusting the TACs if “warranted on the basis of bycatch considerations, management uncertainty, or socioeconomic considerations; or if required in order to cause the sum of the TACs to fall within the OY range.” Table 1 lists the proposed 2018 and 2019 OFL, ABC, TAC, initial TAC (ITAC), and CDQ amounts for groundfish for the BSAI. The proposed apportionment of TAC amounts among fisheries and seasons is discussed below.
Section 679.20(b)(1)(i) requires NMFS to reserve 15 percent of the TAC for each target species category, except for pollock, hook-and-line and pot gear allocation of sablefish, and Amendment 80 species, in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires NMFS to allocate 20 percent of the hook-and-line or pot gear allocation of sablefish to the fixed gear sablefish CDQ reserve. Section 679.20(b)(1)(ii)(D) requires NMFS to allocate 7.5 percent of the trawl gear allocation of sablefish and 10.7 percent of Bering Sea Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires NMFS to allocate 10.7 percent of the TACs for Atka mackerel, AI Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod to the CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) also require allocation of 10 percent of the BS pollock TACs to the pollock CDQ directed fishing allowance (DFA). The entire Bogoslof District pollock TAC is allocated as an ICA pursuant to § 679.20(a)(5)(ii) because the Bogoslof Area is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(i)(B)). With the exception of the hook-and-line or pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ reserves by gear.
Pursuant to § 679.20(a)(5)(i)(A)(
Pursuant to §§ 679.20(a)(8) and (10), NMFS proposes ICAs of 4,000 mt of flathead sole, 6,000 mt of rock sole, 4,000 mt of yellowfin sole, 10 mt of Western Aleutian District Pacific ocean perch, 60 mt of Central Aleutian District Pacific ocean perch, 100 mt of Eastern Aleutian District Pacific ocean perch, 20
The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserve during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)).
Section 679.20(a)(5)(i)(A) requires that BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ Program and 3.9 percent for the ICA, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFA is allocated to the A season (January 20 to June 10) and 55 percent of the DFA is allocated to the B season (June 10 to November 1) (§§ 679.20(a)(5)(i)(B)(
Section 679.20(a)(5)(iii)(B)(
Section 679.20(a)(5)(i)(A)(
Table 2 also lists proposed seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the DFA before 12:00 noon, April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Table 2 lists these proposed 2018 and 2019 amounts by sector.
Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sectors, and the jig gear allocation (Table 3). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in Table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian District and Bering Sea subarea Atka mackerel TAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS proposes, a 0.5 percent allocation of the Atka mackerel TAC in the Eastern Aleutian District and Bering Sea subarea to jig gear in 2018 and 2019. This percentage is applied to the TAC after subtracting the CDQ reserve.
Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel seasons to CDQ Atka mackerel fishing. The ICA and jig gear allocations are not apportioned by season.
Section 679.20(a)(8)(ii)(C)(
One Amendment 80 cooperative has formed for the 2018 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required.
Table 3 lists the 2018 and 2019 Atka mackerel season allowances, area allowances, and the sector allocations. The 2019 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. NMFS will post 2019 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region Web site at
The Council separated Bering Sea and Aleutian Islands subarea OFLs, ABCs, and TACs for Pacific cod in 2014 (79 FR 12108, March 4, 2014). Section 679.20(b)(1)(ii)(C) allocates 10.7 percent of the BS TAC and the AI TAC to the CDQ Program. After CDQ allocations have been deducted from the respective BS and AI Pacific cod TACs, the remaining BS and AI Pacific cod TACs are combined for calculating further BSAI Pacific cod sector allocations. If the non-CDQ Pacific cod TAC is or will be reached in either the BS or the AI, NMFS will prohibit non-CDQ directed fishing for Pacific cod in that subarea, as provided in § 679.20(d)(1)(iii).
As explained earlier in the “Proposed ABC and TAC Harvest Specifications” section, the Council recommended reduced Pacific cod OFL, ABC, and TAC amounts in the BS as a result of preliminary data indicating a decrease in biomass. For the AI, the proposed OFL, ABC, and TAC amounts are unchanged from those amounts implemented through the final 2018 harvest specifications published in February 2017. The proposed amounts could likely change, including a further decrease, once the 2017 Pacific cod stock assessment is finalized, reviewed by the Council's Plan Team in November, and then subsequently reviewed by the SSC, AP, and Council in December 2017.
Sections 679.20(a)(7)(i) and (ii) allocate the Pacific cod TAC in the combined BSAI TAC, after subtracting 10.7 percent for the CDQ Program, as follows: 1.4 percent to vessels using jig gear, 2.0 percent to hook-and-line or pot catcher vessels less than 60 ft (18.3 m) length overall (LOA), 0.2 percent to hook-and-line catcher vessels greater than or equal to 60 ft (18.3 m) LOA, 48.7 percent to hook-and-line catcher/processors, 8.4 percent to pot catcher vessels greater than or equal to 60 ft (18.3 m) LOA, 1.5 percent to pot catcher/processors, 2.3 percent to AFA trawl catcher/processors, 13.4 percent to the Amendment 80 sector, and 22.1 percent to trawl catcher vessels. The BSAI ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of BSAI Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2018 and 2019, the Regional Administrator proposes a BSAI ICA of 400 mt, based on anticipated incidental catch by these sectors in other fisheries.
The BSAI ITAC allocation of Pacific cod to the Amendment 80 sector is established in Table 33 to 50 CFR part 679 and § 679.91. One Amendment 80 cooperative has formed for the 2018 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required.
The 2019 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. NMFS will post 2019 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region Web site at
The Pacific cod TAC is apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7)(i)(B), 679.20 (a)(7)(iv)(A), and 679.23(e)(5)). In accordance with §§ 679.20(a)(7)(iv)(B) and (C), any unused portion of a seasonal Pacific cod allowance for any sector, except the jig sector, will become available at the beginning of that sector's next seasonal allowance.
Section 679.20(a)(7)(vii) requires the Regional Administrator to establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543. Based on the 2016 stock assessment, the Regional Administrator determined the Area 543 Pacific cod harvest limit to be 26.3 percent of the AI Pacific cod TAC for 2018 and 2019. NMFS will first subtract the State GHL Pacific cod amount from the AI Pacific cod ABC. Then NMFS will determine the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 by the remaining ABC for AI Pacific cod. Based on these calculations, the Area 543 harvest limit is 4,128 mt.
Section 679.20(a)(7)(viii) requires specification of the 2018 and 2019 Pacific cod allocations for the Aleutian Islands ICA, non-CDQ DFA, CV Harvest Set-Aside, and Unrestricted Fishery, as well as the Bering Sea Trawl CV A-Season Sector Limitation. If NMFS receives notification of intent to process AI Pacific cod from either the city of Adak or the city of Atka, the harvest limits in Table 4a will be in effect in 2018 or 2019. Notification of intent to process AI Pacific cod must be postmarked by October 31 of the previous year, and submitted electronically to NMFS by October 31 of the previous year.
Prior to October 31, 2017, NMFS received timely notice from the City of Adak indicating an intent to process AI Pacific cod in 2018. Accordingly, the harvest limits in Table 4a will be in effect in 2018, subject to the performance requirements outlined in § 679.20(a)(7)(viii).
Section 679.20(a)(7)(viii) contains specific performance requirements that (1) if less than 1,000 mt of the Aleutian Islands CV Harvest Set-Aside is delivered to Aleutian Islands shoreplants by February 28 of that year, the Aleutian Islands CV Harvest Set-Aside is lifted and the Bering Sea Trawl CV A-Season Sector Limitation is suspended; and (2) if the entire Aleutian Islands CV Harvest Set-Aside is fully harvested and delivered to Aleutian Islands shoreplants before March 15 of that year, the Bering Sea Trawl CV A-Season Sector Limitation is suspended.
The CDQ and non-CDQ seasonal allowances by gear based on the proposed 2018 and 2019 Pacific cod TACs are listed in Table 4 based on the sector allocation percentages of Pacific cod set forth at §§ 679.20(a)(7)(i)(B) and (a)(7)(iv)(A) and the seasonal allowances of Pacific cod set forth at § 679.23(e)(5).
Sections 679.20(a)(4)(iii) and (iv) require allocation of sablefish TACs for the BS and AI between trawl gear and hook-and-line or pot gear. Gear allocations of the TACs for the BS are 50 percent for trawl gear and 50 percent for hook-and-line or pot gear. Gear allocations for the TACs for the AI are 25 percent for trawl gear and 75 percent for hook-and-line or pot gear. Section 679.20(b)(1)(ii)(B) requires NMFS to apportion 20 percent of the hook-and-line or pot gear allocation of sablefish to the CDQ reserve. Additionally, § 679.20(b)(1)(ii)(D)(
Sections 679.20(a)(10)(i) and (ii) require that NMFS allocate AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs between the Amendment 80 sector and the BSAI trawl limited access sector, after subtracting 10.7 percent for the CDQ reserve and an ICA for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocation of the ITAC for AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector is established in Tables 33 and 34 to 50 CFR part 679 and in § 679.91.
One Amendment 80 cooperative has formed for the 2018 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required.
The 2019 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. NMFS will post 2019 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region Web site at
Section 679.2 defines the ABC surplus for flathead sole, rock sole, and yellowfin sole as the difference between the annual ABC and TAC for each species. Section 679.20(b)(1)(iii) establishes ABC reserves for flathead sole, rock sole, and yellowfin sole. The ABC surpluses and the ABC reserves are necessary to mitigate the operational variability, environmental conditions, and economic factors that may constrain the CDQ groups and the Amendment 80 cooperatives from achieving, on a continuing basis, the optimum yield in the BSAI groundfish fisheries. NMFS, after consultation with the Council, may set the ABC reserve at or below the ABC surplus for each species thus maintaining the TAC below ABC limits. An amount equal to 10.7 percent of the ABC reserves will be allocated as CDQ ABC reserves for flathead sole, rock sole, and yellowfin sole. The Amendment 80 ABC reserves shall be the ABC reserves minus the CDQ ABC reserves. Section 679.91(i)(2) establishes each Amendment 80 cooperative ABC reserve to be the ratio of each cooperatives' quota share units and the total Amendment 80 quota share units, multiplied by the Amendment 80 ABC reserve for each respective species. Table 7 lists the 2018 and 2019 ABC surplus and ABC reserves for BSAI flathead sole, rock sole, and yellowfin sole.
Sections 679.21(b), (e), (f), and (g) set forth the BSAI PSC limits. Pursuant to § 679.21(b)(1), the 2018 and 2019 BSAI halibut PSC limits total 3,515 mt. Section 679.21(b)(1) allocates 315 mt of the halibut PSC limit as the PSQ reserve for use by the groundfish CDQ Program, 1,745 mt of halibut PSC limit for the Amendment 80 sector, 745 mt of halibut PSC limit for the BSAI trawl limited access sector, and 710 mt of halibut PSC limit for the BSAI non-trawl sector.
Sections 679.21(b)(1)(iii)(A) and (B) authorize apportionment of the BSAI non-trawl halibut PSC limit into PSC allowances among six fishery categories, and § 679.21(b)(1)(ii)(A) and (B), (e)(3)(i)(B), and (e)(3)(iv) require apportionment of the BSAI trawl limited
Pursuant to Section 3.6 of the FMP, the Council recommends, and NMFS proposes, that certain specified non-trawl fisheries be exempt from the halibut PSC limit. As in past years, after consultation with the Council, NMFS exempts pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from halibut bycatch restrictions for the following reasons: (1) The pot gear fisheries have low halibut bycatch mortality; (2) NMFS estimates halibut mortality for the jig gear fleet to be negligible because of the small size of the fishery and the selectivity of the gear; and (3) the sablefish and halibut IFQ fisheries have low halibut bycatch mortality because the IFQ Program requires legal-size halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder or a hired master is aboard and is holding unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)).
As of November 2017, total groundfish catch for the pot gear fishery in the BSAI was 42,662 mt, with an associated halibut bycatch mortality of 3 mt. The 2017 jig gear fishery harvested about 13 mt of groundfish. Most vessels in the jig gear fleet are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. As mentioned above, NMFS estimates a negligible amount of halibut bycatch mortality because of the selective nature of jig gear and the low mortality rate of halibut caught with jig gear and released.
Under § 679.21(f)(2), NMFS annually allocates portions of either 33,318, 45,000, 47,591, or 60,000 Chinook salmon PSC limits among the AFA sectors, depending on past bycatch performance, on whether Chinook salmon bycatch incentive plan agreements (IPAs) are formed, and on whether NMFS determines it is a low Chinook salmon abundance year. NMFS will determine that it is a low Chinook salmon abundance year when abundance of Chinook salmon in western Alaska is less than or equal to 250,000 Chinook salmon. The State provides to NMFS an estimate of Chinook salmon abundance using the 3-System Index for western Alaska based on the Kuskokwim, Unalakleet, and Upper Yukon aggregate stock grouping.
If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6) and if it is not a low Chinook salmon abundance year, then NMFS will allocate a portion of the 60,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(A). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), and it is not a low abundance year, NMFS will allocate a portion of the 47,591 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(C). If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6) in a low abundance year, then NMFS will allocate a portion of the 45,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(B). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6) in a low abundance year, NMFS will allocate a portion of the 33,318 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(D).
As of October 1, 2017, NMFS has determined that it is not a low Chinook salmon abundance year, based on the State's estimate that Chinook salmon abundance in western Alaska is greater than 250,000 Chinook salmon. Therefore, in 2018, the Chinook salmon PSC limit is 60,000 Chinook salmon, allocated to each sector as specified in § 679.21(f)(3)(iii)(A). The AFA sector Chinook salmon allocations are also seasonally apportioned with 70 percent of the allocation for the A season pollock fishery, and 30 percent of the allocation for the B season pollock fishery, as provided in § 679.21(f)(3)(i) and § 679.23(e)(2). Additionally, in 2017, the Chinook salmon bycatch performance standard under § 679.21(f)(6) is 47,591 Chinook salmon, allocated to each sector as specified in § 679.21(f)(3)(iii)(C).
The basis for these PSC limits is described in detail in the final rule implementing management measures for Amendment 91 (75 FR 53026, August 30, 2010) and Amendment 110 (81 FR 37534, June 10, 2016). NMFS publishes the approved IPAs, allocations, and reports at
Section 679.21(g)(2)(i) specifies 700 fish as the 2018 and 2019 Chinook salmon PSC limit for the AI pollock fishery. Section 679.21(g)(2)(ii) allocates 7.5 percent, or 53 Chinook salmon, as the AI PSQ reserve for the CDQ Program and allocates the remaining 647 Chinook salmon to the non-CDQ fisheries.
Section 679.21(f)(14)(i) specifies 42,000 fish as the 2018 and 2019 non-Chinook salmon PSC limit in the Catcher Vessel Operational Area (CVOA). Section 679.21(f)(14)(ii) allocates 10.7 percent, or 4,494, non-Chinook salmon in the CVOA as the PSQ reserve for the CDQ Program, and allocates the remaining 37,506 non-Chinook salmon in the CVOA to the non-CDQ fisheries.
PSC limits for crab and herring are specified annually based on abundance and spawning biomass. Due to the lack of new information as of October 2017 regarding herring PSC limits and apportionments, the Council recommended and NMFS proposes basing the herring 2018 and 2019 PSC limits and apportionments on the 2016 survey data. The Council will reconsider these amounts in December 2017.
Section 679.21(e)(3)(i)(A)(
Based on 2017 survey data, the red king crab mature female abundance is estimated at 18.5 million red king crabs, and the effective spawning biomass is estimated at 39,776 million lbs (18,042 mt). Based on the criteria set out at § 679.21(e)(1)(i), the proposed 2018 and 2019 PSC limit of red king crab in Zone 1 for trawl gear is 97,000 animals. This limit derives from the mature female abundance estimate of more than 8.4 million red king crab and the effective spawning biomass estimate of more than 14.5 million lbs (6,577 mt) but less than 55 million lbs (24,948 mt).
Section 679.21(e)(3)(ii)(B)(
Pursuant to § 679.21(e)(1)(iii), the PSC limit for snow crab (
Pursuant to § 679.21(e)(1)(v), the PSC limit of Pacific herring caught while conducting any trawl operation for BSAI groundfish is 1 percent of the annual eastern Bering Sea herring biomass. The best estimate of 2018 and 2019 herring biomass is 201,278 mt. This amount was developed by the Alaska Department of Fish and Game based on biomass for spawning aggregations. Therefore, the herring PSC limit proposed for 2018 and 2019 is 2,013 mt for all trawl gear as listed in Tables 8 and 9.
Section 679.21(e)(3)(i)(A) requires PSQ reserves to be subtracted from the total trawl PSC limits. The 2018 crab and halibut PSC limits assigned to the Amendment 80 and BSAI trawl limited access sectors are specified in Table 35 to 50 CFR part 679. The resulting allocations of PSC limits to CDQ PSQ, the Amendment 80 sector, and the BSAI trawl limited access sector are listed in Table 8.
One Amendment 80 cooperative has formed for the 2018 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required.
The 2019 PSC limit allocations between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. NMFS will post 2019 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region Web site at
Sections 679.21(b)(2) and (e)(5) authorize NMFS, after consulting with the Council, to establish seasonal apportionments of PSC amounts for the BSAI non-trawl, BSAI trawl limited access, and Amendment 80 limited access sectors to maximize the ability of the fleet to harvest the available groundfish TAC and to minimize bycatch. The factors considered are (1) seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species relative to prohibited species distribution, (3) PSC bycatch needs on a seasonal basis relevant to prohibited species biomass and expected catches of target groundfish species, (4) expected variations in bycatch rates throughout the year, (5) expected changes in directed groundfish fishing seasons, (6) expected start of fishing effort, and (7) economic effects of seasonal PSC apportionments on industry sectors. The Council recommended and NMFS proposes the seasonal PSC apportionments in Tables 10 and 11 to maximize harvest among gear types, fisheries, and seasons while minimizing bycatch of PSC based on the above criteria.
To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut incidental catch rates, halibut discard mortality rates (DMRs), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. Halibut incidental catch rates are based on observers' estimates of halibut incidental catch in the groundfish fishery. DMRs are estimates of the proportion of incidentally caught halibut that do not survive after being returned to the sea. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. DMRs are estimated using the best scientific information available in conjunction with the annual BSAI stock assessment process. The DMR methodology and findings are included as an appendix to the annual BSAI groundfish SAFE report.
In 2016, the DMR estimation methodology underwent revisions per the Council's directive. An interagency halibut working group (IPHC, Council, and NMFS staff) developed improved estimation methods that have undergone review by the Plan Team, SSC, and the Council. A summary of the revised methodology is included in the BSAI proposed 2017 and 2018 harvest specifications (81 FR 87863, December 6, 2016), and the comprehensive discussion of the working group's statistical methodology is available from the Council (see
At the December 2016 meeting, the SSC, AP, and Council concurred in the revised DMR estimation methodology, and NMFS adopted the DMRs calculated under the revised methodology for the 2016 and 2017 harvest specifications. In October 2017,
Pursuant to § 679.64(a), the Regional Administrator is responsible for restricting the ability of listed AFA catcher/processors to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the directed pollock fishery. These restrictions are set out as “sideboard” limits on catch. The basis for these proposed sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Table 13 lists the proposed 2018 and 2019 catcher/processor sideboard limits.
All harvest of groundfish sideboard species by listed AFA catcher/processors, whether as targeted catch or incidental catch, will be deducted from the sideboard limits in Table 13. However, groundfish sideboard species that are delivered to listed AFA catcher/processors by catcher vessels will not be deducted from the 2018 and 2019 sideboard limits for the listed AFA catcher/processors.
Section 679.64(a)(2) and Tables 40 and 41 to 50 CFR part 679 establish a formula for calculating PSC sideboard limits for halibut and crab caught by listed AFA catcher/processors. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007).
PSC species listed in Table 14 that are caught by listed AFA catcher/processors participating in any groundfish fishery other than pollock will accrue against the proposed 2018 and 2019 PSC sideboard limits for the listed AFA catcher/processors. Sections 679.21(b)(4)(iii), (e)(7), and (e)(3)(v) authorize NMFS to close directed fishing for groundfish other than pollock for listed AFA catcher/processors once a proposed 2018 or 2019 PSC sideboard limit listed in Table 14 is reached.
Pursuant to § 679.21(b)(1)(ii)(C) and (e)(3)(ii)(C), halibut or crab PSC caught by listed AFA catcher/processors while fishing for pollock will accrue against the PSC allowances annually specified for the pollock/Atka mackerel/“other species” fishery categories, according to § 679.21(b)(1)(ii)(B) and (e)(3)(iv).
Pursuant to § 679.64(b), the Regional Administrator is responsible for restricting the ability of AFA catcher vessels to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the directed pollock fishery. Section 679.64(b)(3) and (b)(4) establish formulas for setting AFA catcher vessel groundfish and PSC sideboard limits for the BSAI. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Tables 15 and 16 list the proposed 2018 and 2019 AFA catcher vessel sideboard limits.
All catch of groundfish sideboard species made by non-exempt AFA catcher vessels, whether as targeted catch or as incidental catch, will be deducted from the 2018 and 2019 sideboard limits listed in Table 15.
Halibut and crab PSC limits listed in Table 16 that are caught by AFA catcher vessels participating in any groundfish fishery other than pollock will accrue against the 2018 and 2019 PSC sideboard limits for the AFA catcher vessels. Section 679.21(b)(4)(iii), (e)(7), and (e)(3)(v) authorize NMFS to close directed fishing for groundfish other than pollock for AFA catcher vessels once a proposed 2018 and 2019 PSC sideboard limit listed in Table 16 is reached. Pursuant to § 679.21(b)(1)(ii)(C) and (e)(3)(ii)(C), halibut or crab PSC caught by AFA catcher vessels while fishing for pollock in the BS will accrue against the bycatch allowances annually specified for the pollock/Atka mackerel/“other species” fishery categories under § 679.21(b)(1)(ii)(B) and (e)(3)(iv).
NMFS has determined that the proposed harvest specifications are consistent with the FMP and preliminarily determined that the proposed harvest specifications are consistent with the Magnuson-Stevens Act and other applicable laws, and subject to further review after public comment.
This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.
NMFS prepared an EIS for this action and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the Record of Decision (ROD) for the Final EIS. A Supplemental Information Report (SIR) that assesses the need to prepare a Supplemental EIS is being prepared for the final action. Copies of the Final EIS, ROD, and SIR for this action are available from NMFS (see
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA), as required by section 603 of the Regulatory Flexibility Act (RFA), analyzing the methodology for establishing the relevant TACs. The IRFA evaluates the impacts on small entities of alternative harvest strategies for the groundfish fisheries in the exclusive economic zone off Alaska. As described in the methodology, TACs are set to a level that falls within the range of ABCs recommended by the SSC; the sum of the TACs must achieve OY specified in the FMP. While the specific numbers that the methodology may produce vary from year to year, the methodology itself remains constant.
A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the preamble above. A copy of the IRFA is available from NMFS (see
The action under consideration is a harvest strategy to govern the catch of groundfish in the BSAI. The preferred alternative is the existing harvest strategy in which TACs fall within the range of ABCs recommended by the SSC, but, as discussed below, NMFS considered other alternatives. This action is taken in accordance with the FMP prepared by the Council pursuant to the Magnuson-Stevens Act.
The entities directly regulated by this action are those that harvest groundfish in the exclusive economic zone of the BSAI and in parallel fisheries within State waters. These include entities operating catcher vessels and catcher/processors within the action area and entities receiving direct allocations of groundfish.
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual gross receipts not in excess of $11 million for all its affiliated operations worldwide.
The estimated number of directly regulated small entities in 2016 include approximately 119 catcher vessels, five catcher/processors, and six CDQ groups. Some of these vessels are members of AFA inshore pollock cooperatives, Gulf of Alaska rockfish cooperatives, or BSAI Crab Rationalization Program cooperatives, and, since under the RFA the aggregate gross receipts of all participating members of the cooperative must meet the “under $11 million” threshold, the cooperatives are considered to be large entities within the meaning of the RFA. Thus, the estimate of 119 catcher vessels may be an overstatement of the number of small entities. Average gross revenues were $690,000 for small hook-and-line vessels, $1.25 million for small pot vessels, and $3.44 million for small trawl vessels. The average gross revenue for catcher/processor hook and line vessels was $2.90 million. The revenue data for other catcher/processor's data are not reported, due to confidentiality considerations.
The preferred alternative (Alternative 2) was compared to four other alternatives. Alternative 1 would have set TACs to generate fishing rates equal
The TACs associated with Alternative 2, the preferred harvest strategy, are those adopted by the Council in October 2017. OFLs and ABCs for the species were based on recommendations prepared by the Council's BSAI Groundfish Plan Team in September 2017, and reviewed and modified by the Council's SSC in October 2017. The Council based its TAC recommendations on those of its AP, which were consistent with the SSC's OFL and ABC recommendations.
Alternative 1 selects harvest rates that would allow fishermen to harvest stocks at the level of ABCs, unless total harvests were constrained by the upper bound of the BSAI OY of two million mt. As shown in Table 1 of the preamble, the sum of ABCs in 2018 and 2019 would be about 4,214,648 mt, which falls above the upper bound of the OY range. Under Alternative 1, the sum of TACs is equal to the sum of ABCs. In this instance, Alternative 1 is consistent with the preferred alternative (Alternative 2), meets the objectives of that action, and has small entity impacts that are equivalent to small entity impacts of the preferred alternative. However, NMFS cannot set TACs equal to the sum of ABCs in the BSAI due to the constraining OY limit of 2.0 million mt, which Alternative 1 would exceed.
Alternative 3 selects harvest rates based on the most recent 5 years of harvest rates (for species in Tiers 1 through 3) or based on the most recent 5 years of harvests (for species in Tiers 4 through 6). This alternative is inconsistent with the objectives of this action (as reflected in Alternative 2, the Council's preferred harvest strategy) because it does not take account of the most recent biological information for this fishery. NMFS annually conducts at-sea stock surveys for different species, as well as statistical modeling, to estimate stock sizes and permissible harvest levels. Actual harvest rates or harvest amounts are a component of these estimates, but in and of themselves may not accurately portray stock sizes and conditions. Harvest rates are listed for each species category for each year in the SAFE report (see
Alternative 4 would lead to significantly lower harvests of all species and reduce TACs from the upper end of the OY range in the BSAI, to its lower end of 1.4 million mt. Overall, this would reduce 2018 TACs by about 30 percent, which would lead to significant reductions in harvests of species by small entities. While reductions of this size would alter the supply, and, therefore, would be associated with offsetting price increases, the size of these associated price increases is uncertain. While production declines in the BSAI would undoubtedly be associated with price increases in the BSAI, these increases would be constrained by production of substitutes, and are unlikely to completely offset revenue declines resulting from reductions in harvests of these species by small entities. Thus, this alternative action would have a detrimental impact on small entities.
Alternative 5, which sets all harvests equal to zero, would have a significant adverse impact on small entities and would be contrary to the requirement for achieving OY on a continuing basis, as mandated by the Magnuson-Stevens Act.
The proposed harvest specifications (Alternative 2) extend the current 2018 OFLs, ABCs, and TACs to 2018 and 2019, with the exceptions for decreases of Pacific cod OFL, ABC, and TAC in the BS and related increases in Atka mackerel, Pacific ocean perch, pollock, and rock sole TAC amounts. As noted in the IRFA, the Council may modify these OFLs, ABCs, and TACs in December 2017, when it reviews the November 2017 SAFE report from its groundfish Plan Team, and the reports of the SSC and AP at the December Council meeting. Because most of the TACs in the proposed 2018 and 2019 harvest specifications are unchanged from the 2018 harvest specification TACs, with the exception of modifications for TACs for five species, and because the sum of all TACs remains within the upper limit of OY for the BSAI of 2.0 million mt, NMFS does not expect adverse impacts on small entities. Also, NMFS does not expect any changes made by the Council in December 2017 to be large enough to have an impact on small entities.
This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules.
Adverse impacts on marine mammals resulting from fishing activities conducted under these harvest specifications are discussed in the Final EIS (see
16 U.S.C. 773
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes 2018 and 2019 harvest specifications, apportionments, and Pacific halibut prohibited species catch limits for the groundfish fishery of the Gulf of Alaska (GOA). This action is necessary to establish harvest limits for groundfish during the 2018 and 2019 fishing years and to accomplish the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska. The intended effect of this action is to conserve and manage the groundfish resources in the GOA in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.
Comments must be received by January 8, 2018.
Submit comments on this document, identified by NOAA–NMFS–2017–0107, by either of the following methods:
•
•
Electronic copies of the Alaska Groundfish Harvest Specifications Final Environmental Impact Statement (Final EIS), Record of Decision (ROD) for the Final EIS, Supplementary Information Report (SIR) to the Final EIS, and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action may be obtained from
Obren Davis, 907–586–7228.
NMFS manages the GOA groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The Council prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801,
The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (§ 679.20(a)(1)(i)(B)). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs and apportionments thereof, Pacific halibut prohibited species catch (PSC) limits, and seasonal allowances of pollock and Pacific cod. The proposed harvest specifications in Tables 1 through 19 of this document satisfy these requirements. For 2018 and 2019, the sum of the proposed TAC amounts is 465,832 mt.
Under § 679.20(c)(3), NMFS will publish the final 2018 and 2019 harvest specifications after (1) considering comments received within the comment period (see
In June 2017, the Council recommended for Secretarial review Amendment 106 to the FMP. Amendment 106 would reclassify squid in the FMP as an “Ecosystem Component Species” which is a category of non-target species that are not in need of conservation and management. Currently, NMFS annually sets an Overfishing Level (OFL), Acceptable Biological Catch (ABC), and TAC for squid in the GOA groundfish harvest specifications. Under Amendment 106, OFL, ABC, and TAC specifications would no longer be required. Proposed regulations to implement Amendment 106 would prohibit directed fishing for squid, require recordkeeping and reporting to monitor and report catch of squid species annually, and establish a squid maximum retainable amount when directed fishing for groundfish species at 20 percent to discourage retention, while allowing flexibility to prosecute groundfish fisheries. Further details will be available on publication of the proposed rule for Amendment 106. If Amendment 106 and its implementing regulations are approved by the Secretary of Commerce, this action is anticipated to be effective in 2019. Until Amendment 106 is effective, NMFS will continue to publish OFLs, ABCs, and TACs for squid in the GOA groundfish harvest specifications.
In October 2017, the Council, its Scientific and Statistical Committee (SSC), and its Advisory Panel (AP) reviewed the most recent biological and harvest information about the condition of groundfish stocks in the GOA. This information was compiled by the GOA Groundfish Plan Team (Plan Team) and presented in the final 2016 SAFE report for the GOA groundfish fisheries, dated November 2016 (see
The Council recommends and NMFS proposes a reduction in the Pacific cod OFL, ABC, and TAC levels as compared to those levels implemented for Pacific cod in the 2017 and 2018 final GOA groundfish harvest specifications. The Council concurred with its SSC's recommendation to reduce the Pacific cod OFL and ABC, as well as its AP's recommendation for a corresponding reduction in the Pacific cod TAC. The reductions to the Pacific cod OFL, ABC, and TAC are the result of preliminary 2017 GOA bottom trawl survey data, as well as other data, that recently became available to stock assessment scientists.
Based on the results of the 2017 GOA bottom trawl survey estimates and preliminary modeling for the Pacific cod stock assessment, the Pacific cod biomass and abundance has decreased significantly since the 2015 GOA bottom trawl survey. This decrease is corroborated by additional data sets that appear to support the trawl survey results associated with a decrease in the
In November 2017, the Plan Team will update the 2016 SAFE report to include new information collected during 2017, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and produce the draft 2017 SAFE report for presentation at the December 2017 Council meeting. At that meeting, the Council will consider information in the draft 2017 SAFE report, recommendations from the November 2017 Plan Team meeting and December 2017 SSC and AP meetings, public testimony, and relevant written public comments in making its recommendations for the final 2018 and 2019 harvest specifications. Pursuant to § 679.20(a)(2) and (3), the Council could recommend adjusting the TACs if warranted on the biological condition of groundfish stocks or a variety of socioeconomic considerations, or if required in order to cause the sum to fall within the optimum yield range.
In previous years, the OFLs and ABCs that have had the most significant changes (relative to the amount of assessed tonnage of fish) from the proposed to the final harvest specifications have been for OFLs and ABCs that are based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution, and changes to the models used for producing stock assessments. NMFS scientists presented updated and new survey results, changes to assessment models, and accompanying stock estimates at the September 2017 Plan Team meeting, and the SSC reviewed this information at the October 2017 Council meeting. The species with possible significant model changes are arrowtooth flounder, Pacific cod, Pacific ocean perch, pollock, and rex sole. Model changes can result in changes to OFLs, ABCs, and TACs.
In November 2017, the Plan Team will consider updated stock assessments for groundfish, which will be included in the draft 2017 SAFE report. If the draft 2017 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2018 and 2019 harvest specifications for that species may reflect an increase from the proposed harvest specifications. Conversely, if the draft 2017 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2018 and 2019 harvest specifications may reflect a decrease from the proposed harvest specifications.
The proposed 2018 and 2019 OFLs, ABCs, and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used to compute OFLs and ABCs. The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to the fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with Tier 1 representing the highest level of information quality available and Tier 6 representing the lowest level of information quality available. The Plan Team used the FMP tier structure to calculate OFLs and ABCs for each groundfish species. The SSC adopted the proposed 2018 and 2019 OFLs and ABCs recommended by the Plan Team for all groundfish species, with the exception of Pacific cod. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations. These amounts have changed from the final 2018 harvest specifications published in the
The Council recommended proposed 2018 and 2019 TACs that are equal to proposed ABCs for all species and species groups, with the exception of the Western, Central, and West Yakutat pollock ABC, Pacific cod, shallow-water flatfish in the Western GOA, arrowtooth flounder, flathead sole in the Western and Central GOA, “other rockfish” in Southeast Outside (SEO) District, and Atka mackerel. The combined Western, Central, and West Yakutat pollock TAC is set to account for the State of Alaska's (State) guideline harvest levels (GHLs) for the State water pollock fishery. Similarly, the Pacific cod TACs are reduced from ABC levels to account for the State's GHLs for Pacific cod so that the ABCs are not exceeded. The shallow-water flatfish, arrowtooth flounder, and flathead sole TACs are set to allow for increased harvest opportunities for these target species while conserving the halibut PSC limit for use in other fisheries. The “other rockfish” TAC is set to reduce the potential amount of discards of the species in that complex. The Atka mackerel TAC is set to accommodate incidental catch amounts in other fisheries. These reductions are described below.
The proposed 2018 and 2019 Pacific cod TACs are set to accommodate the State's GHLs for Pacific cod in State waters in the Western and Central Regulatory Areas, as well as in Prince William Sound (PWS). The Plan Team, SSC, AP, and Council recommended that the sum of all State and Federal water Pacific cod removals from the GOA not exceed ABC recommendations. Therefore, the proposed 2018 and 2019 Pacific cod TACs are less than the proposed ABCs by the following amounts: (1) Western GOA, 6,770 mt; (2) Central GOA, 6,868 mt; and (3) Eastern GOA, 1,224 mt. These amounts reflect the sum of the State's 2018 and 2019 GHLs in these areas, which are 30 percent of the Western GOA proposed ABC, and 25 percent of the Eastern and Central GOA proposed ABCs.
The ABC for the pollock stock in the combined Western, Central, and West Yakutat Regulatory Areas (W/C/WYK) includes the amount for the GHL established by the State for the PWS pollock fishery. The Plan Team, SSC, AP, and Council recommended that the sum of all State and Federal water pollock removals from the GOA not exceed ABC recommendations. For 2018
Apportionments of pollock to the W/C/WYK management areas are considered to be “apportionments of annual catch limit (ACLs)” rather than “ABCs.” This more accurately reflects that such apportionments address management, rather than biological or conservation, concerns. In addition, apportionments of the ACL in this manner allow NMFS to balance any transfer of TAC among Areas 610, 620, and 630 pursuant to § 679.20(a)(5)(iv)(B) to ensure that the area-wide ACL, ABC, and TAC are not exceeded.
NMFS' proposed apportionments of groundfish species are based on the distribution of biomass among the regulatory areas under which NMFS manages the species. Additional regulations govern the apportionment of pollock, Pacific cod, and sablefish. Additional detail on these apportionments are described below, and briefly summarized here.
NMFS proposes pollock TACs in the W/C/WYK and the SEO District of the GOA (see Table 1). NMFS also proposes seasonal apportionment of the annual pollock TAC in the Western and Central Regulatory Areas of the GOA between Statistical Areas 610, 620, and 630. These apportionments are divided equally among each of the following four seasons: The A season (January 20 through March 10), the B season (March 10 through May 31), the C season (August 25 through October 1), and the D season (October 1 through November 1) (§ 679.23(d)(2)(i) through (iv), and § 679.20(a)(5)(iv)(A) and (B)). Additional detail is provided below; Table 2 lists these amounts.
NMFS proposes Pacific cod TACs in the Western, Central, and Eastern GOA (see Table 1). NMFS also proposes seasonal apportionment of the Pacific cod TACs in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for jig gear from June 10 through December 31, for hook-and-line and pot gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)). The Western and Central GOA Pacific cod TACs are allocated among various gear and operational sectors. Additional detail is provided below; Table 3 lists the amounts apportioned to each sector.
The Council's recommendation for sablefish area apportionments takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area (§ 679.7(b)(1)) and makes available 5 percent of the combined Eastern Regulatory Area TACs to trawl gear for use as incidental catch in other groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)). Additional detail is provided below. Tables 4 and 5 list the proposed 2018 and 2019 allocations of the sablefish TAC to fixed gear and trawl gear in the GOA.
For 2018 and 2019, the Council recommends and NMFS proposes the OFLs, ABCs, and TACs listed in Table 1. The proposed ABCs reflect harvest amounts that are less than the specified overfishing levels. Table 1 lists the proposed 2018 and 2019 OFLs, ABCs, TACs, and area apportionments of groundfish in the GOA. These amounts are consistent with the biological condition of groundfish stocks as described in the 2016 SAFE report, and adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required OY range. The sum of the proposed TACs for all GOA groundfish is 465,832 mt for 2018 and 2019, which is within the OY range specified by the FMP. These proposed amounts and apportionments by area, season, and sector are subject to change pending consideration of the draft 2017 SAFE report and the Council's recommendations for the final 2018 and 2019 harvest specifications during its December 2017 meeting.
Section 679.20(b)(2) requires NMFS to set aside 20 percent of each TAC for pollock, Pacific cod, flatfish, sculpins, sharks, squids, and octopuses in reserves for possible apportionment at a later date during the fishing year. In 2017, NMFS reapportioned all of the reserves in the final harvest specifications. For 2018 and 2019, NMFS proposes reapportionment of each of the reserves for pollock, Pacific cod, flatfish, sculpins, sharks, squids, and octopuses back into the original TAC from which the reserve was derived. NMFS expects, based on recent harvest patterns, that such reserves are not necessary and the entire TAC for each of these species will be caught. The TACs in Table 1 reflect this proposed reapportionment of reserve amounts for these species and species groups,
In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Pursuant to § 679.20(a)(5)(iv)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal allowances of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 through March 10, March 10 through May 31, August 25 through October 1, and October 1 through November 1, respectively.
Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630, pursuant to § 679.20(a)(5)(iv)(A). In the A and B seasons, the apportionments had historically, since 2000, been based on the proportional distribution of pollock biomass based on the four most recent NMFS winter surveys. In the C and D seasons, the apportionments were in proportion to the distribution of pollock biomass based on the four most recent NMFS summer surveys. For 2018 and 2019, the Council recommends, and NMFS proposes, following the methodology that was used for the 2017 and 2018 harvest specifications. This methodology averages the winter and summer distribution of pollock in the Central Regulatory Area for the A season instead of using the distribution based on only the winter surveys. The average is intended to reflect the best available information about migration patterns, distribution of pollock, and the performance of the fishery in the area during the A season. For the A season, the apportionment is based on the proposed adjusted estimate of the relative distribution of pollock biomass of approximately 5 percent, 72 percent, and 23 percent in Statistical Areas 610, 620, and 630, respectively. For the B season, the apportionment is based on the relative distribution of pollock biomass of approximately 5 percent, 82 percent, and 13 percent in Statistical Areas 610, 620, and 630, respectively. For the C and D seasons, the apportionment is based on the relative distribution of pollock biomass of approximately 41 percent, 26 percent, and 33 percent in Statistical Areas 610, 620, and 630, respectively. The pollock chapter of the 2016 SAFE report (see
Within any fishing year, the amount by which a seasonal allowance is underharvested or overharvested may be added to, or subtracted from, subsequent seasonal allowances in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount is limited to 20 percent of the seasonal TAC apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the subsequent season in other statistical areas, in proportion to the estimated biomass and in an amount no more than 20 percent of the seasonal TAC apportionment in those statistical areas (§ 679.20(a)(5)(iv)(B)). The proposed 2018 and 2019 pollock TACs in the WYK District of 5,791 mt and the SEO District of 9,920 mt are not allocated by season.
Section 679.20(a)(6)(i) requires the allocation of 100 percent of the pollock apportionments in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of pollock amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed under § 679.20(e) and (f). At this time, these incidental catch amounts of pollock are unknown and will be determined as fishing activity occurs during the fishing year by the offshore component.
Table 2 lists the proposed 2018 and 2019 seasonal biomass distribution of pollock in the Western and Central Regulatory Areas, area apportionments, and seasonal allowances. The amounts of pollock for processing by the inshore and offshore components are not shown. Section 679.20(a)(6)(i) requires the allocation of 100 percent of the pollock TAC in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by § 679.20(e) and (f). The incidental catch amounts of pollock are unknown at this time and will be determined during the 2018 fishing year during the course of fishing activities by the offshore component.
As explained earlier in the section on “Proposed ABC and TAC Specifications,” the Council recommended reduced Pacific cod OFL, ABC, and TAC amounts as a result of preliminary data indicating a decrease in biomass. The proposed amounts could likely change, including a further decrease, once the 2017 Pacific cod stock assessment is finalized, reviewed by the Council's groundfish Plan Team in November, and then subsequently reviewed by the SSC, AP, and Council in December 2017. Reductions could impact seasonal and sector apportionments of Pacific cod TAC.
Pursuant to § 679.20(a)(12)(i), NMFS proposes allocations for the 2018 and 2019 Pacific cod TACs in the Western and Central Regulatory Areas of the GOA among gear and operational sectors. NMFS also proposes allocating the 2018 and 2019 Pacific cod TACs annually between the inshore and offshore components in the Eastern Regulatory Area of the GOA (§ 679.20(a)(6)(ii)). In the Central GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among catcher vessels (CVs) less than 50 feet in length overall using hook-and-line gear, CVs equal to or greater than 50 feet in length overall using hook-and-line gear, catcher/processors (C/Ps) using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(B)). In the Western GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among CVs using hook-and-line gear, C/Ps using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(A)). The overall seasonal apportionments in the Western and Central GOA are 60 percent of the annual TAC to the A season and 40 percent of the annual TAC to the B season. All of these apportionments proposed for 2018 and 2019 incorporate the proposed reduction to the 2018 and 2019 Pacific cod TAC that was recommended by the Council and discussed earlier in the preamble.
Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod allowance from the A season will be subtracted from, or added to, the subsequent B season allowance. In addition, any portion of the hook-and-line, trawl, pot, or jig sector allocations that is determined by NMFS as likely to go unharvested by a sector may be reallocated to other sectors for harvest during the remainder of the fishing year.
Pursuant to § 679.20(a)(12)(i)(A) and (B), a portion of the annual Pacific cod TACs in the Western and Central GOA will be allocated to vessels with a Federal fisheries permit that use jig gear before TAC is apportioned among other non-jig sectors. In accordance with the FMP, the annual jig sector allocations may increase to up to 6 percent of the annual Western and Central GOA Pacific cod TACs, depending on the annual performance of the jig sector (see Table 1 of Amendment 83 to the FMP for a detailed discussion of the jig sector allocation process (76 FR 74670, December 1, 2011). Jig sector allocation increases are established for a minimum of 2 years.
NMFS has evaluated the historical harvest performance of the jig sector in the Western and Central GOA, and is establishing the proposed 2018 and 2019 Pacific cod apportionments to this sector based on its historical harvest performance through 2016. For 2018 and 2019, NMFS proposes that the jig sector receive 2.5 percent of the annual Pacific cod TAC in the Western GOA. This includes a base allocation of 1.5 percent and an additional 1.0 percent because this sector harvested greater than 90 percent of its initial allocations in 2012 and 2014 in the Western GOA. NMFS also proposes that the jig sector receive 1.0 percent of the annual Pacific cod TAC in the Central GOA. This includes a base allocation of 1.0 percent and no additional performance increase. These historical Pacific cod jig allocations, catch, and percent allocation changes are listed in Figure 1.
NMFS will re-evaluate the annual 2017 harvest performance of jig sector in the Western and Central Management areas when the 2017 fishing year is complete to determine whether to change the jig sector allocations proposed by this action in conjunction with the final 2018 and 2019 harvest specifications. The current catch through November 2017 by the Western GOA jig sector indicates that the Pacific cod allocation percentage to this sector would probably decrease by 1 percent in 2018 (from 2.5 percent to 1.5 percent). Also, the current catch by the Central GOA jig sector indicates that this sector's Pacific cod allocation percentage would not change in 2018, and would remain at 1 percent. The jig sector allocations for the Western and Central GOA are further apportioned between the A (60 percent) and B (40 percent) seasons (§ 679.20(a)(12)(i) and § 679.23(d)(3)(iii)).
Table 3 lists the seasonal apportionments and allocations of the proposed 2018 and 2019 Pacific cod TACs.
Sections 679.20(a)(4)(i) and (ii) require allocations of sablefish TACs for each of the regulatory areas and districts to fixed and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to fixed gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to fixed gear and 5 percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish in directed fisheries for other target species (§ 679.20(a)(4)(i)).
In recognition of the prohibition against trawl gear in the SEO District of the Eastern Regulatory Area, the Council recommended and NMFS proposes the allocation of 5 percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District, making the remainder of the WYK sablefish TAC available to vessels using fixed gear. NMFS proposes to allocate 100 percent of the sablefish TAC in the SEO District to vessels using fixed gear. This action results in a proposed 2018 allocation of 213 mt to trawl gear and 1,413 mt to fixed gear in the WYK District, a proposed 2018 allocation of 2,640 mt to fixed gear in the SEO District, and a 2019 allocation of 213 mt to trawl gear in the WYK District. Table 4 lists the allocations of the proposed 2018 sablefish TACs to fixed and trawl gear. Table 5 lists the allocations of the proposed 2019 sablefish TACs to trawl gear.
The Council recommended that the trawl sablefish TAC be established for 2 years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. Tables 4 and 5 list the 2018 and 2019 trawl allocations, respectively.
The Council recommended that the fixed gear sablefish TAC be established annually to ensure that the sablefish IFQ fishery is conducted concurrently with the halibut IFQ fishery and is based on the most recent survey information. Since there is an annual assessment for sablefish and the final harvest specifications are expected to be published before the IFQ season begins (typically, in early March), the Council recommended that the fixed gear sablefish TAC be set annually, rather than for 2 years, so that the best available scientific information could be considered in establishing the sablefish ABCs and TACs. Accordingly, Table 4 lists the 2018 fixed gear allocations, and the 2019 fixed gear allocations will be in the proposed 2019 and 2020 harvest specifications.
With the exception of the trawl allocations that are provided to the Rockfish Program cooperatives (see Table 28c to 50 CFR part 679), directed fishing for sablefish with trawl gear is closed during the fishing year. Also, fishing for groundfish with trawl gear is prohibited prior to January 20. Therefore, it is not likely that the sablefish allocation to trawl gear would be reached before the effective date of the final 2018 and 2019 harvest specifications.
These proposed 2018 and 2019 harvest specifications for the GOA include the fishery cooperative allocations and sideboard limitations established by the Rockfish Program. Program participants are primarily trawl CVs and trawl C/Ps, with limited participation by vessels using longline gear. The Rockfish Program assigns quota share and cooperative quota to participants for primary (Pacific ocean perch, northern rockfish, and dusky rockfish) and secondary species (Pacific cod, rougheye rockfish, sablefish, shortraker rockfish, and thornyhead rockfish), allows a participant holding a license limitation program (LLP) license with rockfish quota share to form a rockfish cooperative with other persons, and allows holders of C/P LLP licenses to opt out of the fishery. The Rockfish Program also has an entry level fishery for rockfish primary species for vessels using longline gear. Longline gear includes hook-and-line, jig, troll, and handline gear.
Under the Rockfish Program, rockfish primary species in the Central GOA are allocated to participants after deducting for incidental catch needs in other directed groundfish fisheries (§ 679.81(a)(2)). Participants in the Rockfish Program also receive a portion of the Central GOA TAC of specific secondary species. Besides groundfish species, the Rockfish Program allocates a portion of the halibut PSC limit (191 mt) from the third season deep-water species fishery allowance for the GOA trawl fisheries to Rockfish Program participants (§ 679.81(d) and Table 28d to 50 CFR part 679). Rockfish Program sideboards and halibut PSC limits are discussed later in this rule.
Also, the Rockfish Program establishes sideboard limits to restrict the ability of harvesters that operate under the Rockfish Program to increase their participation in other, non-Rockfish Program fisheries. These restrictions are discussed in a subsequent section titled “Rockfish Program Groundfish Sideboard and Halibut PSC Limitations.”
Section 679.81(a)(2)(ii) and Table 28e to 50 CFR part 679 requires allocations of 5 mt of Pacific ocean perch, 5 mt of northern rockfish, and 50 mt of dusky rockfish to the entry level longline fishery in 2018 and 2019. The allocation for the entry level longline fishery may increase incrementally each year if the catch exceeds 90 percent of the allocation of a species. The incremental increase in the allocation would continue each year until it is the maximum percentage of the TAC for that species. In 2017, the allocation for dusky rockfish increased by 20 mt, from 30 mt, to 50 mt. In 2017, the catch for all three primary species did not exceed 90 percent of any allocated rockfish species. Therefore, NMFS is not proposing any increases to the entry level longline fishery 2018 and 2019 allocations in the Central GOA. The remainder of the TACs for the rockfish primary species would be allocated to the CV and C/P cooperatives. Table 6 lists the allocations of the proposed 2018 and 2019 TACs for each rockfish primary species to the entry level longline fishery, the incremental increase for future years, and the maximum percentage of the TAC for the entry level longline fishery.
Section 679.81 requires allocations of rockfish primary species among various sectors of the Rockfish Program. Table 7 lists the proposed 2018 and 2019 allocations of rockfish primary species in the Central GOA to the entry level longline fishery, and rockfish CV andC/P cooperatives in the Rockfish Program. NMFS also proposes setting aside incidental catch amounts (ICAs) for other directed fisheries in the Central GOA of 3,500 mt of Pacific ocean perch, 300 mt of northern rockfish, and 250 mt of dusky rockfish. These amounts are based on recent average incidental catches in the Central GOA by other groundfish fisheries.
Allocations among vessels belonging to CV or C/P cooperatives are not included in these proposed harvest specifications. Rockfish Program applications for CV cooperatives andC/P cooperatives are not due to NMFS until March 1 of each calendar year; therefore, NMFS cannot calculate 2018 and 2019 allocations in conjunction with these proposed harvest specifications. NMFS will post these allocations on the Alaska Region Web site at
Section 679.81(c) and Table 28c to 50 CFR part 679 requires allocations of rockfish secondary species to CV andC/P cooperatives in the Central GOA. CV cooperatives receive allocations of Pacific cod, sablefish from the trawl gear allocation, and thornyhead rockfish.C/P cooperatives receive allocations of sablefish from the trawl allocation, rougheye rockfish, shortraker rockfish, and thornyhead rockfish. Table 8 lists the apportionments of the proposed 2018 and 2019 TACs of rockfish secondary species in the Central GOA to CV and C/P cooperatives.
Section 679.21(d) establishes annual halibut PSC limit apportionments to trawl and hook-and-line gear, and authorizes the establishment of apportionments for pot gear. In October 2017, the Council recommended halibut PSC limits of 1,706 mt for trawl gear, 257 mt for hook-and-line gear, and 9 mt for the demersal shelf rockfish (DSR) fishery in the SEO District.
The DSR fishery in the SEO District is defined at § 679.21(d)(2)(ii)(A). This fishery is apportioned 9 mt of the halibut PSC limit in recognition of its small-scale harvests of groundfish. NMFS estimates low halibut bycatch in the DSR fishery because (1) the duration of the DSR fisheries and the gear soak times are short, (2) the DSR fishery occurs in the winter when there is less overlap in the distribution of DSR and halibut, and (3) the directed commercial DSR fishery has a low DSR TAC. The Alaska Department of Fish and Game sets the commercial GHL for the DSR fishery after deducting (1) estimates of DSR incidental catch in all fisheries (including halibut and subsistence); and (2) the allocation to the DSR sport fish fishery. Of the 227 mt TAC for DSR in 2017, 77 mt were available for the DSR commercial directed fishery, of which 36 mt were harvested.
The FMP authorizes the Council to exempt specific gear from the halibut PSC limits. NMFS, after consultation with the Council, proposes to exempt pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from the non-trawl halibut PSC limit for 2018 and 2019. The Council recommended, and NMFS is proposing, these exemptions because (1) pot gear fisheries have low annual halibut bycatch mortality; (2) IFQ program regulations prohibit discard of halibut if any halibut IFQ permit holder on board a CV holds unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)); 3) some sablefish IFQ permit holders hold halibut IFQ permits and are therefore required to retain the halibut they catch while fishing sablefish IFQ; and 4) NMFS estimates negligible halibut mortality for the jig gear fisheries. NMFS estimates halibut mortality is negligible in the jig gear fisheries given the small amount of groundfish harvested by jig gear, the selective nature of jig gear, and the high survival rates of halibut caught and released with jig gear.
The best available information on estimated halibut bycatch consists of data collected by fisheries observers during 2017. The calculated halibut bycatch mortality through October 12, 2017, is 1,018 mt for trawl gear and 119 mt for hook-and-line gear for a total halibut mortality of 1,137 mt. This halibut mortality was calculated using groundfish and halibut catch data from the NMFS Alaska Region's catch accounting system. This accounting system contains historical and recent catch information compiled from each Alaska groundfish fishery.
Section 679.21(d)(4)(i) and (ii) authorizes NMFS to seasonally apportion the halibut PSC limits after consultation with the Council. The FMP and regulations require that the Council and NMFS consider the following information in seasonally apportioning halibut PSC limits: (1) Seasonal distribution of halibut, (2) seasonal distribution of target groundfish species relative to halibut distribution, (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species, (4) expected bycatch rates on a seasonal basis, (5) expected changes in directed groundfish fishing seasons, (6) expected actual start of fishing effort, and (7) economic effects of establishing seasonal halibut allocations on segments of the target
The final 2017 and 2018 harvest specifications (82 FR 12032, February 27, 2017) summarized the Council's and NMFS' findings with respect to halibut PSC for each of these FMP considerations. The Council's and NMFS' findings for 2018 are unchanged from 2017. Table 9 lists the proposed 2018 and 2019 Pacific halibut PSC limits, allowances, and apportionments. The halibut PSC limits in these tables reflect the halibut PSC limits set forth at § 679.21(d)(2) and § 679.21(d)(3). Sections 679.21(d)(4)(iii) and (iv) specify that any underages or overages of a seasonal apportionment of a halibut PSC limit will be added to or deducted from the next respective seasonal apportionment within the fishing year.
Section 679.21(d)(3)(ii) authorizes further apportionment of the trawl halibut PSC limit as bycatch allowances to trawl fishery categories listed in § 679.21(d)(3)(iii). The annual apportionments are based on each category's proportional share of the anticipated halibut bycatch mortality during a fishing year and optimization of the total amount of groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are (1) a deep-water species fishery, composed of sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder; and (2) a shallow-water species fishery, composed of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species” (sculpins, sharks, squids, and octopuses) (§ 679.21(d)(3)(iii)). Halibut mortality incurred while directed fishing for skates with trawl gear accrues towards the shallow-water fishery halibut PSC limit (69 FR 26320, May 12, 2004).
As discussed previously in this preamble, the proposed Pacific cod TAC recommended by the Council is substantially less than the 2018 TAC published in the final 2017 and 2018 harvest specifications (82 FR 12032, February 27, 2017). If the proposed TAC or a lower TAC is adopted as the final TAC for 2018 and 2019, this reduced TAC could result in the Council adjusting the apportionment of halibut PSC limits between the shallow-water and deep-water species fisheries to reflect the potential for decreased effort in the shallow-water fisheries in 2018 and 2019 due the decrease in the Pacific cod TAC. The potential for decreased effort in the shallow-water species fishery could allow the deep-water species fishery to receive additional apportionments of the trawl halibut PSC limit. This adjustment could be made during the final harvest specifications process, pending any public comment, Council discussion, and Council recommendations for a change during the December 2017 Council meeting.
NMFS will combine available trawl halibut PSC limit apportionments in part of the second season deep-water and shallow-water fisheries for use in either fishery from May 15 through June 30 (§ 679.21(d)(4)(iii)(D)). This is intended to maintain groundfish harvest while minimizing halibut bycatch by these sectors to the extent practicable. This provides the deep-water and shallow-water trawl fisheries additional flexibility and the incentive to participate in fisheries at times of the year that may have lower halibut PSC rates relative to other times of the year.
Table 10 lists the proposed 2018 and 2019 seasonal apportionments of trawl halibut PSC limits between the trawl gear deep-water and the shallow-water species fisheries.
Table 28d to 50 CFR part 679 specifies the amount of the trawl halibut PSC limit that is assigned to the CV andC/P sectors that are participating in the Central GOA Rockfish Program. This includes 117 mt of halibut PSC limit to the CV sector and 74 mt of halibut PSC limit to the C/P sector. These amounts are allocated from the trawl deep-water species fishery's halibut PSC third seasonal apportionment.
Section 679.21(d)(4)(iii)(B) limits the amount of the halibut PSC limit allocated to Rockfish Program participants that could be re-apportioned to the general GOA trawl fisheries to no more than 55 percent of the unused annual halibut PSC apportioned to Rockfish Program participants. The remainder of the unused Rockfish Program halibut PSC limit is unavailable for use by any person for the remainder of the fishing year (§ 679.21(d)(4)(iii)(C)).
Section 679.21(d)(2) requires that the “other hook-and-line fishery” halibut PSC limit apportionment to vessels using hook-and-line gear must be divided between CVs and C/Ps. NMFS must calculate the halibut PSC limit apportionments for the entire GOA to hook-and-line CVs and C/Ps in accordance with § 679.21(d)(2)(iii) in conjunction with these harvest specifications. A comprehensive description and example of the calculations necessary to apportion the “other hook-and-line fishery” halibut PSC limit between the hook-and-line CV and C/P sectors were included in the proposed rule to implement Amendment 83 to the FMP (76 FR 44700, July 26, 2011) and are not repeated here.
For 2018 and 2019, NMFS proposes annual halibut PSC limit apportionments of 129 mt and 128 mt to the hook-and-line CV and hook-and-line C/P sectors, respectively. The 2018 and 2019 annual halibut PSC limits are divided into three seasonal apportionments, using seasonal percentages of 86 percent, 2 percent, and 12 percent. Table 11 lists the proposed 2018 and 2019 annual halibut PSC limits and seasonal apportionments between the hook-and-line CV and hook-and-line C/P sectors in the GOA.
No later than November 1 year, any halibut PSC limit allocated under § 679.21(d)(2)(ii)(B) not projected by the Regional Administrator to be used by one of the hook-and-line sectors during the remainder of the fishing year will be made available to the other sector. NMFS calculates the projected unused amount of halibut PSC limit by either the CV hook-and-line or the C/P hook-and-line sectors of the “other hook-and-line fishery” for the remainder of the year. The projected unused amount of halibut PSC limit is made available to the other hook-and-line sector for the remainder of that fishing year if NMFS determines that an additional amount of halibut PSC limit is necessary for that sector to continue its directed fishing operations (§ 679.21(d)(2)(iii)(C)).
To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut incidental catch rates, halibut discard mortality rates (DMRs), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. Halibut incidental catch rates are based on observers' estimates of halibut incidental catch in the groundfish fishery. DMRs are estimates of the proportion of incidentally caught halibut that do not survive after being returned to the sea. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. DMRs are estimated using the best scientific information available in conjunction with the annual GOA stock assessment process. The DMR methodology and findings are included as an appendix to the annual GOA groundfish SAFE report.
In 2016, the DMR estimation methodology underwent revisions per the Council's directive. An interagency halibut working group (International Pacific Halibut Commission, Council, and NMFS staff) developed improved estimation methods that have undergone review by the Plan Team, SSC, and the Council. A summary of the revised methodology is contained in the GOA proposed 2017 and 2018 harvest specifications (81 FR 87881, December 6, 2016), and the comprehensive discussion of the working group's
At the December 2016 meeting, the SSC, AP, and Council concurred with the revised DMR estimation methodology, and NMFS adopted the DMRs calculated under the revised methodology for the 2017 and 2018 harvest specifications. In October 2017, the Council recommended adopting the halibut DMRs derived from the 2016 process for the proposed 2018 and 2019 DMRs. The proposed 2018 and 2019 DMRs maintain the 2016 process using an updated 3-year reference period of 2014 through 2016. The proposed DMR for catcher vessels using hook-and-line gear increased to 17 percent from 12 percent, and the proposed DMR for trawl catcher vessels operating in the Rockfish Program decreased to 62 percent from 67 percent. Other sectors had minor increases of 3 percent or less. Table 12 lists the proposed 2018 and 2019 DMRs.
Amendment 93 to the FMP (77 FR 42629, July 20, 2012) established separate Chinook salmon PSC limits in the Western and Central GOA in the directed pollock trawl fishery. These limits require NMFS to close the pollock directed fishery in the Western and Central regulatory areas of the GOA if the applicable Chinook salmon PSC limit is reached (§ 679.21(h)(8)). The annual Chinook salmon PSC limits in the pollock directed fishery of 6,684 salmon in the Western GOA and 18,316 salmon in the Central GOA are set in § 679.21(h)(2)(i) and (ii).
Amendment 97 to the FMP (79 FR 71350, December 2, 2014) established an initial annual PSC limit of 7,500 Chinook salmon for the non-pollock groundfish trawl fisheries in the Western and Central GOA. This limit is apportioned among three sectors: 3,600 Chinook salmon to trawl C/Ps; 1,200 Chinook salmon to trawl CVs participating in the Rockfish Program; and 2,700 Chinook salmon to trawl CVs not participating in the Rockfish Program (§ 679.21(h)(4)). NMFS will monitor the Chinook salmon PSC in the non-pollock GOA groundfish fisheries and close an applicable sector if it reaches its Chinook salmon PSC limit.
The Chinook salmon PSC limit for two sectors, trawl C/Ps and trawl CVs not participating in the Rockfish Program, may be increased in subsequent years based on the performance of these two sectors and their ability to minimize their use of their respective Chinook salmon PSC limits. If either or both of these two sectors limit its use of Chinook salmon PSC to a certain threshold amount in 2017 (3,120 for trawl C/Ps and 2,340 for trawl CVs), that sector will receive an incremental increase to its 2018 Chinook salmon PSC limit (4,080 for trawl C/Ps and 3,060 for trawl CVs) (§ 679.21(h)(4)). NMFS will evaluate the annual Chinook salmon PSC by trawl C/Ps and non-Rockfish Program CVs when the 2017 fishing year is complete to determine whether to increase the Chinook salmon PSC limits for these two sectors. Based on preliminary 2017 Chinook salmon PSC data, the trawlC/P sector and the non-Rockfish Program CV sector may receive an incremental increase of Chinook salmon PSC limit in 2018. This evaluation will be completed in conjunction with the final 2018 and 2019 harvest specifications.
Section 679.64 establishes groundfish harvesting and processing sideboard limits on AFA C/Ps and CVs in the GOA. These sideboard limits are necessary to protect the interests of fishermen and processors who do not directly benefit from the AFA from those fishermen and processors who receive exclusive harvesting and processing privileges under the AFA. Section 679.7(k)(1)(ii) prohibits listed AFA C/Ps from harvesting any species of fish in the GOA. Additionally, § 679.7(k)(1)(iv) prohibits listed AFAC/Ps from processing any pollock harvested in a directed pollock fishery in the GOA and any groundfish harvested in Statistical Area 630 of the GOA.
AFA CVs that are less than 125 ft (38.1 meters) length overall, have annual landings of pollock in the Bering Sea and Aleutian Islands of less than 5,100 mt, and have made at least 40 landings of GOA groundfish from 1995 through 1997 are exempt from GOA CV groundfish sideboard limits under § 679.64(b)(2)(ii). Sideboard limits for non-exempt AFA CVs in the GOA are based on their traditional harvest levels
Table 13 lists the proposed 2018 and 2019 groundfish sideboard limits for non-exempt AFA CVs. NMFS will deduct all targeted or incidental catch of sideboard species made by non-exempt AFA CVs from the sideboard limits listed in Table 13.
The halibut PSC sideboard limits for non-exempt AFA CVs in the GOA are based on the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 1995 through 1997 divided by the retained catch of all vessels in that fishery from 1995 through 1997 (§ 679.64(b)(4)(ii)). Table 14 lists the proposed 2018 and 2019 non-exempt AFA CV halibut PSC limits for vessels using trawl gear in the GOA.
Section 680.22 establishes groundfish sideboard limits for vessels with a history of participation in the Bering Sea snow crab fishery to prevent these vessels from using the increased flexibility provided by the Crab Rationalization Program to expand their level of participation in the GOA groundfish fisheries. Sideboard harvest limits restrict these vessels' catch to their collective historical landings in each GOA groundfish fishery (except the fixed-gear sablefish fishery). Sideboard limits also apply to landings made using an LLP license derived from the history of a restricted vessel, even if that LLP license is used on another vessel.
The basis for these sideboard harvest limits is described in detail in the final rules implementing the major provisions of the Crab Rationalization Program, including Amendments 18 and 19 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP) (70 FR 10174, March 2, 2005), Amendment 34 to the Crab FMP (76 FR 35772, June 20, 2011), Amendment 83 to the GOA FMP (76 FR 74670, December 1, 2011), and Amendment 45 to the Crab FMP (80 FR 28539, May 19, 2015).
Table 15 lists the proposed 2018 and 2019 groundfish sideboard limitations for non-AFA crab vessels. All targeted or incidental catch of sideboard species made by non-AFA crab vessels or associated LLP licenses will be deducted from these sideboard limits.
The Rockfish Program establishes three classes of sideboard provisions: CV groundfish sideboard restrictions,C/P rockfish sideboard restrictions, andC/P opt-out vessel sideboard restrictions (§ 679.82(c)(1)). These sideboards are intended to limit the ability of rockfish harvesters to expand into other fisheries.
CVs participating in the Rockfish Program may not participate in directed fishing for dusky rockfish, northern rockfish, and Pacific ocean perch in the Western GOA and West Yakutat Districts from July 1 through July 31. Also, CVs may not participate in directed fishing for arrowtooth flounder, deep-water flatfish, and rex sole in the GOA from July 1 through July 31 (§ 679.82(d)).
C/Ps participating in Rockfish Program cooperatives are restricted by rockfish and halibut PSC sideboard limits. These C/Ps are prohibited from directed fishing for northern rockfish, Pacific ocean perch, and dusky rockfish in the Western GOA and West Yakutat District from July 1 through July 31. Holders of C/P-designated LLP licenses that opt out of participating in a Rockfish Program cooperative will be able to access those sideboard limits that are not assigned to Rockfish Program cooperatives (§ 679.82(e)(2) and (e)(7)). The sideboard ratio for each rockfish fishery in the Western GOA and WYK District is set forth in § 679.82(e)(4). Table 16 lists the proposed 2018 and 2019 Rockfish Program C/P rockfish sideboard limits in the Western GOA and West Yakutat District. Due to confidentiality requirements associated with fisheries data, the sideboard limits for the West Yakutat District are not displayed.
Under the Rockfish Program, the C/P sector is subject to halibut PSC sideboard limits for the trawl deep-water and shallow-water species fisheries from July 1 through July 31 (§ 679.82(e)(3) and (e)(5)). Halibut PSC sideboard ratios by fishery are set forth in § 679.82(e)(5). No halibut PSC sideboard limits apply to the CV sector, as vessels participating in a rockfish cooperative receive a portion of the annual halibut PSC limit. C/Ps that opt out of the Rockfish Program would be able to access that portion of the deep-water and shallow-water halibut PSC sideboard limit not assigned to C/P rockfish cooperatives. The sideboard provisions for C/Ps that elect to opt out of participating in a rockfish cooperative are described in § 679.82(c), (e), and (f). Sideboard limits are linked to the catch history of specific vessels that may choose to opt out. After March 1, NMFS will determine which C/Ps have opted-out of the Rockfish Program in 2018, and will know the ratios and amounts used to calculate opt-out sideboard ratios. NMFS will then calculate any applicable opt-out sideboard limits and post these limits on the Alaska Region Web site at
Amendment 80 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (Amendment 80 Program) established a limited access privilege program for the non-AFA trawl C/P sector. The Amendment 80 Program established groundfish and halibut PSC limits for Amendment 80 Program participants to limit the ability of participants eligible for the Amendment 80 Program to expand their harvest efforts in the GOA.
Section 679.92 establishes groundfish harvesting sideboard limits on all Amendment 80 Program vessels, other than the F/V
Groundfish sideboard limits for Amendment 80 Program vessels operating in the GOA are based on their average aggregate harvests from 1998 through 2004 (72 FR 52668, September 14, 2007). Table 18 lists the proposed 2018 and 2019 sideboard limits for Amendment 80 Program vessels. NMFS will deduct all targeted or incidental catch of sideboard species made by Amendment 80 Program vessels from the sideboard limits in Table 18.
The halibut PSC sideboard limits for Amendment 80 Program vessels in the GOA are based on the historic use of halibut PSC by Amendment 80 Program vessels in each PSC target category from 1998 through 2004. These values are slightly lower than the average historic use to accommodate two factors: Allocation of halibut PSC cooperative quota under the Rockfish Program and the exemption of the F/V
NMFS has determined that the proposed harvest specifications are consistent with the FMP and preliminarily determined that the proposed harvest specifications are consistent with the Magnuson-Stevens Act and other applicable laws, subject to further review after public comment.
This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Orders 12866 and 13563.
NMFS prepared an EIS for this action and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the Record of Decision (ROD) for the Final EIS. A Supplemental Information Report (SIR) that assesses the need to prepare a Supplemental EIS is being prepared for the final action. Copies of the Final EIS, ROD, and SIR for this action are available from NMFS (see
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) as required by section 603 of the Regulatory Flexibility Act (RFA), analyzing the methodology for establishing the relevant TACs. The IRFA evaluated the impacts on small entities of alternative harvest strategies for the groundfish fisheries in the EEZ off Alaska. As set forth in the methodology, TACs are set to a level that fall within the range of ABCs recommended by the SSC; the sum of the TACs must achieve the OY specified in the FMP. While the specific numbers that the methodology produces may vary from year to year, the methodology itself remains constant.
A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the preamble above. A copy of the IRFA is available from NMFS (see
The action under consideration is a harvest strategy to govern the catch of groundfish in the GOA. The preferred alternative is the existing harvest strategy in which TACs fall within the range of ABCs recommended by the SSC. This action is taken in accordance with the FMP prepared by the Council pursuant to the Magnuson-Stevens Act.
The entities directly regulated by this action are those that harvest groundfish in the EEZ of the GOA and in parallel fisheries within State of Alaska waters. These include entities operating CVs and C/Ps within the action area and entities receiving direct allocations of groundfish.
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual gross receipts not in excess of $11 million for all its affiliated operations worldwide.
The IRFA shows that, in 2016, there were 920 individual CVs with gross revenues less than or equal to $11 million. This estimate accounts for corporate affiliations among vessels, and for cooperative affiliations among fishing entities, since some of the fishing vessels operating in the GOA are members of AFA inshore pollock cooperatives, GOA rockfish cooperatives, or BSAI Crab Rationalization Program cooperatives. Therefore, under the RFA, it is the aggregate gross receipts of all participating members of the cooperative that must meet the “under $11 million” threshold. Vessels that participate in these cooperatives are considered to be large entities within the meaning of the RFA. After accounting for membership in these cooperatives, there are an estimated 920 small CV entities remaining in the GOA groundfish sector. This latter group of vessels had average gross revenues that varied by gear type. Average gross revenues for hook-and-line CVs, pot gear vessels, and trawl gear vessels are estimated to be $340,000, $720,000, and $1.83 million, respectively. Revenue data for the three C/Ps considered to be small entities are confidential.
The preferred alternative (Alternative 2) was compared to four other alternatives. Alternative 1 would have set TACs to generate fishing rates equal to the maximum permissible ABC (if the full TAC were harvested), unless the sum of TACs exceeded the GOA OY, in which case TACs would be limited to the OY. Alternative 3 would have set TACs to produce fishing rates equal to the most recent 5-year average fishing rate. Alternative 4 would have set TACs to equal the lower limit of the GOA OY range. Alternative 5, the “no action alternative,” would have set TACs equal to zero.
The TACs associated with the preferred harvest strategy are those adopted by the Council in October 2017, as per Alternative 2. OFLs and ABCs for the species were based on recommendations prepared by the Council's Plan Team in September 2017, and reviewed by the Council's SSC in October 2017. The Council based its TAC recommendations on those of its AP, which were consistent with the SSC's OFL and ABC recommendations.
Alternative 1 selects harvest rates that would allow fishermen to harvest stocks at the level of ABCs, unless total harvests were constrained by the upper bound of the GOA OY of 800,000 mt. As shown in Table 1 of the preamble, the sum of ABCs in 2018 and 2019 would be 572,710 mt, which falls below the upper bound of the OY range. The sum of TACs is 465,832 mt, which is less than the sum of ABCs. In this instance, Alternative 1 is consistent with the
Alternative 3 selects harvest rates based on the most recent 5 years of harvest rates (for species in Tiers 1 through 3) or based on the most recent 5 years of harvests (for species in Tiers 4 through 6). This alternative is inconsistent with the objectives of this action, the Council's preferred harvest strategy, because it does not take account of the most recent biological information for this fishery. NMFS annually conducts at-sea stock surveys for different species, as well as statistical modeling, to estimate stock sizes and permissible harvest levels. Actual harvest rates or harvest amounts are a component of these estimates, but in and of themselves may not accurately portray stock sizes and conditions. Harvest rates are listed for each species category for each year in the SAFE report (see
Alternative 4 would lead to significantly lower harvests of all species and reduce the TACs from the upper end of the OY range in the GOA, to its lower end of 116,000 mt. Overall, this would reduce 2018 TACs by about 80 percent and would lead to significant reductions in harvests of species harvested by small entities. While reductions of this size would be associated with offsetting price increases, the size of these increases is very uncertain. There are close substitutes for GOA groundfish species available in significant quantities from the Bering Sea and Aleutian Islands management area. While production declines in the GOA would undoubtedly be associated with significant price increases in the GOA, these increases would still be constrained by production of substitutes, and are very unlikely to offset revenue declines from smaller production. Thus, this alternative would have a detrimental impact on small entities.
Alternative 5, which sets all harvests equal to zero, would have a significant adverse economic impact on small entities and would be contrary to obligations to achieve OY on a continuing basis, as mandated by the Magnuson-Stevens Act. Under Alternative 5, all 920 individual CVs impacted by this rule would have gross revenues of $0. Additionally, the three small C/Ps impacted by this rule also would have gross revenues of $0.
The proposed harvest specifications (Alternative 2) extend the current 2018 OFLs, ABCs, and TACs to 2018 and 2019, with the exception of Pacific cod, as explained in the preamble. As noted in the IRFA, the Council may modify these OFLs, ABCs, and TACs in December 2017, when it reviews the November 2017 SAFE report from its Groundfish Plan Team, and the December 2017 Council meeting reports of its SSC and AP. Because the 2018 TACs in the proposed 2018 and 2019 harvest specifications are unchanged from the 2018 TACs, with the sole exception of modifications to Pacific cod harvest amounts, and because the sum of all TACs remains within OY for the GOA, NMFS does not expect adverse impacts on small entities. Also, NMFS does not expect any changes made by the Council in December 2017 to have significant adverse impacts on small entities.
This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules.
Adverse impacts on marine mammals or endangered species resulting from fishing activities conducted under this rule are discussed in the Final EIS and its accompanying annual SIRs (see
16 U.S.C. 773
Farm Service Agency, USDA.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, as amended, the Farm Service Agency (FSA) is requesting comments from all interested individuals and organizations on an extension with a revision of currently approved information collection associated with the Emergency Conservation Program (ECP) and Biomass Crop Assistance Program (BCAP). This information is collected in support of, respectively, sections 401–407 of the Agricultural Credit Act of 1978, as amended, and section 9011 of the Farm Security and Rural Investment Act of 2002, as amended.
We will consider comments that we receive by February 6, 2018.
We invite you to submit comments on this Notice. In your comment, include the volume, date, and page number of this issue of the
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You may also send comments to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503. Copies of the information collection may be requested by contacting Martin Bomar.
For specific questions related to collection activities, Virginia Green, (202) 401–9144.
(1) Effectively administer the regulations under ECP, which are set forth at 7 CFR part 701, so as to provide funding and technical assistance for farmers and ranchers to restore farmland damaged by natural disasters, and for emergency water conservation measures in severe droughts; and
(2) Effectively administer the regulations for BCAP, which are set forth at 7 CFR part 1450, so as to provide financial assistance to owners and operators of agricultural and non-industrial private forest land who wish to establish, produce, and deliver biomass feedstocks.
This information is collected in support of, respectively, sections 401–407 of the Agricultural Credit Act of 1978 (Pub. L. 95–334), as amended, and section 9011 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107–171), as amended.
FSA will decrease the burden hours in the request because FSA will replace the form series AD–245 and its associated computing process, with the new form series FSA–848 and a web-based computing environment. Also, participation in BCAP has been reduced due to reduced funding. FSA is removing three forms for ECP, FSA–18, ACP–153, and ACP–153A, and one form for BCAP, CCC–36, Assignment of Payment, from the information collection.
For the following estimated total annual burden on respondents, the formula used to calculate the total burden hours is the estimated average time per response multiplied by the estimated total annual of responses.
We are requesting comments on all aspects of this information collection to help us to:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Evaluate the quality, ability and clarity of the information technology; and
(4) Minimize the burden of the information collection on those who respond through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information.
All responses to this notice, including names and addresses when provided, will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This is a revision of a currently approved collection for a web-based pre-screening tool used by the general public to determine potential eligibility for Supplemental Nutrition Assistance Program (SNAP) benefits.
Written comments must be received on or before February 6, 2018.
Comments may be sent to: Sasha Gersten-Paal, Branch Chief, Certification Policy Branch, Program Development Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 812 Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Sasha Gersten-Paal at 703–305–2507 or via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Sasha Gersten-Paal at 703–305–2705.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Some other data requested by the tool include:
• State or territory in which the user resides;
• Number of People: Number of people living in the household;
• First Name/Age/Disability;
• Citizenship: Whether each member is a U.S. citizen;
• Earned Income/Assets/Motor Vehicle Ownership;
• Migrant Workers: Whether anyone in the household is a seasonal or migrant farm worker;
• Homeless: Whether the household is homeless or living in a shelter;
• Utility expenses: Whether the client is billed for utility costs.
Although the tool also requests the name and age of the user, FNS does not retain this information nor does it request other personally identifiable information such as social security numbers or birthdates of the household members. Once the user logs out of the system, none of the user-provided information is retained by FNS. FNS estimates it will take approximately 380,283 users about 10 minutes (.167 hours) to provide the required information to receive potential eligibility benefit information using the pre-screening tool. Users are expected to access the system once for a total annual response of 380,283. FNS estimates 63,507 burden hours for this activity.
In reviewing SNAP participation data for FY 2014 to FY 2016, it was noticed that participation has decreased each year and this downward trajectory suggests that household participation in SNAP may continue to decline. Based on this analysis, and the number of potential applicants estimated to use the prescreening tool, FNS requests an annual burden inventory of 63,507 hours, which represents a decrease in 3,716 hours since the last extension of this collection, which approved for 67,223 hours.
The Department of Commerce (DOC) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
A unique feature of the RLF Program is that EDA must monitor RLF grants in perpetuity because, absent statutory authority providing otherwise, the Federal interest in an RLF never expires. EDA regulations currently require RLF recipients to submit a financial report to EDA on a semi-annual basis for each RLF (13 CFR 307.14(a)), which is currently submitted via Form ED–209, Revolving Loan Fund Financial Report. In addition, RLF recipients must also submit on a semi-annual basis a completed Form ED–209I, RLF Income and Expense Statement, if either of the following conditions apply: RLF administrative expenses for the reporting period exceeded $100,000, or RLF administrative expenses for the reporting period exceeded 50 percent of RLF income earned during the reporting period (13 CFR 307.14(c)). EDA requires both reports to be completed using standardized, auto-calculable fillable PDF (Portable Document Format) forms.
EDA is revising its regulations implementing the RLF Program through a final rule published in the
In the transition to a risk-based approach, EDA has revised the RLF regulations to eliminate the requirement that RLF recipients submit Form ED–209I. The revised RLF regulations instead encourage RLF recipients to keep administrative expenses to a minimum in order to maintain and grow the capital base of RLFs, in part by incorporating the percentage of RLF income used for administrative expenses as a performance measure in the new risk-based approach. Because of this change, EDA has determined that it is no longer necessary for RLF recipients to submit income and expense statements through Form ED–209I. In addition, EDA is revising Form ED–209 to reflect the new regulations and to ensure that the Form collects only the data necessary, including individual loan detail, to oversee the RLF Program under the new risk-based approach. As such, the revised Form ED–209 is shorter and easier to complete. The revised regulations will allow those RLF recipients that earn a high rating under the new risk-based monitoring approach to be placed on an annual reporting cycle, while RLF recipients receiving lower ratings will be required to maintain semi-annual reporting.
The reduction in burden associated with the revised Form ED–209 and eliminated Form ED–209I is not a distinct “deregulatory action” for the purposes of Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” The revised Form ED–209 and eliminated Form ED–209I are one piece of EDA's transition to a risk-based approach to monitor and manage the RLF Program. As such, the reduction in burden stemming from the shortened and simplified Form ED–209 and eliminated Form ED–209I are already accounted for as part of the broader “deregulatory action” made pursuant to the recently published final rule that revised the regulations governing the RLF Program.
This notice clarifies the notice previously published in the
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On August 7, 2017, the Department of Commerce (the
Applicable December 8, 2017.
Jun Jack Zhao, 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) 482–1396.
On August 7, 2017, the Department published the
The product covered by this order is MSG, whether or not blended or in solution with other products. Specifically, MSG that has been blended or is in solution with other product(s) is included in this scope when the resulting mix contains 15 percent or more of MSG by dry weight. Products with which MSG may be blended include, but are not limited to, salts, sugars, starches, maltodextrins, and various seasonings. Further, MSG is included in this order regardless of physical form (including, but not limited to, in monohydrate or anhydrous form, or as substrates, solutions, dry powders of any particle size, or unfinished forms such as MSG slurry), end-use application, or packaging. MSG in monohydrate form has a molecular formula of C
The Department preliminarily determined that none of the companies demonstrated eligibility for separate rate status and were thus found to be part of the PRC-wide entity.
The Department's policy regarding the conditional review of the PRC-wide entity applies to this administrative review.
The Department has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries in this review, in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1). The Department intends to issue assessment instructions directly to CBP 15 days after publication in the
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed PRC and non-PRC exporters not under review in this segment of the proceeding, but who have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (2) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide entity rate (
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has completed the administrative review of the countervailing duty (CVD) order on aluminum extrusions from the People's Republic of China (PRC) for the January 1, 2015, through December 31, 2015, period of review (POR). We have determined that mandatory respondents Changzhou Jinxi Machinery Co., Ltd. (Changzhou Jinxi) and tenKsolar (Shanghai) Co., Ltd. (tenKsolar) received countervailable subsidies during the POR. The final net subsidies are listed below in the section entitled “Final Results of Administrative Review.”
Applicable December 8, 2017.
Tom Bellhouse or Tyler Weinhold, 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) 482–2057 or (202) 482–1121, respectively.
The Department published the
The merchandise covered by the order is aluminum extrusions which are shapes and forms, produced by an extrusion process, made from aluminum alloys having metallic elements corresponding to the alloy series designations published by The Aluminum Association commencing with the numbers 1, 3, and 6 (or proprietary equivalents or other certifying body equivalents).
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. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order, which is contained in the accompanying Issues and Decision Memorandum, is dispositive.
All issues raised in the parties' briefs are addressed in the Issues and Decision Memorandum, dated concurrently with, and hereby adopted by, this notice. A list of issues addressed is attached as an Appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
The Department conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we find that there is a subsidy,
In this review, and in addition to the two selected mandatory respondents, there are 16 companies for which a review was requested and not rescinded (non-selected companies). For these non-selected companies, we could not calculate a rate by averaging Changzhou Jinxi's and tenKsolar's individual rates, as the rates for both companies are based entirely on adverse facts available.
In accordance with 19 CFR 351.221(b)(5), we determine the following final net subsidy rates for the 2015 administrative review:
The Department intends to issue appropriate assessment instructions directly to CBP, 15 days after publication of these final results of review, to liquidate shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after January 1, 2015, through December 31, 2015, at the
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts indicated above for each company listed on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review. For all non-reviewed firms, we will instruct CBP to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. Accordingly, the cash deposit requirements that will be applied to companies covered by this order, but not examined in this administrative review, are those established in the most recently completed segment of the proceeding for each company. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice 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 return or 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.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is postponing the
Applicable December 8, 2017.
David Lindgren at (202) 482–3870 (Argentina); Myrna Lobo at (202) 482–2371 (Indonesia), Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
On April 12, 2017, the Department initiated LTFV investigations of imports of biodiesel from Argentina and Indonesia.
Section 735(a)(2) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(b)(2) provide that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by the exporters or producers who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Further, 19 CFR 351.210(e)(2) requires that such postponement requests by exporters be accompanied by a request for extension of provisional meausres from a four-month period to a period of not more than six months, in accordance with section 733(d) of the Act.
In September 2017, P.T. Musim Mas (Musim Mas) and Wilmar Trading PTE Ltd. (Wilmar), the mandatory respondents in the Indonesia investigation, requested that the Department postpone the deadline for the final determination until no later than 135 days from the publication of the
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) each preliminary determination was affirmative; (2) the requests in each investigation were made by the exporters and producers who account for a significant proportion of exports of the subject merchandise from the country at issue; and (3) no compelling reasons for denials exist, the Department is postponing the final determination in each investigation until no later than 107 days after the date of the publication of the relevant preliminary determination, and extending the provisional measures from a four-month period to a period of not more than six months. Accordingly, the Department will issue its final determination in each investigation no later than February 15, 2018.
This notice is issued and published pursuant to 19 CFR 351.210(g).
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The License Limitation Program (LLP) restricts access to the commercial groundfish fisheries, commercial crab fisheries, and commercial scallop fisheries in the Exclusive Economic Zone off Alaska except for certain areas where alternative programs exist. The intended effect of the LLP is to limit the number of participants and reduce fishing capacity in fisheries off Alaska.
For a vessel designated on an LLP license, the LLP license authorizes the type of fishing gear that may be used by the vessel, the maximum size of the vessel, an area endorsement, and whether the vessel may catch and process fish at sea or if it is limited to delivering catch without at-sea processing. LLP licenses that allow vessels to catch and process at-sea are assigned a catcher/processor endorsement. LLP licenses specify the maximum length overall (MLOA) of the vessel to which that LLP license may be assigned. The LLP may also include a species endorsement for Pacific cod in the Bering Sea and Aleutian Islands management area (BSAI) and Gulf of Alaska (GOA).
An LLP license is required for vessels participating in directed fishing for LLP groundfish species in the BSAI or GOA, or fishing in any BSAI LLP crab fisheries. An LLP license is also required for any vessel deployed in scallop fisheries in Federal waters off Alaska (except for some diving operations).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National 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 February 6, 2018.
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 Kristy Wallmo, 301–427–8190 or
This request is for a new collection of information.
The objective of the survey will be to understand divers' and snorkelers' expenditures associated with recreational coral reef diving activities in Hawaii. The survey will also collect information on divers' attitudes, preferences, and concerns about recreational diving and coral reefs health in Hawaii. We are conducting this survey to improve our understanding of divers' expenditure patterns and to estimate the economic impact of coral reef related spending. Results of the survey will be used to inform coastal resource management planning and establish a baseline for outreach and education. The expenditure survey is also expected to provide useful information for local economic and business interests. A similar survey (OMB 0648–0746) was implemented in south Florida and was successfully completed in Nov. 2017.
The survey will be conducted using two modes: mail and Internet.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of applications.
Notice is hereby given that the U.S. Fish and Wildlife Service (USFWS), Southeast Regional Office, Century Boulevard, Atlanta, GA 30602 [Responsible Party: Allan Brown], has applied in due form for a permit [File No. 21198] to take captive shortnose sturgeon (
Written, telefaxed, or email comments must be received on or before January 8, 2018.
The applications and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301)
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on the application(s) would be appropriate.
Malcolm Mohead or Erin Markin at (301) 427–8401.
The subject permits are requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Crab Rationalization Program (CRP) allocates Bering Sea and Aleutian Islands (BSAI) crab resources among harvesters, processors, and coastal communities through a limited access system that balances the interests of these groups who depend on these fisheries.
The Crab Rationalization Program Arbitration System (CRPAS) is a series of steps that harvesters and processors can use to negotiate delivery and price contracts. The Arbitration System allows unaffiliated Class A individual fishing quota holders to initiate an arbitration proceeding in the event of a dispute to allow an independent third party to provide a review of harvester and processor negotiation positions and provide an independent and binding resolution to issues under dispute. To use the arbitration system, a harvester must commit deliveries to a processor and initiate a binding arbitration proceeding in advance of the season opening. The Arbitration System is designed to minimize antitrust risks for crab harvesters and processors and is intended to ensure that a reasonable price is paid for all landings.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of initiation of 5-year review; request for information.
We, NMFS, announce our intent to conduct a 5-year review for the endangered western distinct population segment (DPS) of Steller sea lion (
To allow us adequate time to conduct this review, we must receive your information no later than February 6, 2018. However, we will continue to accept new information about Steller sea lions at any time.
Submit your information or comments by including the FDMS
•
•
Dr. Lisa Rotterman, 907–271–1692 or
The Steller sea lion was listed as threatened under the ESA by an emergency interim rule on April 5, 1990 (55 FR 12645). NMFS published a final rule to list the Steller sea lion as a threatened species under the ESA on November 26, 1990 (55 FR 49204). NMFS designated critical habitat for the Steller sea lion on August 27, 1993 (58 FR 45269). On May 5, 1997, based on demographic and genetic dissimilarities, NMFS identified two DPSs of Steller sea lions under the ESA: A western DPS (WDPS) and an eastern DPS (EDPS) (62 FR 24345). Due to persistent decline and lack of recovery, the WDPS, comprised of animals originating from breeding sites west of 144° W longitude, was listed as endangered (62 FR 24345, May 5, 1997), and the EDPS remained listed as threatened.
Section 4(c)(2)(A) of the ESA requires that we conduct a review of listed species at least once every five years. On the basis of such reviews under section 4(c)(2)(B), we determine whether a species should be removed from the List (delisted), or reclassified in status from endangered to threatened or from threatened to endangered. Delisting a species must be supported by the best scientific and commercial data available and is considered only if such data substantiates that the species is neither endangered nor threatened for one or more of the following reasons: (1) The species is considered extinct; (2) the species is considered to be recovered; and/or (3) the original data available when the species was listed, or the interpretation of such data, were in error (see 50 CFR 424.11(d)). Reclassification also must be supported by the best scientific and commercial data available and is considered only after conducting a review of the species' status in light of the listing factors provided in section 4(a)(1) of the ESA (see 50 CFR 424.11(c)). Any change in classification (delisting or reclassification) would require a rulemaking process. The ESA implementing regulations at 50 CFR 424.21 require that we publish a notice in the
Background information about this species, including their endangered listing, related critical habitat designation, recovery planning, and protective regulations, is available on the NMFS Alaska Region Web site at
Section 4(a)(1) of the ESA requires that we determine whether a species is endangered or threatened based on one or more of the five following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. Section 4(b) also requires that our determination be made solely on the basis of the best scientific and commercial data available after taking into account those efforts, if any, being made by any State or foreign nation to protect such species.
The western DPS of Steller sea lion was listed as a DPS of a vertebrate taxon. In the application of the DPS Policy, we are responsible for determining whether species, subspecies, or DPSs of marine and anadromous species are threatened or endangered under the ESA. A DPS is defined in the February 7, 1996, Policy Regarding the Recognition of Distinct Vertebrate Population Segments (61 FR 4722). For a population to be listed under the ESA as a DPS, three elements are considered: (1) The discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing (
To ensure that the 5-year review is complete and based on the best available scientific and commercial information, we are soliciting relevant information. The 5-year review will consider the best scientific and commercial data that has become available since the listing determination. Categories of requested information include (1) species biology including population trends, distribution, abundance, demographics, population structure, ecology, behavior, and genetics; (2) habitat conditions including amount, distribution, and suitability; (3) conservation measures that benefit the species, including monitoring data demonstrating the effectiveness of such measures in addressing identified limiting factors or threats; (4) data concerning status and trends of identified threats; (5) information that may affect determinations regarding the composition of the WDPS; and (6) other new information.
16 U.S.C. 1531
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes products from the Procurement List previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202–4149.
Amy B. Jensen, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 10/27/2017 (82 FR 49788) and 11/3/2017 (82 FR 51221–51224), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed deletions from the Procurement List.
The Committee is proposing to delete products from the Procurement List that that were previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202–4149.
For further information or to submit comments contact: Amy B. Jensen, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following products are proposed for deletion from the Procurement List:
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by January 8, 2018.
Comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments, identified by docket number and title, by the following method:
Written requests for copies of the information collection proposal should be sent to Mr. Licari at: WHS/ESD Directives Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 03F09, Alexandria, VA 22350–3100.
Defense Security Cooperation Agency, Department of Defense.
Arms sales notice.
The Department of Defense is publishing the unclassified text of an arms sales notification.
Pamela Young, (703) 697–9107,
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 17–55 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
Major Defense Equipment (MDE): Up to one hundred fifty (150) AIM–120C–7 Advanced Medium Range Air-to-Air Missiles (AMRAAM)
Non-MDE: Also included are missile containers, weapon system support, spare and repair parts, support and test equipment, publications and technical documentation, personnel training and training equipment, U.S. Government and contractor engineering, technical and logistics support services, and other related elements of logistical and program support.
(iv)
(v)
(vi)
(vii)
(viii)
*As defined in Section 47(6) of the Arms Export Control Act.
The Government of Poland has requested to purchase up to one hundred fifty (150) AIM–120C–7 Advanced Medium Range Air-to-Air Missiles (AMRAAM). Also included are missile containers, weapon system support, spare and repair parts, support and test equipment, publications and technical documentation, personnel training and training equipment, U.S. Government and contractor engineering, technical and logistics support services, and other related elements of logistical and program support. The estimated cost is $250 million.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a NATO ally. Poland continues to be an important force for political stability and economic progress in Central Europe.
This potential sale would support Poland's F–16 fighter program and enhances Poland's ability to provide for its own territorial defense and support coalition operations. Poland previously purchased the AIM–120C–7 missile and will have no difficulty absorbing this equipment into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be Raytheon Missile Systems, Tucson, AZ. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Poland.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The AIM–120C–7 Advanced Medium Range Air-to-Air Missile (AMRAAM) is a guided missile featuring digital technology and micro-miniature solid-state electronics. The AMRAAM capabilities include look-down/shoot-down, multiple launches against multiple targets, resistance to electronic countermeasures, and interception of high- and low-flying and maneuvering targets. The AMRAAM is classified CONFIDENTIAL. The major components and subsystems range from UNCLASSIFIED to CONFIDENTIAL and technical data and other documentation are classified up to SECRET.
2. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
3. A determination has been made that Poland can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This proposed sale is necessary to further the U.S. foreign policy and national security objectives outlined in the Policy Justification.
4. All defense articles and services listed on this transmittal are authorized for release and export to the Government of Poland.
Defense Health Agency, Department of Defense.
14-day emergency information collection notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by December 22, 2017.
Comments and recommendations on the proposed information collection should be emailed to Ms. Cortney Higgins, DoD Desk Officer, at
Fred Licari, 571–372–0493,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
• Federal eRulemaking Portal:
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 03F09, Alexandria, VA 22350–3100.
Defense Security Cooperation Agency, Department of Defense.
Arms sales notice.
The Department of Defense is publishing the unclassified text of an arms sales notification.
Pamela Young, (703) 697–9107,
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 17–64 with attached Policy Justification and Sensitivity of Technology.
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* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Poland has requested to purchase sixteen (16) Guided Multiple Launch Rocket System (GMLRS) M31A1 Unitary, nine (9) Guided Multiple Launch Rocket System (GMLRS) M30A1 alternative warheads, sixty-one (61) Army Tactical Missile Systems (ATACMS) M57 Unitary. Also included are eight (8) Universal Position Navigation Units (UPNU), thirty-four (34) Low Cost Reduced Range (LCRR) practice rockets, one thousand six hundred forty-two (1,642) Guidance and Control Section Assemblies for GMLRS, Missile Common Test Sets and Devices, testing Precision, Lightweight GPS Receivers (PLGR), support equipment, U.S. Government and contractor services, training, and other related elements of logistics and program support. The estimated cost is $250 million.
This proposed sale will support the foreign policy and national security objectives of the United States by helping to improve the security of a NATO ally which has been, and continues to be an important force for political stability and economic progress in Europe. This sale is consistent with U.S. initiatives to provide key allies in the region with modern systems that will enhance interoperability with U.S. forces and increase security.
Poland intends to use these defense articles and services to modernize its armed forces and expand its capability to strengthen its homeland defense and deter regional threats. This will contribute to Poland's military goals of updating capability while further enhancing interoperability with the United States and other allies. Poland will have no difficulty absorbing this equipment into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Lockheed Martin in Grand Prairie, TX. This FMS case will support the parallel Direct Commercial Sale (DCS) between Lockheed Martin and Polska Grupa Zbrojenjowa (PGZ), the prime contractor for this effort in Poland. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require U.S. Government or contractor representatives to travel to Poland for program management reviews to support the program. Travel is expected to occur approximately twice per year as needed to support equipment fielding and training.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The High Mobility Artillery Rocket Systems (HIMARS) is a highly mobile, all-weather indirect area fire artillery system. The HIMARS mission is to supplement cannon artillery to deliver a large volume of firepower within a short time against critical time-sensitive targets. At shorter ranges, HIMARS complements tube artillery with heavy barrages against assaulting forces as well as in the counter-fire, or defense suppression roles. The highest level of classified information that could be disclosed by a proposed sale, production, or by testing of the end item is SECRET; the highest level that must be disclosed for production, maintenance, or training is CONFIDENTIAL. Reverse engineering could reveal SECRET information. Launcher platform software, weapon operational software, command and control special application software, and command and control loadable munitions module software are considered UNCLASSIFIED. The system specifications and limitations are classified SECRET. Vulnerability data is classified up to SECRET. Countermeasures, counter-countermeasures, vulnerability/susceptibility analyses, and threat definitions are classified SECRET.
2. Guided Multiple Launch Rocket System (GMLRS) Unitary M31A1 uses a Unitary High Explosive (HE) 200 pound class warhead along with GPS aided IMU based guidance and control for ground-to-ground precision point targeting. The GMLRS Unitary uses an Electronic Safe and Arm Fuze (ESAF) along with a nose mounted proximity sensor to give enhanced effectiveness to the GMLRS Unitary rocket by providing tri-mode warhead functionality with point detonate, point detonate with programmable delay, or Height of Burst proximity function. GMLRS Unitary M31A1 end-item is comprised of a Rocket Pod Container (RPC) and six GMLRS Unitary Rocket(s). The RPC is capable of holding six (6) GMLRS Unitary Rockets and can be loaded in a M270A1 launcher (tracked), HIMARS M142 launcher, or European M270 (203 configuration that meets the GMLRS interface requirements) launcher from which the GMLRS rocket can be launched. The highest classification level for release of the GMLRS Unitary is SECRET, based upon the software, sale or testing of the end item. The highest level of classification that must be disclosed for production, maintenance, or training is CONFIDENTIAL.
3. Guided Multiple Launch Rocket System Alternative Warhead (GMLRS–AW) M30A1. The GMLRS–AW, M30A1, is the next design increment of the GMLRS rocket. The GMLRS–AW M30A1 hardware is over 90% common with the M31A1 GMLRS Unitary
4. The highest classification level for release of the ATACMS Unitary M57 FMS Variant is SECRET, based upon the software. The highest level of classified information that could be disclosed by a sale or by testing of the end item is SECRET; the highest level that must be disclosed for production, maintenance, or training is CONFIDENTIAL. Reverse engineering could reveal CONFIDENTIAL information. Fire Direction System, Data Processing Unit, and special Application software is classified SECRET. Communications Distribution Unit software is classified CONFIDENTIAL. The system specifications and limitations are classified CONFIDENTIAL. Vulnerability Data, countermeasures, vulnerability/susceptibility analyses, and threat definitions are classified SECRET or CONFIDENTIAL.
5. The GPS Precise Positioning Service (PPS) component of the HIMARS munitions (GMLRS Unitary, Alternative Warhead, and ATACMS Unitary) is also contained in the launcher Fire Direction System, is classified SECRET, and is considered SENSITIVE. The GMLRS M30A1, M31A1, ATACMS M57 and HIMARS M142 launchers employ an inertial navigational system that is aided by a Selective Availability Anti-Spoofing Module (SAASM) equipped GPS receiver.
6. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software, the information could be used to develop countermeasures, which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
7. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the enclosed Military Policy Justification. A determination has been made that Poland can provide the same degree of protection for the sensitive technology being released as the U.S. Government.
8. All defense articles and services listed in this transmittal have been authorized for release and export to Poland.
Defense Security Cooperation Agency, Department of Defense.
Arms sales notice.
The Department of Defense is publishing the unclassified text of an arms sales notification.
Pamela Young, (703) 697–9107,
This 36(b)(5)(C) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 17–0A.
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Date: 17 July 2009
Military Department: Air Force
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Transmittal 14–0C reported the inclusion of additional Contractor Logistics Support for Australia's fleet of C–17 Globemaster III cargo aircraft, which had increased from four (4) to six (6). This change did not result in any increase in MDE, but increased the total case value from $300 to $450 million.
This transmittal reports the further inclusion of additional funding to maintain Australia's participation in the USAF/Boeing Globemaster III Sustainment Partnership (GSP) through 2022. Additionally, Australia's fleet of C–17A Globemaster III cargo aircraft has increased from six (6) to eight (8). Support includes contractor technical and logistics support services, support equipment, spare and repair parts, and other related elements of logistics support. The case value will increase from $450 million to $850 million but will not result in an increase in the value of MDE.
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Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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:
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for license for the Lassen Lodge Hydroelectric Project (FERC No. 12496–002), to be located on the upper South Fork Battle Creek in Tehama County, California, and has prepared a draft Environmental Impact Statement (EIS) for the project. The project would occupy no federal land or Indian reservations.
The draft EIS contains staff's evaluations of the applicant's proposal and the alternatives for licensing the proposed Lassen Lodge Hydroelectric Project. The draft EIS documents the views of governmental agencies, non-governmental organizations, affected Indian tribes, the public, the license applicant, and Commission staff.
A copy of the draft EIS is available for review in the Commission's Public Reference Branch, Room 2A, located at 888 First Street NE., Washington, DC 20426. The draft EIS also may be viewed on the Commission's Web site at
You may also register online at
All comments must be filed by Friday, February 2, 2018.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
Anyone may intervene in this proceeding based on this draft EIS (18 CFR 380.10). You must file your request to intervene as specified above.
In addition to or in lieu of sending written comments, we will hold two public meetings to receive comments on the draft EIS. A daytime meeting will focus on comments of the resource agencies, NGOs, and Indian tribes, and an evening meeting will focus on receiving input from the public. We invite all interested agencies, Indian tribes, NGOs, and individuals to attend one or both of the meetings. The time and location of the meetings is as follows:
At the meetings, resource agency personnel and other interested persons will have the opportunity to provide oral and written comments and recommendations regarding the draft EIS. The meeting will be recorded by a court reporter, and all statements (verbal and written) will become part of the Commission's public record for the project. This meeting is posted on the Commission's calendar located at
For further information, contact Kenneth Hogan at (202) 502–8434 or at
Environmental Protection Agency (EPA).
Notice.
Section 5(g) of the Toxic Substances Control Act (TSCA) requires EPA to publish in the
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the PMNs addressed in this action.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPPT–2017–0141, is available at
This document lists the statements of findings made by EPA after review of notices submitted under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the period from August 1, 2017 to September 30, 2017.
TSCA section 5(a)(3) requires EPA to review a TSCA section 5(a) notice and make one of the following specific findings:
• The chemical substance or significant new use presents an unreasonable risk of injury to health or the environment;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance or significant new use;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects and the chemical substance or significant new use may present an unreasonable risk of injury to health or the environment;
• The chemical substance is or will be produced in substantial quantities, and such substance either enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance; or
• The chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
Unreasonable risk findings must be made without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant under the conditions of use. The term “conditions of use” is defined in TSCA section 3 to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
EPA is required under TSCA section 5(g) to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
• EPA case number assigned to the TSCA section 5(a) notice.
• Chemical identity (generic name, if the specific name is claimed as CBI).
• Web site link to EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C).
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
EPA has granted or denied emergency exemptions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for use of pesticides as listed in this notice. The exemptions or denials were granted during the period July 1, 2017 to September 30, 2017 to control unforeseen pest outbreaks.
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the emergency exemption or denial.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2017–0009, is available at
EPA has granted or denied emergency exemptions to the following State agencies. There were no emergency exemptions from any Federal agencies during the time period covered by this notice (July 1, 2017 through September 30, 2017).
The emergency exemptions may take the following form: Crisis, public health, quarantine, or specific. EPA has also listed denied emergency exemption requests in this notice.
Under FIFRA section 18 (7 U.S.C. 136p), EPA can authorize the use of a pesticide when emergency conditions exist. Authorizations (commonly called emergency exemptions) are granted to State and Federal agencies and are of four types:
1. A “specific exemption” authorizes use of a pesticide against specific pests on a limited acreage in a particular State. Most emergency exemptions are specific exemptions.
2. “Quarantine” and “public health” exemptions are emergency exemptions issued for quarantine or public health purposes. These are rarely requested.
3. A “crisis exemption” is initiated by a State or Federal agency (and is confirmed by EPA) when there is insufficient time to request and obtain EPA permission for use of a pesticide in an emergency.
EPA may deny an emergency exemption: If the State or Federal agency cannot demonstrate that an emergency exists, if the use poses unacceptable risks to the environment, or if EPA cannot reach a conclusion that the proposed pesticide use is likely to result in “a reasonable certainty of no harm” to human health, including exposure of residues of the pesticide to infants and children.
If the emergency use of the pesticide on a food or feed commodity would result in pesticide chemical residues, EPA establishes a time-limited tolerance meeting the “reasonable certainty of no harm standard” of the Federal Food, Drug, and Cosmetic Act (FFDCA).
In this document: EPA identifies the agency granted the exemption or denial, the type of exemption, the pesticide authorized and the pests, the crop or use for which authorized, number of acres (if applicable), and the duration of the exemption. EPA also gives the citation in Title 40 of the Code of Federal Regulations (40 CFR) for the time-limited tolerance(s), if any.
EPA authorized the use of sulfoxaflor on a maximum of 270,000 acres of cotton to control the tarnished plant bug. Permanent tolerances in connection with an earlier registration action are established in 40 CFR 180.668(a). August 15, 2017 to October 31, 2017.
EPA authorized the use of flonicamid on a maximum of 365 acres of prickly pear cactus fruit and nopalitos (pads) to control the cochineal scale insect. Time-limited tolerances in connection with this action will be established in 40 CFR 180.613(b). August 15, 2017 to August 15, 2018.
EPA denied a specific exemption request for the use of chlorothalonil in sugar beets for control of Cercospora leaf spot. The request was denied because EPA is unable to make a “reasonable certainty of no harm” determination at this time, which is required to allow additional uses of chlorothalonil. July 24, 2017.
EPA denied a specific exemption request for the use of chlorothalonil in sugar beets for control of Cercospora leaf spot. The request was denied because EPA is unable to make a “reasonable certainty of no harm” determination at this time, which is required to allow additional uses of chlorothalonil. July 24, 2017.
EPA denied a specific exemption request for the use of chlorothalonil in sugar beets for control of Cercospora leaf spot. The request was denied because EPA is unable to make a “reasonable certainty of no harm” determination at this time, which is required to allow additional uses of chlorothalonil. July 24, 2017.
EPA authorized the use of pyridate on a maximum of 16,000 acres of mint for postemergence control of herbicide-resistant annual weeds such as redroot pigweed,
EPA authorized the use of lambda cyhalothrin on a maximum of 7,000 acres of asparagus to control the
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Recordkeeping and Reporting for the Renewable Fuel Standard (RFS) Program,” EPA ICR No. 2546.01, OMB Control No. 2060–NEW) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Comments must be submitted on or before February 6, 2018.
Submit your comments, referencing Docket ID No. EPA–HQ–OAR–2017–0599, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information for which disclosure is restricted by statute.
Anne-Marie Pastorkovich, Attorney/Advisor, Office of Air and Radiation/Office of Transportation and Air Quality, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., (6405A), Washington, DC 20460; telephone number: 202–343–9623; fax number: 202–343–2800; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
This ICR package is a new information collection that is intended to streamline and update estimates related to RFS. This new collection includes elements of some existing RFS ICRs. The goal of this new, consolidated ICR is to put all RFS estimates into one, consistent, and easy-to-understand format. We hope that this single RFS ICR package will assist interested parties in better understanding all of the information collection activities associated with RFS.
The RFS program was created under the Energy Policy Act of 2005 (EPAct), which amended the Clean Air Act (CAA). The Energy Independence and Security Act of 2007 (EISA) further amended the CAA by expanding the RFS program. EPA implements RFS in consultation with U.S. Department of Agriculture and the Department of Energy. The RFS program is a national policy that requires a certain volume of renewable fuel to replace or reduce the quantity of petroleum-based transportation fuel, heating oil or jet fuel.
Obligated parties under the RFS program are refiners or importers of gasoline or diesel fuel. Obligated parties, and exporters of renewable fuel, must meet an annual Renewable Volume Obligation (RVO). Parties meet their RVO by blending renewable fuels into transportation fuel, or by obtaining credits (called “Renewable Identification Numbers”, or RINs). EPA calculates and establishes RVOs every year through rulemaking, based on the CAA volume requirements and projections of gasoline and diesel production for the coming year. The standards are converted into a percentage and obligated parties must
In order to track compliance with the RFS program, various parties involved with the production and blending of renewable fuels, and who generate, trade or use RINs, must register with EPA and submit various types of compliance reports related to the activity they engage in under the program. Our estimates as to burden are explained in the supporting statement that has been placed in the public docket. Domestic and foreign entities may be subject to these regulations and to the associated information collection. The RFS program was developed with certain flexibilities, including for small entities such as small refiners and small refineries, small blenders, and small volume production facilities and importers.
The reporting requirements of the RFS program typically fall under registration and compliance reporting. Recordkeeping requirements include product transfer documents (PTDs) and retention of records that support items reported. Recordkeeping and reporting are based upon the role the party fills under the regulations. A party may be registered in more than one role. Basing the recordkeeping and reporting upon a party's roles in the program ensures that parties must sustain only the burden necessary under the program. EPA continuously assesses its registration and reporting systems in an effort to provide the best possible service to the regulated community and in order to enhance, simplify, and streamline the experience. Because RFS relies upon a marketplace of RINs, EPA has created and maintains the EPA Moderated Transaction System (EMTS) capable of handling a high volume of RIN trading activities.
The respondents to this ICR are: RIN Generators (producers and importers of renewable fuel), Obligated Parties (refiners and importers of gasoline and diesel), Exporters (of renewable fuel), RIN Owners, independent third-party Quality Assurance Plan (QAP) Providers, and certain petitioners under the international aggregate compliance approach (such petitions are infrequent). These parties and their associated information collections are described in detail in the supporting statement and tables, which have been placed in the docket.
This proposed ICR will supersede and replace existing information collection currently approved under the following titles and OMB control numbers (with expiration dates shown):
• Renewable Fuels Standard Program (RFS2-Supplemental), OMB Control Number 2060–0637; expires 10/31/2017;
• Renewable Fuel Standard (RFS2) Program, OMB Control Number 2060–0640; expires 10/31/2017;
• RFS2 Voluntary RIN Quality Assurance Program, OMB Control Number 2060–0688; expires 4/30/2019; and
• Cellulosic Production Volume Projections and Efficient Producer Reporting, OMB Control Number 2060–0707, expires 12/31/2019.
This proposed new ICR includes burdens associated with Renewable Fuel Pathways II and Technical Amendments to the RFS2 Standards, for which a final rule was published on July 18, 2014. 79 FR 42128. Although ICR estimates were prepared for the proposed rule, it appears they were not submitted to OMB with the final rule through an administrative error. This proposed new ICR also includes burdens associated with the following previously approved, but not currently approved, ICRs: Regulation of Fuel and Fuel Additives: 2011 Renewable Fuel Standards—Petition for International Aggregate Compliance Approach, OMB Control Number 2060–0655; expired 5/31/2017; and Production Outlook Report for Unregistered Renewable Fuels Producers, OMB Control Number 2060–0660; expired 7/31/2017.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of West Virginia's request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA approves the State of West Virginia's authorized program revisions as of December 8, 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
On May 9, 2016, the West Virginia Department of Environmental Protection (WVDEP) submitted a revised application titled Environmental Submission System (ESS) for revisions/modifications to its EPA-approved programs under title 40 CFR to allow new electronic reporting. EPA reviewed WVDEP's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the revised application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve West Virginia's request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 50–52, 60–61, 63, 65, 122, 125, 144, 146, and 403–471 is being published in the
Part 52—Approval and Promulgation of Implementation Plans;
Part 60—Standards of Performance for New Stationary Sources;
Part 63—National Emission Standards for Hazardous Air Pollutants for Source Categories;
Part 123—EPA Administered Permit Programs: The National Pollutant Discharge Elimination System;
Part 145—State Underground Injection Control Programs; and
Part 403—General Pretreatment Regulations for Existing and New Sources of Pollution.
WVDEP was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before February 6, 2018.
Submit your comments referencing Docket ID No. EPA–HQ–OAR–2010–0690 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Lynn Sohacki, Compliance Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood, Ann Arbor, Michigan 48105; telephone number: 734–214–4851; fax number: 734–214–4869; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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 EPA in-use program can be broken down into three closely-related components. The first component involves the selection of approximately 40 classes of passenger cars and light trucks, totaling approximately 125 vehicles, for surveillance testing at EPA's National Vehicle and Fuel Emissions Laboratory (NVFEL.) In some cases, surveillance testing may be followed by confirmatory testing to develop additional information related to test failures observed in a class during surveillance testing. Confirmatory testing involves the selection of approximately one or two classes of 10 passenger cars and light trucks, averaging approximately 14 vehicles, for further testing, at EPA's NVFE. Confirmatory testing differs from surveillance testing in that the vehicles must meet stricter maintenance and use criteria. However, the emissions tests that are conducted are the same for surveillance and confirmatory testing. The second program component involves the testing of a subset of vehicles from the surveillance recruitment for operation of on-board diagnostics (OBD) systems. EPA does not currently recruit vehicles for OBD testing but includes the testing in this ICR in the event that OBD testing is resumed. The third component involves the special investigation of vehicles to address specific issues. The number of vehicles procured under this category varies widely from year to year. However, this information request does not ask for approval of the information burden corresponding to such vehicles because the vehicles for this program have not been procured from the public recently and, therefore, there is no information collection burden associated with this testing. Participation in the telephone screenings to identify qualifying light-duty vehicles, as well as the vehicle testing, is strictly voluntary. A group of 25 to 50 potential participants is identified from state vehicle registration records. These potential participants are asked to return a form indicating their willingness to participate and if so, to verify some limited vehicle information. Three of those who return the form are called and asked several screening questions concerning vehicle condition, operation and maintenance. Additional groups of potential participants may be contacted until a sufficient number of vehicles has been obtained. Owners verify the vehicle screening information when they deliver their vehicles to EPA or release the vehicle to EPA, voluntarily provide maintenance records for copying, receive a cash incentive and, if requested, a loaner car, and finally receive their vehicle from EPA at the conclusion of the testing.
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 June 6, 2017. 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 21 additions, 10 deletions, and 7 corrections 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 2,349.
This list is current as of November 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 a PA be completed within a reasonable time frame. The PA is designed to provide information for EPA to consider when evaluating the site for potential response action or inclusion on the National Priorities List (NPL).
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), U.S. EPA Region 1, 5 Post Office Square, Suite 100, Mail Code: OSRR07–2, Boston, MA 02109–3912, (617) 918–1407.
Cathy Moyik (ERRD), U.S. EPA Region 2, 290 Broadway, New York, NY 10007–1866, (212) 637–4339.
Joseph Vitello (3HS12), U.S. EPA Region 3, 1650 Arch Street, Philadelphia, PA 19107, (215) 814–3354.
Leigh Lattimore (4SF–SRSEB), U.S. EPA Region 4, 61 Forsyth St. SW., Atlanta, GA 30303, 404–562–8768.
David Brauner (SR–6J), U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, (312) 886–1526.
Philip Ofosu (6SF–RA), U.S. EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202–2733, (214) 665–3178.
Todd H. Davis (SUPRERSP), U.S. EPA Region 7, 11201 Renner Blvd., Lenexa, KS 66219, (913) 551–7749 .
Ryan Dunham (EPR–F), U.S. EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202, (303) 312–6627.
Leslie Ramirez (SFD–6–1), U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 972–3978.
Monica Lindeman (ECL, ABU), U.S. EPA Region 10, 1200 Sixth Avenue, Suite 900, ECL–112, Seattle, WA 98101, (206) 553–5113.
This section includes a discussion of the additions, deletions, and corrections, to the list of Docket facilities since the previous Docket update.
In this notice, 21 Federal facilities are being added to the Docket. Seven of the twenty-one Federal facilities are being added 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.
For the remaining additions, Code 16(a) was added to include a list of 14 NPL Facility additions that were part of a Facility that was already listed in a previous Docket. The NPL Facility additions have been separated from the original Facility and are now identified as a unique Facility on the Docket. For these Sites, the date listed in the Table 1-Additions, is the date the original Facility was listed in the Docket. No further Site Assessment documentation is required for these Facilities.
In this notice, 10 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 previous Docket updates. The corrected update is shown directly below, for easy comparison. This notice includes 7 corrections.
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 not, more than once per calendar year, generated more than 1,000 kg of hazardous waste in any single month; (3) Federal facilities that are very small quantity generators (VSQGs) that have never generated more than 100 kg of hazardous waste in any month; (4) Federal facilities that are solely hazardous waste transportation facilities, as reported under RCRA Section 3010; and (5) Federal facilities
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 additional 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 and Very 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. (16A) NPL site that is part of a Facility already listed on the Docket.
(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.
Environmental Protection Agency (EPA).
Notice of tentative approval.
Notice is hereby given that the State of Hawaii revised its approved Public Water System Supervision Program (PWSSP) under the federal Safe Drinking Water Act (SDWA) by adopting the Filter Backwash Recycling Rule (FBRR) and the Long-Term 1 Enhanced Surface Water Treatment Rule (LT1). The Environmental Protection Agency (EPA) has determined that these revisions by the State of Hawaii are no less stringent than the corresponding Federal regulations and otherwise meet applicable SDWA primacy requirements. Therefore, EPA intends to approve these revisions to the State of Hawaii's PWSSP.
Request for a public hearing must be received on or before January 8, 2018.
All documents relating to this determination are available for inspection between the hours of 8:30 a.m. and 4:00 p.m., Monday through Friday, except official State holidays (for the Hawaii location) and official Federal holidays (for the two EPA locations), at the following offices: Hawaii Department of Health, Safe Drinking Water Branch, 2385 Waimano Home Road, Uluakupu Building 4, Pearl City, Hawaii 96782; United States Environmental Protection Agency, Region 9, Pacific Islands Office, 300 Ala
Anna Yen, EPA Region 9, Drinking Water Management Section, at the address given above; telephone number: (415) 972–3976; email address:
If EPA Region 9 does not receive a timely and appropriate request for a hearing and the Regional Administrator does not elect to hold a hearing on his own motion, this determination shall become final and effective on January 8, 2018, and no further public notice will be issued.
Section 1413 of the Safe Drinking Water Act, as amended, 42 U.S.C. 300g–2 (1996), and 40 CFR part 142 of the National Primary Drinking Water Regulations.
Farm Credit System Insurance Corporation.
Notice, regular meeting.
Notice is hereby given of the regular meeting of the Farm Credit System Insurance Corporation Board (Board).
The meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on December 14, 2017, from 11:00 a.m. until such time as the Board concludes its business.
Dale L. Aultman, Secretary to the Farm Credit System Insurance Corporation Board, (703) 883–4009, TTY (703) 883–4056,
Farm Credit System Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102. Submit attendance requests via email to
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. Please send an email to
• September 21, 2017
• September 30, 2017 Financial Reports
• Report on Insured and Other Obligations
• Quarterly Report on Annual Performance Plan
• Confidential Report on System Performance
• Audit Plan for the Year Ended December 31, 2017
• Executive Session of the Audit Committee with Auditor
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before January 2, 2018.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
James R. Golder, Attorney, (214–979–9376), Southwest Region, 1999 Bryan Street, Suite 2150, Dallas, TX 75201.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for December 1, 2018), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before January 2, 2018. Write “In the Matter of Cowboy AG LLC doing business as Cowboy Toyota and Cowboy Scion, File No. 172 3009” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
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 prefer to file your comment on paper, write “In the Matter of Cowboy AG LLC doing business as Cowboy Toyota and Cowboy Scion, File No. 172 3009” 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 D), 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 (Annex D), Washington, DC 20024. If possible, 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, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC Web site at
The Federal Trade Commission (FTC) has accepted, subject to final approval, an agreement containing a consent order from Cowboy AG LLC, doing business as Cowboy Toyota and Cowboy Scion. The proposed consent order has been placed on the public record for 30 days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After 30 days, the FTC will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.
The respondent is a motor vehicle dealer that engaged in substantial Spanish-language advertising, but only provided disclosures in fine-print English. According to the FTC complaint, respondent advertised that consumers could purchase or lease advertised vehicles at certain favorable terms prominently stated in its advertisements. The complaint alleges that respondent violated Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. 45(a), because it misrepresented in its Spanish-language advertisements that (1) consumers could purchase new 2016 automobiles with no down payments, (2) that advertised low monthly payments were available to those who financed automobile purchases, (3) that advertised interest rates, monthly payments, and other terms were available to consumers with bad credit, and (4) that certain new 2016 model year Toyotas were available for purchase in 2017. This information would be material to consumers in deciding whether to visit respondent's dealership and whether to purchase or lease an automobile from respondent.
The complaint also alleges that respondent's credit sale advertisements violated the Truth in Lending Act (TILA) and Regulation Z by failing to disclose or to disclose clearly and conspicuously required terms.
The proposed order is designed to prevent the respondent from engaging in similar deceptive practices in the future.
• Definition B. of the order defines “clearly and conspicuously” to mean that required disclosures must be difficult to miss (
• Part I.A.1. provides that respondent shall not misrepresent the cost of financing the purchase of an automobile, including by misrepresenting the amount or percentage of the down payment, the number of payments or period of repayment, the amount of any payment, and the repayment obligation over the full term of the loan, including any balloon payment.
• Part I.A.2. provides that respondent shall not misrepresent the cost of leasing an automobile, including by misrepresenting the total amount due at lease inception, the down payment, amount down, acquisition fee, capitalized cost reduction, any other amount required to be paid at lease inception, and the amounts of all monthly or other periodic payments.
• Part I.B. provides that respondent shall not misrepresent any qualification or restriction on the consumer's ability to obtain the represented financing or leasing terms, including any qualification or restriction based on the consumer's credit score or credit history.
• Part I.C. provides that respondent shall not represent any financing or leasing term, unless the representation is non-misleading, and the advertisement clearly and conspicuously discloses all qualifications or restrictions on the consumer's ability to obtain the represented financing or leasing term, including any qualifications or restrictions that respondent's lender, lessor, or any other entity may impose based on a consumer's credit score or credit history. Additionally, if a majority of consumers likely will not be able to meet a credit score qualification or restriction stated in the advertisement, respondent must clearly and conspicuously disclose that fact.
• Part I.D. provides that respondent shall not misrepresent the number of vehicles, makes, or models that are available for purchase or lease.
• Part I.E. provides that respondent shall not misrepresent any other material fact about the price, sale, financing, or leasing of any automobile.
• Part II of the order addresses the TILA and Regulation Z allegations by prohibiting credit sale advertisements that:
A. State the amount or percentage of any down payment, the number of payments or period of repayment, the amount of any payment, or the amount of any finance charge, without disclosing clearly and conspicuously all of the following terms:
○ The amount or percentage of the down payment;
○ The terms of repayment; and
○ The annual percentage rate, using the term “annual percentage rate” or the abbreviation “APR.” If the annual percentage rate may be increased after consummation of the credit transaction, that fact must also be disclosed; or
B. State a rate of finance charge without stating the rate as an “annual percentage rate” or the abbreviation “APR,” using that term; or
C. Fail to comply in any respect with Regulation Z, 12 CFR part 226, as amended, and the Truth in Lending Act, as amended, 15 U.S.C. 1601–1667f.
• Part III of the order addresses the CLA and Regulation M allegations by prohibiting lease advertisements that:
A. State the amount of any payment or that any or no initial payment is required at lease inception, without disclosing clearly and conspicuously the following terms:
○ That the transaction advertised is a lease;
○ the total amount due prior to or at consummation or by delivery, if delivery occurs after consummation;
○ the number, amounts, and timing of scheduled payments;
○ whether or not a security deposit is required; and
○ that an extra charge may be imposed at the end of the lease term where the consumer's liability (if any) is based on the difference between the residual value of the leased property and its realized value at the end of the lease term.
B. Fail to comply in any respect with Regulation M, 12 CFR part 213, as amended, and the Consumer Leasing Act, 15 U.S.C. 1667–1667f, as amended.
• Part IV requires respondent to provide copies of the order to certain personnel and to obtain acknowledgments of receipt.
• Part V requires respondent to file compliance reports with the Commission, including notices regarding changes in corporate structure that might affect compliance obligations under the order. Part VI requires respondent to create certain records for 15 years and to retain them for 5 years. Part VII provides the Commission certain mechanisms to monitor respondent's compliance with the order. Part VIII is a provision that “sunsets” the order after 20 years, with certain exceptions.
The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the complaint or proposed order, or to modify in any way the proposed order's terms.
By direction of the Commission.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–5806,
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
William Parham at (410) 786–4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
2.
The Patient Protection and Affordable Care Act, Public Law 111–148, was enacted on March 23, 2010, and the Health Care and Education Reconciliation Act of 2010, Public Law 111–152, was enacted on March 30, 2010. These statutes are collectively known as the “Affordable Care Act.” The Affordable Care Act extended MHPAEA to apply to the individual health insurance market. Additionally, the Department of Health and Human Services (HHS) final regulation regarding essential health benefits (EHB) requires health insurance issuers offering non-grandfathered health insurance coverage in the individual and small group markets, through an Exchange or outside of an Exchange, to comply with the requirements of the MHPAEA regulations in order to satisfy the requirement to cover EHB (45 CFR 147.150 and 156.115).
MHPAEA section 512(b) specifically amends the Public Health Service (PHS) Act to require plan administrators or health insurance issuers to provide, upon request, the criteria for medical necessity determinations made with respect to MH/SUD benefits to current or potential participants, beneficiaries, or contracting providers. The Interim Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (75 FR 5410, February 2, 2010) and the Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 set forth rules for providing criteria for medical necessity determinations. CMS oversees non-Federal governmental plans and health insurance issuers.
MHPAEA section 512(b) specifically amends the PHS Act to require plan administrators or health insurance issuers to supply, upon request, the reason for any denial or reimbursement of payment for MH/SUD services to the participant or beneficiary involved in the case. The Interim Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (75 FR 5410, February 2, 2010) and the Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and
Group health plan participants, beneficiaries, covered individuals in the individual market, or persons acting on their behalf, may use this optional model form to request information from plans regarding NQTLs that may affect patients' MH/SUD benefits or that may have resulted in their coverage being denied.
The Office of Child Care (OCC) has revised the FY 2019–2021 CCDF Plan Preprint to align with the CCDF Final Rule published on September 30, 2016. In making the revisions, consideration was given to minimize the burden of the collection of information on respondents. The Plan, submitted via the ACF–118, is required triennially, and will remain in effect for three years.
Due to unanticipated events, including challenges faced by States and Territories in implementing portions of the comprehensive and unprecedented background check requirements, the OCC has re-examined the implementation deadline to give States and Territories an opportunity to apply for additional time (up to two years, in one year increments) to meet the most challenging parts of the background check requirements as long as specific milestones are met. These developments required OCC to delay submission of the CCDF Plan Preprint for review and approval by OMB because the process and criteria for requesting additional time will be carried out as part of the Plan submission process. The delay prevented OCC from completing the regular Paperwork Reduction Act clearance process that includes two
Estimated Total Annual Burden Hours: 3,696.
ACF is requesting that Office of Management and Budget (OMB) grant a 180-day approval for the FY 2019–2012 CCDF State/Territory Plan Preprint (ACF–118) under procedures for emergency processing by January 31, 2018. A copy of this information collection may be obtained by contacting Valentina Ntim, Child Care Program Specialist, at (202) 205–8398. Email address:
This notice provides for a single 30-day comment period for the public to submit comments on the revised ACF–118. Comments and questions about the information collection described above should be directed to the following addresses within 30 days of publication of this notice: Administration for Children and Families, Office of Planning, Research, and Evaluation, Attn: ACF Reports Clearance Officer,
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Clinical and Patient Decision Support Software.” This draft guidance provides clarity on the scope of FDA's oversight of clinical decision support software intended for healthcare professionals, and patient decision support software intended for patients and caregivers who are not healthcare professionals. This draft guidance is not final nor is it in effect at this time.
Submit either electronic or written comments on the draft guidance by February 6, 2018 to ensure that the Agency considers your comment of this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Bakul Patel, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5458, Silver Spring, MD 20993–0002, 301–796–5528; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 301–240–402–7911; or Kristina Lauritsen, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6158, Silver Spring, MD 20993–0002, 301–796–8936.
FDA has long regulated software that meets the definition of a device in section 201(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(h)) (FD&C Act), including software that is intended to provide decision support for the diagnosis, treatment, prevention, cure, or mitigation of
FDA recognizes that the term “clinical decision support” or “CDS” is used broadly and in different ways, depending on the context. This draft guidance defines “CDS” in the context of and using language from section 3060(a) of the 21st Century Cures Act (Cures Act), which amended section 520 of the FD&C Act (21 U.S.C. 360j) and excludes certain software functions from the device definition. The purpose of this guidance is to identify the types of decision support software functionalities that: (1) Do not meet the definition of a device, in light of the Cures Act; (2) may meet the definition of a device but for which FDA does not intend to enforce compliance with applicable requirements of the FD&C Act, including, but not limited to, premarket clearance and premarket approval requirements; and (3) FDA intends to focus its regulatory oversight on.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Clinical and Patient Decision Support Software.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 812 have been approved under OMB control number 0910–0078; the collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910–0120; the collections of information in 21 CFR part 814, subparts A through E, have been approved under OMB control number 0910–0231; the collections of information in 21 CFR part 814, subpart H have been approved under OMB control number 0910–0332; the collections of information in 21 CFR part 601 have been approved under OMB control number 0910–0338; the collections of information in 21 CFR part 314 have been approved under OMB control number 0910–0001; and the collections of information in 21 CFR parts 801 and 809 have been approved under OMB control number 0910–0485.
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration (FDA, the Agency, or we) is announcing the following public workshop entitled “Fostering Digital Health Innovation: Developing the Software Precertification Program.” The purpose of the public workshop is to discuss the progress of the pilot precertification program and to seek input on the ongoing development of the Software Precertification Program. In its Digital Health Innovation Action Plan and as part of the Medical Device User Fee Amendments, FDA has committed to explore opportunities to establish streamlined regulatory pathways tailored for digital health technologies that take into account real world evidence while incorporating principles established through international harmonization.
The public workshop will be held on January 30 to 31, 2018, from 8:30 a.m. to 5 p.m. Submit either electronic or written comments on this public workshop by June 29, 2018. See the
The public workshop will be held at Ruth L. Kirschstein Auditorium, Natcher Conference Center, Bldg. 45, National Institutes of Health (NIH) Campus, 9000 Rockville Pike, Bethesda, MD 20892. The entrance for the public workshop participants (non-NIH employees) is through the NIH Gateway Center located adjacent to the Medical Center Metro, where routine security check procedures will be performed. Please visit the following Web site for NIH campus location, parking, security, and travel information:
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before June 29, 2018, at the
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Bakul Patel, Food and Drug Administration, Center for Devices and Radiological Health, 10903 New Hampshire Ave., Bldg. 66, Rm. 5458, Silver Spring, MD 20993, 301–796–5528,
As part of the FDA Reauthorization Act of 2017 (Pub. L. 115–52), which reauthorizes the Medical Device User Fee Amendments for fiscal years 2018 through 2022, FDA has committed to explore opportunities to establish streamlined regulatory pathways tailored for digital health technologies that consider real world evidence while incorporating principles established through international harmonization. FDA recognizes that an efficient, risk-based approach to regulating digital health technology will foster innovation of digital health products. FDA's traditional approach to moderate and higher risk hardware-based medical devices is not well suited for the faster iterative design, development, and type of validation used for software-based medical technologies.
FDA issued a Digital Health Innovation Action Plan on July 27, 2017, in order to outline its efforts to develop pragmatic approaches to balance benefits and risks of digital health products (Ref. 1). In the
During the public workshop, speakers and participants will discuss a range of issues related to the Software Pre-Cert program and the development of novel premarket approval/clearance pathways for digital health products. Discussion topics include:
• Criteria and measures to assess whether a company consistently and reliably engages in high-quality software design and testing (validation) and ongoing maintenance of its software products.
○ Appropriate “Key Performance Indicators” that are independent of organization size, deployment strategies, or computing platforms.
• Levels of precertification and how those levels correlate to the digital health product's risk.
• Other aspects and topics related to pre-certifying a company including methods and mechanisms for a company to maintain precertification status.
• Types of digital health products that should be marketed based on the levels of precertification without FDA premarket review or after a streamlined, less-burdensome FDA premarket review.
• Considerations for streamlined premarket review and postmarket data collection and analysis.
Registration is free and based on space availability, with priority given to early registrants. Persons interested in attending this public workshop must register by January 18, 2018, 4 p.m. Eastern Time. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted. If time and space permit, onsite registration on the day of the public workshop will be provided beginning at 7:30 a.m. We will let registrants know if registration closes before the day of the public workshop.
If you need special accommodations due to a disability, please contact Susan Monahan, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5231, Silver Spring, MD 20993–0002, 301–796–5661 or email:
If you have never attended a Connect Pro event before, test your connection at
The following reference is on display at the Dockets Management Staff (see
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the statement of work to assess current practices of FDA and sponsors in communicating during investigational new drug (IND) development and identify best practices and areas of improvement. The independent assessment is part of FDA performance commitments under the recent reauthorization of the Prescription Drug User Fee Act (PDUFA). The independent assessment of current practices of FDA and sponsors in communicating during drug development is described in detail in the document entitled “PDUFA Reauthorization Performance Goals and Procedures Fiscal Years 2018 Through 2022” available at
Submit either electronic or written comments by January 22, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before January 22, 2018. The
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Yoni Tyberg, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 1151, Silver Spring, MD 20993, 301–348–1718, Fax: 301–847–8443,
The IND phase of drug development is the time during which human trials of investigational drugs are conducted. During the IND phase, sponsors and FDA engage in many types of communications. To ensure the effectiveness of human drug review programs, it is critical that these communications be conducted in a timely and efficient manner.
The timely review of the safety and effectiveness of new drugs and biologics is central to FDA's mission to protect and promote the public health. Prior to enactment of PDUFA in 1992, FDA's drug review process was relatively slow and not very predictable compared to that of other countries. Due to concerns expressed by both industry and patients at the time, Congress enacted PDUFA, which provided the added funds through user fees that enabled FDA to hire additional reviewers and support staff and upgrade its information technology systems. In return for additional resources, FDA agreed to certain review performance goals, such as completing reviews of new drug applications and biologics license applications and taking regulatory actions on them in predictable timeframes. These changes revolutionized the drug approval process in the United States and enabled FDA to speed the application review process for new drugs and biologics without compromising the Agency's high standards for demonstration of safety, efficacy, and quality of new drugs and biologics prior to approval.
PDUFA provides FDA with a source of stable, consistent funding that has made it possible for it to focus on promoting innovative therapies and help bring to market critical products for patients. When PDUFA was originally authorized in 1992, it had a 5-year term. The program has been subsequently reauthorized every 5 years with the most recent reauthorization occurring in 2017 for fiscal years (FYs) 2018–2022. To prepare for the 2017 reauthorization of PDUFA, FDA conducted negotiations with the regulated industry and held regular consultations with public stakeholders including patient advocates, consumer advocates, and health care professionals between September 2015 and February 2016. Following these discussions, related public meetings, and Agency requests for public comment, FDA published proposed recommendations for PDUFA VI for FYs 2018–2022. FDA committed under PDUFA VI to contract with an independent third party to assess current practices of FDA and sponsors in communicating during IND development and to identify best practices and areas of improvement.
The statement of work can be accessed at
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Changes to Existing Medical Software Policies Resulting from Section 3060 of the 21st Century Cures Act.” This draft guidance provides clarity on FDA's current thinking regarding changes made by the 21st Century Cures Act (Cures Act) to the definition of a medical device and the resulting effect on guidances related to medical device software. This draft guidance is not final nor is it in effect at this time.
Submit either electronic or written comments on the draft guidance by February 6, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Bakul Patel, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5458, Silver Spring, MD 20993–0002, 301–796–5528, or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911.
FDA has long regulated software that meets the definition of a device. Section 3060(a) of the Cures Act, enacted on December 13, 2016 (Pub. L. 114–255), amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to exclude certain medical software functions from the definition of device under section 201(h) of the FD&C Act (21 U.S.C. 321(h)). Under sections 520(o)(1)(A)–(D) of the FD&C Act (21 U.S.C. 360j(o)(1)(A)–(D)), as added by the Cures Act, certain medical software functions are not medical devices, including software functions that are intended (1) for administrative support of a health care facility, (2) for maintaining or encouraging a healthy lifestyle, (3) to serve as electronic patient records, or (4) for transferring, storing, converting formats, or displaying data.
This draft guidance explains the effect of the medical software provisions in the Cures Act on preexisting FDA policy, including policy on mobile medical applications; medical device
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Changes to Existing Medical Software Policies Resulting from Section 3060 of the 21st Century Cures Act.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the Internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 820 have been approved under OMB control number 0910–0073; the collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910–0120; the collections of information in 21 CFR part 803 have been approved under OMB control number 0910–0437; and the collections of information in 21 CFR parts 801 and 809 have been approved under OMB control number 0910–0485.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA) is announcing the availability of a revised guidance for industry entitled “Registration and Product Listing for Owners and Operators of Domestic Tobacco Product Establishments.” This guidance is intended to assist persons making tobacco product establishment registration and product listing submissions to FDA.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this guidance to the Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your request or include a Fax number to which the guidance document may be sent. See the
Matthew Brenner, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993–0002, 1–877–287–1373, email:
FDA is announcing the availability of a revised guidance for industry entitled “Registration and Product Listing for Owners and Operators of Domestic Tobacco Product Establishments.” This guidance is intended to assist persons making tobacco product establishment registration and product listing submissions to FDA. We are issuing this guidance consistent with our good guidance practices (GGP) regulation (§ 10.115 (21 CFR 10.115)). We are implementing this guidance without prior public comment because we have determined that prior public participation is not feasible or appropriate (§ 10.115(g)(2)). We made this determination given the upcoming deadline for product listing information updates for owners and operators of tobacco product manufacturing establishments. In addition, the compliance policy for certain product listing information updates set forth in this revised guidance presents a policy to limit submissions consistent with the public health. Although this guidance document is immediately in effect, it remains subject to comment in accordance with FDA's GGP regulation.
This revised guidance describes the compliance policy for product listing information updates for deemed tobacco products for persons who owned or operated domestic manufacturing establishments engaged in the manufacture of deemed products prior to August 8, 2016, and continued to own or operate such establishment(s) on or after August 8, 2016. With respect to the deemed tobacco products listing requirement, FDA does not intend to enforce the requirement for persons who own or operate domestic manufacturing establishments engaged in the manufacture of deemed tobacco products to update product listing information during the month of December 2017 provided they registered and listed their products by October 12, 2017.
Owners or operators of establishments engaged in the manufacture of deemed products as of August 8, 2016, were first required to register and submit deemed product listing information under section 905 of the FD&C Act (21 U.S.C. 387e) by December 31, 2016. However, in a guidance issued in September 2017, FDA announced that it does not intend to enforce these requirements with respect to deemed products provided the registration and product listing submissions were received by FDA on or before October 12, 2017.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on registration and product listing for owners and operators of domestic tobacco product establishments. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in section 905 of the FD&C Act have been approved under OMB control number 0910–0650.
Persons with access to the internet may obtain an electronic version of the guidance at either
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the guidance entitled “Software as a Medical Device (SaMD): Clinical Evaluation.” This guidance was prepared as part of the FDA's international convergence efforts under the auspices of the International Medical Device Regulators Forum (IMDRF), formerly the Global Harmonization Task Force. The guidance, informed by global and U.S. public comments, pertains to Software as a Medical Device (SaMD) and focuses on principles of clinical evaluation, which include establishing the scientific validity, clinical performance, and analytical validity for SaMD. The guidance is intended to provide globally harmonized principles of when and what type of clinical evaluation is appropriate based on the risk of the SaMD.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the Internet. See the
In recent years, many important initiatives have been undertaken by regulatory authorities across the globe to promote international harmonization and convergence of regulatory requirements. One of the goals of global convergence is to identify and reduce differences in regulatory approaches among regulatory agencies. IMDRF seeks to advance international convergence in the approach towards medical device regulation with input from both regulatory and industry representatives. The current members of the Management Committee of the IMDRF are regulatory officials from Australia (Therapeutic Goods Administration), Brazil (National Health Surveillance Agency), Canada (Health Canada), China (China Food and Drug Administration), European Union (European Commission Directorate-General for Internal Market, Industry, Entrepreneurship, and Small and Medium-sized Enterprises), Japan (Pharmaceuticals and Medical Devices Agency and the Ministry of Health, Labour, and Welfare), Russia (Ministry of Healthcare), Singapore (Health
The IMDRF Management Committee (IMDRF MC) chartered the SaMD Working Group (WG) to develop a regulatory framework for SaMD and to develop converged principles for global regulators to adopt in their respective jurisdictions. The SaMD WG includes representatives from the IMDRF members, industry, academia, and other key stakeholders as well as regional harmonization initiatives from around the world.
The IMDRF SaMD WG considered comments received on the draft guidance that was announced in the
This guidance adopts the internationally converged principles agreed upon by the IMDRF. FDA adoption of these principles provides FDA with an initial framework when further developing the Agency's specific regulatory approaches and expectations for regulatory oversight. This guidance does not provide recommendations for FDA Staff and Industry to apply to specific regulatory situations, nor does it modify current regulatory expectations, including those for regulatory submissions, at this time. FDA intends to consider the principles of this guidance in the development of regulatory approaches for SaMD and digital health technologies. In developing regulatory approaches based on the principles of this guidance, the Agency intends to follow a public process, including providing opportunities for public input. For more information on FDA adoption of IMDRF documents as an FDA guidance document, please see
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Software as a Medical Device (SaMD): Clinical Evaluation.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the Internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
Food and Drug Administration, HHS.
Notice of availability.
Under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), the Food and Drug Administration (FDA or Agency) is required to report annually in the
Cathryn C. Lee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6484, Silver Spring, MD 20993–0002, 301–796–0700; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911.
A PMR is a study or clinical trial that an applicant is required by statute or regulation to conduct postapproval. A PMC is a study or clinical trial that an applicant agrees in writing to conduct postapproval, but that is not required by statute or regulation. PMRs and PMCs can be issued upon approval of a drug
FDA can require application holders to conduct postmarketing studies and clinical trials:
• To assess a known serious risk, assess signals of serious risk, or identify an unexpected serious risk related to the use of a drug product (section 505(o)(3) of the FD&C Act (21 U.S.C. 355(o)(3)), as added by the Food and Drug Administration Amendments Act of 2007 (FDAAA) (Pub. L. 110–85)).
• Under the Pediatric Research Equity Act (PREA) (Pub. L. 108–155), to study certain new drugs for pediatric populations, when these drugs are not adequately labeled for children. Under section 505B(a)(3) of the FD&C Act (21 U.S.C. 355c), the initiation of these studies may be deferred until required safety information from other studies in adults has first been submitted and reviewed.
• To verify and describe the predicted effect or other clinical benefit for drugs approved in accordance with the accelerated approval provisions in section 506(c)(2)(A) of the FD&C Act (21
• For a drug that was approved on the basis of animal efficacy data because human efficacy trials are not ethical or feasible (21 CFR 314.610(b)(1) and 21 CFR 601.91(b)(1)). PMRs for drug products approved under the animal efficacy rule
Under the regulations (21 CFR 314.81(b)(2)(vii) and 21 CFR 601.70), applicants of approved drugs are required to submit annually a report on the status of each clinical safety, clinical efficacy, clinical pharmacology, and nonclinical toxicology study or clinical trial either required by FDA or that they have committed to conduct, either at the time of approval or after approval of their new drug application (NDA), abbreviated new drug application (ANDA), or biologics license application (BLA). Applicants are required to report to FDA on these requirements and commitments made for NDAs and ANDAs under § 314.81(b)(2)(viii). The status of PMCs concerning chemistry, manufacturing, and production controls and the status of other studies or clinical trials conducted on an applicant's own initiative are not required to be reported under §§ 314.81(b)(2)(vii) and 601.70 and are not addressed in this report. Furthermore, section 505(o)(3)(E) of the FD&C Act requires that applicants report periodically on the status of each required study or clinical trial and each study or clinical trial “otherwise undertaken . . . to investigate a safety issue. . . .”
An applicant must report on the progress of the PMR/PMC on the anniversary of the drug product's approval
The status of the PMR/PMC must be described in the ASR according to the terms and definitions provided in §§ 314.81 and 601.70. For its own reporting purposes, FDA has also established terms to describe when the conditions of the PMR/PMC have been met, and when it has been determined that a PMR/PMC is no longer necessary.
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In addition to the above statuses, PMRs/PMCs may also be characterized as open or closed.
If an applicant fails to comply with the original schedule for completion of postmarketing studies or clinical trials required under section 505(o)(3) of the FD&C Act (
Section 505B(a)(3)(B) of the FD&C Act, as amended by the Food and Drug Administration Safety and Innovation Act, authorizes FDA to grant an extension of the deferred pediatric assessments that are required under PREA.
FDA may take enforcement action against applicants who are noncompliant with or otherwise fail to conduct studies and clinical trials required under FDA statutes and regulations (see, for example, sections 505(o)(1), 502(z), and 303(f)(4) of the FD&C Act (21 U.S.C. 355(o)(1), 352(z), and 333(f)(4))).
Databases containing information on PMRs/PMCs are maintained at the Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER). The information in these databases is periodically updated as new PMRs/PMCs are issued, upon FDA review of PMR/PMC ASRs or other PMR/PMC correspondence, upon receipt of final reports from completed studies and clinical trials, and after the final reports are reviewed and FDA determines that the PMR/PMC has been fulfilled, or when FDA determines that the PMR/PMC is either no longer feasible or would no longer provide useful information. Because applicants typically report on the status of their PMRs/PMCs annually, and because updating the status of PMRs/PMCs in FDA's databases involves FDA review of received information, there is an inherent lag in updating the data (that is, the data are not real time). FDA strives to maintain as accurate information as possible on the status of PMRs/PMCs.
Both CDER and CBER have established policies and procedures to help ensure that FDA's data on PMRs/PMCs are current and accurate. When identified, data discrepancies are addressed as expeditiously as possible and/or are corrected in later reports.
FDA also maintains an online searchable and downloadable database that contains information about PMRs/PMCs that is
This report is published to fulfill the annual reporting requirement under section 506B(c) of the FD&C Act. Information in this report covers any PMR/PMC that was made, in writing, at the time of approval or after approval of an application or a supplement to an application (see section I.A), and summarizes the status of PMRs/PMCs in fiscal year (FY) 2016 (
This report reflects combined data from CDER and CBER. Information summarized in the report includes the following: (1) The number of applicants with open PMRs/PMCs;
Numbers published in this report cannot be compared with the numbers resulting from searches of the publicly accessible and downloadable database. This is because this report incorporates data for all PMRs/PMCs in FDA databases as of the end of the fiscal year, including PMRs/PMCs undergoing review for accuracy. The publicly accessible and downloadable database includes a subset of PMRs/PMCs, specifically those that, at the time of data retrieval, either had an open status or were closed within the past 12 months. In addition, the status information in this report is updated annually while the downloadable database is updated quarterly (
This report provides information on PMRs/PMCs as of September 30, 2016 (
An applicant may have multiple approved drug products, and an approved drug product may have multiple PMRs and/or PMCs. Table 1 shows that as of September 30, 2016, there were 285 unique applicants with open PMRs/PMCs under 890 unique NDAs and BLAs. There were 207 unique NDA applicants (and 734 associated applications) and 78 unique BLA applicants (and 156 associated applications) with open PMRs/PMCs.
As previously mentioned, applicants must submit an ASR on the progress of each open PMR/PMC within 60 days of the anniversary date of United States approval of the original application or an alternate reporting date that was granted by FDA (§§ 314.81 and 601.70).
Table 3 shows that as of September 30, 2016, most open PMRs (84 percent for NDAs and 91 percent for BLAs) and most open PMCs (71 percent for NDAs and 83 percent for BLAs) were progressing on schedule.
Table 4 shows that as of September 30, 2016, nearly half of the open NDA and BLA PMRs were pending (49 percent (517/1,051) and 45 percent (123/272), respectively). PREA PMRs and FDAAA PMRs comprised 55 percent (349/640) and 39 percent (249/640) of pending PMRs, respectively. The next largest category of open and on-schedule PMRs comprised those that were ongoing (29 percent (306/1,051) of NDA PMRs and 37 percent (100/272) of BLA PMRs).
Table 5 provides additional information on the status of open and off-schedule PMRs (
In certain situations, the original PMR schedules were adjusted for unanticipated delays in the progress of the study or clinical trial (
Table 6 provides the status of open on-schedule and off-schedule PMCs. As of September 30, 2016, most open, on-schedule NDA PMCs were pending (36 percent; 62/174) and most open, on-schedule BLA PMCs were ongoing (43 percent; 83/191). Fewer open NDA and BLA PMCs were considered off schedule (29 percent (51/174) and 17 percent (32/191), respectively). The majority of off-schedule NDA and BLA PMCs were delayed according to the original schedule milestones.
Table 7 provides details about PMRs and PMCs that were closed (fulfilled or released) within FY2016. The majority of closed PMRs were fulfilled (72 percent of NDA PMRs and 82 percent of BLA PMRs) at the end of FY2016. Similarly, the majority of closed PMCs were fulfilled at the end of FY2016.
Tables 8 and 9 show the distribution of the statuses of PMRs/PMCs as of September 30, 2016, presented by the years that the PMRs/PMCs were established
Based on the data shown in table 8, an average of 261 PMRs were established each year since FY2010.
Table 9 provides an overview of PMCs in a similar format as table 8 for PMRs. The results for PMCs are similar to those for PMRs as described above and in table 8.
Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA, the Agency, or we) is announcing the following public meeting entitled “Oncology Center of Excellence (OCE): Listening Session.” The purpose of the public meeting and the docket for comments is for stakeholders to provide recommendations to the Agency regarding FDA's OCE. Specifically, the Agency solicits comments regarding what stakeholders desire of the OCE in terms of structure, function, regulatory purview, and activity.
The public meeting will be held on Thursday, March 15, 2018, from 9 a.m. to 12 noon. Submit either electronic on written comments on this public meeting by April 16, 2018. See the
The public meeting will be held at the FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993–0002. Entrance for the public meeting participants (non-FDA employees) is through Building 1 where routine security check procedures will be performed. For parking and security information, please refer to
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 16, 2018. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Tamy Kim, Oncology Center of Excellence, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 2206, Silver Spring, MD 20993–0002,
FDA announces the establishment of a public docket and a public listening session for the OCE. As a part of 21st Century Cures Act (Cures Act), section 3073, the “Secretary shall establish one or more Intercenter Institutes within the Agency for a major disease area or areas” and “shall provide a period for public comment during the time that each Institute is being implemented” (section 1014 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 399g)). The OCE is the Agency's first Intercenter Institute.
Under the Cures Act, the purpose of an Intercenter Institute is to coordinate activities among FDA Centers, applicable to the major disease area, including coordination of staff, streamlining of review activities, promotion of scientific programs, staff recruitment and development, enhancement of interactions, and facilitation of collaborative relationships within the Department of Health and Human Services.
FDA is establishing a docket for public comment for written comments and will hold a listening session for parties who are interested in commenting verbally. This will serve as the public comment period identified under the Cures Act (section 1014(b) of the FD&C Act).
The docket for public comments and public listening session will discuss the structure, function, regulatory purview, and activities of the OCE and solicit comments regarding how the public would like the OCE to be structured and what function the OCE should serve as an Intercenter Institute.
The public docket and listening session are intended to be a part of the period of public comment during the implementation of the Oncology Center of Excellence, the first Intercenter Institute at FDA. FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the meeting, and the background material will be posted on FDA's Web site after the meeting. A notice in the
Registration is free and based on space availability, with priority given to early registrants. Persons interested in attending this public meeting must register by February 15, 2018, midnight Eastern Time. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted.
If you need special accommodations due to a disability, please contact Tamy Kim (see
Food and Drug Administration, HHS.
Notice of availability; extension of comment period.
The Food and Drug Administration (FDA or Agency) is extending the comment period for the notice of availability that appeared in the
FDA is extending the comment period on the notice of availability published October 3, 2017 (82 FR 46075). Submit either electronic or written comments on the draft guidance by February 4, 2018, to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Gail Schmerfeld, Office of Generic Drugs, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 1672, Silver Spring, MD 20993–0002, 301–796–9291,
In the
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on the submission of ANDAs for certain highly purified synthetic peptide drug products that refer to listed drugs of rDNA origin. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This draft guidance is not subject to Executive Order 12866.
Based on public interest in the draft guidance, FDA is extending the comment period for the notice of availability for 60 days, until February 4, 2018. The Agency believes that a 60-day extension allows adequate time for interested persons to submit comments without significantly delaying guidance on these important issues.
National Institutes of Health, HHS.
Notice.
This Request for Information (RFI) is intended to gather broad public input on the FY 2019–2023 Strategic Plan for the Office of Disease Prevention (ODP) in the Division of Program Coordination, Planning, and Strategic Initiatives (DPCPSI), National Institutes of Health (NIH). The ODP invites input from prevention researchers in academia and industry, health care professionals, patient advocates and advocacy organizations, scientific or professional organizations, federal agencies, and other interested members of the public. Organizations are strongly encouraged to submit a single response that reflects the views of their organization and membership as a whole.
The ODP's Request for Information is open for public comment for a period of 45 days. Comments must be received by January 22, 2018 to ensure consideration.
Comments must be submitted electronically using the web-based form available at
Please direct all inquiries to Wilma Peterman Cross, M.S.; Deputy Director, Office of Disease Prevention, National Institutes of Health; Phone: 301–827–5561; email:
To ensure consideration, responses must be submitted electronically using the web-based form available at
The mission of the Office of Disease Prevention (ODP) is to improve the public health by increasing the scope, quality, dissemination, and impact of prevention research supported by the
The ODP is seeking input on the following strategic priorities:
• Strategic Priority I: Systematically monitor NIH investments in prevention research and the progress and results of that research.
• Strategic Priority II: Identify prevention research areas for investment or expanded effort by the NIH.
• Strategic Priority III: Promote the use of the best available methods in prevention research and support the development of better methods.
• Strategic Priority IV: Promote collaborative prevention research projects and facilitate coordination of such projects across the NIH and with other public and private entities.
• Strategic Priority V: Advance the understanding of prevention research, increase the availability of prevention research resources and programs, and enhance ODP's stakeholder engagement.
The ODP is also seeking input on the following questions:
• What new strategic priorities should the ODP consider adding to its plan?
• What opportunities or challenges in disease prevention research and methods could the ODP help to address?
• Who should the ODP partner with to address pressing needs in disease prevention research and methods?
• What areas transcend disease prevention research that the ODP should consider as it develops its new plan?
The definition of prevention research used by the ODP to guide its work and decision-making encompasses research designed to yield results directly applicable to identifying and assessing risk, developing interventions for preventing or ameliorating high-risk behaviors and exposures, the occurrence of a disease, disorder, or injury, or the progression of detectable but asymptomatic disease. Prevention research also includes research studies to develop and evaluate disease prevention, health promotion recommendations, and public health programs. The ODP definition of prevention includes the following categories of research:
• Identification of modifiable risk and protective factors for diseases/disorders/injuries
• Studies on assessment of risk, including genetic susceptibility
• Development of methods for screening and identification of markers for those at risk for onset or progression of asymptomatic diseases/disorders, or those at risk for adverse, high-risk behaviors/injuries
• Development and evaluation of interventions to promote health for groups of individuals without recognized signs or symptoms of the target condition
• Translation of proven effective prevention interventions into practice
• Effectiveness studies that examine factors related to the organization, management, financing, and adoption of prevention services and practices
• Methodological and statistical procedures for assessing risk and measuring the effects of preventive interventions.
Responses to this RFI are voluntary and may be submitted anonymously. Please do not include any personally identifiable or other information that you do not wish to make public. Proprietary, classified, confidential, or sensitive information should not be included in responses. Comments submitted will be compiled for discussion and incorporated into the strategic plan as appropriate. Any personal identifiers (personal names, email addresses, etc.) will be removed when responses are compiled.
This RFI is for informational and planning purposes only and is not a solicitation for applications or an obligation on the part of the United States (U.S.) Government to provide support for any ideas identified in response to it. Please note that the U.S. Government will not pay for the preparation of any information submitted or for use of that information.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
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: Office of Management and Budget, Office of Regulatory Affairs,
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Amy Williams, Director of the Office of Advocacy Relations (OAR), NCI, NIH, 31 Center Drive, Bldg. 31, Room 10A28, MSC 2580, Bethesda, MD 20892, call non-toll-free number 240–781–3406, or email your request, including your address, to
This proposed information collection was previously published in the
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 45.
National Institutes of Health, HHS.
Notice.
The National Human Genome Research Institute, an institute of the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in the Patents and Patent Applications listed in the
Only written comments and/or applications for a license which are received by the National Human Genome Research Institute's Technology Transfer Office on or before December 26, 2017 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Eggerton Campbell, Ph.D., Senior Licensing and Patenting Manager, Technology Transfer Office (TTO), National Human Genome Research Institute (NHGRI), National Institutes of Health (NIH), 5635 Fishers Lane, Suite 3058, MSC 9307, Bethesda, MD 20892–9307. Telephone: 301–402–1648. Fax: 301–402–9722. email:
U.S. Provisional Patent Application No.: 60/932,451, [HHS Ref. No.: E–217–2007/0–US–01], Filed May 31, 2007; PCT Patent Application No.: PCT/US2008/006895, [HHS Ref. No.: E–217–2007/0–PCT–02], Filed: May 30, 2008; CA Patent Application 2680842, [HHS Ref. No.: E–217–2007/0–CA–03], Filed: May 30, 2008; EP Patent Application No.: 08767999.9, [HHS Ref. No.: E–217–2007/0–EP–04], Filed: September 14, 2009; IL Patent Application No.: 200872, [HHS Ref. No.: E–217–2007/0–IL–05], Filed: May 30, 2008; JP Patent Application No.: 2010–510363, [HHS Ref. No.: E–217–2007/0–JP–06, Filed: May 30, 2008; U.S. Patent Application No.: 12/530,433, [HHS Ref. No.: E–217–2007/0–US–07], Filed: Sept 8, 2009; U.S. Patent Application No.: 13/791,576, [HHS Ref. No.: E–217–2007/0–US–08], Filed: March 8, 2013; JP Patent Application No.: 2014–208695, [HHS Ref. No.: E–217–2007/0–JP–09], Filed: May 30, 2008; U.S. Patent Application No.: 14/754,304, [HHS Ref. No.: E–217–2007/0–US–10], Filed: June 29, 2015; CA Patent Application No.: 2903133, [HHS Ref. No.: E–217–2007/0–CA–11], Filed: May 30, 2008; IL Patent Application No.: 245026, [HHS Ref. No.: E–217–2007/0–IL–12], Filed: March 8, 2013; JP Patent Application No.: 2016–159061, [HHS Ref. No.: E–217–2007/0–JP–13], Filed: August 15, 2016; EP Patent Application No.: 16196935.7, [HHS Ref. No.: E–217–2007/0–EP–14], Filed: March 8, 2013; U.S. Patent Application No.: 15/702,529, [HHS Ref. No.: E–217–2007/0–US–08], Filed: September 12, 2017; and all continuing applications and foreign counterparts.
The patent rights in these inventions have been assigned and/or exclusively licensed to the government of the United States of America.
The prospective exclusive license territory may be worldwide and the field of use may be limited to the use of Licensed Patent Rights for the following: “Treating GNE Myopathy (also referred to as distal myopathy with rimmed vacuoles (DMRV), Nonaka myopathy, muscular dystrophy hereditary inclusion body myopathy (HIBM) or inclusion body myopathy type 2 (IBM2)) and kidney disorders due to hyposialylation of the glomerulae or sialic acid deficiency including but not limited to minimal change disease glomerulopathy, focal segmental glomerulosclerosis and membranous nephropathy, in humans with oral formulations of N-acetyl mannosamine (ManNAc) or derivative.”
N-Acetyl Mannosamine is a precursor for the synthesis of sugar molecules known as sialic acids which play an important role in specific biological processes such as cellular adhesion, cellular communication and signal transduction. Lack of sialic acids also play an important role in disease processes such as cancer, inflammation and immunity.
This invention relates to methods of administering ManNAc or its derivative (to produce sialic acid in patients who are deficient in the sugar molecule) to treat GNE Myopathy (also referred to as distal myopathy with rimmed vacuoles (DMRV), Nonaka myopathy, muscular dystrophy hereditary inclusion body myopathy (HIBM) or inclusion body myopathy type 2 (IBM2)), and kidney disorders due to hyposialylation of the glomerulae or sialic acid deficiency may be treated by this method as well.
This notice is made in accordance with 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive license will be royalty bearing, and the prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the National Human Genome Research Institute receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
In response to this Notice, the public may file comments or objections. Comments and objections, other than those in the form of a license application, will not be treated confidentially, and may be made publicly available.
License applications submitted in response to this Notice will be presumed to contain business confidential information and any release of information in these license applications will be made only as required and upon a request under the Freedom of Information Act, 5 U.S.C. 552.
U.S. Customs and Border Protection; DHS.
General notice.
This document announces that U.S. Customs and Border Protection (CBP) will be conducting a pilot test program to allow for the electronic payment of certain taxes and fees imposed on commercial vessels prior to or upon a vessel's arrival at four designated ports of entry. The pilot also introduces portable, electronic devices that authorized CBP employees will use to electronically process payments of certain taxes and fees and to send electronic receipts via email. The pilot will not affect the amount of taxes and fees due, the clearance process, or the proof of documentation required to be presented to CBP. This notice describes the pilot, including its purpose, procedures, locations, and how to participate, and invites public comment on any aspect of the pilot.
The pilot will begin no earlier than January 8, 2018 and will continue for 18 months at the designated ports of entry. Comments concerning this notice and all aspects of the pilot may be submitted at any time during the pilot to the address set forth below.
Written comments concerning any aspect of the pilot should be submitted to the CBP Revenue Modernization (“Rev Mod”) Office at
Kathleen Druitt, Rev Mod Program Manager, Office of Finance, U.S. Customs and Border Protection, via email at
U.S. Customs and Border Protection (CBP) collects various maritime taxes and fees with regard to commercial vessels that enter ports of entry, proceed coast-wise, or utilize certain customs services at a port. These maritime taxes and fees include tonnage taxes and light money, Consolidated Omnibus Budget Reconciliation Act (COBRA) user fees, Agriculture Quarantine and Inspection (AQI) user fees, and navigation fees.
CBP regulations require that most customs duties, taxes, fees, interest, and other charges be paid by cash or check.
Pursuant to CBP regulations, maritime taxes and fees are paid at the port to an authorized CBP employee either onboard the vessel or at the port office.
When a cash register is unavailable to process a payment, such as when
In order to process a payment using Form 368 or 1002, the CBP officer must manually calculate the applicable taxes and fees due, manually complete the forms, and collect the cash or check payment. CBP employees must then process the payment by manually entering the payment information into CBP systems. CBP must treat the Form 368 books as cash and must perform multiple processes to ensure their security and accuracy, including taking inventory, auditing completed books, auditing in-use books, accounting for lost books, and investigating any alleged misuse of books. Additionally, a CBP officer who collects payment for an amount over $100 in the form of a government check, personal check, traveler's check, or money order must obtain the approval and signature of the Customs officer in charge in order to accept the payment.
The Mobile Collections & Receipt (MCR) pilot introduces the MCR system, which through its interface with
CBP is working towards the elimination of cash and check payments of maritime taxes and fees by allowing for electronic payments and automating the collection and receipt process. The purpose of the MCR pilot is to modernize the payment and processing of commercial vessel maritime taxes and fees for pilot participants by introducing a new optional electronic payment method, automating the calculation of fees, and introducing electronic receipts.
The pilot will provide benefits to both CBP and to commercial vessel owners and operators. Cash and check collection at the port of entry is a manual, burdensome, and time-consuming process. The automation and online payment option for certain taxes and fees will reduce the time necessary to accept and process a payment, improve processing and clearance times of vessels, and ensure applicable fees are calculated correctly. This will result in cost savings for pilot participants.
Additionally, the pilot will enable CBP to process the collection, accounting, and transmittal of maritime taxes and fees more efficiently. Under the pilot, CBP officers will no longer be required to manually calculate applicable fees, manually complete Forms 368 and 1002, perform the various manual audit and security processes related to the protection of Form 368 books, or manually enter data when payments are made by cash or check. Under the pilot, CBP officers will not be required to obtain the signature of the Customs officer in charge for payments over $100 made with a government check, personal check, traveler's check, or money order. These increased efficiencies will provide CBP officers more time to perform higher priority mission support activities.
Any commercial vessel agent or other entity responsible for payment of commercial vessel taxes and fees at designated ports of entry may participate in the pilot. At this time, only four ports of entry, discussed below, are designated. No application is required to participate. However, in order to receive notification emails from the MCR system, a commercial vessel agent or other party submitting payment must create an MCR profile and maintain a valid email address as part of the profile. For more information and for instructions on how to create an MCR profile, visit
The MCR pilot authorizes entities that are participating in the pilot to pay certain commercial vessel taxes and fees online through the MCR Web site with respect to vessels arriving at designated ports of entry. Additionally, CBP employees will be able to access the MCR system through either a portable, electronic device or a desktop computer to view commercial vessel arrival data, automatically calculate applicable fees, electronically process payments, create electronic versions of Forms 368 and 1002, and send the forms via email.
The MCR system will automatically identify the commercial vessels that are due to arrive within a certain number of days at the designated ports of entry. The MCR system will then determine whether the arrival information submitted to CBP through approved electronic data interchange systems, such as ACE, is sufficient to calculate the applicable maritime taxes and fees due for each commercial vessel. If there is sufficient information, CBP will send a notification email to those carriers or vessel agents that have created a profile with the MCR system. The notification email will state that the applicable maritime taxes and fees have been calculated for a specific commercial vessel and payment can now be made on the MCR Web site. The party responsible for payment will then have the opportunity to log-on to the MCR Web site, review the calculated amount of taxes and fees due, and, through MCR's interface with
Only commercial vessel maritime taxes and fees are eligible for prepayment online through this pilot. The commercial vessel maritime taxes and fees eligible for potential prepayment online through this pilot are: Regular tonnage tax, special tonnage tax, light money, COBRA user fees, including the prepayment of the annual COBRA fee, AQI user fees, and navigation fees. CBP may expand the pilot to include additional taxes and fees. Any expansion of the fees that are eligible for online payment will be announced in the
When a commercial vessel arrives at a designated port of entry, a CBP employee will access the MCR system to determine whether the applicable taxes and fees have been prepaid online for that vessel. If the applicable taxes and fees have not been prepaid online, the vessel agent or other party responsible for payment will have the option to pay all applicable taxes and fees either electronically through the MCR system or at the port of entry with cash or check. If payment is made by cash or check, the CBP officer accepting payment will access the MCR system to review any relevant arrival information, automatically calculate the applicable fees, prepare an electronic version of Form 368 and Form 1002, if applicable, and email an electronic copy of the forms to the vessel operator, owner, or agent. In all situations, CBP officers will have the ability to review, amend, or add data as needed to accurately calculate applicable taxes and fees prior to entering or clearing a vessel.
Throughout the pilot, commercial vessel agents and other entities responsible for payment will continue to be able to pay applicable maritime taxes and fees to an authorized CBP employee by cash or check. CBP will provide electronic versions of Forms 368 and 1002 as a receipt for all payments, regardless of whether payment was made in person by cash or check or paid online. The port office will provide paper copies of Forms 368 and 1002 upon request.
This pilot will not affect the amount of taxes and fees due or the requirement that all applicable fees must be paid prior to the issuance of a clearance certificate. Additionally, vessel operators will continue to be required to present paper copies of Forms 368 and 1002 as proof of payment at subsequent ports and entries.
The pilot will initially operate at the following ports of entry: Los Angeles-Long Beach, California; New Orleans, Louisiana; Gulfport, Mississippi; and, Mobile, Alabama.
The pilot will begin no earlier than January 8, 2018 and will continue for 18 months. If it is determined that the pilot is working successfully at these initial ports, the pilot may be expanded to additional ports of entry, extended for an additional period of time, and/or expanded to include additional maritime fees, taking into consideration any comments that are received. Any expansion or extension of the pilot would be announced in the
CBP will ensure that all Privacy Act requirements and applicable policies are adhered to during the implementation of this pilot.
The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) requires that CBP consider the impact of paperwork and other information collection burdens imposed on the public. An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget. There is no information collection associated with this pilot, so the provisions of the PRA do not apply.
This pilot is being conducted in accordance with 19 CFR 101.9(a), which authorizes the Commissioner to impose requirements different from those specified in the CBP regulations for the purposes of conducting a test program or procedure designed to evaluate the effectiveness of new technology or operational procedures regarding the processing of passengers, vessels, or merchandise. For participants in this pilot, CBP will waive the requirements to pay tonnage tax, light money, COBRA user fees, AQI user fees, and navigation fees by cash or check at the time of arrival or when the applicable service is provided, if the participant has paid all applicable taxes and fees due online prior to the vessel's arrival or prior to the time the vessel is cleared by CBP. The pilot also permits CBP officers to process the payment of checks over $100 without obtaining authorization from the Customs officer in charge.
U.S. Customs and Border Protection, Department of Homeland Security.
Delay of transition of statement processing.
On November 8, 2017, U.S. Customs and Border Protection (CBP) published a notice in the
As of January 6, 2018, ACE will be the sole CBP-authorized EDI system for generating, transmitting, and updating daily and monthly statements, and the Automated Commercial System (ACS) will no longer be a CBP-authorized EDI system for such purpose.
For policy-related questions, contact Randy Mitchell, Commercial Operations, Revenue and Entry, Trade Policy and Programs, Office of Trade, via email at
On November 8, 2017, U.S. Customs and Border Protection (CBP) published a notice in the
This notice announces that beginning January 6, 2018, ACE will become the sole CBP-authorized EDI system for processing daily and monthly statements, and ACS will no longer be a CBP-authorized EDI system for such purpose.
60-Day notice of information collection for review; Form No. I–901; Fee Remittance for Certain F, J and M Non-immigrants; OMB Control No. 1653–0034.
The Department of Homeland Security, U.S. Immigration and Customs Enforcement (USICE), is submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published in the
Written comments and suggestions regarding items contained in this notice and especially with regard to the estimated public burden and associated response time should be directed to the PRA Clearance Officer for USICE and sent via electronic mail to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information 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 agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
The rule, “Adjusting Program Fees and Establishing Procedures for Out-of-Cycle Review and Recertification of Schools Certified by the Student and Exchange Visitor Program to Enroll F and/or M Nonimmigrant Students,” (73 FR 55683; September 26, 2008), authorized a fee to be collected from the F and M nonimmigrants, not to exceed $200, and a fee to be collected from the exchange visitors, not to exceed $180, to support this information collection program. DHS has implemented the Student and Exchange Visitor Information System (SEVIS) to carry out this statutory requirement.
(5)
(6)
Office of the Chief Information Officer, HUD.
Notice.
HUD submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax:202–395–5806, Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond: including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Anna P. Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410; email Anna P. Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
To date, HUD has funded two other studies of the FSS program, but neither can tell us how well families would have done in the absence of the program. A random assignment model is needed because participant self-selection into FSS limits the ability to know whether program features rather than the characteristics of the participating families caused tenant income gains. Random assignment will limit the extent to which selection bias is driving observed results.
The demonstration underway will document the progress of a group of FSS participants from initial enrollment to program completion (or exit). The intent is to gain a deeper understanding of the program and illustrate strategies that assist participants to obtain greater economic independence. While the main objective of FSS is stable, suitable employment, there are many interim outcomes of interest, which include: Getting a first job; getting a higher paying job; self-employment/small business ownership; no longer needing benefits provided under one or more welfare programs; obtaining additional education, whether in the form of a high school diploma, higher education degree, or vocational training; buying a home; buying a car; setting up savings accounts; or accomplishing similar goals that lead to economic independence.
Data for this evaluation are being gathered through a variety of methods
For the monthly web-based time survey, 35 supervisory staff.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including using appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Anna P. Guido, Reports Management Officer, QDAM, Department of Housing
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including using appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice.
We, the U.S. Fish and Wildlife Service, have issued permits to conduct activities with endangered and threatened species under the authority of the Endangered Species Act, as amended (ESA). With some exceptions, the ESA prohibits activities involving
See the contact information in the Permits Issued section.
We have issued permits to conduct activities with endangered and threatened species in response to recovery permit applications that we received under the authority of section 10(a)(1)(A) of the Endangered Species Act of 1973 (16 U.S.C. 1531
The following permits were applied for and issued in Region 1. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 2. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 3. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 4. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 5. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 6. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 7. For more information about any permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 8. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The
We provide this notice under the authority of section 10 of the ESA (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service, are proposing to renew an information collection with revisions.
Interested persons are invited to submit comments on or before January 8, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the Service; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Service enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Service minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
In 2003, the Service issued regulations at 50 CFR 21.43 establishing a depredation order that authorize the take of blackbirds, cowbirds, crows, grackles, and magpies under certain circumstances. In this regulation is a depredation order that authorizes take of blackbirds, cowbirds, grackles, crows, and magpies “when found committing or about to commit depredations upon ornamental or shade trees, agricultural crops, livestock, or wildlife, or when concentrated in such numbers and manner as to constitute a health hazard or other nuisance.”
In 1974, the Service issued a regulation at 50 CFR 21.46 establishing a depredation order that authorizes the take of scrub jays and Steller's jays in Washington and Oregon under certain circumstances. This regulation imposes reporting and recordkeeping requirements. 50 CFR 21.46 authorizes take of scrub jays and Steller's jays “when found committing or about to commit serious depredations to nut crops on the premises owned or occupied by such persons.”
Reporting Requirements (50 CFR 21.43 and 21.46)—All persons or entities acting under depredation orders must provide an annual report (FWS Form 3–202–21–2143, “Annual Report—Depredation Order for Blackbirds, Cowbirds, Grackles, Magpies, and Crows” or FWS Form 3–2500, “Depredation Order for Depredating Jays in Washington and Oregon,” containing the following information:
• Species taken,
• Number of birds taken,
• Months and years in which the birds were taken,
• State(s) and county(ies) in which the birds were taken (reporting required only in the States of Washington and Oregon),
• General purpose for which the birds were taken (such as for protection of agriculture, human health and safety, property, or natural resources), and
• Disposition of non-target species (Released, sent to rehabilitation facilities, etc.).
Recordkeeping Requirements (50 CFR 13.48)—Persons and entities operating under these orders must keep accurate records to complete Forms 3–202–21–2143 and 3–2500. The records must be legibly written or reproducible in English of any taking and maintained for five years after they have ceased the activity authorized by this Order. Persons or entities who reside or are located in the United States and persons or entities conducting commercial activities in the United States who reside or are located outside the United States must maintain records at a location in the United States where the records are available for inspection.
Endangered, Threatened, and Candidate Species Take Report (50 CFR 21.43 and 50 CFR 21.46)—If attempts to trap any species under this order injure a bird of a non-target species that is federally listed as endangered or threatened, or that is a candidate for listing, the bird must delivered to a rehabilitator and must be reported by phone or email to the nearest U.S. Fish and Wildlife Service Field Office or Special Agent. Capture and disposition of all non-target migratory birds must also be reported on the annual report.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before November 18, 2017, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by December 26, 2017.
Comments may be sent via U.S. Postal Service and all other carriers to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 7228, Washington, DC 20240.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before November 18, 2017. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State Historic Preservation Officers:
Additional documentation has been received for the following resources:
Nomination(s) submitted by Federal Preservation Officers:
The State Historic Preservation Officer reviewed the following nominations and responded to the Federal Preservation Officer within 45 days of receipt of the nominations and supports listing the properties in the National Register of Historic Places.
60.13 of 36 CFR part 60.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigation nos. 701–TA–591 and 731–TA–1399 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of common alloy aluminum sheet from China, provided for in subheadings 7606.11.30, 7606.11.60, 7606.12.30, 7606.12.60, 7606.91.30, 7606.91.60, 7606.92.30, and 7606.92.60 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and alleged to be subsidized by the Government of China. The Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by January 16, 2018. The Commission's views must be transmitted to Commerce within five business days thereafter, or by January 23, 2018.
December 1, 2017.
Nathanael N. Comly (202–205–3174), 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 (
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Publication of summary of the Commission's report on the investigation.
The Trade Act of 1974 requires that the United States International Trade Commission (“Commission”) publish in the
December 4, 2017: Transmittal of the Commission's report to the President.
United States International Trade Commission, 500 E Street SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Nathanael Comly (202–205–3174), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. The media should contact Martha Lawless, Office of External Relations (202–205–3497 or
Notice of the institution of the Commission's investigation and of the scheduling of public hearings to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission submitted its report to the President on December 4, 2017. The report included the Commission's injury determination and recommended actions, an explanation of the basis for the injury determination and recommended actions, and a summary of the information obtained in the investigation.
Having made an affirmative injury determination pursuant to section 202(b) of the Trade Act of 1974, the Commission was required to make certain additional findings under the implementing statutes of certain free trade agreements (“FTAs”) or under statutory provisions related to certain preferential trade programs. Under section 311(a) of the NAFTA Implementation Act (19 U.S.C. 3371(a)), the Commission found that imports of LRWs from neither Canada nor Mexico account for a substantial share of total imports or contribute importantly to the serious injury caused by imports. The Commission also found that imports of LRWs from Australia, CAFTA DR countries, Colombia, Jordan, Korea, Panama, Peru, and Singapore, individually, are not a substantial cause of serious injury or threat thereof, under the relevant FTA implementing legislation.
The Commissioners recommend that the President impose a tariff-rate quota (TRQ) on imports of large residential washers for a duration of three years. For U.S. imports of large residential washers that exceed 1.2 million units, the Commissioners recommend a tariff rate of 50 percent
The Commissioners also unanimously recommend that the President impose a separate TRQ on imports of covered parts of large residential washers for a duration of three years. For U.S. imports of covered parts that exceed 50,000 units, they recommend a tariff rate of 50 percent
Having made negative findings with respect to imports from Canada and Mexico under section 311(a) of the North American Free Trade Agreement Implementation Act, the Commissioners recommend that imports from Canada and Mexico be excluded from the above TRQs and increased rates of duty. The Commissioners also recommend that the above TRQs and increased rates of duty not apply to imports from Australia, Colombia, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Jordan, Korea, Nicaragua, Panama, Peru, and Singapore, or to imports from the beneficiary countries under the Caribbean Basin Economic Recovery Act.
By order of the Commission.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.33(a) on or before February 6, 2018.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DRW, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Assistant Administrator of the DEA Diversion Control Division (“Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.33(a), this is notice that on September 19, 2017, Janssen Pharmaceutical, Inc., Buildings 1–5 & 7–14, 1440 Olympic Drive, Athens, Georgia 30601 applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture the above-listed controlled substances in bulk for distribution to its customers.
Office of the Federal Register.
Notice of special procedures.
In the event of an appropriations lapse, the Office of the Federal Register (OFR) would be required to publish documents directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property. Since it would be impracticable for the OFR to make case-by-case determinations as to whether certain documents are directly related to activities that qualify for an exemption under the Antideficiency Act, the OFR will place responsibility on agencies submitting documents to certify that their documents relate to emergency activities authorized under the Act.
Amy Bunk, Director of Legal Affairs and Policy, or Miriam Vincent, Staff Attorney, Office of the Federal Register, National Archives and Records Administration, (202) 741–6030 or
Due to the possibility of a lapse in appropriations and in accordance with the provisions of the Antideficiency Act, as amended by Public Law 101–508, 104 Stat. 1388 (31 U.S.C. 1341), the Office of the Federal Register (OFR) announces special procedures for agencies submitting documents for publication in the
In the event of an appropriations lapse, the OFR would be required to publish documents directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property. Since it would be impracticable for the OFR to make case-by-case determinations as to whether certain documents are directly related to activities that qualify for an exemption under the Antideficiency Act, the OFR will place responsibility on agencies submitting documents to certify that their documents relate to emergency activities authorized under the Act.
During a funding hiatus affecting one or more Federal agencies, the OFR will remain open to accept and process documents authorized to be published in the daily
Under the August 16, 1995 opinion of the Office of Legal Counsel of the Department of Justice, exempt functions and services would include activities such as those related to the constitutional duties of the President, food and drug inspection, air traffic control, responses to natural or manmade disasters, law enforcement and supervision of financial markets. Documents related to normal or routine activities of Federal agencies, even if funded under prior year appropriations, will not be published.
At the onset of a funding hiatus, the OFR may suspend the regular three-day publication schedule to permit a limited number of exempt personnel to process emergency documents. Agency officials will be informed as to the schedule for filing and publishing individual documents.
The authority for this action is 44 U.S.C. 1502 and 1 CFR 2.4 and 5.1.
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment Nos. 94 and 93 to Combined Licenses (COL), NPF–91 and NPF–92, respectively. The COLs were issued to Southern Nuclear Operating Company, Inc., and Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC, MEAG Power SPVJ, LLC, MEAG Power SPVP, LLC, Authority of Georgia, and the City of Dalton, Georgia (the licensee); for construction and operation of the Vogtle Electric Generating Plant (VEGP) Units 3 and 4, located in Burke County, Georgia.
The granting of the exemption allows the changes to Tier 1 information asked for in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
The exemption and amendment were issued on November 1, 2017.
Please refer to Docket ID NRC–2008–0252 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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Chandu Patel, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone:
The NRC is granting an exemption from paragraph B of section III, “Scope and Contents,” of appendix D, “Design Certification Rule for the AP1000,” to part 52 of title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in §§ 50.12, 52.7, and section VIII.A.4 of appendix D to 10 CFR part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML17244A247.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VEGP Units 3 and 4 (COLs NPF–91 and NPF–92). The exemption documents for VEGP Units 3 and 4 can be found in ADAMS under Accession Nos. ML17244A244 and ML17244A246, respectively. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF–91 and NPF–92 are available in ADAMS under Accession Nos. ML17244A237 and ML17244A239, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to VEGP Units 3 and Unit 4. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated April 6, 2017, as supplemented by letter dated August 18, 2017, the licensee requested from the Commission an exemption to allow departures from Tier 1 information in the certified DCD incorporated by reference in 10 CFR part 52, appendix D, as part of license amendment request 17–011, “Clarification of Protection and Safety Monitoring System (PMS) Interdivisional Cables in Auxiliary Building Fire Areas.”
For the reasons set forth in Section 3.1 of the NRC staff's Safety Evaluation, which can be found in ADAMS under Accession No. ML17244A247, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption from the certified DCD Tier 1 information, with corresponding changes to appendix C of the Facility Combined License as described in the licensee's request dated April 6, 2017, as supplemented by letter dated August 18, 2017. This exemption is related to, and necessary for the granting of License Amendment No. 94 (Unit 3) and 93 (Unit 4), which is being issued concurrently with this exemption.
3. As explained in Section 5.0 of the NRC staff's Safety Evaluation (ADAMS Accession No. ML17244A247), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of the date of its issuance.
By letter dated April 6, 2017 (ADAMS Accession No. ML17096A765), as supplemented by letter dated August 18, 2017 (ADAMS Accession No. ML17230A359), the licensee requested that the NRC amend the COLs for VEGP, Units 3 and 4, COLs NPF–91 and NPF–92. The proposed amendment is described in Section I of this
The Commission has determined for 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 COL, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
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.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on April 6, 2017, as supplemented by letter dated August 18, 2017.
The exemption and amendment were issued on November 1, 2017, as part of a combined package to the licensee (ADAMS Accession No. ML17244A236).
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, “Nuclear Regulatory Commission Acquisition Regulation (NRCAR).”
Submit comments by January 8, 2018.
Submit comments directly to the OMB reviewer at: Brandon F. DeBruhl, Desk Officer, Office of Information and Regulatory Affairs (3150–0169), NEOB–10202, Office of Management and Budget, Washington, DC 20503; telephone: 202–395–0710, 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–2016–0265 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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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, “Nuclear Regulatory Commission Acquisition Regulation (NRCAR).” 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.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section
Cboe Vest Financial, LLC (the “Initial Adviser”), a Delaware limited liability company registered as an investment adviser under the Investment Advisers Act of 1940, ETF Series Solutions (the “Trust”), a Delaware statutory trust registered under the Act as an open-end management investment company with multiple series, and Quasar Distributors, LLC (the “Distributor”), a Delaware limited liability company and broker-dealer registered under the Securities Exchange Act of 1934 (“Exchange Act”).
The application was filed on July 12, 2017 and amended on November 2, 2017.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on December 29, 2017 and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0–5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: the Initial Adviser, 1765 Greensboro Station Place, Suite 900 McLean, Virginia 06107; the Trust, 615 East Michigan Street, 4th Floor, Milwaukee, Wisconsin 53202; the Distributor, LLC, 777 East Wisconsin Avenue, 6th Floor, Milwaukee, Wisconsin 53202.
Benjamin Kalish, Attorney-Advisor, at (202) 551–7361, or Parisa Haghshenas, Branch Chief, at (202) 551–6723 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Applicants request an order that would allow Funds to operate as index exchange traded funds (“ETFs”).
2. Each Fund will hold investment positions selected to correspond closely to the performance of an underlying index. In the case of self-indexing Funds, an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of the Trust or a Fund, of an Adviser, of any sub-adviser to or promoter of a Fund, or of the Distributor will compile, create, sponsor or maintain the underlying index.
3. Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified in the application, purchasers will be required to purchase Creation Units by depositing specified instruments (“Deposit Instruments”), and shareholders redeeming their shares will receive specified instruments (“Redemption Instruments”). The Deposit Instruments and the Redemption Instruments will each correspond pro rata to the positions in the Fund's portfolio (including cash positions) except as specified in the application.
4. Because shares will not be individually redeemable, applicants request an exemption from section 5(a)(1) and section 2(a)(32) of the Act that would permit the Funds to register as open-end management investment companies and issue shares that are redeemable in Creation Units only.
5. Applicants also request an exemption from section 22(d) of the Act and rule 22c–1 under the Act as secondary market trading in shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Applicants state that (a) secondary market trading in shares does not involve a Fund as a party and will not result in dilution of an investment in shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants represent that share market prices will be disciplined by arbitrage opportunities, which should prevent shares from trading at a material discount or premium from NAV.
6. With respect to Funds that effect creations and redemptions of Creation Units in kind and that are based on certain Underlying Indexes that include foreign securities, applicants request relief from the requirement imposed by section 22(e) in order to allow such
7. Applicants request an exemption to permit Funds of Funds to acquire Fund shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any broker or dealer registered under the Exchange Act, to sell shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. The application's terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over a Fund through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A) and (B) of the Act.
8. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act to permit persons that are Affiliated Persons, or Second-Tier Affiliates, of the Funds, solely by virtue of certain ownership interests, to effectuate purchases and redemptions in-kind. The deposit procedures for in-kind purchases of Creation Units and the redemption procedures for in-kind redemptions of Creation Units will be the same for all purchases and redemptions and Deposit Instruments and Redemption Instruments will be valued in the same manner as those investment positions currently held by the Funds. Applicants also seek relief from the prohibitions on affiliated transactions in section 17(a) to permit a Fund to sell its shares to and redeem its shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
9. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
On August 17, 2017, New York Stock Exchange LLC (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
Currently, the Exchange's rules for the public release of material information, set forth in Section 202.06 (Procedure for Public Release of Information; Trading Halts) of the Manual, contains an advisory that requests that listed companies that intend to issue material news after the close of trading on the Exchange delay such issuance until the earlier of publication of such company's official closing price or fifteen minutes after the close of trading in order to facilitate an orderly closing auction process. Continuous trading on the Exchange ends at the Exchange's official closing time of 4:00 p.m. Eastern Time,
In its proposal, the Exchange stated that because there is trading after 4:00 p.m. Eastern Time on other exchange and non-exchange venues (“away markets”), if a listed company issues material news immediately after 4:00 p.m., but before the closing auction on the Exchange is completed, there can be a significant price difference in nearly contemporaneous trades on away markets and the official closing price on the Exchange.
The Exchange has therefore proposed to amend Section 202.06 of the Manual to prohibit listed companies from issuing material news after the official closing time for the Exchange's trading session until the earlier of publication of such company's official closing price on the Exchange or five minutes after the Exchange's official closing time, except when publicly disclosing material information following a non-intentional disclosure in order to comply with Regulation FD under the Act. The Exchange has also proposed to retain the existing advisory text in Section 202.06 of the Manual. Finally, the Exchange proposed to modify its description of the Exchange's trading hours to specify the official closing time is typically 4:00 p.m. Eastern Time, except for certain days on which the official closing time occurs early at 1:00 p.m. Eastern Time.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that the proposed amendment is reasonably designed to promote just and equitable principles of trade by ensuring that participants in the closing auction on the Exchange do not have their trades executed at a price that is different from essentially contemporaneous trades being executed on away markets. As is noted above, the price on such away markets can reflect material news that was released after the Exchange's official closing time but before the DMM is able to complete the closing auction. Such an occurance can increase the risk of market disruption and reduce investor confidence in trading on the Exchange given that once the official closing time occurs on the Exchange, orders cannot be cancelled or modified (including orders designated for the closing price) to take into account the material news even though the Exchange closing price may not yet have been established by the closing auction process.
According to Section 202.05 (Timely Disclosure of Material News Developments) of the Manual, a listed company is expected to release quickly to the public any news or information which might reasonably be expected to materially affect the market for its securities.
The Commission further notes that the commenter supported the goals of the proposal stating that they agreed with the Exchange that, in order to prevent investor confusion, the closing price for NYSE listed companies must be consistent with the contemporanious trading prices on other markets and a brief “coolling off” period was warranted to enable the DMM to complete the closing auction process.
The amended proposed rule language, moreover, makes clear that, despite the
Accordingly, for the reasons discussed above, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the Exchange Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether this filing, as modified by whether Amendment No. 1, is consistent with the Exchange 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.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Exchange Act, to approve the proposed rule change, as modified by Amendment No. 1, prior to the 30th day after the date of publication of Amendment No. 1 in the
Accordingly, the Commission finds good cause for approving the proposed rule change, as modified by Amendment No. 1, on an accelerated basis, pursuant to Section 19(b)(2) of the Exchange Act.
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 principal purpose of the proposed changes is to make clarifying revisions to the ICC Stress Testing Framework and the ICC Liquidity Stress Testing Framework.
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 Stress Testing Framework and Liquidity Risk Management Framework. Specifically, ICC proposes clarifying changes to document current aspects of its stress testing and liquidity stress testing practices. The proposed changes are described in detail as follows.
ICC proposes changes to its Stress Testing Framework to provide further clarity regarding its calculation of the Foreign Exchange (“FX”) shock percentages utilized in ICC's stress testing practices. Specifically, ICC proposes adding language noting that ICC calculates a FX shock percentage for each considered risk horizon.
ICC proposes changes to its Liquidity Risk Management Framework to provide further clarify regarding the applicability of FX adverse stress scenarios to its predefined liquidity stress tests. Specifically, ICC proposes adding language noting that adverse stress scenarios are applied to the Historically Observed Extreme but Plausible scenarios and Hypothetically Constructed Extreme but Plausible scenarios. ICC also added a description of its FX shock percentage calculation to the ICC Liquidity Risk Management Framework.
Section 17(A)(b)(3)(F) of the Act
ICC does not believe the proposed rule change would have any impact, or impose any burden, on competition. ICC is adding clarifying details regarding its current stress testing and liquidity stress testing practices and not making any substantive changes to its overall stress testing and liquidity stress testing practices. Therefore, ICC does not believe the changes impose any burden on competition that is inappropriate in furtherance of the purposes of the Act.
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.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
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. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–ICC–2017–014 and should be submitted on or before December 29, 2017.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Exchange rules to delete cash equities rules that are not applicable to trading on the Pillar trading platform. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its equity rules to delete rules that are not applicable to trading on the Pillar trading platform.
To effect its transition of cash equities trading to Pillar, the Exchange adopted Pillar platform Rules 1E–13E. Because specified Exchange rules that govern trading cash equities on a Floor-based trading platform are not applicable to trading on Pillar, the Exchange designated specified rules governing cash equities trading with the following preamble: “this rule is not applicable to trading on the Pillar trading platform.”
On July 24, 2017, the Exchange transitioned all cash equities trading to the Pillar platform. Because the cash equities rules that are not applicable to trading on the Pillar trading platform are now obsolete, the Exchange proposes to delete the following rules in their entirety:
• Rule 1—Equities (“The Exchange and Related Entities”).
• Rule 3—Equities (“Security”).
• Rule 4—Equities (“Stock”).
• Rule 5—Equities (“Bond”).
• Rule 6—Equities (Floor).
• Rule 6A—Equities (Trading Floor).
• Rule 7—Equities (Exchange BBO).
• Rule 11—Equities (Effect of Definitions).
• Rule 12—Equities (“Business Day”).
• Rule 13—Equities (Orders and Modifiers).
• Rule 14—Equities (Non-Regular Way Settlement Instructions for Orders).
• Rule 15—Equities (Pre-Opening Indications and Opening Order Imbalance Information).
• Rule 15A—Equities (Order Protection Rule).
• Rule 17—Equities (Use of Exchange Facilities and Vendor Services).
• Rule 18—Equities (Compensation in Relation to Exchange System Failure).
• Rule 19—Equities (Locking or Crossing Protected Quotations in NMS Stocks).
• Rule 23—Equities (New York local time).
• Rule 24—Equities (Change in Procedure to Conform to Changes[sic] Hours of Trading).
• Rule 25—Equities (Exchange Liability for Legal Costs).
• Rule 27—Equities (Regulatory Cooperation).
• Rule 28—Equities (Fingerprint-Based Background Checks of Exchange Employees and Others).
• Rule 35—Equities (Floor Employees to be Registered).
• Rule 36—Equities (Communications Between Exchange and Members' Offices).
• Rule 37—Equities (Visitors).
• Rule 46—Equities (Floor Officials—Appointments).
• Rule 46A—Equities (Executive Floor Governors).
• Rule 47—Equities (Floor Officials—Unusual Situations).
• Rule 49—Equities (Exchange Business Continuity and Disaster Recovery Plans and Mandatory Testing).
• Rule 51—Equities (Hours for Business).
• Rule 52—Equities (Dealings on the Exchange—Hours).
• Rule 53—Equities (Dealings on Floor—Securities).
• Rule 54—Equities (Dealings on Floor—Persons).
• Rule 55—Equities (Unit of Trading—Stocks and Bonds).
• Rule 60—Equities (Dissemination of Quotations).
• Rule 61—Equities (Recognized Quotations).
• Rule 62—Equities (Variations).
• Rule 67—Equities (Tick Size Pilot Plan).
• Rule 70—Equities (Execution of Floor broker interest).
• Rule 71—Equities (Precedence of Highest Bid and Lowest Offer).
• Rule 72—Equities (Priority of Bids and Offers and Allocation of Executions).
• Rule 73—Equities (Seller's Option).
• Rule 74—Equities (Publicity of Bids and Offers).
• Rule 75—Equities (Disputes as to Bids and Offers).
• Rule 76—Equities (“Crossing” Orders).
• Rule 77—Equities (Prohibited Dealings and Activities).
• Rule 78—Equities (Sell and Buy Orders Coupled at Same Price).
• Rule 79A—Equities (Miscellaneous Requirements on Stock Market Procedures).
• Rule 80B—Equities (Trading Halts Due to Extraordinary Market Volatility).
• Rule 80C—Equities (Limit Up—Limit Down Plan and Trading Pauses in
• Rule 90—Equities (Dealings by Members on the Exchange).
• Rule 91—Equities (Taking or Supplying Securities Named in Order).
• Rule 93—Equities (Trading for Joint Account).
• Rule 94—Equities (Designated Market Makers' or Odd-Lot Dealers' Interest in Joint Accounts).
• Rule 95—Equities (Discretionary Transactions).
• Rule 96—Equities (Limitation on Members' Trading Because of Options).
• Rule 98—Equities (Operation of a DMM Unit).
• Rule 98A—Equities (Restrictions on Persons or Parties Affiliated with a DMM Unit).
• Rule 103—Equities (Registration and Capital Requirements of DMMs and DMM Units).
• Rule 103A—Equities (Member Education).
• Rule 103B—Equities (Security Allocation and Reallocation).
• Rule 104—Equities (Dealings and Responsibilities of DMMs).
• Rule 104A—Equities (DMMs—General).
• Rule 104B—Equities (DMM Commisions[sic]).
• Rule 105—Equities (DMMs' Interest in Pools).
• Rule 106A—Equities (Taking Book or Order of Another Member).
• Rule 107B—Equities (Supplemental Liquidity Providers).
• Rule 107C—Equities (Retail Liquidity Program).
• Rule 108—Equities (Limitation on Members' Bids and Offers).
• Rule 112—Equities (Orders Initiated “Off the Floor”).
• Rule 113—Equities (DMM Unit's Public Customers).
• Rule 115A—Equities (Orders at Opening).
• Rule 116—Equities (“Stop” Constitutes Guarantee).
• Rule 117—Equities (Orders of Members To Be in Writing).
• Rule 119—Equities (Change in Basis from “And Interest” to “Flat”).
• Rule 121—Equities (Records of DMM Units).
• Rule 122—Equities (Orders with More than One Broker).
• Rule 123—Equities (Record of Orders).
• Rule 123A—Equities (Miscellaneous Requirements).
• Rule 123B—Equities (Exchange Automated Order Routing System).
• Rule 123C—Equities (The Closing Procedures).
• Rule 123D—Equities (Openings and Halts in Trading).
• Rule 123E—Equities (DMM Combination Review Policy).
• Rule 126—Equities (Odd-Lot Dealers General).
• Rule 127—Equities (Block Crosses Outside the Prevailing Exchange Quotation).
• Rule 128—Equities (Clearly Erroneous Executions for Equities).
• Rule 128A—Equities (Publication of Transactions).
• Rule 128B—Equities (Publication of Changes, Corrections, Cancellations or Omissions and Verifications of Transactions).
• Rule 130—Equities (Overnight Comparison of Exchange Transactions).
• Rule 131—Equities (Comparison—Requirements for Reporting Trades and Providing Facilities).
• Rule 131A—Equities (A Member Organization Shall Use Its Own Mnemonic When Entering Orders).
• Rule 132—Equities (Comparison and Settlement of Transactions Through a Fully-Interfaced or Qualified Clearing Agency).
• Rule 133—Equities (Comparison—Non-cleared Transactions).
• Rule 134—Equities (Differences and Omissions-Cleared Transactions (“QTs”)).
• Rule 135—Equities (Differences and Omissions—Non-cleared Transactions (“DKs”)).
• Rule 136—Equities (Comparison—Transactions Excluded from Clearance).
• Rule 235—Equities (Ex-Dividend, Ex-Rights).
• Rule 300—Equities (Trading Licenses).
• Rule 301—Equities (Qualifications for Membership).
• Rule 303—Equities (Limitation on Access to Floor).
• Rule 304A—Equities (Member Examination Requirements).
• Rule 345—Equities (Employees- Registration, Approval, Records).
• Rule 345A—Equities (Continuing Education for Registered Persons).
• Rule 388—Equities (Prohibition Against Fixed Rates of Commission).
• Rule 411—Equities (Erroneous Reports).
• Rule 440—Equities (Books and Records).
• Rule 440B—Equities (Short Sales).
• Rule 440H—Equities (Activity Assessment Fees).
• Rule 440I—Equities (Records of Compensation Arrangements—Floor Brokerage).
• Rule 460—Equities (DMMs Participating in Contests).
• Rules 500—Equities—525—Equities (rules governing UTP trading)
• Rule 600—Equities (Arbitration).
• Rules 900—Equities –907 Equities (Off-Hours Trading Facility Rules)
• Rule 1000—Equities (Capital Commitment Schedule).
• Rule 1001—Equities (Execution of Automatically Executing Orders).
• Rule 1002—Equities (Availability of Automatic Execution Feature).
• Rule 1004—Equities (Election of Buy Minus and Sell Plus).
The Exchange also proposes to delete Rule 424—Equities. The Exchange believes that Rule 6.10E, regarding ETP Holders Holding Options, addresses the same topic, and therefore Rule 424—Equities is no longer necessary for trading on the Pillar trading platform.
The Exchange also proposes to delete Equities rules that are currently designated as “Reserved.”
The Exchange also proposes a technical, non-substantive amendment to replace the term “Non-routable Limit Order” with the term “Non-Routable Limit Order” in Rules 7.31E(d)(1)(C), 7.31E(e)(1), 7.31E(j)(1), and 7.46E(f)(5)(F)(ii) and (iii). The Exchange believes that capitalizing the term “Routable” is more consistent with the naming methodology of other Exchange order types, such as the “Non-Displayed Limit Order,” as defined in Rule 7.31E(d)(1).
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that its proposed rule change to eliminate rules that are not applicable to trading on Pillar would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would eliminate rules that are now obsolete or that do not have any substantive content. Eliminating obsolete rules would reduce potential confusion and add transparency and clarity to the Exchange's rules, thereby ensuring that members, regulators, and the public can more easily navigate and understand the Exchange's rulebook.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address any competitive issues, but rather it is designed to eliminate obsolete rules.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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”),
Pursuant to the provisions of Section 19(b)(1) under the Securities Exchange Act of 1934 (“Act”),
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 statement [sic] 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.
On June 17, 2016, the Commission granted IEX's application for registration as a national securities exchange under Section 6 of the Act including approval of rules applicable to the qualification, listing and delisting of companies on the Exchange.
Each company that would list common stock or voting preferred stock, and their equivalents, on IEX must hold an annual meeting of shareholders no later than one year after the end of the company's fiscal year and solicit proxies for that meeting.
IEX notes that the only other rule where a company would be subject to immediate suspension and delisting, besides when it fails to solicit proxies and hold an annual meeting, would be when Staff makes a determination pursuant to the Rule Series 14.100 that the company's continued listing raises a public interest concern. Such a determination would generally be made only following discussion and review of the facts and circumstances with the company. For all other deficiencies under Chapters 14 and 16 of the IEX rules, a listed company is provided with either a fixed compliance period within which to regain compliance,
There are a variety of reasons a company may fail to timely hold an annual meeting. In many of these cases, the circumstances that precipitated the delay may arise just before a planned meeting. These can include, for example, situations where a company was required to adjourn and reschedule its annual meeting to allow its shareholders more time to review proxy materials in connection with a shareholder proxy contest. In other cases, a company could be unable to hold an annual meeting because it was delinquent in filing periodic reports and therefore could not include the required financial information in its proxy statement. In that case, under current listing rules, the company could receive an extension of time to regain compliance with the filing requirement. However, if during any such compliance period the company fails to hold an annual meeting of shareholders, Staff would be required to issue a delist determination at that time for both the filing delinquency and the annual meeting deficiency, even if the compliance period for the filing delinquency had not expired.
For these reasons, IEX is proposing to amend Rules 14.501(a)(4), 14.501(d), and 14.502(b) to afford those companies and limited partnerships that fail to hold an annual meeting in accordance with the listing rules an opportunity to submit a plan of compliance for Staff's review.
Additionally, proposed Rule 14.502(b)(1)(F) provides that the Listings Review Committee may grant an exception for a period not to exceed 360 days from the deadline to hold the annual meeting (one year after the end of the Company's fiscal year).
A non-compliant company would have to publicly disclose, under both Commission and IEX rules, that it had
IEX is also proposing to modify Rule 14.501(a)(4) to make clear that a Public Reprimand Letter
In addition, IEX is proposing conforming amendments to Rules 14.501(d)(2)(A)(iii) and 14.501(d)(2)(B) to reflect that listed companies that are deficient with respect to the standards requiring annual meetings of shareholders or partner meetings of limited partners, pursuant to Rules 14.408(a) and 14.407(a)(4)(D) respectively, are included in the deficiencies for which a listed company may submit a Plan of Compliance for Staff review.
Finally, IEX is proposing to correct three nonsubstantive typographical errors in Rules 14.502(b) and 14.504 which incorrectly refer to the Listing Review Committee rather than the Listings Review Committee.
The Exchange does not propose to charge any fees in connection with the proposed rule change.
IEX believes that the proposed rule change is consistent with Section 6(b)
Specifically, the proposed changes are consistent with these requirements because they would provide a more efficient process to address annual meeting deficiencies by permitting staff to grant additional time to a company to comply with the annual meeting requirement in limited situations after Staff review of a compliance plan. The proposed changes, are consistent with the time frames available to Nasdaq companies that fail to hold an annual meeting, as well as the time frames available to IEX listed companies that become noncompliant with other continued listing standards, as described in the Purpose section. Furthermore, as is the case under the current rule, a company notified that it is deficient in the annual meeting requirement is required to publicly disclose such notice and the rules basis for it. IEX will also separately publicly disclose a list of noncompliant companies and the listing standards with which they do not comply. Accordingly, the Exchange believes that the proposed rule would protect investors and the public interest.
As described in the Purpose section, there are various reasons why a company may not be able to hold an annual meeting and for which immediate delisting is an inappropriate outcome under the circumstances. In lieu of the current requirement, which would require that Staff send an immediate Delisting Determination in such circumstances, the proposal vests Staff with discretion to determine whether the reason for the deficiency and the plan to regain compliance merit an extension. The listing rules allow Staff such discretion for other deficiencies, and the only case where Staff would be required to send an immediate Delisting Determination is where Staff concludes, after review of the facts and circumstances, that continued listing is contrary to the public interest. IEX believes that it is consistent with the Act to provide Staff with discretion to grant an extension for an annual meeting deficiency based on a plan of compliance, consistent with the process that would be applicable for the majority of deficiencies under existing IEX listing rules. Accordingly, the Exchange believes that the proposal promotes the requirements of the Act by providing Staff with such limited discretion while maintaining Staff authority to initiate delisting of a company when warranted.
The Exchange also notes that the proposed rule change is substantially identical to existing Nasdaq rules that were approved by the Commission, with differences only to account for the IEX streamlined delisting appeal structure (compared to the multiple levels of appeal provided for in Nasdaq rules) and terminology.
In its approval of the Nasdaq rule filing adopting comparable rules, the Commission stresses that “[t]he development and enforcement of meaningful corporate governance listing standards for a national securities exchange is of substantial importance to financial markets and the investing public” as well as the critical importance of annual meetings of shareholders to allow shareholders the ability to exercise their rights to participate in corporate governance matters. The Commission also emphasized that under the Nasdaq proposal, “Staff retains discretion not to grant an exception from the continued listing requirements to a company that has failed to hold its annual meeting on time” and that “[t]he Commission expects Staff to exercise this discretion carefully and discerningly. . . and based on the specified rule factors.”
The Exchange believes that the same factors and analysis that led to the Commission's approval of the comparable Nasdaq rule change are applicable to IEX's proposed rule change. Consequently, the Exchange does not believe that the proposed rule change raises any new or novel issues.
The Exchange also believes that it is consistent with the protection of investors and the public interest to make clear in IEX rules that a Public Reprimand Letter does not apply to deficiencies from the obligation to file periodic financial reports or the requirement to hold an annual meeting
Finally, the Exchange believes that it is consistent with the protection of investors and the public interest to correct the three nonsubstantive typographical errors in Rules 14.502(b) and 14.504 to avoid any confusion among potential listed companies.
IEX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to promote consistent and fair regulation, rather than for any competitive purpose. Moreover, as a new listing exchange, IEX has extremely limited ability to impose any burden on competition.
Written comments were neither solicited nor received.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to add additional detail about the purposes for which the Exchange uses securities information processor data pursuant to Rule 4759, and to make other technical corrections to that rule.
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 purpose of the proposed rule change is to add additional detail about the purposes for which the Exchange uses securities information processor (“SIP”) data pursuant to Rule 4759, and to make other technical corrections to that rule. Rule 4759 lists the proprietary and network processor feeds that are utilized for the handling, routing, and execution of orders, as well as for the regulatory compliance processes related to those functions. The BX trading system utilizes proprietary market data as the Primary Source of quotation data for the following markets that provide a reliable direct feed: NYSE American, Nasdaq BX, CBOE EDGA, CBOE EDGX, CHX, NYSE, NYSE Arca, Nasdaq, Nasdaq PSX, CBOE BYX, and CBOE BZX.
Generally, Rule 4759 provides that the Primary Source of data is used for the handling, routing, and execution of orders, as well as for the regulatory compliance processes related to those functions, unless it is delayed by a configurable amount compared to the Secondary Source of data. While this is true for quotation data used by the trading system for the handling, routing, and execution of orders, and also regulatory compliance processes related to those functions, including, for example, determination of trade-throughs under Rule 611 of Regulation NMS, the Exchange uses SIP data for certain trade and administrative messages. For example, the Exchange uses SIP data for limit-up limit-down price bands, market-wide circuit breaker decline and status messages, Regulation SHO state messages, trading state messages (
The Exchange therefore proposes to amend Rule 4759 to provide that the BX System consumes
Finally, the Exchange proposes to make additional technical amendments to Rule 4759. Specifically, several of the exchanges and direct market data feeds described in the rule have been renamed since the Exchange adopted the rule. The Exchange therefore propose to: (1) Rename the exchanges described in the rule so that the exchanges are identified by their new names,
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change removes impediments to and perfects the mechanism of a free and open market and protects investors and the public interest because it provides additional transparency around the purposes for which the Exchange uses SIP data. The proposed rule change does not change the operation of the Exchange or its use of data feeds; rather it clarifies the Exchange's rules with regard to information consumed from the SIP. Specifically, the proposed rule change indicates that the Exchange uses SIP data for certain administrative messages, including, limit-up limit-down price bands, market-wide circuit breaker decline and status messages, Regulation SHO state messages, and trading state messages (
The Exchange believes that it is appropriate to use SIP data as the primary source for administrative
The proposed rule change also makes certain technical amendments to Rule 4759, including updating the names of exchanges that have been renamed since the adoption of this rule. The Exchange believes that it is consistent with the public interest and the protection of investors to update the names of the exchanges listed in Rule 4759 as this change will make it easier for market participants to identify the exchanges for which the Exchange uses the direct feed and/or SIP for the purposes described in the rule. Furthermore, the proposed rule change replaces the names of the direct feeds with a generic notation that the “Direct Feed” is used. The Exchange believes that this change is consistent with the protection of investors and the public interest as the exchanges may change the names of their data feeds periodically, resulting in the list being out of date. Rather than update the list every time a market changes the names of their [sic] proprietary market data products, the Exchange believes that it is preferable to simply explain that the direct feed is used. Several other exchanges also similarly note that the direct feed is used rather than spelling out the names of each feed.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issue but rather would provide members and other market participants with information about the purposes for which the Exchange uses SIP data, and make other technical corrections to Rule 4759. No changes to the Exchange's trading or other systems are being introduced with the proposed rule change, and the Exchange believes that the proposed changes will increase transparency around the operation of the Exchange and its use of market data feeds without any significant impact on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under 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.
BNSF Railway Company (BNSF) has filed a verified notice of exemption under 49 CFR pt. 1152 subpart F–
BNSF has certified that: (1) No local or overhead freight rail traffic has traveled over the Line since July 2015; (2) no formal complaint filed by a user of a rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is either pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (3) the requirements at 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on January 9, 2018, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to Karl Morell, Karl Morell & Associates, 440 1st Street NW., Suite 440, Washington, DC 20001.
If the verified notice contains false or misleading information, the exemption is void ab initio.
BNSF has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by December 15, 2017. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423–0001) or by calling OEA at (202) 245–0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877–8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), BNSF shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line.
If consummation has not been effected by BNSF's filing of a notice of consummation by December 7, 2018, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice of agency action and request for comment.
On August 16, 2017, the Office of Management and Budget approved the collection of calendar year (CY) 2017 Underground Natural Gas Storage (UNGS) Facility Annual Reports. This notice includes a PHMSA
PHMSA invites interested persons to comment on the underground natural gas storage facility data collection described in this notice by January 8, 2018.
Comments should reference Docket No. PHMSA–2017–0129. Comments may be submitted in the following ways:
•
•
•
Comments will be posted without changes or edits to
Anyone may search the electronic form of all comments received for any of our dockets. You may review the DOT's complete Privacy Act Statement in the
Crystal Stewart by telephone at 202–366–1524, by fax at 202–366–4566, by email at
The Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) (Pub. L. 99–272, sec. 7005), codified at 49 U.S.C. 60301, authorizes the assessment and collection of user fees to fund the pipeline safety activities conducted under Chapter 601 of Title 49. COBRA requires that the Secretary of Transportation establish a schedule of fees for pipeline usage, bearing a reasonable relationship to miles of pipeline, volume-miles, revenues, or an appropriate combination thereof. In particular, the Secretary must take into account the allocation of departmental resources in establishing the schedule.
On June 22, 2016, President Obama signed into law the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (Pub. L. 114–183) (PIPES Act of 2016). Section 12 of the PIPES Act of 2016 mandates PHMSA to issue regulations for underground natural gas storage facilities, impose user fees on operators of these facilities, and prescribe procedures to collect those fees. Section 2 of the PIPES Act of 2016 authorizes $8 million per year to be appropriated from those fees for each of FYs 2017 through 2019 for the newly established UNGS Facility Safety Account in the Pipeline Safety Fund. PHMSA is prohibited from collecting a user fee unless the expenditure of such fee is provided in advance in an appropriations act. If Congress appropriates funds to this account for FY 2018 and 2019, PHMSA will collect these fees from the operators of the facilities.
For FY 2017 UNGS facility user fee billing, PHMSA used Energy Information Agency data to develop the UNGS facility user fee rate structure. On August 16, 2017, the Office of Management and Budget approved the collection of CY 2017 UNGS Annual Reports. The CY 2017 Annual Reports are due March 15, 2018. (82 FR 45946; Oct. 2, 2017.) PHMSA expects to start accepting UNGS Annual Reports in the PHMSA Portal (
During the FY 2018 user fee process, PHMSA will use CY 2016 annual report data for gas transmission pipelines, hazardous liquid pipelines, and liquefied natural gas facilities. Using CY 2016 data ensures adequate time to verify annual report data quality and still be able to send user fee assessments promptly after appropriation. If Congress appropriates UNGS funds for FY 2018 and 2019, PHMSA will use the CY 2017 UNGS annual report data to develop the UNGS user fee rate structure for both FY 2018 and 2019. Specifically, PHMSA will use the number of injection/withdraw wells (section C7 of the UNGS annual report) and monitoring/observation wells (section C8 of the UNGS annual report) in the rate structure.
PHMSA proposes the following steps for developing the user fee rate structure. PHMSA will sum the number of wells from sections C7 and C8 of the UNGS annual report for each operator. The operator well counts will be parsed into 10 tiers. The lowest values will be in tier 1 and the highest values in tier 10. The minimum and maximum well counts for each tier will be selected to place an equal number of operators in each tier. The tier fee structure is designed to place a larger share of the user fee on operators with higher well counts. The following percentages of the total user fee would be billed to each tier:
PHMSA will not know the total amount of user fees until Congress completes appropriation for FY 2018. Since PHMSA does not currently have data on the number of wells in UNGS facilities, we can provide neither tier boundaries nor fee per tier.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of Calendar Year 2018 Minimum Annual Percentage Rate for Random Drug Testing; Reminder for Operators to Report Contractor MIS Data; and Reminder of Method for Operators to Obtain User Name and Password for Electronic Reporting.
PHMSA has determined that the minimum random drug testing rate for all covered employees will be 50 percent during calendar year 2018. Operators are reminded that drug and alcohol testing information must be submitted for contractors performing or ready to perform covered functions. For calendar year 2017 reporting, PHMSA will not attempt to mail the “user name” and “password” for the Drug and Alcohol Management Information System (DAMIS) to operators, but will make the user name and password available in the PHMSA Portal (
Effective January 1, 2018, through December 31, 2018.
Wayne Lemoi, Drug & Alcohol Program Manager, at 909–937–7232 or by email at
Operators of gas, hazardous liquid, and carbon dioxide pipelines and operators of liquefied natural gas facilities must randomly select and test a percentage of all covered employees for prohibited drug use. Pursuant to 49 CFR 199.105(c)(1) the PHMSA minimum annual random drug testing rate shall be 50 percent of all covered employees for calendar year 2018.
While the minimum annual random drug testing rate was 25 percent of all covered employees for calendar year 2017, paragraph 49 CFR 199.105(c)(4) requires the Administrator to raise the minimum annual random drug testing rate from 25 percent to 50 percent of all covered employees when the data obtained from the Management Information System (MIS) reports required by § 199.119(a) indicate the positive test rate is equal to or greater than 1 percent. In calendar year 2016, the random drug test positive rate was greater than 1 percent. Therefore, the PHMSA minimum annual random drug testing rate shall be 50 percent of all covered employees for calendar year 2018.
On January 19, 2010, PHMSA published an Advisory Bulletin (75 FR 2926) implementing the annual collection of contractor MIS drug and alcohol testing data. An operator's report to PHMSA is not considered complete until an MIS report is submitted for each contractor that performed covered functions as defined in § 199.3.
In previous years, PHMSA attempted to mail the DAMIS user name and password to operator staff with responsibility for submitting DAMIS reports. Based on the number of phone calls to PHMSA each year requesting this information, the mailing process has not been effective. Pipeline operators have been submitting reports required by Parts 191 and 195 through the PHMSA Portal (
The user name and password required for an operator to access DAMIS and enter calendar year 2017 data will be available to all staff with access to the PHMSA Portal in late December 2017. When the DAMIS user name and password are available in the PHMSA Portal, all registered users will receive an email to that effect. Operator staff with responsibility for submitting DAMIS reports should coordinate with registered PHMSA Portal users to obtain the DAMIS user name and password. Registered PHMSA Portal users for an operator typically include the U.S. Department of Transportation Compliance Officer and staff or consultants with responsibility for submitting annual and incident reports on PHMSA F 7000- and 7100-series forms.
For operators that have failed to register staff in the PHMSA Portal for Parts 191 and 195 reporting purposes, operator staff responsible for submitting DAMIS reports can register in the PHMSA Portal by following the instructions at:
Pursuant to §§ 199.119(a) and 199.229(a), operators with 50 or more covered employees, including both operator and contractor staff, are required to submit DAMIS reports annually. Operators with less than 50 total covered employees are required to report only upon written request from PHMSA. If an operator has submitted a calendar year 2015 or later DAMIS report with less than 50 total covered employees, the PHMSA Portal message may state that no calendar year 2017 DAMIS report is required. Some of these operators may have grown to more than 50 covered employees during calendar year 2017. The PHMSA Portal message will include instructions for how these operators can obtain a calendar year 2017 DAMIS user name and password.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before January 8, 2018 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and
Copies of the submissions may be obtained from Jennifer Leonard by emailing
44 U.S.C. 3501 et seq.
Bureau of Land Management, Interior.
Final rule.
The Bureau of Land Management (BLM) is promulgating a final rule (2017 final delay rule) to temporarily suspend or delay certain requirements contained in the rule published in the
This rule is effective on January 8, 2018.
Catherine Cook, Acting Division Chief, Fluid Minerals Division, 202–912–7145, or
The BLM's onshore oil and gas management program is a major contributor to our nation's oil and gas production. The BLM manages more than 245 million acres of Federal land and 700 million acres of subsurface estate, making up nearly a third of the nation's mineral estate. In fiscal year (FY) 2016, sales volumes from Federal onshore production lands accounted for 9 percent of domestic natural gas production, and 5 percent of total U.S. oil production. Over $1.9 billion in royalties were collected from all oil, natural gas, and natural gas liquids transactions in FY 2016 on Federal and Indian lands. Royalties from Federal lands are shared with States. Royalties from Indian lands are collected for the benefit of the Indian owners.
In response to oversight reviews and a recognition of increased flaring from Federal and Indian leases, the BLM developed the 2016 final rule entitled, “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” which was published in the
Since late January 2017, the President has issued several Executive Orders that necessitate a review of the 2016 final rule by the Department. On January 30, 2017, the President issued Executive Order 13771, entitled, “Reducing Regulation and Controlling Regulatory Costs,” which requires Federal agencies to take proactive measures to reduce the costs associated with complying with Federal regulations. In addition, on March 28, 2017, the President issued Executive Order 13783, entitled, “Promoting Energy Independence and Economic Growth.” Section 7(b) of Executive Order 13783 directs the Secretary of the Interior to review four specific rules, including the 2016 final rule, for consistency with the policy articulated in section 1 of the Order and, “if appropriate,” to publish proposed rules suspending, revising, or rescinding those rules. Among other things, section 1 of Executive Order 13783 states that “[i]t is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”
To implement Executive Order 13783, on March 29, 2017, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3349, entitled, “American Energy Independence,” which, among other things, directs the BLM to review the 2016 final rule to determine whether it is fully consistent with the policy set forth in section 1 of Executive Order 13783. The BLM conducted an initial review of the 2016 final rule and found that it is inconsistent with the policy in section 1 of Executive Order 13783. The BLM found that some provisions of the 2016 final rule add considerable regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. For example, despite the rule's assertions, many of the 2016 final rule's requirements would pose a particular compliance burden to operators of marginal or low-producing wells. There is newfound concern that this additional burden would jeopardize the ability of operators to maintain or economically operate these wells.
Reexamination of the 2016 final rule is also needed because the BLM is not confident that all provisions of the 2016 final rule would survive judicial review. Immediately after the 2016 final rule was issued, petitions for judicial review of the rule were filed by industry groups and certain States with significant BLM-managed Federal and Indian minerals. See
Reexamination of the 2016 final rule is warranted to reassess the rule's estimated costs and benefits. In the
Apart from this concern over costs, the 2016 RIA also may have overestimated benefits by the use of a social cost of methane that attempts to account for global rather than domestic climate change impacts. Section 5 of Executive Order 13783, issued by the President on March 28, 2017, disbanded the earlier Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and withdrew the Technical Support Documents upon which the RIA for the 2016 final rule relied for the valuation of changes in methane emissions. The Executive Order further directed agencies to ensure that estimates of the social cost of greenhouse gases used in regulatory analyses “are based on the best available science and economics” and are consistent with the guidance contained in Office of Management and Budget (OMB) Circular A–4, “including with respect to the consideration of domestic versus international impacts and the consideration of appropriate discount rates” (E.O. 13783, Section 5(c)). The BLM is reassessing its estimates of the rule's benefits taking into account the Executive Order's directives.
The BLM also believes that a number of specific assumptions underlying the analysis supporting the 2016 final rule warrant reconsideration. For example, the BLM is reconsidering whether it was appropriate to assume that all marginal wells would receive exemptions from the rule's requirements and whether this assumption might have masked adverse impacts of the 2016 final rule on production from marginal wells. The BLM is also reconsidering whether it was appropriate to assume that there would be no delay in the BLM's review of Applications for Permits to Drill (APDs) as a result of reviewing Sundry Notices requesting exemptions from the rule's requirements, and that there would be no impact on production due to operators waiting on the BLM to review and approve such requests for exemptions. The BLM is reconsidering whether it was appropriate to assume that there would be no reservoir damage if an operator uses temporary well shut-ins to comply with the 2016 final rule's capture percentage requirements, and whether it was correct to assume that the capture percentage requirements would not have a disproportionate impact on small operators, who might have fewer wells with which to average volumes of allowable flaring. Finally, the BLM has concerns that its cost-benefit analysis for the leak detection and repair (LDAR) requirements in the 2016 final rule—which used data from the EPA's OOOOa rule (40 CFR part 60, subpart OOOOa)—was not based on the best available information and science. The BLM is reviewing the effectiveness of LDAR requirements to determine whether more accurate data is available.
Following up on its initial review, the BLM is currently reviewing the 2016 final rule to develop an appropriate proposed revision—to be promulgated through notice-and-comment rulemaking—that would propose to align the 2016 final rule with the policies set forth in section 1 of Executive Order 13783. Today's final delay rule temporarily suspends or delays certain requirements contained in the 2016 final rule until January 17, 2019. As noted above, the BLM has concerns regarding the statutory authority, cost, complexity, feasibility, and other implications of the 2016 final rule, and therefore wants to avoid imposing temporary or permanent compliance costs on operators for requirements that might be rescinded or significantly revised in the near future. The BLM also wishes to avoid expending scarce agency resources on implementation activities (internal training, operator outreach/education, developing clarifying guidance, etc.) for such potentially transitory requirements.
For certain requirements in the 2016 final rule that have yet to be implemented, this final delay rule will temporarily postpone the implementation dates until January 17, 2019, or for 1 year. For certain requirements in the 2016 final rule that are currently in effect, this final delay rule will temporarily suspend their effectiveness until January 17, 2019. A detailed discussion of the suspensions and delays is provided below. The BLM has attempted to tailor this final delay rule to target the requirements of the 2016 final rule for which immediate regulatory relief is particularly justified. Although the requirements of the 2016 final rule that are not suspended under this final delay rule may ultimately be revised in the near future, the BLM is not suspending them because it does not, at this time, believe that suspension is necessary, because the cost and other implications do not pose immediate concerns for operators. This final delay rule temporarily suspends or delays all of the requirements in the 2016 final rule that the BLM estimated would pose an immediate compliance burden to operators and generate benefits of gas savings or reductions in methane emissions. The 2017 final delay rule does not suspend or delay the requirements in subpart 3178 related to the royalty-free use of natural gas, but the only estimated compliance costs associated with those requirements are for minor and rarely occurring administrative burdens. In addition, for the most part, the 2017 final delay rule suspends or delays the administrative burdens associated with subpart 3179. Only four of the 24 information collection activities remain, and the burdens associated with these remaining items are not substantial.
The BLM promulgated the 2016 final rule, and now will suspend and delay certain provisions of that rule, pursuant to its authority under the following statutes: The Mineral Leasing Act of 1920 (30 U.S.C. 181–287), the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351–360), the Federal Oil and Gas Royalty Management Act of 1982 (30 U.S.C. 1701–1758), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701–1785), the Indian Mineral Leasing Act of 1938 (25 U.S.C. 396a–g), the Indian Mineral Development Act of 1982 (25 U.S.C. 2101–2108), and the Act of March 3, 1909 (25 U.S.C. 396). These statutes authorize the Secretary of the Interior to promulgate such rules and regulations as may be necessary to carry out the statutes' various purposes.
Today's action temporarily suspending certain requirements of the 2016 final rule does not leave unregulated the venting and flaring of gas from Federal and Indian oil and gas leases. Indeed, regulations from the BLM, the EPA, and the States will operate to address venting and flaring during the period of the suspension. The BLM's venting and flaring
On October 5, 2017, the BLM published its proposed rule and sought comment on whether to suspend the implementation of certain requirements in the 2016 final rule until January 17, 2019 (82 FR 46458). Issues of particular interest to the BLM included the necessity of the proposed suspensions and delays, the costs and benefits associated with the proposed suspensions and delays, and whether suspension of other requirements of the 2016 final rule were warranted. The BLM was also interested in the appropriate length of the proposed suspension and delays and wanted to know whether the period should be longer or shorter (
The BLM has engaged in stakeholder outreach in the course of developing this final delay rule. On October 16 and 17, 2017, the BLM sent correspondence to tribal governments to solicit their views to inform the development of this final delay rule. The BLM issued a proposed delay rule on September 28, 2017, which was published on October 5, 2017, and accepted public comments through November 6, 2017. The BLM received over 158,000 public comments on the proposed rule, including approximately 750 unique comments.
In the 2016 final rule, the BLM added a paragraph (j) to 43 CFR 3162.3–1, which presently requires that when submitting an APD for an oil well, an operator must also submit a waste-minimization plan. Submission of the plan is required for approval of the APD, but the plan is not itself part of the APD, and the terms of the plan are not enforceable against the operator. The purpose of the waste-minimization plan is for the operator to set forth a strategy for how the operator will comply with the requirements of 43 CFR subpart 3179 regarding the control of waste from venting and flaring from oil wells.
The waste-minimization plan must include information regarding: The anticipated completion date(s) of the proposed oil well(s); a description of anticipated production from the well(s); certification that the operator has provided one or more midstream processing companies with information about the operator's production plans, including the anticipated completion dates and gas production rates of the proposed well or wells; and identification of a gas pipeline to which the operator plans to connect. Additional information is required when an operator cannot identify a gas pipeline with sufficient capacity to accommodate the anticipated production from the proposed well, including: A gas pipeline system location map showing the proposed well(s); the name and location of the gas processing plant(s) closest to the proposed well(s); all existing gas trunklines within 20 miles of the well, and proposed routes for connection to a trunkline; the total volume of produced gas, and percentage of total produced gas, that the operator is currently venting or flaring from wells in the same field and any wells within a 20-mile radius of that field; and a detailed evaluation, including estimates of costs and returns, of potential on-site capture approaches.
In the 2016 RIA, the BLM estimated that the administrative burden of the waste-minimization plan requirements would be roughly $1 million per year for the industry and $180,000 per year for the BLM (2016 RIA at 96 and 100). The BLM is currently reviewing concerns raised by operators that the requirements of § 3162.3–1(j) may impose an unnecessary burden and can be reduced. The BLM is also evaluating concerns raised by the operators that § 3162.3–1(j) is infeasible because some of the required information is in the possession of a midstream company that is not in a position to share it with the operator prior to the operator's submission of an APD. The BLM is considering narrowing the required information and is considering whether submission of a State waste-minimization plan, such as those required by New Mexico and North Dakota, would serve the purpose of § 3162.3–1(j). The BLM is therefore suspending the waste minimization plan requirement of § 3162.3–1(j) until January 17, 2019.
This final delay rule revises § 3162.3–1 by adding “Beginning January 17, 2019” to the beginning of paragraph (j). The rest of this paragraph remains the same as in the 2016 final rule and the introductory paragraph is repeated in this final delay rule text only for context.
In the 2016 final rule, the BLM sought to constrain routine flaring through the imposition of a “capture percentage” requirement, requiring operators to capture a certain percentage of the gas they produce, after allowing for a certain volume of flaring per well. The capture-percentage requirement would become more stringent over a period of years, beginning with an 85 percent capture requirement (5,400 Mcf per well flaring allowable) in January 2018, and eventually reaching a 98 percent capture requirement (750 Mcf per well flaring allowable) in January 2026. An operator would choose whether to comply with the capture targets on each of the operator's leases, units or communitized areas, or on a county-wide or state-wide basis.
In the 2016 RIA, the BLM estimated that this requirement would impose costs of up to $162 million per year and generate cost savings from product recovery of up to $124 million per year, with both costs and cost savings increasing as the requirements increased in stringency (2016 RIA at 49).
The BLM is currently considering concerns raised by operators that the capture-percentage requirement of § 3179.7 is unnecessarily complex and infeasible in some regions because it may cause wells to be shut-in repeatedly (or otherwise cease production if the lease(s) does not allow for a shut in) until sufficient gas infrastructure is in place. The BLM is considering whether
Since meeting this requirement requires operators to incur significant costs rather than require operators to institute new processes and adjust their plans for development to meet a capture-percentage requirement that may be rescinded or revised as a result of the BLM's review, the BLM is delaying for 1 year the compliance dates for § 3179.7's capture requirements. This final delay rule will allow the BLM sufficient time to more thoroughly explore through notice-and-comment rulemaking whether the capture percentage requirements should be rescinded or revised and would prevent operators from being unnecessarily burdened by regulatory requirements that are subject to change. This final delay rule revises the compliance dates in paragraphs (b), (b)(1) through (b)(4), and (c)(2)(i) through (vii) of § 3179.7 to begin January 17, 2019. Paragraphs (c), (c)(1), and the introductory text of (c)(2) remain the same as in the 2016 final rule and are repeated in this final delay rule text only for context.
Section 3179.9 requires operators to estimate (using estimation protocols) or measure (using a metering device) all flared and vented gas, whether royalty-bearing or royalty-free. This section further provides that specific requirements apply when the operator is flaring 50 Mcf or more of gas per day from a high-pressure flare stack or manifold, based on estimated volumes from the previous 12 months, or based on estimated volumes over the life of the flare, whichever is shorter. Under the 2016 final rule, § 3179.9(b) would have required the operator, as of January 17, 2018, if the volume threshold is met, to measure the volume of the flared gas, or calculate the volume of the flared gas based on the results of a regularly performed gas-to-oil ratio test, so as to allow the BLM to independently verify the volume, rate, and heating value of the flared gas.
In the 2016 RIA, the BLM estimated that this requirement would impose costs of about $4 million to $7 million per year (2016 RIA at 52).
The BLM is presently reviewing concerns raised by operators that the additional accuracy associated with the measurement and estimation required by § 3179.9(b) does not justify the burden it would place on operators and that the requirement is infeasible because current technology does not reliably measure low pressure, low volume, fluctuating gas flow. The BLM is considering whether it would make more sense to allow the BLM to require measurement or estimation on a case-by-case basis, rather than imposing a blanket requirement on all operators. In order to avoid immediate and potentially unnecessary compliance costs on the part of operators, this final delay rule delays the compliance date in § 3179.9 until January 17, 2019.
This final delay rule revises the compliance date in § 3179.9(b)(1). The rest of paragraph (b)(1) remains the same as in the 2016 final rule and is repeated in this final delay rule text only for context.
Section 3179.10(a) provides that approvals to flare royalty free that were in effect as of January 17, 2017, will continue in effect until January 17, 2018. The purpose of this provision was to provide a transition period for operators who were operating under existing approvals for royalty-free flaring. Because the BLM's review of the 2016 final rule could result in rescission or substantial revision of the rule, the BLM believes that terminating pre-existing flaring approvals in January 2018 would impose an immediate cost, be premature and disruptive, and would introduce needless regulatory uncertainty for operators with existing flaring approvals. The BLM therefore extends the end of the transition period provided for in § 3179.10(a) to January 17, 2019.
This final delay rule also revises the date in paragraph (a) and replaces “as of the effective date of this rule” with “as of January 17, 2017,” which is the effective date of the 2016 final rule, for clarity. Aside from these two changes, this final delay rule does not otherwise revise paragraph (a), but the rest of the paragraph remains the same as in the 2016 final rule and is repeated in this final delay rule text only for context.
Section 3179.101(a) requires that gas reaching the surface as a normal part of drilling operations be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or flare stack; (3) Used in the operations on the lease, unit, or communitized area; or (4) Injected. Section 3179.101(a) also specifies that gas may not be vented, except under the circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the ways specified above. Section 3179.101(b) states that gas lost as a result of a loss of well control will be classified as avoidably lost if the BLM determines that the loss of well control was due to operator negligence.
The BLM is currently reviewing concerns raised by operators that § 3179.101 is unnecessary in light of existing BLM requirements, infeasible in the situations where flares may be used on drilling wells because of insufficient gas to burn, and creates a risk to safety. The BLM has existing regulations that require the operator to flare gas during drilling operations, see Onshore Oil and Gas Order No. 2—Drilling Operations, Section III.C.7. The requirements state that “All flare systems shall be designed to gather and burn all gas. . . . The flare system shall have an effective method for ignition. Where noncombustible gas is likely or expected to be vented, the system shall be provided supplemental fuel for ignition and to maintain a continuous flare.”
Because § 3179.101 includes the primary method of gas disposition, which is also required by Onshore Oil and Gas Order No. 2—Drilling Operations, Section III.C.7, the primary effect of § 3179.101, therefore, may be to impose a regulatory constraint on operators in exceptional circumstances where the operator must make a case-specific judgment about how to safely and effectively dispose of the gas.
Further, in addition to the existing requirements regulating well drilling operations, the available data suggest that potential gas losses during a well-drilling operation is very small. According to EPA's Greenhouse Gas Inventory, drilling a well generates only small amounts of uncontrolled gas (2016 RIA at 149 and 151). These data indicate either that operators are already operating in a manner consistent with § 3179.101 or that the amount of potential gas losses from these operations is very small.
The BLM is therefore suspending the effectiveness of § 3179.101 until January 17, 2019, while the BLM completes its review of § 3179.101 and decides whether to propose permanently revising or rescinding it through notice-and-comment rulemaking.
This final delay rule adds a new paragraph (c) making it clear that the
Section 3179.102 addresses gas that reaches the surface during well-completion, post-completion, and fluid-recovery operations after a well has been hydraulically fractured or refractured. It requires the gas to be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or stack, subject to a volumetric limitation in § 3179.103; (3) Used in the lease operations; or (4) Injected. Section 3179.102 specifies that gas may not be vented, except under the narrow circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the four ways specified above. Section 3179.102(b) provides that an operator will be deemed to be in compliance with its gas capture and disposition requirements if the operator is in compliance with the requirements for control of gas from well completions established under Environmental Protection Agency (EPA) regulations 40 CFR part 60, subparts OOOO or OOOOa regulations, or if the well is not a “well affected facility” under those regulations.
The BLM is concerned that § 3179.102 imposes an immediate cost on operators and is currently reviewing it to determine whether it is necessary, in light of current operator practices and the analogous EPA regulations. Operators dispose of gas during well completions and related operations consistent with § 3179.102(a) either to comply with EPA or State regulations.
EPA regulations at 40 CFR part 60, subparts OOOO and OOOOa, address the disposition of gas from oil and gas well completions using hydraulic fracturing, which are the vast majority of well completions occurring on Federal and Indian lands. The BLM believes that over 90 percent of wells on Federal and Indian lands are completed using hydraulic fracturing. Therefore, most of the well completions and related operations that would otherwise be covered by § 3179.102 would actually be exempted under § 3179.102(b).
The EPA regulations also exempt from its coverage a small portion of well completions that, according to EPA's Greenhouse Gas Inventory, generate only small amounts of uncontrolled gas (2016 RIA at 149 and 151). These data indicate either that operators are already operating in a manner consistent with § 3179.102(a) or that the amount of potential gas losses from these operations is very small.
Considering the overlap with EPA regulations (40 CFR part 60, subparts OOOO and OOOOa), the primary effect of § 3179.102 may be to generate confusion about regulatory compliance during well-drilling and related operations. The BLM is therefore suspending the effectiveness of § 3179.102 until January 17, 2019, while the BLM completes its review of § 3179.102 and decides whether to permanently revise or rescind it through notice-and-comment rulemaking.
This final delay rule adds a new paragraph (e) making it clear that operators must comply with § 3179.102 beginning January 17, 2019.
Section 3179.201 addresses pneumatic controllers that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. Section 3179.201 applies to such controllers if the controllers: (1) Have a continuous bleed rate greater than 6 standard cubic feet per hour (scf/hour) (“high-bleed” controllers); and (2) Are not covered by EPA regulations that prohibit the new use of high-bleed pneumatic controllers (40 CFR part 60, subparts OOOO or OOOOa), but would be subject to those regulations if the controllers were new, modified, or reconstructed sources. Section 3179.201(b) requires the applicable pneumatic controllers to be replaced with controllers (including, but not limited to, continuous or intermittent pneumatic controllers) having a bleed rate of no more than 6 scf/hour, subject to certain exceptions. Section 3179.201(d) requires that this replacement occur no later than January 17, 2018, or within 3 years from the effective date of the rule if the well or facility served by the controller has an estimated remaining productive life of 3 years or less.
In the 2016 RIA, the BLM estimated that this requirement would impose costs of about $2 million per year and generate cost savings from product recovery of $3 million to $4 million per year (2016 RIA at 56).
The BLM is concerned that § 3179.201 imposes an immediate cost on operators and is currently reviewing it to determine whether it should be revised or rescinded. The BLM is considering whether § 3179.201 is necessary in light of the analogous EPA regulations (40 CFR part 60, subparts OOOO or OOOOa) and the fact that operators are likely to adopt more efficient equipment in cases where it makes economic sense for them to do so. The BLM does not believe that operators should be required to make expensive equipment upgrades to comply with § 3179.201 until the BLM has had an opportunity to review its requirements and, if appropriate, revise them through notice-and-comment rulemaking. The BLM is therefore delaying the compliance date stated in § 3179.201 until January 17, 2019.
This final delay rule revises the first sentence of paragraph (d) by replacing “no later than 1 year after the effective date of this section” with “by January 17, 2019.” This final delay rule also replaces “the effective date of this section” with “January 17, 2017” the two times that it appears in the second sentence of paragraph (d). This final delay rule does not otherwise revise paragraph (d), but the rest of the paragraph remains the same as in the 2016 final rule and is repeated in the final delay rule text only for context.
Section 3179.202 establishes requirements for operators with pneumatic diaphragm pumps that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. It applies to such pumps if they are not covered under EPA regulations at 40 CFR part 60, subpart OOOOa, but would be subject to that subpart if they were a new, modified, or reconstructed source. For covered pneumatic pumps, § 3179.202 requires that the operator either replace the pump with a zero-emissions pump or route the pump exhaust to processing equipment for capture and sale. Alternatively, an operator may route the exhaust to a flare or low-pressure combustion device if the operator makes a determination (and notifies the BLM through a Sundry Notice) that replacing the pneumatic diaphragm pump with a zero-emissions pump or capturing the pump exhaust is not viable because: (1) A pneumatic pump is necessary to perform the function required; and (2) Capturing the exhaust is technically infeasible or unduly costly. If an operator makes this determination and has no flare or low-pressure combustor on-site, or routing to such a device would be technically infeasible, the operator is not required to route the exhaust to a flare or low-pressure combustion device. Under § 3179.202(h), an operator must replace its covered pneumatic diaphragm pump
In the 2016 RIA, the BLM estimated that this requirement would impose costs of about $4 million per year and generate cost savings from product recovery of $2 million to $3 million per year (2016 RIA at 61).
The BLM is concerned that § 3179.202 imposes an immediate cost on operators and is currently reviewing it to determine whether it should be rescinded or revised. Analogous EPA regulations apply to new, modified, and reconstructed sources, therefore limiting the applicability of § 3179.202. See 40 CFR part 60, subpart OOOOa. In addition, the BLM is concerned that requiring zero-emissions pumps may not conserve gas in some cases. The volume of royalty-free gas used to generate electricity to provide the power necessary to operate a zero-emission pump could exceed the volume of gas necessary to operate the pneumatic pump that the zero-emission pump would replace. The BLM does not believe that operators should be required to make expensive equipment upgrades to comply with § 3179.202 until the BLM has had an opportunity to review its requirements and, if appropriate, revise them through notice-and-comment rulemaking. The BLM is therefore delaying the compliance date stated in § 3179.202 until January 17, 2019.
This final delay rule revises paragraph (h) by replacing “no later than 1 year after the effective date of this section” in the first sentence with “by January 17, 2019” and also replaces “the effective date of this section” with “January 17, 2017” the two times that it appears later in the same sentence. This final delay rule does not otherwise revise paragraph (h); the rest of the paragraph remains the same as in the 2016 final rule and is repeated in the final delay rule text only for context.
Section 3179.203 applies to crude oil, condensate, intermediate hydrocarbon liquid, or produced-water storage vessels that contain production from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease, and that are not subject to 40 CFR part 60, subparts OOOO or OOOOa, but would be if they were new, modified, or reconstructed sources. If such storage vessels have the potential for volatile organic compound (VOC) emissions equal to or greater than 6 tons per year (tpy), § 3179.203 requires operators to route all gas vapor from the vessels to a sales line. Alternatively, the operator may route the vapor to a combustion device if it determines that routing the vapor to a sales line is technically infeasible or unduly costly. The operator also may submit a Sundry Notice to the BLM that demonstrates that compliance with the above options would cause the operator to cease production and abandon significant recoverable oil reserves under the lease due to the cost of compliance. Pursuant to § 3179.203(c), operators must meet these requirements for covered storage vessels by January 17, 2018 (unless the operator will replace the storage vessel in order to comply, in which case it has a longer time to comply).
In the 2016 RIA, the BLM estimated that this requirement would impose costs of about $7 million to $8 million per year and generate cost savings from product recovery of up to $200,000 per year (2016 RIA at 74).
The BLM is concerned that § 3179.203 imposes an immediate cost on operators and is currently reviewing it to determine whether it should be rescinded or revised. The BLM is considering whether § 3179.203 is necessary in light of analogous EPA regulations (40 CFR part 60, subparts OOOO or OOOOa) and whether the costs associated with compliance are justified. The BLM does not believe that operators should be required to make expensive upgrades to their storage vessels in order to comply with § 3179.203 until the BLM has had an opportunity to review its requirements and, if appropriate, revise them through notice-and-comment rulemaking. The BLM is therefore delaying the January 17, 2018, compliance date in § 3179.203 until January 17, 2019.
This final delay rule revises the first sentence of paragraph (b) by replacing “Within 60 days after the effective date of this section” with “Beginning January 17, 2019” and by adding “after January 17, 2019” between the words “vessel” and “the operator.” This final delay rule also revises the introductory text of paragraph (c) by replacing “no later than one year after the effective date of this section” with “by January 17, 2019” and by changing “or three years if” to “or by January 17, 2020, if ” to account for removing the reference to “the effective date of this section.” This final delay rule does not otherwise revise paragraphs (b) and (c), and the rest of these paragraphs remain the same as in the 2016 final rule and are repeated in this final delay rule text only for context.
Section 3179.204 establishes requirements for venting and flaring during downhole well maintenance and liquids unloading. It requires the operator to use practices for such operations that minimize vented gas and the need for well venting, unless the practices are necessary for safety. Section 3179.204 also requires that for wells equipped with a plunger lift system or an automated well-control system, the operator must optimize the operation of the system to minimize gas losses. Under § 3179.204, before an operator manually purges a well for the first time, the operator must document in a Sundry Notice that other methods for liquids unloading are technically infeasible or unduly costly. In addition, during any liquids unloading by manual well purging, the person conducting the well purging is required to be present on-site to minimize, to the maximum extent practicable, any venting to the atmosphere. This section also requires the operator to maintain records of the cause, date, time, duration and estimated volume of each venting event associated with manual well purging, and to make those records available to the BLM upon request. Additionally, operators are required to notify the BLM by Sundry Notice within 30 days after the following conditions are met: (1) The cumulative duration of manual well-purging events for a well exceeds 24 hours during any production month; or (2) The estimated volume of gas vented in the process of conducting liquids unloading by manual well purging for a well exceeds 75 Mcf during any production month.
In the 2016 RIA, the BLM estimated that these requirements would impose costs of about $6 million per year and generate cost savings from product recovery of about $5 million to $9 million per year (2016 RIA at 66). In addition, there would be estimated administrative burdens associated with these requirements of $323,000 per year for the industry and $37,000 per year for the BLM (2016 RIA at 98 and 101).
The BLM is concerned that § 3179.204 imposes immediate costs on operators and is currently reviewing it to determine whether it should be rescinded or revised. The BLM does not believe that operators should be burdened with the operational and reporting requirements imposed by § 3179.204 until the BLM has had an opportunity to review them and, if appropriate, revise them through notice-and-comment rulemaking. In addition, as part of this review, the BLM would
This final delay rule adds a new paragraph (i), making it clear that operators must comply with § 3179.204 beginning January 17, 2019.
Sections 3179.301 through 3179.305 establish leak detection, repair, and reporting requirements for: (1) Sites and equipment used to produce, process, treat, store, or measure natural gas from or allocable to a Federal or Indian lease, unit, or communitization agreement; and (2) Sites and equipment used to store, measure, or dispose of produced water on a Federal or Indian lease. Section 3179.302 prescribes the instruments and methods that may be used for leak detection. Section 3179.303 prescribes the frequency for inspections and § 3179.304 prescribes the time frames for repairing leaks found during inspections. Finally, § 3179.305 requires operators to maintain records of their LDAR activities and submit an annual report to the BLM. Pursuant to § 3179.301(f), operators must begin to comply with the LDAR requirements of §§ 3179.301 through 3179.305 before: (1) January 17, 2018, for sites in production prior to January 17, 2017; (2) 60 days after beginning production for sites that began production after January 17, 2017; and (3) 60 days after a site that was out of service is brought back into service and re-pressurized.
In the 2016 RIA, the BLM estimated that these requirements would impose costs of about $83 million to $84 million per year and generate cost savings from product recovery of about $12 million to $21 million per year (2016 RIA at 91). In addition, there would be estimated administrative burdens associated with these requirements of $3.9 million per year for the industry and over $1 million per year for the BLM (2016 RIA at 98 and 102).
The BLM is concerned that §§ 3179.301 through 3179.305 impose an immediate cost on operators and is currently reviewing them to determine whether they should be revised or rescinded. The analysis of the 2016 rule may have significantly overestimated the benefits of captured gas and therefore not justified the estimated costs. The BLM is also considering whether these requirements are necessary in light of comparable EPA (40 CFR part 60, subpart OOOOa.) and State LDAR regulations. The 2017 RIA includes a discussion of State regulations (2017 RIA at 17). The BLM is considering whether the reporting burdens imposed by these sections are justified and whether the substantial compliance costs could be mitigated by allowing for less frequent and/or non-instrument-based inspections or by exempting wells that have low potential to leak natural gas. The BLM does not believe that operators should be burdened with the significant compliance costs imposed by these sections until the BLM has had an opportunity to review them and, if appropriate, revise them through notice-and-comment rulemaking. The BLM is therefore delaying the effective dates for these sections until January 17, 2019, by revising § 3179.301(f).
This final delay rule revises paragraph (f)(1) by replacing “Within one year of January 17, 2017 for sites that have begun production prior to January 17, 2017;” with “By January 17, 2019, for all existing sites.” This final delay rule also revises paragraph (f)(2) by adding “new” between the words “for” and “sites” and by replacing the existing date with “January 17, 2019.” Finally, this final delay rule revises paragraph (f)(3) by adding “an existing” between the words “when” and “site” and by adding “after January 17, 2019” to the end of the sentence. This final delay rule does not otherwise revise paragraph (f), and the rest of the paragraph remains the same as in the 2016 final rule and is repeated in this final delay rule text only for context.
The BLM reviewed the final delay rule and conducted an RIA and Environmental Assessment (EA) that examine the impacts of the final delay rule's requirements. The following discussion is a summary of the final delay rule's economic impacts. The RIA and EA that we prepared have been posted in the docket for the final delay rule on the
The suspension or delay in the implementation of certain requirements in the 2016 final rule postpones the economic impacts estimated previously to the near-term future. That is to say, impacts that we previously estimated would occur in 2017 will now occur in 2018, impacts that we previously estimated would occur in 2018 will now occur in 2019, and so on. In the RIA for this final delay rule, we track this shift in impacts over the 10-year period following the delay. A 10-year period of analysis was also used in the 2016 RIA. Except for some notable changes, the 2017 RIA uses the impacts estimated and underlying assumptions used by the BLM for the 2016 RIA, published in November 2016. The BLM's final delay rule temporarily suspends or delays almost all of the requirements in the 2016 final rule that we estimated would pose a compliance burden to operators and generate benefits of gas savings or reductions in methane emissions.
First, we examine the reductions in compliance costs excluding the savings that would have been realized from product recovery. This final delay rule temporarily suspends or delays almost all of the requirements in the 2016 final rule that we estimated would pose a compliance burden to operators. We estimate that suspending or delaying the targeted requirements of the 2016 final rule until January 17, 2019, will substantially reduce compliance costs during the period of the suspension or delay (2017 RIA at 29).
Impacts in Year 1:
• A delay in compliance costs of $114 million (using a 7 percent discount rate to annualize capital costs) or $110 million (using a 3 percent discount rate to annualize capital costs).
Impacts from 2017–2027:
• Total reduction in compliance costs ranging from $73 million to $91 million (net present value (NPV) using a 7 percent discount rate) or $40 million to $50 million (NPV using a 3 percent discount rate).
This final delay rule temporarily suspends or delays almost all of the requirements in the 2016 final rule that were estimated to generate benefits of gas savings or reductions in methane emissions. We estimate that this final delay rule will result in forgone benefits, since estimated cost savings that would have come from product recovery will be deferred and the emissions reductions will also be deferred (2017 RIA at 32).
Impacts in Year 1:
• A reduction in cost savings of $19 million.
Impacts from 2017–2027:
• Total reduction in cost savings of $36 million (NPV using a 7 percent discount rate) or $21 million (NPV using a 3 percent discount rate).
We estimate that this final delay rule will also result in additional methane and VOC emissions of 175,000 and
These estimated emissions are measured as the change from the baseline environment, which is the 2016 final rule's requirements being implemented per the 2016 final rule schedule. Since the final delay rule delays the implementation of those requirements, the estimated benefits of the 2016 final rule will be forgone during the temporary suspension or delay.
The BLM used interim domestic values of the carbon dioxide and methane to value the forgone emissions reductions resulting from the delay (see the discussion of social cost of greenhouse gases in the 2017 RIA at Section 3.2 and Appendix).
Impact in Year 1:
• Forgone methane emissions reductions valued at $8 million (using interim domestic SC–CH
Impacts from 2017–2027:
• Forgone methane emissions reductions valued at $1.9 million (NPV
• Forgone methane emissions reductions valued at $300,000 (NPV and interim domestic SC–CH
This final delay rule is estimated to result in positive net benefits, meaning that the reduction of compliance costs would exceed the reduction in cost savings and the cost of emissions additions (2017 RIA at 36).
Impact in Year 1:
• Net benefits of $83—86 million (using interim domestic SC–CH
Impacts from 2017–2027:
• Total net benefits ranging from $35—52 million (NPV and interim domestic SC–CH
• Total net benefits ranging from $19—29 million (NPV and interim domestic SC–CH
This final delay rule is expected to influence the production of natural gas, natural gas liquids, and crude oil from onshore Federal and Indian oil and gas leases, particularly in the short-term and on a regional basis. However, since the relative changes in production compared to global levels are expected to be small, we do not expect that this final delay rule will significantly impact the price, supply, or distribution of energy.
Noting that the assumptions in the 2016 RIA are under review and subject to change, we estimate the following incremental changes in production. Also note the representative share of the total U.S. production in 2015 for context (2017 RIA at 41).
Annual Impacts:
• A decrease in natural gas production of 9.0 billion cubic feet (Bcf) in Year 1 (0.03 percent of the total U.S. production).
• An increase in crude oil production of 91,000 barrels in Year 2 (0.003 percent of the total U.S. production). There is no estimated change in crude oil production in Year 1.
Based on the assumptions in the 2016 RIA, which are currently under review, in the short-term the final 2017 delay rule is expected to decrease natural gas production from Federal and Indian leases, and likewise, is expected to reduce annual royalties to the Federal Government, tribal governments, States, and private landowners. From 2017–2027, however, we expect a small increase in total royalties, likely due to production slightly shifting into the future where commodity prices are expected to be higher.
Royalty payments are recurring income to Federal or tribal governments and costs to the operator or lessee. As such, they are transfer payments that do not affect the total resources available to society. An important but sometimes difficult problem in cost estimation is to distinguish between real costs and transfer payments. While transfers should not be included in the economic analysis estimates of the benefits and costs of a regulation, they may be important for describing the distributional effects of a regulation.
We estimate a reduction in royalties of $2.6 million in Year 1 (2017 RIA at 43). This amount represents about 0.2 percent of the total royalties received from oil and gas production on Federal lands in FY 2016. However, from 2017–2027, we estimate an increase in total royalties of $1.26 million (NPV using a 7 percent discount rate) or $380,000 (NPV using a 3 percent discount rate).
In developing this final delay rule, the BLM considered alternative timeframes for which it could suspend or delay the requirements (
This final delay rule temporarily suspends or delays certain requirements of the BLM's 2016 final rule on waste prevention and is a temporary deregulatory action. As such, we estimate that it will result in a reduction of compliance costs for operators of oil and gas leases on Federal and Indian lands. Therefore, it is likely that the impact, if any, on the employment will be positive.
In the 2016 RIA, the BLM concluded that the requirements were not expected to impact the employment within the oil and gas extraction, drilling oil and gas wells, and support activities industries, in any material way. This determination was based on several reasons. First, the estimated incremental gas production represented only a small fraction of the U.S. natural gas production volumes. Second, the estimated compliance costs represented only a small fraction of the annual net incomes of companies likely to be impacted. Third, for those operations that would have been impacted to the extent that the compliance costs would force the operator to shut in production, the 2016 final rule had provisions that would exempt these operations from compliance. Based on these factors, the BLM determined that the 2016 final rule would not alter the investment or employment decisions of firms or significantly adversely impact employment. The RIA also noted that the 2016 final rule would require the one-time installation or replacement of equipment and the ongoing implementation of an LDAR program, both of which would require labor to comply.
As discussed more thoroughly above, the assumptions upon which the determination of the 2016 rule was based upon are under review. Based on the 2016 RIA, this final delay rule will not substantially alter the investment or employment decisions of firms for two reasons. First, the 2016 RIA determined that that rule would not substantially alter the investment or employment decisions of firms, and so therefore delaying the 2016 final rule would likewise not be expected to impact those decisions. We also recognize that while there might be a small positive impact
The BLM reviewed the Small Business Administration (SBA) size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau. We conclude that small entities represent the overwhelming majority of entities operating in the onshore crude oil and natural gas extraction industry and, therefore, this final delay rule will impact a significant number of small entities.
To examine the economic impact of the rule on small entities, the BLM performed a screening analysis on a sample of potentially affected small entities, comparing the reduction of compliance costs to entity profit margins.
The BLM identified up to 1,828 entities that operate on Federal and Indian leases and recognizes that the overwhelming majority of these entities are small business, as defined by the SBA. We estimated the potential reduction in compliance costs to be about $60,000 per entity during the initial year when the requirements would be suspended or delayed. This represents the average maximum amount by which the operators would be positively impacted by this final delay rule.
We used existing BLM information and research concerning firms that have recently completed Federal and Indian wells and the financial and employment information on a sample of these firms, as available in company annual report filings with the Securities and Exchange Commission (SEC). From the original list of companies, we identified 55 company filings. Of those companies, 33 were small businesses.
From data in the companies' 10–K filings to the SEC, the BLM was able to calculate the companies' profit margins for the years 2012, 2013, and 2014. We then calculated a profit margin figure for each company when subject to the average annual reduction in compliance costs associated with this final delay rule. For these 26 small companies, the estimated per-entity reduction in compliance costs will result in an average increase in profit margin of 0.17 percentage points (based on the 2014 company data) (2017 RIA at 46).
This final delay rule applies to oil and gas operations on both Federal and Indian leases. In the 2017 RIA, the BLM estimates the impacts associated with operations on Indian leases, as well as royalty implications for tribal governments. We estimate these impacts by scaling down the total impacts by the share of oil wells on Indian lands and the share of gas wells on Indian lands. The BLM expects the impacts on Tribal Lands to be between 11 percent and 15 percent of those levels described in sections 4.1 to 4.4.4 of the 2017 RIA. Please reference the 2017 RIA at sections 4.1 to 4.4.5 for a full explanation of the estimated impacts.
The BLM has engaged in stakeholder outreach in the course of developing this 2017 final delay rule to the degree it believes is appropriate given that the final delay rule extends the compliance dates of the 2016 final rule, but does not change the policies of that rule. The BLM published a proposed rule on October 5, 2017 (82 FR 46458), and accepted public comments through November 6, 2017.
The BLM sent correspondence to tribal governments to solicit their views to inform the development of this 2017 final delay rule on October 16 and 17, 2017, and requested feedback and comment through the respective BLM State Office Directors. In addition, BLM State and Field Offices informed the tribes of the BLM delay rule notification letters via phone, and offered to conduct tribal consultation if the tribes chose to do so. More detailed information is found below in the subsection titled “Consultation and Coordination with Indian Tribal Governments (Executive Order 13175 and Departmental Policy).”
The BLM received over 158,000 comments on the proposed rule, including approximately 750 unique comments, which are available for viewing on the
The comments revolved around several main issues, which are categorized as the following: (1) Industry impacts; (2) Royalty Provisions, (3) Legal authority; (4) Lost gas volumes; (5) Rule net benefits; (6) National impacts, including energy security; (7) Climate change; (8) Air quality and public health; (9) Rule process; and (10) Technical issues, including parts of the rule that were not delayed.
The BLM received numerous comments on the BLM's analysis of costs and benefits. Many comments addressed the cost to the operators of complying with the 2017 final delay rule. Some commenters stated that the long-term prevention of energy waste outweighs the additional burden that smaller companies may face from the cost of complying with the 2016 final rule, and others asserted that there is continued stability in the oil and gas industry and jobs despite promulgation of the 2016 final rule so that a delay was unnecessary. Another commenter saw compliance as a cost of doing business and another as a cost to access public lands, while another said they would take a reduction in royalties to pay for reductions in methane emissions. One commenter noted the broad negative impacts of the rule on public welfare through “wasted gas, diminished royalties, and harmful impacts for public health and the environment.” One commenter asserted a disparity between the alleged broad negative impacts of the proposed 2017 delay rule on public welfare through “wasted gas, diminished royalties, and harmful impacts for public health and the environment” with the BLM's own conclusion that the 2017 delay rule would not “substantially alter the investment or employment decisions of firms.”
The BLM did not revise the proposed rule in response to these comments. Most of the comments on these cost/benefit issues asserted a policy preference for immediately implementing the rule but did not assert that the BLM had relied on improper data analysis. Operators have raised concerns regarding the cost, complexity, and other implications of the 2016 rule. Moreover, the 2016 final rule analysis is under review and the BLM is concerned that certain assumptions that justified the rule's costs may be unsupported. The BLM does not believe that operators
Many commenters supported issuing the delay rule and stated that a final delay rule would avoid imposing immediate compliance costs for requirements that might be rescinded or significantly revised in the near future. The BLM agrees. This final rule will also allow the BLM to avoid expending agency resources on implementation of activities for potentially transitory requirements. The BLM acknowledges that some operators have upgraded their equipment in the interim, and delaying the 2016 rule does not preclude operators from upgrading their equipment voluntarily, but the BLM does not see the delay as penalizing operators who have adopted the 2016 final rule requirements early, as mentioned in one comment. The intent of the delay rule is to prevent the incurrence of compliance costs and potential unnecessary shutting in of wells while the aforementioned provisions are being reviewed due to the concerns raised in this rulemaking.
As mentioned above, the BLM shows in the 2017 RIA that the avoided costs of delaying the rule exceed the forgone benefits. Over the 11-year evaluation period (2017–2027), the BLM estimates total net benefits ranging from $35–52 million (NPV and interim social cost of methane using a 7 percent discount rate) or $19–29 million (NPV and interim domestic social cost of methane using a 3 percent discount rate) (2017 RIA at 1). Thus, the RIA for the 2017 final delay rule concludes that the benefits of the 2017 final delay rule (avoided compliance costs) exceed the costs (forgone savings and environmental improvements). In accordance with E.O. 13783, the BLM is committed to furthering the national interest by promoting “clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” Thus, the policy set forth in E.O. 13783 is aimed at ensuring the “clean” and “prudent” (
Several commenters stated that the 2016 final rule's gas capture provisions would be commercially valuable and economically beneficial to the government through additional royalties. The commenters argued that delaying the 2016 final rule would result in wasted gas and a reduction in the royalties flowing to the States, tribes, and Federal Government.
The BLM did not change its proposal in response to these comments. The BLM's analysis of the delay rule, which is based on potentially tenuous assumptions made in the 2016 final analysis, shows that it might forgo royalties in the short-term, but that there would be a negligible change from the baseline over the entire period of analysis. See Section 4.4 of the 2017 final delay rule RIA. As the BLM reconsiders the final 2016 rule in accordance with E.O. 13783, it will continue to assess impacts on royalty revenues.
Some commenters were concerned that the 2016 rule would impact oil and gas development on tribal reservations and royalties to tribes. Some tribes are located in known shale play areas and contain large amounts of undeveloped or underdeveloped areas. In particular, the commenters suggested that the 2016 final rule could delay drilling on or drive industry away from tribal lands, reducing income flowing to Indian mineral owners and tribal economies. The BLM agrees that this is an important issue and is assessing it in developing a proposal to revise or rescind the 2016 final rule. The BLM evaluated the royalty impacts of the delay rule on Indian lands and determined that these impacts were minimal (2017 RIA at 40). Following its initial review, the BLM is reviewing the 2016 final rule to develop an appropriate proposed revision of the 2016 final rule that is intended to align the 2016 final rule with section 1 of E.O. 13783. The BLM invites the commenters to provide comment on its proposal to revise the 2016 final rule, when that proposal is available.
The BLM received comments on other royalty-related issues. One commenter believes royalties should not be treated as transfer payments in the 2017 RIA. The BLM disagrees with the commenter. Based on widely-accepted economic principles and OMB Circular A–4, royalties are, by definition, transfer payments.
Multiple commenters stated that the BLM lacks either implicit or explicit legal authority to suspend certain requirements of the 2016 final rule for the purpose of reconsidering them. They stated that the 2017 final delay rule is arbitrary and capricious under the Administrative Procedure Act (APA) section 706(2)(A), and the reasoning behind the rule is outside the scope of the Federal Land Policy and Management Act. Commenters stated that promulgation of the 2017 delay rule would put the BLM in violation of both the MLA and FLPMA. Commenters also asserted that, since the 2017 delay rule was proposed shortly after the U.S. District Court for the District of Wyoming denied industry petitioners a preliminary injunction to stay the 2016 final rule until the case was decided on the merits, the BLM is using rulemaking to mirror a judicial function.
The BLM has not modified the rule in light of these comments. The BLM has ample legal authority to modify or otherwise revise the existing regulation in response to substantive concerns regarding cost and feasibility under the authority granted by the MLA, the MLAAL, FOGRMA, FLPMA, the IMLA, the IMDA, and the Act of March 3, 1909. These statutes authorize the Secretary of the Interior to promulgate such rules and regulations as may be necessary to carry out the statutes' various purposes. (See,
Moreover, neither the MLA nor FLPMA provide statutory “mandates” that the BLM maintain the regulatory provisions that are being suspended for a year in this final rule. Furthermore, the BLM is not acting arbitrarily and capriciously in promulgating today's final rule; the preamble, RIA, responses to comments, and other associated documents collectively and adequately explain the rationales and factual bases for each provision in the rule, the relevant factors that the BLM considered, and the reasons why the BLM did not consider certain other factors.
Commenters addressed the importance of government-to-government consultation and stated that, in contrast to the 2016 rule, the BLM only provided a few opportunities for tribes and individual mineral owners to consult about the 2017 delay rule.
The BLM engaged in stakeholder outreach in the course of developing this 2017 final delay rule, and believes its degree of outreach was appropriate given that the final delay rule extends the compliance dates of the 2016 final rule, but does not change the policies of that rule. The BLM sent correspondence to all tribal governments with major oil and gas interests, as well as individual Indian mineral owners that have
Commenters were also concerned about delaying the 2016 final rule, which they viewed as helping the Secretary meet his statutory trust responsibilities with respect to development of Indian oil and gas interests, because it ensured extraction that increased royalties rather than waste of resources.
The BLM believes that the 2017 final rule helps the Secretary fulfill his trust responsibility with respect to the development of Indian oil and gas interests. As detailed in the RIA accompanying today's action, although there is expected a short-term reduction in annual royalties to tribes (and other lessors) from the 1-year delay, overall the economic impact of this final delay rule is positive. The delay also provides the BLM an opportunity to reconsider and ensure appropriate compliance requirements are imposed on tribal lands, which may help to avoid having operators forego development of tribal lands due to burdensome and unnecessary compliance requirements.
Commenters stated that the 2017 delay rule would leave the oil and gas operations on Federal and Indian leases unregulated with respect to the activities governed by the provisions being suspended or delayed.
The BLM believes this is not the case. The development and production of oil and gas are regulated under a framework of Federal and State laws and regulations. Several Federal agencies implement Federal laws and requirements, while each State in which oil and gas is produced has one or more regulatory agencies that administer State laws and regulations. As discussed more thoroughly above, the requirements of the 2016 final rule that are not being suspended or delayed, various State laws and regulations, and EPA regulations will operate together to limit venting and flaring during the period of the 1-year suspension. See the 2017 final delay rule RIA for a summary of selected Federal and State regulations and policies that have the effect of limiting the waste of gas from production operations in the States where the production of oil and gas from Federal and Indian leases is most prevalent (2017 RIA at 17).
Many commenters stated that the 2017 final delay rule will result in waste of natural gas through venting, flaring, and leaking of natural gas from oil and gas operators. The commenters stated that the valuable energy resources being wasted could otherwise be productively used, which would subsequently increase revenues for taxpayers in the form of royalty and tax collection. Some commenters also expressed concern that the rule impedes U.S. progress towards energy independence. The BLM acknowledges that delaying implementation of compliance requirements for certain provisions of the 2016 final rule could result in incremental flaring of gas during the 1-year interim period when compared to the baseline. However, over 11 years of implementation (2017–2027), the BLM expects an overall small increase in production (and subsequent royalties) when commodity prices are projected to be higher. In addition, the BLM found positive net benefits of the 2017 delay rule due to the reduction in compliance costs exceeding the foregone benefits of the 2016 rule. The BLM also notes that the assumptions of the final analysis of the 2016 rule are under review and may be revised.
Some commenters expressed concern about the uncertainty underlying the estimates of lost gas volumes in the final RIA. The BLM acknowledges that there is uncertainty regarding the quantity and value of gas that is vented or flared on Federal or tribal lands. The BLM reviewed data from the Office of Natural Resources Revenue (ONRR) and 2016 greenhouse gas (GHG) Inventory to develop estimates of the average volume of gas vented and flared. See the 2016 RIA for a complete discussion of the methodology and data used to estimate lost gas volumes (2016 RIA at 15).
Multiple commenters took issue with the approach the BLM used to calculate the forgone benefits of methane emissions reductions in terms of the social cost of methane in the 2017 delay rule analysis. In particular, commenters suggested that the RIA for the delay rule: (a) Should rely on estimates of the global value of the social cost of methane and not the “domestic-only” value and; (b) That a 7 percent discount rate is not justifiable for use in discounting these benefits and a 3 percent discount rate would be appropriate and consistent with OMB Circular A–4. Multiple commenters also suggested that the BLM continue to use the analysis conducted by the IWG in regard to these issues. Since publication of the 2016 RIA, several documents upon which the 2016 final rule RIA relied upon have been rescinded. In particular, Section 5 of E.O. 13783, issued by the President on March 28, 2017, disbanded the earlier IWG and withdrew the Technical Support Documents upon which the 2016 RIA relied for the valuation of changes in methane emissions. It further directed agencies to ensure that estimates of the social cost of greenhouse gases used in regulatory analyses “are based on the best available science and economics” and are consistent with the guidance contained in OMB Circular A–4, “including with respect to the consideration of domestic versus international impacts and the consideration of appropriate discount rates” (E.O. 13783, Section 5(c)). The social cost of methane (SC–CH4) estimates used for the 2017 final delay rule analysis are interim values for use in regulatory analyses while estimates of the impacts of climate change to the U.S. are being developed.
Multiple commenters cited specific issues regarding the use of 7 percent discount rate, stating that by applying a 7 percent discount rate, the BLM is ignoring the welfare of future generations of Americans. Commenters further suggested that the use of the 3 percent discount rate is consistent with OMB Circular A–4. The BLM disagrees. The analysis presented in the RIA for the 2017 final delay rule uses both a 3 percent and a 7 percent discount rate in the above analysis. The 7 percent rate is intended to represent the average before-tax rate of return to private capital in the U.S. economy. The 3 percent rate is intended to reflect the rate at which society discounts future consumption. The use of both discount rates is consistent with the guidance contained in OMB Circular A–4.
One commenter opposed the use of the social cost of methane to analyze this rulemaking given the uncertainty and the lack of accuracy surrounding these estimates, noting that its use goes against the need to produce an analysis that is “based on the best available science and economics.” The commenter requested that the BLM omit benefits related to the social cost of methane. Pursuant to E.O. 12866, and in an effort to provide full transparency to the public regarding the impacts of its actions, the BLM has estimated all of the significant costs and benefits of this 2017 final delay rule to the extent that data and available methodologies permit, consistent with the best science currently available. The SC–CH4 estimates presented here are interim
Several commenters stated the BLM neglected to analyze the loss of public health and safety benefits generated by the implementation of the 2016 final rule, citing OMB Circular A–4 guidance as evidence. Commenters also stated that the BLM neglected to analyze the impacts of the proposed suspension on worker safety, which was one of the purposes of the 2016 final rule. Pursuant to E.O. 12866, and in an effort to provide full transparency to the public regarding the impacts of its actions, the BLM has estimated all of the significant costs and benefits of this 2017 final delay rule to the extent that data and available methodologies permit, consistent with the best science currently available. Commenters incorrectly stated that the BLM failed to analyze non-monetized impacts. The EA, which accompanies today's action, analyzes the No-Action and Proposed Action effects on climate change, air quality, noise and light impacts, wildlife resources (threatened and endangered species and critical habitat), and socioeconomics. The EA, where appropriate, incorporates by reference the 2016 final rule EA analysis. Circular A–4 recommends approaches the agencies may take in its NEPA documents, but it does not require them.
One commenter stated that the BLM's description of impacts for the 11-year period (2017–2027) of analysis in the RIA for the 2017 final delay rule is misleading, as the reduction in the estimated compliance costs is solely due to the delay in compliance. Another commenter stated that some operators have begun compliance before the 2017 proposed delay rule will be finalized, and therefore the net cost savings of deferral will be lower than those outlined in the 2017 proposed delay rule RIA. The BLM adjusted the language in the RIA to reflect the first comment. The BLM disagrees with the second comment. For this 2017 final delay rule, the BLM tracks the shift in impacts over the first 10 years of implementation (after the delay) and compares it against the baseline. The original period of analysis in the RIA prepared for the 2016 final rule was 10 years. We note that certain impacts, such as cost savings and royalty, are different when shifted to the future. The BLM also notes that the estimated impacts attributed to a suspension or delay may be imprecise for several reasons (See RIA section 3.4). Also, while compliance with the requirements suspended or delayed by this 2017 final delay rule will not be required until January 17, 2019, BLM anticipates that operators will start undertaking compliance activities in advance of the compliance date. Although the BLM is currently considering revisions to the 2016 final rule, it cannot definitively determine what form those revisions will take until it completes the notice-and-comment rulemaking process. Therefore, for the purposes of this analysis, the BLM assumes that the 2016 final rule will be fully implemented starting in January 2019 after the suspension period ends.
Some commenters called the decision to limit the analysis timespan to 10 years arbitrary and too short and expressed concerns that other aspects of the net benefit analysis, such as the definition of the baseline and the benefits of the delay rule, result in undercounting of forgone benefits. The comment specifically stated that the BLM counted beneficial effects in year 2027 as benefits of its proposed delay even though these benefits would have occurred under the 2016 rule as methane reductions would continue. The BLM disagrees. The 10-year timeframe was not arbitrarily chosen. The BLM originally used a 10-year period of analysis in the 2016 final rule to reflect the limited life of the equipment that the rule was requiring and that the additional installations would be covered by the overlapping EPA regulations (see 40 CFR part 60, subparts OOOO or OOOOa). When comparing the 2017 final delay rule impacts to the 2016 rule, it is necessary to look at the equivalent 10 year estimated lifespan of the equipment in addition to the 1-year delay. If, instead, the impacts of the delay rule were constrained to the 10-year span used in the 2016 rule, the rule would be undervalued. If companies are still incurring costs for the delay rule in year 2027, then it is appropriate to count the social benefits that result from those costs. The omission of baseline impacts in the final year of the delay rule analysis is a result of the EPA rule taking effect (see 40 CFR part 60, subparts OOOO or OOOOa). Ascribing emission reduction benefits from the EPA rule to the BLM's 2016 final rule would be inappropriate.
Multiple commenters stated in a joint comment letter that the BLM did not consider information indicating that the costs of the 2016 final rule are actually lower than estimated in the 2016 RIA or that the benefits are actually higher than estimated in the 2016 RIA. The BLM recognizes that, despite the status of the 2016 final rule, operators are taking and will continue to take voluntary action to reduce the waste of natural gas, especially when taking action is in their best financial interest. Relying solely on a voluntary approach may not achieve the same results in a primarily oil-producing area, for oil wells, for marginal oil wells, or for marginal gas wells. The BLM also recognizes that the experiences of “major” operators may not be the same as small operators.
Multiple commenters disagreed with an alternative net-benefit analysis presented in the 2017 proposed-delay-rule RIA that omits monetized estimates of forgone climate benefits. In response to this and other related comments, the BLM removed the referenced alternative in the Appendix to the RIA that omitted monetized benefits.
Commenters stated that while the BLM acknowledges that the delay rule is expected to reduce annual royalties to the Federal Government, tribal governments, States, and private landowners, it fails to address the impacts of reduced royalty revenues to State, local and tribal governments. Another commenter noted that suspension of the 2016 final rule could indirectly impact other industries like those in the outdoor recreation and tourism sectors. Pursuant to Executive Order 12866 and NEPA, and in an effort to provide full transparency to the public regarding the impacts of its actions, the BLM has presented all of the foreseeable impacts that this 2017 final delay rule would have, based on the final analysis of the 2016 rule and to the extent that data and available methodologies permit and consistent with the best science currently available. See Section 4.4.2 of the 2017 RIA for a discussion on royalty impacts. The BLM's EA (at section 4.2.3) discusses the impacts that the 2017 final delay rule would have on recreation.
One commenter stated that the 2016 final rule promotes domestic natural gas production, which in turn supports energy security, national security, and economic productivity. Additionally, commenters stated that the 2016 final rule allows for the creation of cutting-edge technologies and field jobs that would reduce waste and increase income. The 2017 final delay rule does not substantively change the 2016 final rule, it merely postpones implementation of the compliance requirements for certain provisions of the 2016 final rule for 1 year. These comments are therefore outside the scope of this rule.
Several commenters cited concerns over climate change in their opposition to the BLM's proposal to delay implementation of the 2016 final rule. The commenters stated that methane is a potent GHG that contributes to global warming and that oil and gas operators should not allow methane to escape into the atmosphere. The commenters stated that climate change has been linked to negative consequences, like more severe droughts and wildfires. The commenters argued that this rule is an example of the U.S. Government taking actions that cause climate change, and that methane pollution has increased from onshore Federal leases in recent years. The commenters argued that the need to reduce methane emissions is an urgent matter and cannot be delayed.
The BLM did not change its proposal in response to these comments. The BLM estimates that the 2017 final rule will result in additional methane emissions of 175,000 tons in Year 1, but no change from the baseline for the 11-year period following the delay. We also estimate additional VOC emissions of 250,000 tons in Year 1, but no change from the baseline for the 11-year period following the delay. See section 4.2 of the 2017 RIA for a full description of the estimated reduction in benefits. As the BLM develops a proposed revision of the 2016 final rule, it will continue to evaluate and address potential environmental impacts. The BLM notes that the 2017 final delay rule will only temporarily delay the 2016 final rule's requirements. In response to concerns that methane emissions may be higher than those disclosed, the BLM notes that, while there is uncertainty in estimating the volumes of gas vented or flared, it has estimated the impacts of this 2017 final delay rule in a manner that is consistent with statute and executive orders and based on the best available information.
Many commenters stated that the 2016 final rule will reduce air pollution from oil and gas production, and that subsequently delaying the implementation of the 2016 final rule poses a public health challenge, particularly to the most vulnerable populations and communities, and impacts the environment. Commenters described that the implementation of the 2016 final rule not only results in the capture of methane, but also the capture of VOC emissions, such as benzene, a known carcinogen. The commenters stated that VOC releases degrade our ambient air quality, with long-term health impacts related to the exposure of low levels of VOC emissions. The BLM acknowledges that there will be a short-term increase in the amount of methane and VOCs emitted during the 1-year delay, relative to the baseline, but there will be essentially no increase over the 11-year evaluation period (See EA Section 4.2.1 and 4.2.2 and 2017 RIA Section 4.2). While the BLM did not monetize the forgone benefits from VOC emissions reductions, it notes that the impact is transitory. The BLM will analyze the costs and benefits, which may result from any changes it proposes, in an upcoming rulemaking, to the 2016 final rule in accordance with Executive Order 13783.
One commenter stated that methane release can trigger life-threatening asthma attacks, worsen respiratory conditions, and cause cancer, which disproportionately affects Hispanic communities. The comment cited the EPA as reporting that Hispanics are among those facing the greatest risk of exposure to air pollutants and are three times more likely to die from asthma than any other racial or ethnic group. The BLM notes that the 2017 final delay rule delays or suspends implementation of the compliance requirements for certain provisions of the 2016 final rule by 1 year and is not expected to materially affect methane emissions as compared to the baseline data analyzed in the 2017 final delay rule RIA. The BLM concluded that the 2016 final rule did not lead to any significant or adverse differential environmental justice impacts (see 2016 final EA section 4.2.7). As the BLM reconsiders the 2016 final rule, in accordance with Executive Order 13783, it will continue to analyze the rule's costs and benefits, including any potential environmental justice impacts.
Several commenters raised concerns about lack of sufficient public engagement throughout this rulemaking process. They asked the BLM to extend the 2017 delay rule comment period to 60 days and to hold one or more public hearings, stating that the 30-day comment period was inadequate given the fundamental, highly technical, and extremely controversial changes to the benefits estimates included in the 2017 proposed delay rule.
The BLM did not change its proposal in response to these comments. The BLM believes it provided adequate public engagement throughout the process through outreach to stakeholders and a 30-day comment period. Given the narrow scope of the proposal, short delay, and recent comments on the 2016 final rule, the BLM determined a 30-day comment period to be appropriate and public meetings to be unnecessary. The 2017 final delay rule merely suspends and delays regulatory provisions that were very recently the object of public comment procedures. The public was engaged throughout this rulemaking process. The BLM received over 158,000 comments, including approximately 750 unique comments. The BLM is not required to hold public meetings for this rulemaking process.
Commenters stated that, given the lengthy 2016 final rule rulemaking process, a 2-year delay is needed to avoid unnecessary compliance costs and creating regulatory uncertainty for industry. The BLM did not change this rule in response to these comments. To reduce uncertainty, the BLM limited this 2017 final delay rule to the minimum necessary to achieve revision to the 2016 final rule, which it determined to be 1 year. The BLM has already made significant progress in developing a proposed revision of the 2016 rule and the BLM therefore fully expects that the revision will be completed and finalized before January 17, 2019.
Commenters stated that the BLM and the Secretary predetermined the outcome of this rulemaking with statements made and documents filed in Federal court. The BLM disagrees. The BLM is conducting the rulemaking process for the delay rule in accordance with the APA, and the BLM will be revising, as appropriate, the 2016 rule in accordance with the APA. Public statements about the BLM's plan to reconsider the 2016 rule and its intentions behind the proposed delay rule do not amount to final decisions made prior to conducting NEPA.
Commenters stated that the 2017 delay rule is a significant action that warrants an environmental impact statement (EIS), instead of an EA. Commenters state that the EA erroneously includes the 2016 rule implementation in the baseline, failed to analyze the impacts of the proposed action in a meaningful way, and did not include a reasonable range of alternatives. The commenters also believe that the BLM should have published a draft Finding of No Significant Impact (FONSI) for public comment, and that the FONSI does not consider both the context and intensity of the 2017 delay rule, resulting in the failure to take a hard look at localized impacts.
The BLM did not change its proposal in response to these comments. Based
The fact that the BLM chose to include the expected effects of the 2016 final rule in the “baseline” environment does not mean that the BLM's analysis of the environmental impacts of the proposed action was inadequate. In fact, the incorporation of the 2016 final rule into the baseline environment has exactly the opposite effect. Were the BLM not to include the not-yet effective requirements of the 2016 final rule in the baseline, then the BLM's analysis of the proposed suspension action relative to the baseline would necessarily find fewer (and possibly no) impacts, as the suspension action would essentially maintain the environmental status quo.
The EA analyzed Alternative A (No Action) and Alternative B (BLM Proposed Action), which are the reasonable alternatives that would meet the purpose and need of today's action. See Section 2 of the EA for a description of each alternative. Section 2.4 of the EA describes the alternatives considered, but eliminated from further analysis. The 2017 RIA analyzed the impacts for a 6-month and 2-year delay, but they were both found to be not technically or financially feasible, therefore they were not carried forward for analysis.
Commenters stated that the 2017 delay rule is a dramatic substantive change from the 2016 final rule, and that the BLM did not follow proper procedures to make the substantive revision to the 2016 final rule prescribed in
Commenters stated the BLM failed to meets it review/consultation requirements under the Endangered Species Act (ESA) and the National Historic Preservation Act (NHPA). The BLM disagrees. The BLM has met its review and consultation requirements for both the ESA and NHPA. As stated in section 4.1 of the EA, the BLM informally consulted with the FWS and the FWS concurred with the BLM's determination that the 2017 delay rule may affect, but is not likely to adversely affect, listed species or their associated designated critical habitat. This rulemaking is not a “Federal undertaking” for which the NHPA requires an analysis of effects on historic property. See 54 U.S.C. 306108 and 300320.
Commenters supported the inclusion of the following provisions of the 2016 final rule in the 2017 delay rule: Section 3162.3, because the requirement is duplicative, conflicting, and/or unnecessary given existing state requirements; Section 3179.6, but the commenter provided no explanation; Section 3179.7, because it is unnecessarily complex and the gas capture percentage requirements could be obviated through other BLM efforts to facilitate pipeline development; Section 3179.9 because the requirement on operators to estimate (using estimation protocols) or measure (using a metering device) all flared and vented gas will impose significant costs; Section 3179.101, because the BLM has failed to consider the technical feasibility of the requirements; Section 3179.102, because it is technically infeasible and duplicative of EPA regulations; Section 3179.204, but the commenter provided no explanation; and Sections 3179.301–305 because the BLM overestimated the benefits and underestimated costs.
Other commenters asserted that the following provisions should not be included in the delay rule: Section 3179.102, because the provision would not require any action from most operators and therefore imposes no burden; section 3179.7, because the 2016 RIA found that the direct quantified benefits to operators that would result from capturing gas that would otherwise have been wasted outweighed the costs of the capture targets in the first 2 years that those targets apply; section 3179.10, because the delay rule provides no information on the effect of such an extension, and specifically, how much royalty revenue would be lost; sections 3179.101 and 3179.102, because the 2017 RIA does not estimate any capital costs to operators associated with these provisions; section 3179.201, because the BLM repeats the 2016 RIA findings that the cost savings to operators from compliance with the pneumatic controller requirements would substantially exceed the costs of compliance so its motives are unclear; section 3179.204, because the BLM's proposal repeats the 2016 RIA findings that the burden on the operators would be small or nonexistent; and section 3179.202 because the BLM's justification for suspension is inaccurate when describing analogous EPA regulations.
The BLM did not revise its proposal in response to these comments. This final delay rule temporarily suspends or delays almost all of the requirements in the 2016 final rule that the BLM estimated would pose a compliance burden to operators and are being reconsidered due to the cost, complexity, and other implications. The BLM has tailored the final delay rule to target the requirements of the 2016 rule for which immediate regulatory relief is particularly justified. The 2017 final delay rule does not suspend or delay the requirements in subpart 3178 related to the royalty-free use of natural gas, but the only estimated compliance costs associated with those requirements are for minor and rarely occurring administrative burdens. In addition, for the most part, the 2017 final delay rule suspends or delays the administrative burdens associated with subpart 3179. Only four of the 24 information collection activities remain, and the burdens associated with these remaining items are not substantial. See the section-by-section analysis for the BLM's specific justification for delay with regard to each provision.
One commenter stated that the 2017 RIA incorrectly assumes that suspension of the 2016 final rule will result in a return to NTL–4A. The BLM disagrees. The 2017 final rule RIA does not state nor imply an assumption that the suspension of the 2016 final rule will result in a return to NTL–4A. Several States have published regulations and policies that have the effect of limiting the waste of gas from production operations in the States where the production of oil and gas from Federal and Indian leases is most prevalent. See the 2017 RIA at 17 for a summary of these State regulations.
One commenter disagrees with the BLM's description of the requirements at 43 CFR 3179.9 as “imposing a blanket requirement on all operators.” The commenter notes that the 2016 final rule differentiates between flares of different volumes by establishing the threshold. The commenter's criticism of terminology does not alter the BLM's underlying point that the requirement
Commenters state that the reference to analogous EPA regulations as the reason for reconsidering requirements at 43 CFR 3179.201 and 43 CFR 3179.203 is inaccurate because the EPA and 2016 final rules regulate different operations. The BLM disagrees. Although 43 CFR 3179.201 and 3179.203 were designed to avoid imposing requirements that conflict with EPA's requirements, this does not mean that overlap with EPA regulations is not important to the BLM's reconsideration of the regulatory necessity of §§ 3179.201 and 3179.203. Because EPA's regulations apply to new, modified, and reconstructed pneumatic controllers and storage vessels, EPA's existing regulations will address the losses of gas from these sources as pneumatic controllers and storage vessels are installed, modified, or replaced over time and become subject to EPA's regulations. In addition, the BLM will reconsider, in an upcoming rulemaking, whether the volumes of gas that would be captured for sale under §§ 3179.201 and 3179.203 actually justify the compliance costs associated with those provisions.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) will review all significant rules.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas.
This final delay rule temporarily suspends or delays portions of the BLM's 2016 final rule while the BLM reviews those requirements. We have developed this final delay rule in a manner consistent with the requirements in Executive Order 12866 and Executive Order 13563.
After reviewing the requirements of the final delay rule, the OMB has determined that the final delay rule is not an economically significant action according to the criteria of Executive Order 12866. The BLM reviewed the requirements of this final delay rule and determined that it will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. For more detailed information, see the RIA prepared for this final delay rule. The RIA has been posted in the docket for the final rule on the
This final delay rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
The BLM reviewed the Small Business Administration (SBA) size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau in the Economic Census. The BLM concludes that the vast majority of entities operating in the relevant sectors are small businesses as defined by the SBA. As such, this final delay rule will likely affect a substantial number of small entities.
However, the BLM believes that this final delay rule will not have a significant economic impact on a substantial number of small entities. Although the rule will affect a substantial number of small entities, the BLM does not believe that these effects will be economically significant. This final delay rule temporarily suspends or delays certain requirements placed on operators by the 2016 final rule. Operators will not have to undertake the associated compliance activities, either operational or administrative, that are outlined in the 2016 final rule until January 17, 2019, except to the extent the activities are required by State or tribal law, or by other pre-existing BLM regulations. The screening analysis conducted by the BLM estimates that the average reduction in compliance costs associated with this final delay rule will be a small fraction of a percent of the profit margin for small companies, which is not a large enough impact to be considered significant.
This final delay rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This final delay rule:
(a) Will not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This final delay rule will not impose an unfunded mandate on State, local, or tribal governments, or the private sector of $100 million or more per year. The final delay rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. This final delay rule contains no requirements that apply to State, local, or tribal governments. It temporarily suspends or delays requirements that otherwise apply to the private sector. A statement containing the information required by the Unfunded Mandates Reform Act
This final delay rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required. This final delay rule temporarily suspends or delays many of the requirements placed on operators by the 2016 final rule. Operators will not have to undertake the associated compliance activities, either operational or administrative, that are outlined in the 2016 final rule until January 17, 2019. All such operations are subject to lease terms, which expressly require that subsequent lease activities must be conducted in compliance with subsequently adopted Federal laws and regulations. This final delay rule conforms to the terms of those leases and applicable statutes and, as such, the rule is not a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that this final delay rule will not cause a taking of private property or require further discussion of takings implications under Executive Order 12630.
Under the criteria in section 1 of Executive Order 13132, this final delay rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism impact statement is not required.
This final delay rule will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. It will not apply to States or local governments or State or local governmental entities. The rule will affect the relationship between operators, lessees, and the BLM, but it does not directly impact the States. Therefore, in accordance with Executive Order 13132, the BLM has determined that this final delay rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
This final delay rule complies with the requirements of Executive Order 12988. More specifically, this final delay rule meets the criteria of section 3(a), which requires agencies to review all regulations to eliminate errors and ambiguity and to write all regulations to minimize litigation. This final delay rule also meets the criteria of section 3(b)(2), which requires agencies to write all regulations in clear language with clear legal standards.
The Department strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this final delay rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified direct effects on federally recognized Indian tribes that will result from this final delay rule. Under this final delay rule, oil and gas operations on tribal and allotted lands will not be subject to many of the requirements placed on operators by the 2016 final rule until January 17, 2019.
The BLM has conducted an appropriate degree of tribal outreach in the course of developing this final delay rule given that the rule extends the compliance dates of the 2016 final rule, but does not change the policies of that rule. On October 16 and 17, 2017, the BLM sent out 264 rule notification letters with an enclosure to tribes and tribal organizations with oil and gas interests in Alaska (27), Arizona (38), California (5), Colorado (3), District of Columbia (1), Eastern States (2), Idaho (2), Montana/Dakotas (36), New Mexico/Oklahoma/Texas (139), Nevada (1), Utah (7), and Wyoming (3). The BLM then sent 16 follow-up letters to tribes that the letters were returned with the mark “Return to Sender” or, during consultation, BLM was informed that the tribes had not received letters.
The BLM State Directors, as delegated, personally contacted some of the tribes by phone with significant oil and gas interests, including six tribes in Colorado, two tribes in Wyoming, five tribes in the Montanas/Dakotas and two tribes in Arizona.
Through
The tribes raised several issues, including: Insufficient consultation; loss of royalties from not implementing the 2016 rule; the DOI Secretary, but not the BLM, has a right to regulate Indian land; and, the environmental effects to the Native populations. The tribal comments were summarized and responded to in the supplemental comments and response document and are also referenced above in the “Comments and Responses” section of this 2017 final delay rule.
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501–3521) provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid control number. 44 U.S.C. 3512. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information, and report it to a Federal agency. See 44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k).
OMB has approved the 24 information collection activities in the 2016 final rule and has assigned control number 1004–0211 to those activities. In the Notice of Action approving the 24 information collection activities in the 2016 final rule, OMB announced that the control number will expire on January 31, 2018. The Notice of Action also included terms of clearance.
The BLM requests the extension of control number 1004–0021 until January 31, 2019. The BLM also requests revisions to the burden estimates as described below.
The information collection activities in this final delay rule are described below along with estimates of the annual burdens. Included in the burden estimates are the time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each component of the proposed information collection.
The BLM requests extension of OMB control number 1004–0211 until January 31, 2019. This extension would continue OMB's approval of the following information collection activities, with the revised burden estimates described below.
The 2016 final rule added a new provision to 43 CFR 3162.3–1 that requires a plan to minimize waste of natural gas when submitting an Application for Permit to Drill or Re-enter (APD) for a development oil well. This information is in addition to the APD information that the BLM already collects under OMB Control Number 1004–0137. The required elements of the waste minimization plan are listed at paragraphs (j)(1) through (j)(7).
The BLM is revising the estimated burdens to operators. The BLM recently included the following annual burden estimates for APDs in a notice announcing its intention to seek renewal of control number 1004–0137, Onshore Oil and gas Operations and Production (expires January 31, 2018): 3,000 responses, 8 hours per response, and 24,000 total hours. 82 FR 42832, R 42833 (Sept. 12, 2017). The BLM will increase the estimated annual number of responses for waste minimization plans from 2,000 to 3,000, to match the estimates for APDs in control number 1004–0137, and will increase the total burden hours for APDs from 16,000 to 24,000.
Section 3178.5 requires submission of a Sundry Notice (Form 3160–5) to request prior written BLM approval for use of gas royalty-free for the following operations and production purposes on the lease, unit or communitized area:
• Using oil or gas that an operator removes from the pipeline at a location downstream of the facility measurement point (FMP);
• Removal of gas initially from a lease, unit PA, or communitized area for treatment or processing because of particular physical characteristics of the gas, prior to use on the lease, unit PA or communitized area; and
• Any other type of use of produced oil or gas for operations and production purposes pursuant to § 3178.3 that is not identified in § 3178.4. Section 3178.7 requires submission of a Sundry Notice (Form 3160–5) to request prior written BLM approval for off-lease royalty-free uses in the following circumstances:
• The equipment or facility in which the operation is conducted is located off the lease, unit, or communitized area for engineering, economic, resource-protection, or physical-accessibility reasons; and
• The operations are conducted upstream of the FMP. Section 3178.8 requires that an operator measure or estimate the volume of royalty-free gas used in operations upstream of the FMP. In general, the operator is free to choose whether to measure or estimate, with the exception that the operator must in all cases measure the following volumes:
• Royalty-free gas removed downstream of the FMP and used pursuant to §§ 3178.4 through 3178.7; and
• Royalty-free oil used pursuant to §§ 3178.4 through 3178.7.
If oil is used on the lease, unit or communitized area, it is most likely to be removed from a storage tank on the lease, unit or communitized area. Thus, this regulation also requires the operator to document the removal of the oil from the tank or pipeline.
Section 3178.8(e) requires that operators use best available information to estimate gas volumes, where estimation is allowed. For both oil and gas, the operator must report the volumes measured or estimated, as applicable, under ONRR reporting requirements. As revisions to Onshore Oil and Gas Orders No. 4 and 5 have now been finalized as 43 CFR subparts 3174 and 3175, respectively, the final delay rule text now references § 3173.12, as well as §§ 3178.4 through 3178.7 to clarify that royalty-free use must adhere to the provisions in those sections.
Section 3178.9 requires the following additional information in a request for prior approval of royalty-free use under § 3178.5, or for prior approval of off-lease royalty-free use under § 3178.7:
• A complete description of the operation to be conducted, including the location of all facilities and equipment involved in the operation and the location of the FMP;
• The volume of oil or gas that the operator expects will be used in the operation and the method of measuring or estimating that volume;
• If the volume expected to be used will be estimated, the basis for the estimate (
• The proposed disposition of the oil or gas used (
Section 3179.8 applies only to leases issued before the effective date of the 2016 final rule and to operators choosing to comply with the capture requirement in § 3179.7 on a lease-by-lease, unit-by-unit, or communitized area-by-communitized area basis. The regulation provides that operators who meet those parameters may seek BLM approval of a capture percentage other than that which is applicable under 43 CFR 3179.7. The operator must submit a Sundry Notice (Form 3160–5) that includes the following information:
• The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated; and
• The oil and gas production levels of each of the operator's wells on the lease, unit, or communitized area for the most recent production month for which information is available and the volumes being vented and flared from each well. In addition, the request must include map(s) showing:
• The entire lease, unit, or communitized area, and the surrounding lands to a distance and on a scale that shows the field in which the well is or will be located (if applicable),
• All of the operator's producing oil and gas wells, which are producing from Federal or Indian leases, (both on Federal or Indian leases and on other properties) within the map area;
• Identification of all of the operator's wells within the lease from which gas is flared or vented, and the location and distance of the nearest gas pipeline(s) to each such well, with an identification of those pipelines that are or could be available for connection and use; and
• Identification of all of the operator's wells within the lease from which gas is captured;
The following information is also required:
• Data that show pipeline capacity and the operator's projections of the cost associated with installation and operation of gas capture infrastructure, to the extent that the operator is able to obtain this information, as well as cost projections for alternative methods of transportation that do not require pipelines; and
• Projected costs of and the combined stream of revenues from both gas and oil production, including: (1) The operator's projections of gas prices, gas production volumes, gas quality (
Section 3179.7 requires operators flaring gas from development oil wells to capture a specified percentage of the operator's adjusted volume of gas produced over the relevant area. The “relevant area” is each of the operator's leases, units, or communitized areas, unless the operator chooses to comply on a county- or State-wide basis and the operator notifies the BLM of its choice by Sundry Notice (Form 3160–5) by January 1 of the relevant year.
Section 3179.102 lists several requirements pertaining to gas that reaches the surface during well completion and related operations. An operator may seek an exemption from these requirements by submitting a Sundry Notice (Form 3160–5) that includes the following information:
(1) The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance; and
(4) Projected costs of and the combined stream of revenues from both gas and oil production, including: the operator's projections of oil and gas prices, production volumes, quality (
The rule also provides that an operator that is in compliance with the EPA regulations for well completions under 40 CFR part 60, subpart OOOO or subpart OOOOa is deemed in compliance with the requirements of this section. As a practical matter, all hydraulically fractured or refractured wells are now subject to the EPA requirements, so the BLM does not believe that the requirements of this section would have any independent effect, or that any operator would request an exemption from the requirements of this section, as long as the EPA requirements remain in effect. For this reason, the BLM is not estimating any PRA burdens for § 3179.102.
Section 3179.103 allows gas to be flared royalty-free during initial production testing. The regulation lists specific volume and time limits for such testing. An operator may seek an extension of those limits on royalty-free flaring by submitting a Sundry Notice (Form 3160–5) to the BLM.
Section 3179.104 allows gas to be flared royalty-free for no more than 24 hours during well tests subsequent to the initial production test. The operator may seek authorization to flare royalty-free for a longer period by submitting a Sundry Notice (Form 3160–5) to the BLM.
Section 3179.105 allows an operator to flare gas royalty-free during a temporary, short-term, infrequent, and unavoidable emergency. Venting gas is permissible if flaring is not feasible during an emergency. The regulation defines limited circumstances that constitute an emergency, and other circumstances that do not constitute an emergency. The operator must estimate and report to the BLM on a Sundry Notice (Form 3160–5) volumes flared or vented in circumstances that, as provided by 43 CFR 3179.105, do not constitute emergencies for the purposes of royalty assessment:
(1) More than 3 failures of the same component within a single piece of equipment within any 365-day period;
(2) The operator's failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;
(3) Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;
(4) Scheduled maintenance;
(5) A situation caused by operator negligence; or
(6) A situation on a lease, unit, or communitized area that has already experienced three or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than three emergencies within the 30 day period could not have been anticipated and was beyond the operator's control.
Section 3179.201 pertains to any pneumatic controller that: (1) Is not subject to EPA regulations at 40 CFR 60.5360 through 60.5390, but would be subject to those regulations if it were a new or modified source; and (2) Has a continuous bleed rate greater than 6 scf per hour. Section 3179.201(b) requires operators to replace each high-bleed pneumatic controller with a controller with a bleed rate lower than 6 scf per hour, with the following exceptions: (1) The pneumatic controller exhaust is routed to processing equipment; (2) The pneumatic controller exhaust was and continues to be routed to a flare device or low pressure combustor; (3) The pneumatic controller exhaust is routed to processing equipment; or (4) The operator notifies the BLM through a Sundry Notice and demonstrates, and the BLM agrees, that such would impose
An operator may invoke one of the first three exceptions described above by notifying the BLM through a Sundry Notice (Form 3160–5) that use of the pneumatic controller is required based on functional needs that may include, but are not limited to, response time, safety, and positive actuation, and the Sundry Notice (Form 3160–5) describes those functional needs.
An operator may invoke the fourth exception described above by demonstrating to the BLM through a Sundry Notice (Form 3160–5), and by obtaining the BLM's agreement, that replacement of a pneumatic controller would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease. The Sundry Notice (Form 3160–5) must include the following information:
(1) The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance;
(4) Projected costs of and the combined stream of revenues from both gas and oil production, including: The operator's projections of gas prices, gas production volumes, gas quality (
The operator may replace a high-bleed pneumatic controller if the operator notifies the BLM through a Sundry Notice (Form 3160–5) that the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less.
With some exceptions, § 3179.202 pertains to any pneumatic diaphragm pump that: (1) Uses natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease; and (2) Is not subject to EPA regulations at 40 CFR 60.5360 through 60.5390, but would be subject to those regulations if it were a new or modified source. This regulation generally requires replacement of such a pump with a zero-emissions pump or routing of the pump's exhaust gas to processing equipment for capture and sale.
This requirement does not apply to pneumatic diaphragm pumps that do not vent exhaust gas to the atmosphere. In addition, this requirement does not apply if the operator submits a Sundry Notice to the BLM documenting that the pump(s) operated on less than 90 individual days in the prior calendar year.
A pneumatic diaphragm pump is not subject to section 3179.202 if the operator documents in a Sundry Notice (Form 3160–5) that the pump was operated fewer than 90 days in the prior calendar year.
In lieu of replacing a pneumatic diaphragm pump or routing the pump exhaust gas to processing equipment, an operator may submit a Sundry Notice (Form 3160–5) to the BLM showing that replacing the pump with a zero emissions pump is not viable because a pneumatic pump is necessary to perform the function required, and that routing the pump exhaust gas to processing equipment for capture and sale is technically infeasible or unduly costly.
An operator may seek an exemption from the replacement requirement by submitting a Sundry Notice (Form 3160–5) to the BLM that provides an economic analysis that demonstrates that compliance with these requirements would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease. The Sundry Notice (Form 3160–5) must include the following information:
(1) Well information that must include: (i) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated; and (ii) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(2) Data that show the costs of compliance with paragraphs (c) through (e) of § 3179.202; and
(3) The operator's estimate of the costs and revenues of the combined stream of revenues from both the gas and oil components, including: (i) The operator's projections of gas prices, gas production volumes, gas quality (
The operator may replace a pneumatic diaphragm pump if the operator notifies the BLM through a Sundry Notice (Form 3160–5) that the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less.
A storage vessel is subject to 43 CFR 3179.203(c) if the vessel: (1) Contains production from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian
The operator must determine, record, and make available to the BLM upon request, whether the storage vessel has the potential for VOC emissions equal to or greater than 6 tpy based on the maximum average daily throughput for a 30-day period of production. The determination may take into account requirements under a legally and practically enforceable limit in an operating permit or other requirement established under a Federal, State, local or tribal authority that limit the VOC emissions to less than 6 tpy.
If a storage vessel has the potential for VOC emissions equal to or greater than 6 tpy, the operator must replace the storage vessel at issue in order to comply with the requirements of this section, and the operator must
(1) Route all tank vapor gas from the storage vessel to a sales line;
(2) If the operator determines that compliance with paragraph (c)(1) of this section is technically infeasible or unduly costly, route all tank vapor gas from the storage vessel to a device or method that ensures continuous combustion of the tank vapor gas; or
(3) Submit an economic analysis to the BLM through a Sundry Notice (Form 3160–5) that demonstrates, and the BLM agrees, based on the information identified in paragraph (d) of this section, that compliance with paragraph (c)(2) of this section would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.
To support the demonstration described above, the operator must submit a Sundry Notice (Form 3160–5) that includes the following information:
(1) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance with paragraph (c)(1) or (c)(2) of this section on the lease; and
(4) The operator must consider the costs and revenues of the combined stream of revenues from both the gas and oil components, including: The operator's projections of oil and gas prices, production volumes, quality (
The operator must minimize vented gas and the need for well venting associated with downhole well maintenance and liquids unloading, consistent with safe operations. Before the operator manually purges a well for liquids unloading for the first time after the effective date of this section, the operator must consider other methods for liquids unloading and determine that they are technically infeasible or unduly costly. The operator must provide information supporting that determination as part of a Sundry Notice (Form 3160–5). This requirement applies to each well the operator operates.
For any liquids unloading by manual well purging, the operator must:
(1) Ensure that the person conducting the well purging remains present on-site throughout the event to minimize to the maximum extent practicable any venting to the atmosphere;
(2) Record the cause, date, time, duration, and estimated volume of each venting event; and
(3) Maintain the records for the period required under § 3162.4–1 and make them available to the BLM, upon request.
The operator must notify the BLM by Sundry Notice (Form 3160–5), within 30 calendar days, if:
(1) The cumulative duration of manual well purging events for a well exceeds 24 hours during any production month; or
(2) The estimated volume of gas vented in liquids unloading by manual well purging operations for a well exceeds 75 Mcf during any production month.
Sections 3179.301 through 3179.305 include information collection activities pertaining to the detection and repair of gas leaks during production operations. These regulations require operators to inspect all equipment covered under § 3179.301(a) for gas leaks.
Section 3179.301(j) allows an operator to satisfy the requirements of §§ 3179.301 through 3179.305 for some or all of the equipment or facilities on a given lease by notifying the BLM in a Sundry Notice (Form 3160–5) that the operator is complying with EPA requirements established pursuant to 40 CFR part 60 with respect to such equipment or facilities.
Section 3179.302 specifies the instruments and methods that an operator may use to detect leaks. Section 3179.302(d) allows the BLM to approve an alternative monitoring device and associated inspection protocol if the BLM finds that the alternative would achieve equal or greater reduction of gas lost through leaks compared with the approach specified in § 3179.302(a)(1) when used according to § 3179.303(a).
Any person may request approval of an alternative monitoring device and protocol by submitting a Sundry Notice (Form 3160–5) to the BLM that includes the following information: (1) Specifications of the proposed monitoring device, including a detection limit capable of supporting the desired function; (2) The proposed monitoring protocol using the proposed monitoring device, including how results will be recorded; (3) Records and data from laboratory and field testing, including but not limited to performance testing; (4) A demonstration that the proposed monitoring device and protocol will achieve equal or greater reduction of gas lost through leaks compared with the approach specified in the regulations; (5) Tracking and documentation procedures; and (6) Proposed limitations on the types of sites or other conditions on deploying the device and the protocol to achieve the demonstrated results.
Section 3179.303(b) allows an operator to submit a Sundry Notice (Form 3160–5) requesting authorization to detect gas leaks using an alternative instrument-based leak detection program, different from the specified requirement to inspect each site semi-annually using an approved monitoring device.
To obtain approval for an alternative leak detection program, the operator must submit a Sundry Notice (Form 3160–5) that includes the following information:
(1) A detailed description of the alternative leak detection program,
(2) The proposed monitoring protocol;
(3) Records and data from laboratory and field testing, including, but not limited to, performance testing, to the extent relevant;
(4) A demonstration that the proposed alternative leak detection program will achieve equal or greater reduction of gas lost through leaks compared to compliance with the requirements specified in §§ 3179.302(a) and 3179.303(a);
(5) A detailed description of how the operator will track and document its procedures, leaks found, and leaks repaired; and
(6) Proposed limitations on types of sites or other conditions on deployment of the alternative leak detection program.
An operator may seek authorization for an alternative leak detection program that does not achieve equal or greater reduction of gas lost through leaks compared to the required approach, if the operator demonstrates that compliance with the leak-detection regulations (including the option for an alternative program under 43 CFR 3179.303(b)) would impose such costs as to cause the operator to cease production and abandon significant recoverable oil or gas reserves under the lease. The BLM may approve an alternative leak detection program that does not achieve equal or greater reduction of gas lost through leaks, but is as effective as possible consistent with not causing the operator to cease production and abandon significant recoverable oil or gas reserves under the lease.
To obtain approval for an alternative program under this provision, the operator must submit a Sundry Notice (Form 3160–5) that includes the following information:
(1) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance on the lease with the requirements of §§ 3179.301 through 305 and with an alternative leak detection program that meets the requirements of § 3179.303(b);
(4) The operator must consider the costs and revenues of the combined stream of revenues from both the gas and oil components and provide the operator's projections of oil and gas prices, production volumes, quality (
(5) The information required to obtain approval of an alternative program under § 3179.303(b), except that the estimated volume of gas that will be lost through leaks under the alternative program must be compared to the volume of gas lost under the required program, but does not have to be shown to be at least equivalent.
Section 3179.304(a) requires an operator to repair any leak no later than 30 calendar days after discovery of the leak, unless there is good cause for delay in repair. If there is good cause for a delay beyond 30 calendar days, § 3179.304(b) requires the operator to submit a Sundry Notice (Form 3160–5) notifying the BLM of the cause.
Section 3179.305 requires operators to maintain the following records and make them available to the BLM upon request: (1) For each inspection required under § 3179.303, documentation of the date of the inspection and the site where the inspection was conducted; (2) The monitoring method(s) used to determine the presence of leaks; (3) A list of leak components on which leaks were found; (4) The date each leak was repaired; and (5) The date and result of the follow-up inspection(s) required under § 3179.304. By March 31 of each calendar year, the operator must provide to the BLM an annual summary report on the previous year's inspection activities that includes: (1) The number of sites inspected; (2) The total number of leaks identified, categorized by the type of component; (3) The total number of leaks repaired; (4) The total number of leaks that were not repaired as of December 31 of the previous calendar year due to good cause and an estimated date of repair for each leak; and (5) A certification by a responsible officer that the information in the report is true and accurate.
By March 31 of each calendar year, the operator must provide to the BLM an annual summary report on the previous year's inspection activities that includes:
(1) The number of sites inspected;
(2) The total number of leaks identified, categorized by the type of component;
(3) The total number of leaks repaired;
(4) The total number leaks that were not repaired as of December 31 of the previous calendar year due to good cause and an estimated date of repair for each leak; and
(5) A certification by a responsible officer that the information in the report is true and accurate to the best of the officer's knowledge.
The following table details the annual estimated hour burdens on operators for the information activities described above. The table thus estimates the hour burdens which will not be incurred in the 1-year period from January 17, 2018, to January 17, 2019.
The BLM prepared an environmental assessment (EA) to determine whether this final delay rule will have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
The EA and FONSI have been placed in the file for the BLM's Administrative Record for the rule. The EA and FONSI have also been posted in the docket for the rule on the
This final delay rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.
Section 4(b) of Executive Order 13211 defines a “significant energy action” as “any action by an agency (normally published in the
This final delay rule temporarily suspends or delays certain requirements in the 2016 final rule and reduces compliance costs in the short-term. The BLM determined that the 2016 final rule will not impact the supply, distribution, or use of energy and so the suspension or delay of many of the 2016 final rule's requirements until January 17, 2019, will likewise not have an impact on the supply, distribution, or use of energy. As such, we do not consider this final delay rule to be a “significant energy action” as defined in Executive Order 13211.
The principal authors of this final delay rule are: James Tichenor and Erica Pionke of the BLM Washington Office; Adam Stern of the DOI's Office of Policy and Analysis; assisted by Faith Bremner, Jean Sonneman, and Charles Yudson of the BLM's Division of Regulatory Affairs and by the
Administrative practice and procedure; Government contracts; Indians—lands; Mineral royalties; Oil and gas exploration; Penalties; Public lands—mineral resources; Reporting and recordkeeping requirements.
Administrative practice and procedure; Flaring; Government contracts; Incorporation by reference; Indians—lands; Mineral royalties; Immediate assessments; Oil and gas exploration; Oil and gas measurement; Public lands—mineral resources; Reporting and recordkeeping requirements; Royalty-free use; Venting.
For the reasons set out in the preamble, the Bureau of Land Management amends 43 CFR parts 3160 and 3170 as follows:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
(j) Beginning January 17, 2019, when submitting an Application for Permit to Drill an oil well, the operator must also submit a plan to minimize waste of natural gas from that well. The waste minimization plan must accompany, but would not be part of, the Application for Permit to Drill. The waste minimization plan must set forth a strategy for how the operator will comply with the requirements of 43 CFR subpart 3179 regarding control of waste from venting and flaring, and must explain how the operator plans to capture associated gas upon the start of oil production, or as soon thereafter as reasonably possible, including an explanation of why any delay in capture of the associated gas would be required. Failure to submit a complete and adequate waste minimization plan is grounds for denying or disapproving an Application for Permit to Drill. The waste minimization plan must include the following information:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
(b) Beginning January 17, 2019, the operator's capture percentage must equal:
(1) For each month during the period from January 17, 2019, to December 31, 2020: 85 percent;
(2) For each month during the period from January 1, 2021, to December 31, 2023: 90 percent;
(3) For each month during the period from January 1, 2024, to December 31, 2026: 95 percent; and
(4) For each month beginning January 1, 2027: 98 percent.
(c) The term “capture percentage” in this section means the “total volume of gas captured” over the “relevant area” divided by the “adjusted total volume of gas produced” over the “relevant area.”
(1) The term “total volume of gas captured” in this section means: For each month, the volume of gas sold from all of the operator's development oil wells in the relevant area plus the volume of gas from such wells used on lease, unit, or communitized area in the relevant area.
(2) The term “adjusted total volume of gas produced” in this section means: The total volume of gas captured over the month
(i) For each month from January 17, 2019, to December 31, 2019: 5,400 Mcf times the total number of development oil wells “in production” in the relevant area;
(ii) For each month from January 1, 2020, to December 31, 2020: 3,600 Mcf times the total number of development oil wells in production in the relevant area;
(iii) For each month from January 1, 2021, to December 31, 2021: 1,800 Mcf times the total number of development oil wells in production in the relevant area; and
(iv) For each month from January 1, 2022, to December 31, 2022: 1,500 Mcf times the total number of development oil wells in production in the relevant area;
(v) For each month from January 1, 2023, to December 31, 2024: 1,200 Mcf times the total number of development oil wells in production in the relevant area;
(vi) For each month from January 1, 2025, to December 31, 2025: 900 Mcf times the total number of development oil wells in production in the relevant area; and
(vii) For each month after January 1, 2026: 750 Mcf times the total number of development.
(b) * * *
(1) If the operator estimates that the volume of gas flared from a high pressure flare stack or manifold equals or exceeds an average of 50 Mcf per day for the life of the flare, or the previous 12 months, whichever is shorter, then, beginning January 17, 2019, the operator must either:
(a) Approvals to flare royalty free, which are in effect as of January 17, 2017, will continue in effect until January 17, 2019.
(c) The operator must comply with this section beginning January 17, 2019.
(e) The operator must comply with this section beginning January 17, 2019.
(d) The operator must replace the pneumatic controller(s) by January 17, 2019, as required under paragraph (b) of this section. If, however, the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less from January 17, 2017, then the operator may notify the BLM through a Sundry Notice and replace the pneumatic controller no later than 3 years from January 17, 2017.
(h) The operator must replace the pneumatic diaphragm pump(s) or route the exhaust gas to capture or to a flare or combustion device by January 17, 2019, except that if the operator will comply with paragraph (c) of this section by replacing the pneumatic diaphragm pump with a zero-emission pump and the well or facility that the pneumatic diaphragm pump serves has an estimated remaining productive life of 3 years or less from January 17, 2017, the operator must notify the BLM through a Sundry Notice and replace the pneumatic diaphragm pump no later than 3 years from January 17, 2017.
(b) Beginning January 17, 2019, and within 30 days after any new source of production is added to the storage vessel after January 17, 2019, the operator must determine, record, and make available to the BLM upon request, whether the storage vessel has the potential for VOC emissions equal to or greater than 6 tpy based on the maximum average daily throughput for a 30-day period of production. The determination may take into account requirements under a legally and practically enforceable limit in an operating permit or other requirement established under a Federal, State, local or tribal authority that limit the VOC emissions to less than 6 tpy.
(c) If a storage vessel has the potential for VOC emissions equal to or greater than 6 tpy under paragraph (b) of this section, by January 17, 2019, or by January 17, 2020, if the operator must and will replace the storage vessel at issue in order to comply with the requirements of this section, the operator must:
(i) The operator must comply with this section beginning January 17, 2019.
(f) The operator must make the first inspection of each site:
(1) By January 17, 2019, for all existing sites;
(2) Within 60 days of beginning production for new sites that begin production after January 17, 2019; and
(3) Within 60 days of the date when an existing site that was out of service is brought back into service and re-pressurized after January 17, 2019.
Federal Trade Commission.
Commission policy statement.
The Federal Trade Commission has issued an Enforcement Policy Statement regarding the applicability of the Children's Online Privacy Protection Act (“COPPA”) Rule to the collection of voice recordings. The Statement describes certain circumstances in which the Commission will not bring an enforcement action against an operator on the basis of the operator having collected an audio file containing a child's voice without first obtaining verifiable parental consent.
The Commission announced the issuance of the Statement on October 23, 2017.
Kristin Cohen (202–326–2276) and Peder Magee (202–326–3538), Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.
On November 3, 1999, the Federal Trade Commission (“FTC” or “Commission”) issued its Children's Online Privacy Protection Rule (“COPPA Rule” or “Rule”). The Rule implements the Children's Online Privacy Protection Act, 15 U.S.C. 6501–6505, and requires, among other things, operators of commercial Web sites or online services directed to children, and operators with actual knowledge they are collecting personal information from children, to provide notice of their information practices to parents and to obtain verifiable parental consent before collecting a child's personal information. The Rule defined “personal information” to include data such as name, address, and social security number.
In 2013, the FTC amended the COPPA Rule and added several new types of data to the definition of personal information, including a photograph, video, or audio file that contains a child's image or voice.
Since amending the Rule, the Commission has received inquiries from a number of companies about whether the practice of collecting audio files that contain a child's voice, immediately converting the audio to text, and deleting the file containing the voice recording triggers COPPA's requirements. In particular, these companies have requested that collection of audio files in connection with a search or similar function be exempted from COPPA's verifiable parental consent requirement when the audio file is briefly maintained in order to fulfill the request and then deleted almost instantaneously.
In relevant part, the Rule defines “collects or collection” to mean the gathering of any personal information from a child by any means, including but not limited to:
• Requesting, prompting, or encouraging a child to submit personal information online;
• Enabling a child to make personal information publicly available in identifiable form. An operator shall not be considered to have collected personal information under this paragraph if it takes reasonable steps to delete all or virtually all personal information from a child's postings before they are made public and also to delete such information from its records.
The Commission views the collection from a child of an audio file when the voice is being used solely as a replacement for written words, such as to convert voice to text in order to perform a search, as falling into the first prong of the definition of “collection” because the operator is “requesting, prompting, or encouraging” the child to submit personal information. Because this practice falls into the first category of “collection,” the Rule does not provide a mechanism for the operator to avoid being deemed to have collected the personal information by deleting it. In other words, as soon as the operator gathers the audio file, it has collected it for purposes of the COPPA Rule regardless of how long the operator maintains possession of it. The second prong of the definition is meant to address the inadvertent collection of personal information, such as information that might be collected incidentally in an open text field, which is why the Rule specifically allows an operator to be deemed not to have collected the personal information if it takes reasonable measures to delete the information.
Nevertheless, the Commission recognizes the value of using voice as a replacement for written words in performing search and other functions on internet-connected devices. Verbal commands may be a necessity for certain consumers, including children who have not yet learned to write, or the disabled. In addition, when the operator only uses the audio file as a replacement for written words, such as to effectuate an instruction or request, and only maintains the file long enough to complete that purpose and then immediately deletes it, there is little risk the audio file will be used to contact an individual child.
As such, when a covered operator collects an audio file containing a child's voice solely as a replacement for written words, such as to perform a search or fulfill a verbal instruction or request, but only maintains the file for the brief time necessary for that purpose, the FTC would not take an enforcement action against the operator on the basis that the operator collected the audio file without first obtaining verifiable parental consent. Such an operator, however, must provide the notice required by the COPPA Rule, including clear notice of its collection and use of audio files and its deletion policy, in its privacy policy.
There are important limitations on this non-enforcement policy. First, this non-enforcement policy is not applicable when the operator requests information via voice that otherwise would be considered personal information under the Rule, such as name, for example. Second, as noted above, an operator must provide clear notice of its collection and use of the audio files and its deletion policy in its privacy policy. Otherwise, parents may have no way to know prior to download or purchase whether audio files are
By direction of the Commission.
(1) entry, location, selection, sale, or other disposition under the public land laws and laws applicable to the U.S. Forest Service;
(2) disposition under all laws relating to mineral and geothermal leasing; and
(3) location, entry, and patent under the mining laws.
(1) entry, location, selection, sale or other disposition under the public land laws;
(2) disposition under all laws relating to mineral and geothermal leasing; and
(3) location, entry, and patent under the mining laws.