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Agricultural Marketing Service, USDA.
Final rule; withdrawal.
This final rule withdraws the Organic Livestock and Poultry Practices final rule published in the
Effective May 13, 2018, the final rule published January 19, 2017, at 82 FR 7042, delayed February 9, 2017, at 82 FR 9967, further delayed May 10, 2017, at 82 FR 21677, and further delayed November 14, 2017, at 82 FR 52643, is withdrawn.
Paul Lewis, Ph.D., Director, Standards Division, Telephone: (202) 720–3252; Fax: (202) 720–7808.
The Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501–6522), authorizes the United States Department of Agriculture (USDA or Department) to establish national standards governing the marketing of certain agricultural products as organically produced to assure consumers that organically produced products meet a consistent standard and to facilitate interstate commerce in fresh and processed food that is organically produced. USDA's Agricultural Marketing Service (AMS) administers the National Organic Program (NOP) under 7 CFR part 205.
USDA is withdrawing the OLPP rule based on its current interpretation of 7 U.S.C. 6905, under which the OLPP final rule would exceed USDA's statutory authority. Withdrawal of the OLPP rule also is independently justified based upon USDA's revised assessments of its benefits and burdens and USDA's view of sound regulatory policy. This is considered a deregulatory action under Executive Order 13771. The organic livestock and poultry regulations now published at 7 CFR part 205 remain effective.
Documents related to this final rule include: OFPA (7 U.S.C. 6501–6524) and its implementing regulations (7 CFR part 205); the OLPP proposed rule published in the
AMS received approximately 72,000 comments on the proposal to withdraw the OLPP final rule. The majority of comments, over 63,000, opposed the withdrawal of that final rule. This included over 56,000 comments submitted as form letters. Approximately fifty comments supported withdrawal of the OLPP final rule. This included five comments submitted as form letters. The remaining comments, about 7,800, did not state a clear opinion about the proposed withdrawal of the rule.
Commenters opposing withdrawal included consumers, organic farmers, organic handlers, organizations representing animal welfare, environmental, or farming interests, trade associations, certifying agents and inspectors, and retailers. These commenters expressed the view that the OFPA provides AMS the legal authority to implement the OLPP final rule and that withdrawal violates the Administrative Procedure Act and/or the OFPA, because AMS did not consult with the National Organic Standards Board. These commenters asserted that the organic sector requested the OLPP regulation and the rulemaking reflects consensus within the organic sector and a working public-private partnership with years of input from stakeholders. A number of commenters also opposed withdrawal because of potential negative impacts for the welfare of farm animals.
Some commenters opposing the withdrawal also challenged the Preliminary Regulatory Impact Analysis (PRIA, published December 18, 2017 at
Some comments objected to AMS' conclusion that there is no significant market failure to justify this rulemaking and stated that consumer deception caused by inconsistent application of outdoor access requirements for poultry is the market failure that OFPA prevents by compelling AMS to develop consistent standards. These commenters argued that withdrawal of the OLPP final rule would erode consumer confidence and trust in the organic label. Commenters also requested an extension of the public comment period, from 30 to 90 days, specifically noting they needed more time to study the revisions discussed in the Preliminary Regulatory Impact Analysis (PRIA) and develop meaningful comments.
Commenters supporting withdrawal of the OLPP final rule included organic farmers, state departments of agriculture, and trade associations. These commenters agreed that the OLPP final rule exceeded the scope of authority granted to AMS through OFPA to regulate specific animal health care practices. These commenters stated that withdrawing the OLPP final rule would prevent increased costs to producers and consumers from costly structural changes and higher prices for organic eggs, respectively. Some commenters also supported the withdrawal because of concerns that the outdoor access requirements for organic poultry would heighten disease risk and interfere with biosecurity practices and Food and Drug Administration (FDA) requirements.
In the notice of proposed rulemaking (NPRM), AMS proposed to withdraw the OLPP Rule due to a lack of statutory authority and to maintain consistency with USDA regulatory policy principles. The proposal stated that “the relevant language and context suggests OFPA's reference to additional regulatory standards `for the care' of organically produced livestock should be limited to health care practices similar to those specified by Congress in the statute, rather than expanded to encompass stand-alone animal welfare concerns. 7 U.S.C. 6509(d)(2).” The NPRM included a detailed analysis of the relevant legal authorities leading to the proposed action. (82 FR 59989–90).
AMS received approximately fifteen comments directly addressing AMS' proposed interpretation, of which three agreed with AMS' interpretation that OFPA does not provide statutory authority for the OLPP final rule. After reviewing these comments, AMS maintains its interpretation that OFPA does not provide authority for the OLPP final rule and has decided to withdraw it. Consequently, the existing organic livestock and poultry regulations now published at 7 CFR part 205 remain effective.
The OLPP final rule consisted, in large part, of rules clarifying how producers and handlers participating in the National Organic Program must treat livestock and poultry to ensure their wellbeing (82 FR 7042). AMS is withdrawing the OLPP final rule because it now believes OFPA does not authorize the animal welfare provisions of the OLPP final rule. Rather, the agency's current reading of the statute, given the relevant language and context, is that OFPA's reference in 7 U.S.C. 6509(d)(2) to additional regulatory standards “for the care” of organically produced livestock does not encompass stand-alone concerns about animal welfare, but rather is limited to practices that are similar to those specified by Congress in the statute and necessary to meet congressional objectives outlined in 7 U.S.C. 6501.
USDA believes that the Department's power to act and how it may act are authoritatively prescribed by statutory language and context; USDA believes that it may not lawfully regulate outside the boundaries of legislative text.
The OLPP final rule is a broadly prescriptive animal welfare regulation (82 FR 7042, 7074, 7082). USDA's general OFPA implementing authority was used as justification for the OLPP final rule, which cited 7 U.S.C. 6509(g) as “convey(ing) the intent for the USDA to develop more specific standards. . . .” (82 FR 7043), and 7 U.S.C. 6509(d)(2) as authorizing regulations for animal “wellbeing” and the “care of livestock.” (82 FR 7042, 7074, 7082).
But nothing in section 6509 authorizes the broadly prescriptive, stand-alone animal welfare regulations contained in the OLPP final rule. Rather, section 6509 outlines discrete aspects of animal production practices and materials relevant to organic certification: sources of breeder stock, livestock feed, use of hormones and growth promoters, animal health care, and record-keeping. While subsection 6509(d)(2) authorizes promulgation of additional standards for the “care” of livestock, that provision is not free-standing authority for AMS to adopt any regulation conceivably related to animal “care”; rather, standards promulgated under that authority must be relevant to “ensur[ing] that [organic] livestock is
Although Congress did not define the term “organically produced” in the OFPA, the Cambridge Dictionary defines “organic” as “not using artificial chemicals in the growing of plans and animals for food and other products.” Merriam-Webster defines “organic” as “of, relating to, yielding, or involving the use of food produced with the use of feed or fertilizer of plant or animal origin
Reading this language in context, AMS now believes that the authority granted in section 6509(d)(2) and
AMS finds that its rulemaking authority in section 6509(d)(2) should not be construed in isolation, but rather should be interpreted in light of section 6509(d)(1) and section 6509(g). Furthermore, AMS believes that a decision to withdraw the OLPP final rule based on § 6509's language, titles, and position within Chapter 94 of Title 7 of the United States Code;
a. One commenter said that “Agency reconsideration of a rule . . . [previously] approved by the agency and the Office of Management and Budget under a previous administration is arbitrary, capricious, and an abuse of discretion.” Others suggested that the agency's prior consideration of “animal welfare” was binding and dispositive. However, AMS has broad discretion to reconsider a regulation at any time.
b. AMS sought comment on the proposed construction of its rulemaking authority, suggesting that the relevant OFPA text did not authorize the broadly prescriptive, stand-alone animal welfare regulations in the OLPP final rule, and noting that, even if OFPA were deemed to be silent or ambiguous with respect to the authority issue, a decision to withdraw the OLPP final rule based on section 6509's language, titles, and position within Chapter 94 of Title 7 of the United States Code; relevant legal authorities; and general USDA regulatory policy, would be a permissible statutory construction. AMS was led to this position by the Supreme Court's admonition that it may properly exercise discretion only in the interstices created by statutory silence or ambiguity and that it must always give effect to the unambiguously expressed intent of Congress.
The U.S. Supreme Court established the legal standard for review for an agency's interpretation of a statute that it administers in
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Several commenters challenged the proposed action based on an expansive construction of the statutory term “care” largely divorced from the surrounding context of the OFPA. This interpretation would suggest that Congress delegated the Secretary virtually un-cabined regulatory authority over organic livestock producers.
Under
Some commenters also stated that certain parts of the OLPP Rule do relate to animal health care, such as provisions concerning physical alterations. OFPA does not define the terms “care,” “health care,” “welfare,” or “wellbeing.” Accordingly, some commenters rejected the contextual construction adopted by AMS to argue that the reference in section 6509(d)(2) to additional standards “for the care of livestock to ensure that such livestock is organically produced” necessarily encompasses the statutory authority to issue stand-alone animal welfare regulations because animal health and welfare are “inextricably linked.” This requires an expansive interpretation of the direction to the National Organic Standards Board (NOSB) to “recommend to the Secretary standards in addition to those in paragraph (1) for the care of livestock” in 7 U.S.C. 6509(d)(2) to encompass stand-alone animal welfare standards. However, the regulatory authority conferred by subparagraph (d)(2) does not extend to all aspects of animal care, but rather is limited to those necessary to “ensure that such livestock is organically produced.”
Moreover, subparagraph (d)(2) specifically refers back to subparagraph (d)(1) when calling for standards of livestock care in addition to the prohibitions set forth in subparagraph (d)(1). This demonstrates that any additional standards promulgated pursuant to section (d)(2) are to be similar to those set forth in section (d)(1), all of which are related to ensuring that organic livestock is raised with minimal administration of chemical and synthetic substances. That subparagraph's reference to “care for livestock” cannot be read more expansively than the previous references to animal health care found in section 6509 generally. Thus, even if some aspects of the OLPP Rule—such as certain provisions pertaining to physical alterations—can be characterized as relating to “health care,” AMS finds that they are not related to the OFPA's overarching purpose of regulating the use of chemical and synthetic substances in organic farming. Therefore, section 6509 does not provide authority for those provisions. AMS notes that some commenters agree with this interpretation of section 6509(d).
c. Several commenters also cited certain passages from OFPA's legislative history that they claim demonstrate Congress' intention to give the Secretary authority to regulate the stand-alone welfare of organic livestock, but they either misinterpret or selectively quote the legislative history. Specifically, the commenters noted that Senate Report 101–357, which accompanied S. 2830, the Food, Agriculture, Conservation, and Trade Act of 1990, states, “[t]he Committee expects that, after due consideration and the reception of public comment, the [National Organic
However, this statement actually states that the NOSB is to weigh the fact that administering certain livestock medications to livestock may disqualify said livestock from claiming organic status against the fact that withholding these medications in order to claim organic status may in fact be inhumane; it does not direct or authorize the Secretary to issue regulations to promote animal welfare by ensuring that organic livestock are reared humanely. In other words, the Senate Report does not equate organic production with humane treatment; to the contrary, it conveys an understanding that organic production may be
The Committee felt strongly that organically produced feed should be required for livestock. However, on the issue of livestock medication, the Committee felt that this required further consideration by the National Organic Standards Board. Livestock parasiticides and medications must be on the National List in order to be used but in no case shall livestock be given subtherapeutic doses of antibiotics, synthetic internal parasiticides on a routine basis, or be administered medication other than vaccinations in the absence of illness. The Committee expects that, after due consideration and the reception of public comment, the Board will best determine the necessary balance between the goal of restricting livestock medications and the need to provide humane conditions for livestock rearing.
The language preceding that cited by the commenters strengthens, rather than refutes, USDA's belief that section 6509(d)(2) authorizes AMS only to establish additional medical standards for the care of livestock to ensure that these livestock are organically produced. This legislative history supports an interpretation that the Secretary does not have the authority to promulgate stand-alone animal welfare organic requirements.
Several commenters also noted that the Senate Report and the House Conference Report 101–916 on the Food, Agriculture, Conservation, and Trade Act of 1990 make references to the expectation that USDA would promulgate regulations regarding livestock standards. However, this legislative history does not specify that the referenced livestock standards go beyond the specific types of practices referenced in the statute to include animal welfare. Rather, they are general statements that do not change the statutory plain meaning or AMS's permissible interpretation of the scope of its statutory authority.
d. Several commenters argued that AMS may not withdraw the OLPP final rule because it did not consult with the NOSB prior to proposing the withdrawal. Additionally, they stated that withdrawal would be improper because it is contrary to the NOSB's recommendations.
OFPA requires USDA to consult with the NOSB on certain matters and to receive recommendations from it, but nothing in OFPA requires AMS to consult the NOSB at every phase of the rule making process or makes the NOSB's recommendations binding on the Secretary, nor could it.
e. Several commenters argued that 7 U.S.C. 6506(a)(11)
f. Certain commenters noted that NOSB made recommendations concerning animal welfare standards and living conditions over a period of nearly two decades, a situation that has caused a majority of small- and medium-sized operations to have significant reliance interests in animal welfare standards under NOP rules in general, including the OLPP final rule. They further asserted that, under
The subject matter of
g. Finally, several commenters disagreed with USDA's current interpretation of OFPA by noting that USDA previously promulgated 7 CFR 205.238, 205.239, and 205.240, which they interpret to address the wellbeing of organic livestock. They cited those regulations as proof that USDA has authority to promulgate stand-alone animal welfare standards. In the alternative, they noted that some of these standards address animal health and they question why the OLPP final rule cannot be promulgated on the same ground.
AMS notes that the validity of §§ 205.238, 205.239, and 205.240 is not before it in the present rulemaking. As such, a detailed consideration of whether those regulations accord with AMS' statutory interpretation is not within the scope of this rulemaking. Thus, even if AMS were to decide that it does not have authority to promulgate those regulations under OFPA, it could not withdraw them through this final rule because the NPRM did not provide notice that this action was under consideration. As part of the regulatory reform review, however, AMS may seek comment in the future regarding whether the cited regulations are in accordance with AMS' statutory authority.
Executive Orders 12866 and 13563 require agencies to assess the costs and benefits of economically significant regulatory actions. Executive Order 12866 also generally requires that the agency “propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs,” and further, that the agency “shall tailor its regulations to impose the least burden on society . . .” Executive Order 12866 also states that “Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling need, such as material failures of private markets . . .” While participation in the NOP is technically voluntary, this fact does not neutralize the impacts of changes to the USDA organic regulations because Executive Order 12866 does not exempt regulations of voluntary programs from this evaluation. Changes to the regulations could affect voluntary participation and would have real costs.
The Office of Management and Budget (OMB) has designated OLPP as an economically significant rule. Under Executive Order 12866, AMS is obligated to consider whether the potential impacts of the OLPP rule meet the principles of Executive Order 12866 and demonstrate a need for regulation. AMS did not identify a market failure in the OLPP final rule RIA and therefore AMS has now concluded that regulation is unwarranted. In fact, several organic producers and organizations that oppose withdrawal of the OLPP rule, including a few that argued that there was market failure necessitating the OLPP final rule, purchased a full-page advertisement in a newpaper about this rulemaking. In it they recognized that “[o]rganic farmers have pioneered new practices to enhance animal welfare because consumers demand it and because it makes farms resilient and profitable.”
Further, AMS maintains that the costs of the OLPP final rule outweigh potential benefits. After publication of the OLPP final rule, AMS discovered a mathematical error in the calculation of benefits. The error was related to the formula used to calculate the 7 percent and 3 percent discount rates. In addition, AMS determined that there was a more suitable willingness-to-pay estimate for outdoor access than the range used to estimated benefits in the OLPP final rule. Although there was another error correction that moved the results in the opposite direction, the estimated benefits declined overall when AMS recalculated those values based on the above findings. In summary, given the high degree of uncertainty and subjectivity in evaluating the benefits of the OLPP final rule, and the lack of any market failure to justify intervention, and the clear potential for additional regulation to distort the market or drive away consumers, even if the comparison of costs and benefits was a close call, AMS would choose not to regulate as a policy matter.
Several commenters opined that AMS did not properly account for qualitative benefits to farm animals and producers in determining that there are net costs for the OLPP final rule. AMS finds that the qualitative benefits are speculative because it is uncertain that organic farmers and consumers would see positive impacts from implementation of the OLPP rule. The assertion that the OLPP final rule would result in economic benefits from healthier animals is not supported by information or research linking outdoor access on pasture or vegetation to improved economic outcomes for producers. AMS did not use the potential outcome of healthier animals as justification for the OLPP final rule. The withdrawal of the OLPP final rule does not prevent organic producers from providing outdoor access on pasture or vegetation, communicating that to consumers, and receiving any potential benefits from those practices.
AMS concludes that the costs to consumers of implementing the OLPP final rule would outweigh any potential benefits to consumers because it anticipates that a significant portion (50 percent) of current organic egg producers would exit the organic market following implementation, resulting in supply shortages and price increases for organic eggs. The OLPP final rule RIA estimated that organic egg prices could increase by a mean of $1.25 per dozen (assuming a demand elasticity of 1.0) as a result of that rule, which exceeded the RIA's estimate of consumers' willingness to pay for the costs of implementing the OLPP final rule. Furthermore, as AMS explained in the PRIA issued in connection with this final rule on withdrawal, the initial consumer willingness-to-pay estimates for eggs from hens with outdoor access were likely overstated in the RIA for the OLPP final rule and should be lower (initial range: $0.21 to $0.49 per dozen versus revised range: $0.16 to $0.25 per dozen). Therefore, the estimated benefits in the RIA for the OLPP final rule were inflated, and there are no clear net benefits for producers or consumers from implementation of the OLPP final rule.
Ultimately, the reduction of potential qualitative benefits, as a result of recalculations due to mathematical errors, the absence of a market failure,
Some commenters have stated that withdrawal of the rule would undermine public trust and consumer confidence in the organic label. AMS believes, based on data and experience, that this outcome will not be realized. First, the withdrawal of the OLPP final rule maintains the current organic regulations for livestock that cover health care practices and living conditions, including the requirement for year-round outdoor access. This rule does not withdraw any requirements that are currently codified in the USDA organic regulations for livestock. AMS anticipates that consumer confidence in the organic label will be preserved and that certified organic livestock producers will continue to use that label to differentiate their products in the marketplace.
Further, market data suggests that consumer perception of the USDA organic regulations, which will remain in effect upon withdrawal of the OLPP final rule, is positive. Under the current regulations, sales of organic products have increased annually. From 2007 to 2016, the number of organic layers has increased by 12.7% annually. The Organic Trade Association (OTA) 2017 Organic Industry Survey reports, “2016 was a tremendous year for organic meat and poultry, with sales growing 17.2%.” That survey further states, “Consumers have moved from conventional to natural to hormone-free or grass-fed, and now finally to organic or organic grass-fed as they understand all that organic encompasses.” Regarding organic eggs, the OTA 2017 Organic Industry Survey predicted that the organic egg market will “stabilize” by the latter half of 2017, after the supply of organic eggs spiked in response to the 2015 outbreak of Avian Influenza and the drop in demand for organic eggs in 2016 due to the wide price gap between organic and conventional.
These market data do not support commenters' assertions that the withdrawal of the OLPP final rule and maintenance of current regulations will damage consumer confidence and trust in organic products. The industry has continued to expand under the current regulations and the outlook for continued growth in the organic sector has not been predicated upon the implementation of the OLPP final rule. Further, the OTA survey indicates that consumers are choosing organic meat and poultry, demonstrating consumer validation of the sufficiency of the existing regulations; plainly, the organic label is an effective means for product differentiation in the marketplace.
A number of commenters mentioned that withrawal of the rule contradicts the “consensus” favoring new, broadly prescriptive regulations and that considerations for animal welfare should override potential costs. Commenters urged implementation of the OLPP final rule because the organic industry requested that regulation.
AMS will not regulate when statutory authority is insufficient and potential costs do not justify potential benefits, whether there is a pro-regulatory “consensus” or not. As a matter of USDA regulatory policy, AMS should not regulate simply because some industry players believe that more regulations will help their competitive position. Furthermore, AMS believes the very notion of a “consensus” is at odds with prior public comments and some data on consumer behavior around organic purchases. In response to the April 2016 OLPP proposed rule, AMS received a number of comments representing consumer and organic farmer interests that stated that the current USDA organic regulations are adequate and enforceable and new regulations are not necessary or preferable. In the 2017 OTA U.S. Families' Organic Attitudes and Behavior survey, respondents were asked to rank the importance of several “true” statements about organic products. The statement, “Animals used in the production of organic food are treated humanely, fed an organic diet and are not rasied in confinement,” was ranked fourth out of fourteen.
Moreover, the mere fact that some organic consumers care about animal welfare does not mean that the term “organic” should be equated with animal welfare assurances.
The current USDA organic regulations, which will remain in effect, have standards for livestock healthcare, feed, and living conditions. A central premise of these regulations, which producers must uphold and certifying agents must enforce, is for year-round living conditions that accommodate the health and natural behavior of the animals. Moreover, AMS has estimated that a sizeable portion of organic livestock producers already meet the requirements in the OLPP final rule. In the RIA for the OLPP final rule, AMS stated that the mammalian livestock provisions of the OLPP final rule largely codify existing industry practices. In addition, AMS estimated that the majority of organic egg producers and about half of organic egg production meet the outdoor access requirements in the OLPP final rule. The withdrawal of the OLPP final rule would not compel changes in organic livestock production for these producers, who can continue to cater to consumers willing to pay a premium for animal welfare guarantees if they choose. Finally, the withdrawal of the OLPP final rule does not restrict organic producers from using private certification labels to communicate additional information to consumers about production practices or product attributes.
Some commenters asserted that the voluntary nature of the organic program mitigates the potential costs of implementing the OLPP final rule. The bases for evaluating the potential costs of compliance are the requirements of Executive Order 12866 and the final rule establishing the NOP in 2002 (65 FR 80548). The 2002 final rule quantified costs of complying with that rule,
A number of commenters also addressed biosecurity and disease risk, stating that some of the outdoor access requirements, such as the presence of vegetation and no roofs, conflict with FDA requirements and biosecurity practices. These comments were also submitted in response to the April 2016 OLPP proposed rule and were addressed in the OLPP final rule (p. 7068–7070;
A comment noted that AMS must assess the impact of withdrawing the OLPP final rule on the equivalency arrangements with the European Union and Canada and the economic impacts of the potential dissolution of those agreements as a result of this action. In the OLPP final rule, AMS responded to comments concerning potential impacts on trade agreements (p. 7080). AMS' responses to these comments remains the same.
AMS provided a 30-day public comment period in order to consider the public comments received on the proposed withdrawal and make a final decision on the OLPP final rule by the current effective date of May 14, 2018. AMS did not grant requests for extension of the public comment period because interested parties had the opportunity to comment on the underlying OLPP final rule in 2016 as well as the rulemaking in 2017 that culminated in the delay of the effective of the OLPP final rule until May 14, 2018. Moreover, commenters were on notice of the proposal since November 14, 2017, when it was discussed in a final rule published on that date. Furthermore, and in light of this backdrop, the December 18, 2017 proposed rule presented discrete issues that interested parties should have been able to address within the 30-day comment period. Additionally, extending the comment period would have prevented AMS from resolving the status of the OLPP rulemaking by May 14, 2018.
For the reasons described above, AMS maintains that the OLPP final rule exceeds AMS' scope of authority under OFPA and would be overly burdensome for organic poultry producers. Therefore, AMS is withdrawing the OLPP final rule.
This section provides an Executive Summary of the Regulatory Impact Analysis (RIA) for this final rule on withdrawal. A full analysis is posted on the
Executive Orders 12866, 13563, and 13771 control regulatory review. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 13771 directs Agencies to identify at least two existing regulations to be repealed for every new regulation unless prohibited by law. The total incremental cost of all regulations issued in a given fiscal year must have costs within the amount of incremental costs allowed by the Director of OMB, unless otherwise required by law or approved in writing by the Director of OMB. This rule is an Executive Order 13771 deregulatory action. AMS estimates that withdrawal of the OLPP final rule will result in cost savings of $10.2 million to $32.6 million per year, discounted at 7 percent over 15 years. When factored over perpetuity and extended to account for future years, the estimated cost savings become, on an annualized basis, $8.5 million to $34.9 million. Details on the estimated cost savings of this rule over 15 years can be found in the RIA, posted separately and summarized below.
The estimated costs of implementing the OLPP final rule were based on three potential scenarios of how organic egg producers would respond. First, AMS estimated that if all organic livestock and poultry producers came into compliance, the costs would be $28.7 to $31 million each year. Second, if 50 percent of the organic egg producers moved to the cage-free egg market and the organic industry continues to grow at historical rates, the estimated costs are $11.7–$12.0 million. Plus, AMS estimated transfers in the amount of $79.5 million to $86.3 million per year for producers that move from the organic to the cage-free market and lose the organic price premium. Third, if 50 percent of the organic egg producers moved to the cage-free egg market and there were no new entrants that could not already comply, the estimated costs are $8.2 million. For this scenario, AMS estimated transfers to be $43.7 million to $47.4 million per year. These costs do not include an additional $1.95–$3.9 million associated with the estimated paperwork burden. Withdrawing the OLPP final rule prevents these potential costs from taking effect, resulting in substantial organic poultry producer cost savings.
The estimated benefits of implementing the OLPP final rule were calculated for the three scenarios above and were based on consumer willingness-to-pay for outdoor access for laying hens. If all organic livestock and poultry producers came into compliance, AMS estimated the benefits would be $13.0–$31.6 million. Second, if 50 percent of the organic egg producers moved to the cage-free egg market and the organic industry continues to grow at historical rates, the estimated benefits are $3.6–$8.7 million. Third, if 50 percent of the organic egg producers moved to the cage-free egg market and there were no new entrants that could not already comply, the estimated benefits are $3.3–$8.0 million.
For all scenarios described above, the midpoint of the cost estimates, including the estimated paperwork burden, exceeds the midpoint of the estimated benefits.
The OLPP final rule estimated the benefits from the rule's implementation as $4.1 to $49.5 million annually. The estimated benefits spanned a wider range than the estimated costs and were based on research that measured consumers' willingness-to-pay for outdoor access for laying hens. The OLPP final rule acknowledged that the benefits were difficult to quantify.
In reviewing the OLPP final rule, AMS found that the calculation of benefits contained mathematical errors in calculating the discount rates of 7% and 3%. The error resulted in overstating the value of the benefits. Using the correct discounting formula, the estimated costs and paperwork burden for the OLPP final rule exceed the estimated benefits for all producer response scenarios. AMS also found the estimated benefits over time were handled differently than were the estimated costs over time. Specifically, costs were constant over time while benefits declined by an equal amount each year corresponding to the depreciation of poultry housing. In addition, AMS determined that the range used for estimating the benefit interval should be replaced with more suitable estimates. The estimate used in the benefits calculations for the OLPP final rule were based on consumers' willingness-to-pay for eggs produced by chickens raised in a cage-free
As a result of reviewing the calculation of estimated benefits, AMS reassessed the economic basis for the rulemaking as well as the validity of the estimated benefits. On the basis of that reassessment, AMS finds little, if any, economic justification for the OLPP final rule.
The RIA for the OLPP final rule did not identify a significant market failure to justify the need for rule. The RIA for the OLPP final rule noted that there is wide variance in production practices within the organic egg sector and asserted that “as more consumers become aware of this disparity, they will either seek specific brands of organic eggs or seek animal welfare labels in addition to the USDA organic seal.” OLPP final rule RIA at 14. AMS also found the “majority of organic producers also participate in private, third-party verified animal welfare certification programs.”
First, while AMS recognizes that the purpose of the OFPA is to assure consumers that organically produced products meet a consistent standard, that purpose does not imply that there can be no variation in organic production practices. Rather, a variety of production methods may be employed to meet the same standard. Some may be more labor intensive and others more capital intensive, and some may be appropriate for small operations while others are appropriate for large operations. Importantly, producers will adopt different production methods over time as technology evolves and enables operations to meet the same standard more efficiently. Moreover, producers may follow different standards with respect to aspects of production that are not relevant to organic certification or otherwise subject to regulation. Thus, variation in production practices is expected and does not stand as an indicator of a significant market failure.
Second, private, third-party certification programs are common in the dynamic food sector. That organic suppliers participate in such programs does not indicate a market failure with respect to the standards promulgated under the USDA NOP. Rather, the use of third-party certifications in addition to the USDA organic seal merely indicates that participants in the food sector seek ways to differentiate their products from those of their competitors. That some aspects of a private certification may overlap with the requirements underlying the USDA organic seal demonstrates that food producers, manufacturers, and retailers use multiple methods to communicate with consumers about the attributes of the foods that they produce and sell. Private, third-party certifications reflect attributes that food sellers wish to emphasize, and the existence of such certifications on organic products provides no evidence of a significant market failure relating to USDA organic standards. Nor is it clear that implementation of the OLPP final rule would reduce participation in third-party certification programs; instead, third-party certification programs may simply evolve as producers find new ways to distinguish their products.
Finally, the accompanying RIA explains several calculation errors associated with the OLPP final rule RIA. The RIA also provides additional information regarding the estimated benefits and explains why they likely were overstated in the original OLPP final rule RIA. In any case, withdrawing the OLPP final rule would prevent the negative cost impacts from taking effect, resulting in substantial organic poultry producer cost savings of $8.2 to $31 million annually, plus additional cost savings of $1.95–$3.9 million from paperwork reduction.
AMS considered three alternatives in developing this rule to withdraw the OLPP final rule. The first alternative was to implement the OLPP final rule on May 14, 2018, which is the current effective date. The second alternative was to further delay the final rule. The third alternative, which is the selected alternative, was to withdraw the final rule.
For the first alternative, if the OLPP final rule were to become effective on May 14, 2018, the costs and transfers described in the RIA would be expected to occur, resulting in requirements with substantial costs not supported by evidence of significant market failure.
The second alternative was to further delay the OLPP final rule. This alternative, however, would defer the decision on whether to implement or withdraw to a future date, despite the agency having performed its review and received comments from the public. This alternative fails to achieve USDA's goal of reducing regulatory uncertainty.
AMS has selected the third alternative, to withdraw the OLPP final rule, as the preferred alternative. This alternative estimates cost savings for poultry producers of $8.2 to $31 million per year (based on 15-year costs). In addition, $1.95–$3.9 million in annual paperwork burden would not be incurred. As described in the RIA, the range of benefits could be expected to be lower than projected in the OLPP final rule RIA. Moreover,
The Regulatory Flexibility Act (5 U.S.C. 601–612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market.
Data suggest nearly all organic egg producers qualify as small businesses. OLPP final rule RIA at 140–141. Small egg producers are listed under North American Industry Classification System (NAICS) code 112310 (Chicken Egg Production) as grossing less than $15,000,000 per year, and AMS estimates that out of 722 operations reporting sales of organic eggs, only four are not small businesses. Thus, the OLPP final rule RIA found that some small egg producers and small chicken (broiler) producers would be affected by the poultry outdoor access and space provisions.
Withdrawing the OLPP final rule avoids these economic impacts without introducing any incremental burdens or erecting barriers that would restrict the ability of small entities to compete in the market. This conclusion is supported by the historic growth of the organic industry without the regulatory amendments.
This rule relieves producers of the costs of complying with the OLPP final rule. The effects of withdrawal will be beneficial and not defined as significant for the specific purposes of the Regulatory Flexibility Act. Some small entities may experience time and money savings as a result of not having to change practices to comply with the OLPP final rule. Affected small entities would include organic egg and organic broiler producers. This rule will provide measurable, savings for small entities. However, for the definitional purposes of the RFA, these savings are not considered a “significant” economic impact on a substantial number of small entities.
Under these circumstances, the Administrator of AMS has determined that this action will not have a significant economic impact on a substantial number of small entities and certifies as such.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system.
Pursuant to section 6519(f) of OFPA, this final rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601–624), the Poultry Products Inspection Act (21 U.S.C. 451–471), or the Egg Products Inspection Act (21 U.S.C. 1031–1056), concerning meat, poultry, and egg products, respectively, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301–399), nor the authority of the Administrator of the U.S. Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136–136(y)).
No additional collection or recordkeeping requirements are imposed on the public by withdrawing the OLPP final rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501), Chapter 35. Withdrawing the OLPP final rule will avoid an estimated $1.95-$3.9 million in costs for increased paperwork burden associated with that final rule.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
AMS has assessed the impact of this rule on Indian tribes and determined that this rule would not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, AMS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.
AMS has reviewed this final rule in accordance with the Department Regulation 4300–4, Civil Rights Impact Analysis, to address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. AMS has determined that withdrawing the OLPP final rule has no potential for affecting producers in protected groups differently than the general population of producers.
In compliance with OFPA and consistent with the regulatory policies of Executive Orders 12866 and 13563, AMS is withdrawing the OLPP final rule.
National Credit Union Administration (NCUA).
Final rule; correction.
On February 23, 2018, the NCUA Board (Board) issued a final rule adopting amendments to its share insurance requirements rule to provide stakeholders with greater transparency regarding the calculation of each eligible financial institution's pro rata share of a declared equity distribution from the National Credit Union Share Insurance Fund (NCUSIF). A clerical error appeared which confuses what CFR unit is being amended. This document corrects that error.
This correction is effective March 26, 2018.
Benjamin M. Litchfield, Staff Attorney, Office of General Counsel, at (703) 518–6540; or Steve Farrar, Supervisory Financial Analyst, Office of Examination and Insurance, at (703) 518–6360. You may also contact them at the National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314–3428.
On February 23, 2018, at 83 FR 7954, the Board issued a final rule adopting amendments to 12 CFR part 741. In amendments to appendices A, B, and C to part 741, incorrect headings appeared above amendatory instructions 4 and 5 on page 7964 identifying the wrong CFR part. Instruction 5 omitted the part number.
Therefore, FR Rule Doc. No. 2018–03622, published on February 23, 2018, beginning on page 7954, is corrected as follows:
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This action updates the controlling agency information for restricted areas R–2907C, R–2910B, R–2910C, and R–2910E; Pinecastle, FL. This is an administrative change to reflect the current organizations tasked with controlling agency responsibilities for the restricted areas. It does not affect the boundaries, designated altitudes, time of designation or activities conducted within the restricted areas.
Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267–8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the 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 updates the controlling agency for restricted areas R–2907C, R–2910B, R–2910C and R–2910E; Pinecastle, FL, to reflect the current responsible organizations.
This rule amends title 14 Code of Federal Regulations (14 CFR) part 73 by updating the controlling agency name for restricted areas R–2907C, R–2910B, R–2910C, and R–2910E; Pinecastle, FL. The controlling agency for R–2907C and R–2910E is changed from “FAA, Jacksonville ARTCC,” to “FAA, Jacksonville TRACON.” The controlling agency for R–2910B and R–2910C is changed from “FAA, Jacksonville ARTCC,” to “FAA, Central Florida TRACON.” This action is necessary in order to assign controlling agency responsibilities to the air traffic control facilities having jurisdiction over the affected airspace.
This is an administrative change that does not affect the boundaries, designated altitudes, or activities conducted within the restricted areas; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this action only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of updating the agency information for restricted areas R–2907C, R–2910B, R–2910C and R–2910E; Pinecastle, FL, qualifies for categorical exclusion under the National Environmental Policy Act, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5–6.5.d, “Modification of the technical description of special use airspace (SUA) that does not alter the dimensions, altitudes, or times of designation of the airspace (such as changes in designation of the controlling or using agency, or correction of typographical errors).” This airspace action is an administrative change to the description of restricted areas R–2907C, R–2910B, R–2910C and R–2910E; Pinecastle, FL, to update the controlling agency names. It does not alter the dimensions, altitudes, time of designation, or use of the airspace. Therefore, this airspace action is not expected to result in any significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5–2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 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.
By removing the words “Controlling agency. FAA, Jacksonville ARTCC,” and adding in their place the words “Controlling agency. FAA, Jacksonville TRACON.”
By removing “Controlling agency. FAA, Jacksonville ARTCC,” and adding in its place “Controlling agency. FAA, Central Florida TRACON.”
By removing “Controlling agency. FAA, Jacksonville ARTCC,” and adding in its place “Controlling agency. FAA, Central Florida TRACON.”
By removing “Controlling agency. FAA, Jacksonville ARTCC,” and adding in its place “Controlling agency. FAA, Jacksonville TRACON.”
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to final regulations (TD 9588) that were published in the
This correction is effective on March 13, 2018 and is applicable on or after May 7, 2012.
Regina Johnson, (202) 317–5177 (not a toll-free number).
The final regulations (TD 9588) that are the subject of this correction are issued under section 163 of the Internal Revenue Code.
As published May 7, 2012 (77 FR 26698), the final regulations (TD 9588) contain an error that needs to be corrected.
Income taxes, reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:
26 U.S.C. 7805 * * *
Coast Guard, DHS.
Notice of temporary deviation from regulations; request for comments.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the South Park highway bridge, across the Duwamish Waterway mile 3.8, at Seattle, WA. This deviation will test a change to the drawbridge operation schedule, to determine whether a permanent change to the schedule is appropriate. This deviation will allow the bridge to open during nighttime hours after receiving a 12 hour advance notice.
This deviation is effective from 6 a.m. on March 22, 2018 to 6 a.m. on September 17, 2018.
Comments and related material must reach the Coast Guard on or before August 30, 2018.
You may submit comments identified by docket number USCG–2018–0067 using Federal eRulemaking Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Chief Administrator, Thirteenth Coast Guard District; telephone 206–220–7282, email
Due to infrequent drawbridge opening requests between 11 p.m. to 7 a.m., King County (the bridge owner), has requested to open the South Park highway bridge with 12 hours advances notice between the hours of 11p.m. and 7 a.m. In addition, King County requested between the hours of 11 p.m. and 7 a.m. vessels engaged in sea-trials or waterway dredging activities may request a standby drawtender, to open the bridge on demand during sea-trials and/or dredging operations, if at least a 24 hour notice is given to the drawtender. The 2017 drawbridge log book reflects the infrequent requests for drawbridge opening of the South Park highway bridge. Of the 524 openings in 2017 only 24 occurred between the hours of 11.00 p.m. and 7 a.m., this is approximately 4.5 percent. Opening from 11 p.m. to 7 a.m. for 2014, 2015, 2016 ranged from 5% to 10% of all openings. The South Park highway bridge operates per 33 CFR 117.1041(a)(2).
Vessels operating on the Duwamish Waterway range from small recreational, sailboats, tribal fishing boats, mega yachts and commercial tug and tow vessels. No navigational impacts are expected due to few vessels operating on this waterway at the stated hours. King County has discussed this test deviation and coordinating with all known waterway users. Vessels able to pass through the subject bridge with the span in the closed-to-navigation position may do so at any time.
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 subject bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation. Duwamish Waterway does not have an immediate alternate route for vessels to pass. Therefore, in the event of an emergency requiring a bridge opening any day between 11 p.m. and 7 a.m., the standby bridge operator at the Fremont Bridge will respond to an opening request and have the South Park Bridge open within 45 minutes from initial notification.
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
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
Documents mentioned in this notice as being available in the docket and all public comments, will be in our online docket at
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters of the Tennessee River from mile marker (MM) 322.0 to MM 325.0. The safety zone is necessary to provide for the safety of life and vessels during cargo transfer operations taking place at Redstone Arsenal. 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 March 13, 2018 through March 16, 2018, or until the cargo operation ceases, whichever comes first. For the purposes of enforcement, actual notice will be used from March 5, 2018 through March 13, 2018.
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 Vera Max, MSD Nashville, U.S. Coast Guard; telephone 615–736–5421, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by March 5, 2018 and lack sufficient time to provide a reasonable 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 a cargo transfer operation taking place at Redstone Arsenal during the period from March 5, 2018 through March 16, 2018 will be a safety concern for all navigable waters of the Tennessee River between mile markers (MMs) 322.0 and 325.0. The purpose of this rule is to ensure safety of life on the navigable waters in the temporary safety zone before, during, and after the cargo transfer operations.
This rule establishes a temporary safety zone from March 5, 2018 through March 16, 2018, or until the cargo operation is completed, whichever comes first. The temporary safety zone will cover all navigable waters of the Tennessee River between MMs 322.0 and 325.0. Transit into and through this area is prohibited during periods of enforcement. The periods of enforcement will be prior to, during, and 30 minutes after any vessel movement and cargo transfer operations at Redstone Arsenal. The Coast Guard was informed that the operations will take place during daylight hours over approximately two days. Safety zone enforcement times will be announced via Broadcast Notice to Mariners (BNM), Local Notices to Mariners (LNM), or through other means of public notice and at least 1 hour notice will be provided before each enforcement period.
The duration of the temporary safety zone is intended to ensure the safety of life and vessels on these navigable waters before, during, and after the cargo transfer operations taking place at Redstone Arsenal. All vessels intending to transit the Tennessee River between MMs 322.0 and 325.0 from March 5, 2018 through March 16, 2018 must contact the COTP or a designated representative to request permission to transit at a time when critical operations
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 temporary safety zone. This safety zone prohibits transit on a three mile stretch of the Tennessee River only during critical cargo transfer operations at Redstone Arsenal over approximately two days, during a time of year that experiences lower than normal traffic. Broadcast Notices to Mariners and Local Notices to Mariners will also inform the community of the safety zone enforcement periods through BNM, LNM, and other means of public notice so that they may plan accordingly for each enforcement period restricting transit. Vessel traffic must request permission from the COTP or a designated representative to enter the restricted area.
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 M16475.1D, 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 that would prohibit entry to vessels during cargo transfer operations at Redstone Arsenal. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01, Rev. 01. 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) Persons and vessels permitted to enter this safety zone must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving two state implementation plan (SIP) revisions (Revision C16 and Revision I16) formally submitted by the Commonwealth of Virginia (Virginia). The revisions pertain to amendments made to the definition of “volatile organic compound” (VOC) in the Virginia Administrative Code to conform with EPA's regulatory definition of VOC. Specifically, these amendments remove the record keeping and reporting requirements for t-butyl acetate (also known as tertiary butyl acetate or TBAC); Chemical Abstracts Service [CAS] number: 540–88–5) and add 1,1,2,2,-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (also known as HFE-347pcf2; CAS number: 406–78–0) as a compound excluded from the regulatory definition of VOC, which match actions EPA has taken. EPA is approving these revisions to update the definition of VOC in the Virginia SIP in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on April 12, 2018.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2017–0544. All documents in the docket are listed on the
Sara Calcinore, (215) 814–2043, or by email at
VOCs are organic compounds of carbon that, in the presence of sunlight, react with sources of oxygen molecules, such as nitrogen oxides (NO
VOCs have different levels of volatility, depending on the compound, and react at different rates to produce varying amounts of ozone. VOCs that are non-reactive or of negligible reactivity to form ozone react slowly and/or form less ozone; therefore, reducing their emissions has limited effects on local or regional ozone pollution. Section 302(s) of the CAA specifies that EPA has the authority to define the meaning of VOC and what compounds shall be treated as VOCs for regulatory purposes. It is EPA's policy that organic compounds with a negligible level of reactivity should be excluded from the regulatory definition of VOC in order to focus control efforts on compounds that significantly affect ozone concentrations. EPA uses the reactivity of ethane as the threshold for determining whether a compound is of negligible reactivity. Compounds that are less or equally reactive as ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption by EPA from the regulatory definition of VOC. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005). The regulatory definition of VOC as well as a list of compounds that are designated by EPA as negligibly reactive can be found at 40 CFR 51.100(s).
On September 30, 1999, EPA proposed to revise the regulatory definition of VOC in 40 CFR 51.100(s) to exclude TBAC as a VOC (64 FR 52731). In most cases, when a negligibly reactive VOC is exempted from the definition of VOC, emissions of that compound are no longer recorded, collected, or reported to states or the EPA as part of VOC emissions. However, EPA's final rule excluded TBAC from the definition of VOC for purposes of VOC emissions limitations or VOC content requirements, but continued to define TBAC as a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements that apply to VOC (69 FR 69298, November 29, 2004) (2004 Final Rule). This was primarily due to EPA's conclusion in the 2004 Final Rule that “negligibly reactive” compounds may contribute significantly to ozone formation if present in sufficient quantities and that emissions of these compounds need to be represented accurately in photochemical modeling analyses. Per EPA's 2004 Final Rule, Virginia partially excluded TBAC from the regulatory definition of VOC, which was approved into Virginia's SIP on August 18, 2006 (71 FR 47742).
When EPA exempted TBAC from the VOC definition for purposes of control requirements in the 2004 Final Rule, EPA created a new category of compounds and a new reporting requirement that required that emissions of TBAC be reported separately by states and, in turn, by industry. However, EPA did not issue any guidance on how TBAC emissions should be tracked and reported. Therefore, the data that was reported as result of these requirements was incomplete and inconsistent. Also, in the 2004 Final Rule, EPA stated that the primary objective of the recordkeeping and reporting requirements for TBAC was to address the cumulative impacts of “negligibly reactive” compounds and suggested that future exempt compounds may also be subject to such requirements. However, such requirements were not included in any other proposed or final VOC exemptions.
Because having high quality data on TBAC emissions alone was unlikely to be useful in assessing the cumulative impacts of “negligibly reactive” compounds on ozone formation, EPA subsequently concluded that the recordkeeping and reporting requirements for TBAC were not achieving their primary objective of informing more accurate photochemical modeling in support of SIP submissions. Also, there was no evidence that TBAC was being used at levels that would cause concern for ozone formation and that the requirements were providing sufficient information to evaluate the cumulative impacts of exempted compounds. Therefore, because the requirements were not addressing EPA's concerns as they were intended, EPA revised the regulatory definition of VOC under 40 CFR 51.100(s) to remove the recordkeeping and reporting requirements for TBAC (February 25, 2016, 81 FR 9339).
On August 1, 2016, EPA promulgated a final rule revising the regulatory definition of VOC in 40 CFR 51.100(s) to add HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC (81 FR 50330). This action was based on EPA's consideration of the compound's negligible reactivity and low contribution to ozone as well as the low likelihood of risk to human health or the environment. EPA's rationale for this action is explained in more detail in the final rule for this action.
In order to conform with EPA's current regulatory definition of VOC in 40 CFR 51.100(s), the Virginia State Air Pollution Control Board amended the definition of VOC in 9VAC5–10–20 to remove the recordkeeping and reporting requirements for TBAC and add HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC. On July 31, 2017, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), formally submitted these amendments as two requested revisions (Revision C16 and Revision I16) to the Virginia SIP. Revision C16 requested that the definition of VOC be updated in the Virginia SIP to conform with EPA's February 25, 2016 (81 FR 9339) final rulemaking updating EPA's regulatory definition of VOC in 40 CFR 51.100(s) to remove the recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements related to the use of TBAC as a VOC. Revision I16 requested that the definition of VOC be updated in the Virginia SIP to conform with EPA's August 1, 2016 (81 FR 50330) final rulemaking updating EPA's regulatory definition of VOC in 40 CFR 51.100(s) to add HFE-347pcf2 to the list of compounds excluded from EPA's regulatory definition of VOC.
Virginia's amendments to the definition of VOC in 9VAC5–10–20 are in accordance with EPA's regulatory changes to the definition of VOC in 40 CFR 51.100(s) and are therefore approvable for inclusion in the Virginia SIP in accordance with CAA section 110. Also, because EPA has made the determination that TBAC and HFE-347pcf2 are of negligible reactivity and therefore have low contributions to ozone as well as low likelihood of risk to human health or the environment, removing these chemicals from the definition of VOC in the Virginia SIP as well as the recordkeeping and reporting requirements for these chemicals will not interfere with attainment of any NAAQS, reasonable further progress, or any other requirement of the CAA. Thus, the removal of the recordkeeping and reporting requirements for TBAC and the addition of HFR-347pcf2 to the list of compounds excluded from the regulatory definition of VOC is in accordance with CAA section 110(l).
On December 27, 2017 (82 FR 61200), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of Revision C16, which updated the definition of VOC in the Virginia SIP to remove the recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements related to the use of TBAC as a VOC, and Revision I16, which updated the definition of VOC in the Virginia SIP by adding HFE-347pcf2 to the list of compounds excluded from EPA's regulatory definition of VOC. No public comments were received on the NPR.
EPA is approving both Revision C16 and Revision I16, submitted on July 31, 2017 by VADEQ, as revisions to the Virginia SIP, as the submissions meet the requirements of CAA section 110. Revision C16 updates the regulatory definition of VOC in the Virginia SIP by removing the recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements related to the use of TBAC as a VOC. Revision I16 updates the regulatory definition of VOC in the Virginia SIP to add HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1–1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . . ” The opinion concludes that “[r]egarding § 10.1–1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1–1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
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 the revisions to the definition of VOC in 9VAC5–10–20 of the Virginia Administrative Code discussed in Section II of this preamble. EPA has made, and will continue to make, these materials generally available through
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 (Pub. L. 104–4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 14, 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 updating the definition of VOC in the Virginia SIP by removing the recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements related to the use of TBAC as a VOC and adding HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia (Virginia). The revision requests EPA remove from the Virginia SIP regulations from the Virginia Administrative Code that established trading programs under the Clean Air Interstate Rule (CAIR). The EPA-administered trading programs under CAIR were discontinued on December 31, 2014, upon the implementation of the Cross-State Air Pollution Rule (CSAPR), which was promulgated by EPA to replace CAIR. CSAPR established federal trading programs for sources in multiple states, including Virginia, that replace the CAIR state and federal trading programs. The submitted SIP revision requests removal of state regulations that implemented the CAIR annual nitrogen oxides (NO
This final rule is effective on April 12, 2018.
EPA has established a docket for this action under Docket ID
Sara Calcinore, (215) 814–2043, or by email at
In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to address transported emissions that significantly contributed to downwind states' nonattainment and interfered with maintenance of the 1997 ozone and fine particulate matter (PM
The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR.
On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR in order to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM
Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on December 30, 2011, the D.C. Circuit stayed CSAPR prior to its implementation and ordered EPA to continue administering CAIR on an interim basis. On August 21, 2012, the D.C. Circuit issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR.
Throughout the initial round of D.C. Circuit proceedings and the ensuing Supreme Court proceedings, the stay on CSAPR remained in place, and EPA continued to implement CAIR. Following the April 2014 Supreme Court decision, EPA filed a motion asking the D.C. Circuit to lift the stay in order to allow CSAPR to replace CAIR in an equitable and orderly manner while further D.C. Circuit proceedings were held to resolve remaining claims from petitioners. Additionally, EPA's motion requested delay, by three years, of all CSAPR compliance deadlines that had not passed as of the approval date of the stay. On October 23, 2014, the D.C. Circuit granted EPA's request, and on December 3, 2014 (79 FR 71663), in an interim final rule, EPA set the updated effective date of CSAPR as January 1, 2015, and delayed the implementation of CSAPR Phase I to 2015 and CSAPR Phase 2 to 2017. In accordance with the interim final rule, EPA stopped administering the CAIR state and federal trading programs with respect to emissions occurring after December 31, 2014, and EPA began implementing CSAPR on January 1, 2015.
In October 2016, EPA promulgated the CSAPR Update (81 FR 74504, October 26, 2016) to address interstate transport of ozone pollution with respect to the 2008 ozone NAAQS, and issued FIPs that established or updated ozone season NO
As noted above, starting in January 2015, the CSAPR federal trading programs for annual NO
On January 5, 2017, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), formally submitted a SIP revision (Revision D16) that requests removal from its SIP of Virginia Administrative Code regulations including 9 VAC 5 Chapter 140: Part II—NO
On September 28, 2017, EPA simultaneously published a notice of proposed rulemaking (NPR) (82 FR 45241) and a direct final rule (DFR) (82 FR 45187) for Virginia approving, as a SIP revision, the removal of the regulations under 9 VAC 5 Chapter 140: Part II—NO
VADEQ's January 5, 2017 SIP revision requests the removal of regulations from the Virginia SIP under 9 VAC 5 Chapter 140: Part II—NO
As noted previously, the CAIR annual NO
Virginia's CAIR trading programs for annual NO
With respect to the NO
With respect to the NO
In summary, Virginia's CAIR rules at 9 VAC 5, Chapter 140: Part II–NO
EPA received two public comments on our September 28, 2017 action to approve Virginia's January 5, 2017 SIP submittal that requests the removal of the regulations under 9 VAC 5 Chapter 140: Part II—NO
EPA agrees that under the NO
EPA is approving the Virginia SIP revision submitted on January 5, 2017 that sought removal from the Virginia SIP of regulations under 9 VAC 5 Chapter 140: Part II—NO
In 1995, Virginia adopted legislation that provides, subject to certain
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1–1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1–1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1–1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
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 (Pub. L. 104–4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States
This action removing from the Virginia SIP regulations under Sections 5–140–1010 through 5–140–3880 of 9 VAC 5 Chapter 140 that implemented the CAIR annual NO
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the State of Ohio's request to redesignate the portion of Fulton County, Ohio known as the Delta nonattainment area (Delta area) to attainment of the 2008 National Ambient Air Quality Standards (NAAQS or standard) for lead. EPA is also approving, as meeting Clean Air Act (CAA) requirements, the maintenance plan and related elements of the redesignation, reasonably available control measure (RACM)/reasonably available control technology (RACT) measures and a comprehensive emissions inventory. EPA is taking these actions in accordance with the CAA and EPA's implementation regulations regarding the 2008 lead NAAQS.
This final rule is effective on March 13, 2018.
EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2017–0256. All documents in the docket are listed on the
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On November 12, 2008 (73 FR 66964), EPA established the 2008 primary and secondary lead NAAQS at 0.15 micrograms per cubic meter (μg/m
On November 22, 2010 (75 FR 71033), EPA published its initial air quality designations and classifications for the 2008 lead NAAQS based upon air quality monitoring data for calendar years 2007–2009. These designations became effective on December 31, 2010. The Delta area portion of Fulton County was designated as nonattainment for lead, specifically portions of Swan Creek and York Townships. 40 CFR 81.336. On May 26, 2015 (80 FR 29964), EPA issued a Clean Data Determination, which determined that the Delta area attained the 2008 lead NAAQS prior to its attainment date of December 31, 2015.
On April 27, 2017, Ohio requested EPA to redesignate the Delta area to attainment of the 2008 lead NAAQS and provided documentation in support of its request. On October 18, 2017 (82 FR 48442), EPA issued a direct final rule approving Ohio's request to redesignate the Delta area to attainment. However, since EPA received relevant adverse comments on this action within the prescribed period, EPA withdrew the direct final rule. EPA had also proposed to approve the request to redesignate the Delta area to attainment of the 2008 lead NAAQS on October 18, 2017 (82 FR 48474). This action is a final rule based on the October 18, 2017 proposal.
The requirements for redesignating an area from nonattainment to attainment are found in CAA section 107 (d)(3)(E). There are five criteria for redesignating an area. First, the Administrator must determine that the area has attained the applicable NAAQS based on current air quality data. Second, the Administrator must have fully approved the applicable SIP for the area under CAA section 110(k). The third criterion is for the Administrator to determine that the air quality improvement is the result of permanent and enforceable emission reductions. Fourth, the Administrator must have fully approved a maintenance plan meeting the CAA section 175A requirements. The fifth criterion is that the state has met all of the applicable requirements of CAA section 110 and part D.
The direct final rule published on October 18, 2017 (82 FR 48442) details how the Delta area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. In summary, EPA's approval of the RACM/RACT measures satisfies section 172 (c)(1) of the CAA. EPA is approving Ohio's 2013 emissions inventories for the Delta area as meeting the requirement of section 172(c)(3) of the CAA. EPA finds that the other requirements of CAA section 172(c) are not applicable because the Delta area has monitored attainment of the 2008 lead NAAQS. Further, EPA is approving Ohio's maintenance plan as it adequately addresses the requirements of section 175A of the CAA.
EPA received an anonymous comment on November 16, 2017. The comment is discussed below along with a response from EPA.
EPA is approving the request from Ohio to change the legal designation of
Specifically, EPA is approving the necessary elements from the permits, emission limits and Preventive Maintenance Plan conditions, into the Ohio SIP rather than the entirety of the permits. The emission limits are for units controlled with Baghouse A: 0.150 pounds per hour combined limit, Baghouse B: 0.150 pounds per hour combined limit, and Baghouse C: 0.075 pounds per hour combined limit. The approved specific required elements of the Preventive Maintenance Plan are detailed on pages 24 to 26 of Ohio's “Redesignation Request and Maintenance Plan for the Partial Fulton County, OH Annual Lead Nonattainment Area,” submitted in April 2017. In summary, the required elements are five elements of inspections, three elements of fabric filter leak detection systems, three elements of corrective actions, and five elements of records.
EPA is approving the 2013 emissions inventory as meeting the comprehensive emissions inventory requirements of section 172(c)(3) of the CAA. EPA is taking these actions in accordance with the CAA and EPA's implementation regulations regarding the 2008 lead NAAQS.
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule relieves the state of planning requirements for this lead nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(1) and (3) for these actions to become effective on the date of publication of these actions.
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 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 14, 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.
40 CFR parts 52 and 81 are amended as follows:
42 U.S.C. 7401
(e) * * *
(f) Ohio's 2013 lead emissions inventory for the Delta area, submitted on April 27, 2017, to meet the emission inventory requirements of section 172(c)(3) of the Clean Air Act for the Delta area.
(g) Approval—The 2008 lead maintenance plan for the Delta, Ohio nonattainment area, submitted on April 27, 2017.
(h) Existing controls and maintenance provisions in the Air Pollution Permits-to-Install and Operate P0108083, P0121822, P0120836, and P0121942 for the Bunting Bearing LLC Delta facility including the preventative maintenance plan as fulfilling the RACM/RACT 172(c)(1) requirement. Permits P0120836, P0121822, and P0121942, all issued February 28, 2017, require a combined limit of 0.150 pounds lead per hour for units P006 to P011, P013, P020 to P025, P029 to P032, P035, and P036. Permit P0108083, issued October 29, 2012, requires a combined limit of 0.150 pounds lead per hour for units P014 to P019 and P028 and a combined limit of 0.075 pounds lead per hour for unit P005.
42 U.S.C. 7401,
Federal Communications Commission.
Final rule; correction.
The Federal Communications Commission (Commission) published a document in the
This correction is effective April 30, 2018.
James Wiley, Attorney Advisor, Cybersecurity and Communications Reliability Division, Public Safety and Homeland Security Bureau, at 202–418–2410.
In the
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, an information collection associated with the rules for the Connect America Fund Phase II auction (CAF–II auction) contained in the Commission's
The amendment to § 54.310(e) published at 79 FR 39164, July 9, 2014, is effective March 13, 2018.
Alexander Minard, Wireline Competition Bureau at (202) 418–7400 or TTY (202) 418–0484. For additional information concerning the Paperwork Reduction Act information collection requirements contact Nicole Ongele at (202) 418–2991 or via email:
The Commission submitted new information collection requirements for review and approval by OMB, as required by the Paperwork Reduction Act (PRA) of 1995, on December 12, 2017, which were approved by the OMB on March 5, 2018. The information collection requirements are contained in the Commission's
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on March 5, 2018, for the information collection requirements contained in 47 CFR 54.310(e) and 54.315(a), published at 79 FR 39164, July 9, 2014 and 81 FR 44414, July 7, 2016. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060–1252.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104–13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
In the CAF–II auction, service providers will compete to receive support of up to $1.98 billion over 10 years to offer voice and broadband service in unserved high-cost areas. To implement reform and conduct the CAF–II auction, the Commission adopted new rules for the CAF–II auction which include new information collections. In its
Under this information collection, the Commission will collect information that will be used to determine whether an applicant is legally qualified to participate in an auction for Connect America Fund Phase II support. To aid in collecting this information, the Commission has created FCC Form 183, which the public will use to provide the necessary information and certifications. Commission staff will review the information collected on FCC Form 183 as part of the pre-auction process, prior to the start of the auction, and determine whether each applicant satisfies the Commission's requirements to participate in an auction for CAF–II support. Without the information collected on FCC Form 183, the Commission will not be able to determine if an applicant is legally qualified to participate in the auction and has complied with the various applicable regulatory and statutory auction requirements for such participation. This approach provides an appropriate screen to ensure serious participation without being unduly burdensome.
Department of Veterans Affairs.
Final rule; correction.
On February 21, 2018, the Department of Veterans Affairs (VA) published a final rule prescribing five new Economic Price Adjustment clauses for firm-fixed-price contracts, identifying VA's task-order and delivery-order ombudsman, clarifying the nature and use of consignment agreements, adding policy coverage on bond premium adjustments and insurance under fixed-price contracts, and providing for indemnification of contractors for medical research or development contracts. It contained an erroneous amendatory instruction citing the wrong CFR section. This document corrects that error.
This correction is effective on March 23, 2018.
Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632–5276 (this is not a toll-free telephone number).
In the final rule published February 21, 2018, at 83 FR 7401, effective March 23, 2018, an amendatory instruction intended for 48 CFR 828.306 cited incorrectly 38 CFR 816.306.
Therefore, in FR Rule Doc. No. 2018–03164, on page 7404, at the top of the third column, correct amendatory instruction 12 to read as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is closing the commercial fishery for blacktip sharks, aggregated large coastal sharks (LCS), and hammerhead shark management groups in the western Gulf of Mexico sub-region. This action is necessary because the commercial landings of sharks in the aggregated LCS management group in the western Gulf of Mexico sub-region for the 2018 fishing season has reached 80 percent of the available commercial quota as of March 8, 2018, and the aggregated LCS and hammerhead shark management groups are quota-linked under the regulations. The blacktip shark fishery in the western Gulf of Mexico sub-region will be closed to help minimize regulatory discards of sharks in the aggregated LCS management group in the western Gulf of Mexico sub-region, since LCS are often caught in conjunction with blacktip sharks in the commercial shark fisheries. This closure will affect anyone commercially fishing for sharks in the western Gulf of Mexico sub-region.
The commercial fishery for blacktip sharks and for the aggregated LCS and hammerhead shark management groups in the western Gulf of Mexico sub-region are closed effective 11:30 p.m. local time March 13, 2018 until the end of the 2018 fishing season on December 31, 2018, or until and if NMFS announces via a notice in the
Lauren Latchford or Karyl Brewster-Geisz 301–427–8503; fax 301–713–1917.
The Atlantic shark fisheries are managed under the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and implementing regulations (50 CFR part 635) issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Under § 635.5(b)(1), dealers must electronically submit reports on sharks that are first received from a vessel on a weekly basis through a NMFS-approved electronic reporting system. Reports must be received by no later than midnight, local time, of the first Tuesday following the end of the reporting week unless the dealer is otherwise notified by NMFS. Under § 635.28(b)(4), the quotas of certain species and/or management groups are linked. If quotas are linked, when the specified quota threshold for one management group or species is reached and that management group or species is closed, the linked management group or species closes at the same time (§ 635.28(b)(3)). The quotas for aggregated LCS and the hammerhead shark management groups in the western Gulf of Mexico sub-region are linked (§ 635.28(b)(4)(iii)). The blacktip shark quota in the western Gulf of Mexico sub-region is not linked to the aggregated LCS or hammerhead shark quotas.
Under § 635.28(b)(2) and (3), when NMFS calculates that the landings for any species and/or management group of either a non-linked or a linked group have reached or are projected to reach a threshold of 80 percent of the available quota, NMFS will file for publication, with the Office of the Federal Register, a notice of closure for all of the species and/or management groups of either a non-linked or linked group that will be effective no fewer than five days from date of filing. For blacktip sharks, under § 635.28(b)(5), NMFS may close the regional or sub-regional Gulf of Mexico blacktip shark management group(s) before landings reach, or are expected to reach, 80 percent of the quota, after considering specified regulatory criteria and other relevant factors.
From the effective date and time of the closure until and if NMFS announces, via a notice in the
On November 22, 2017 (82 FR 55512), NMFS announced that for 2018, the commercial western Gulf of Mexico blacktip shark sub-regional quota was 347.2 metric tons (mt) dressed weight (dw) (765,392 lb dw), the western Gulf of Mexico aggregated LCS sub-regional quota was 72.0 mt dw (158,724 lb dw), and the western Gulf of Mexico hammerhead shark sub-regional quota was 11.9 mt dw (26,301 lb dw). Dealer reports received through March 8, 2018, indicate that 86 percent (61.7 mt dw) of the available western Gulf of Mexico aggregated LCS management group sub-regional quota has been landed and that 57 percent (6.8 mt dw) of the available western Gulf of Mexico hammerhead shark sub-regional quota has been landed. Based on these dealer reports, the western Gulf of Mexico aggregated LCS management group sub-regional quota has exceeded 80 percent and meets the closure threshold. While the western Gulf of Mexico hammerhead shark sub-regional quota has reached 57 percent of the available quota, it is linked to the aggregated LCS fishery and therefore closes when the aggregated LCS management groups in the western Gulf of Mexico sub-region closes. Accordingly, NMFS is closing the commercial aggregated LCS and hammerhead management groups in the western Gulf of Mexico sub-region as of 11:30 p.m. local time March 13, 2018.
Dealer reports received through March 8, 2018, indicate that 77 percent (265.9 mt dw) of the available western Gulf of Mexico blacktip shark sub-regional quota has been landed. Regulations at § 635.28(b)(5)(i)–(v) authorize the closure of the blacktip shark fishery before landings reach, or are expected to reach, 80 percent of the quota if warranted after considering the following criteria and other relevant factors: season length based on available sub-regional quota and average sub-regional catch rates; variability in regional and/or sub-regional seasonal distribution, abundance, and migratory patterns; effects on accomplishing the objectives of the 2006 Consolidated HMS FMP and its amendments; amount of remaining shark quotas in the relevant sub-region; and regional and/or sub-regional catch rates of the relevant shark species or management groups. NMFS has considered these criteria with respect to blacktip sharks in the western Gulf of Mexico sub-region, and in particular, considered sub-regional distribution and abundance (§ 635.28(b)(5)(ii)) and sub-regional catch rates (§ 635.28(b)(5)(v)) in determining that a closure is warranted at this time.
The directed shark fisheries in the western Gulf of Mexico sub-region exhibit a mixed species composition, with a high abundance and distribution of aggregated LCS caught in conjunction with blacktip sharks. As a result, closing
All other shark species or management groups in the western Gulf of Mexico sub-region that are currently open will remain open, including the commercial Gulf of Mexico non-blacknose small coastal sharks (SCS), blue sharks, smoothhound sharks, and pelagic sharks other than porbeagle or blue sharks.
The boundary between the Gulf of Mexico region and the Atlantic region is defined at § 635.27(b)(1) as a line beginning on the East Coast of Florida at the mainland at 25°20.4′ N. lat, proceeding due east. Any water and land to the south and west of that boundary is considered for the purposes of monitoring and setting quotas, to be within the Gulf of Mexico region. The boundary between the western and eastern Gulf of Mexico sub-regions is drawn along 88° 00′ W. long (§ 635.27(b)(1)(ii)). Persons fishing aboard vessels issued a commercial shark limited access permit under § 635.4 may still retain blacktip sharks, aggregated LCS, and/or hammerhead sharks management groups in the eastern Gulf of Mexico sub-region (east of 88° 00′ W. long).
During the closure, retention of blacktip sharks, aggregated LCS, and/or hammerhead sharks management groups in the western Gulf of Mexico sub-region is prohibited for persons fishing aboard vessels issued a commercial shark limited access permit under § 635.4. However, persons aboard a commercially permitted vessel that is also properly permitted to operate as a charter vessel or headboat for HMS, has a shark endorsement, and is engaged in a for-hire trip could fish under the recreational retention limits for sharks and “no sale” provisions (§ 635.22 (c)). Similarly, persons aboard a commercially permitted vessel that possesses a valid shark research permit under § 635.32 and has a NMFS-approved observer onboard may continue to harvest and sell blacktip sharks, aggregated LCS, and/or hammerhead sharks in the western Gulf of Mexico sub-region pursuant to the terms and conditions of the shark research permit.
During this closure, a shark dealer issued a permit pursuant to § 635.4 may not purchase or receive blacktip sharks, aggregated LCS, and/or hammerhead sharks in the western Gulf of Mexico sub-region from a vessel issued an Atlantic shark limited access permit (LAP), except that a permitted shark dealer or processor may possess blacktip sharks, aggregated LCS, and/or hammerhead sharks in the western Gulf of Mexico sub-region that were harvested, off-loaded, and sold, traded, or bartered prior to the effective date of the closure and were held in storage consistent with § 635.28(b)(6). Additionally, a permitted shark dealer or processor may possess blacktip sharks, aggregated LCS, and/or hammerhead sharks in the western Gulf of Mexico sub-region that were harvested by a vessel issued a valid shark research fishery permit per § 635.32 with a NMFS-approved observer onboard during the trip the sharks were taken on as long as the LCS research fishery quota remains open. Similarly, a shark dealer issued a permit pursuant to § 635.4 may, in accordance with relevant state regulations, purchase or receive blacktip sharks, aggregated LCS, and/or hammerhead sharks in the western Gulf of Mexico sub-region if the sharks were harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in state waters and that has not been issued an Atlantic Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit pursuant to § 635.4.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing prior notice and public comment for this action is impracticable and contrary to the public interest because the fishery is currently underway and any delay in this action would result in overharvest of the quotas for these species and management groups and thus would be inconsistent with fishery management requirements and objectives. 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 availability on the fishing grounds, the migratory nature of the species, and the regional variations. NMFS is not able to give notice sooner nor would sooner notice be practicable given the structure of the regulations, which close the fisheries under specified regulatory criteria or thresholds, and closure determinations need to be based on near real-time data to balance fishing opportunities against the management goal of preventing quota overharvests. Similarly, affording prior notice and opportunity for public comment on this action is contrary to the public interest because if a quota is exceeded, the stock may be negatively affected and fishermen ultimately could experience reductions in the available quota and a lack of fishing opportunities in future seasons. For these reasons, the AA also finds good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3). This action is required under § 635.28(b)(3) and § 635.28(b)(5) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule implements the management measures contained in Framework Adjustment 2 to the Tilefish Fishery Management Plan and adjusts the 2018 specifications for this fishery. The Mid-Atlantic Fishery Management Council developed Framework Adjustment 2 to improve and simplify the administration of the golden tilefish fishery. These changes include removing an outdated reporting requirement, proscribing allowed gear for the recreational fishery, modifying the commercial incidental possession limit, requiring commercial golden tilefish be landed with the head and fins attached, and revising how assumed discards are accounted for when setting harvest limits. Based on new regulations implemented by this rule, this action updates previously published specifications for the commercial golden tilefish fishery for 2018 and projected specifications for 2019 and 2020.
This rule is effective April 12, 2018, except for the amendment to § 648.7(b)(2)(ii), which is effective March 13, 2018.
Copies of Framework 2 and the Environmental Assessment (EA), with its associated Finding of No Significant Impact (FONSI) and the Regulatory Impact Review (RIR), are available from the Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to the Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930, and by email to
Douglas Potts, Fishery Policy Analyst, 978–281–9341.
This action implements Framework Adjustment 2 to the Tilefish Fishery Management Plan (FMP). The Mid-Atlantic Fishery Management Council developed this framework to improve and simplify management measures for the golden tilefish fishery in Federal waters north of the Virginia/North Carolina border, consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). We published a proposed rule for this action on October 23, 2017 (82 FR 48967), with a comment period through November 7, 2017. See Comments and Responses section for more information.
Commercial fishing vessels that land golden tilefish under the individual fishing quota (IFQ) system are currently required to report each trip within 48 hours of landing through our IVR system. The Council originally created this reporting requirement when the fishery was managed under three permit categories, each with a sector-specific annual landing limit. The IVR system provided timely landing reports to track quota use and allowed managers to close a permit category if the annual landing cap was reached. When the Council changed the management of the fishery to an IFQ system, it retained the IVR system to allow additional monitoring of landings. Improvements in electronic dealer-reported landings and other data streams have rendered this IVR report redundant, and the data are no longer used to monitor quotas. This action eliminates this unnecessary reporting requirement.
In recent years, the Council has received reports of recreational fishermen using “mini-longline” gear with a large number of hooks to target tilefish. The Council is concerned the use of this gear could result in increased dead discards of tilefish if fishermen catch more than the eight-fish per person bag limit using this type of gear. The Magnuson-Stevens Act list of authorized gear types at 50 CFR 600.75(v) already restricts the recreational fishery to rod and reel and spear gear. However, to avoid any potential confusion and clarify the amount of gear allowed, this action codifies that rod and reel with a maximum of five hooks per rod is the only authorized recreational tilefish gear for use in the Mid-Atlantic. Anglers could use either a manual or an electric reel.
The commercial tilefish fishery typically lands fish in a head-on, gutted condition. However, quotas and possession limits are in whole (round) weight. This requires the fishing industry to use a conversion factor to change landed weight to whole weight to comply with incidental possession limits and IFQ allocations. This action requires commercially-caught golden tilefish to be landed with the head and fins attached, although they could be gutted. By requiring this, we can more reliably specify and monitor landing limits and quotas in landed weight, eliminating the need to use a conversion factor. This will simplify catch accounting and improve compliance for individuals participating in the commercial tilefish fishery.
When the Council created the tilefish IFQ system, it allocated a separate quota and commercial possession limit of 500 lb (227 kg) to allow small landings of tilefish caught by non-IFQ vessels targeting other species. In recent years, there have been increasing reports of non-IFQ vessels specifically targeting golden tilefish to land the maximum commercial incidental possession limit. In an effort to ensure that the incidental fishery functions as originally intended, this action modifies the commercial possession limit to ensure that vessels are targeting other species, and only incidentally catching golden tilefish. This action adjusts the commercial golden tilefish landing limit to: 500 lb (227 kg) or 50 percent, by weight, of all fish, including the golden tilefish, on board the vessel, whichever is less.
Tilefish IFQ allocation holders may authorize one or more vessels to land tilefish under their allocation. All golden tilefish landed by those vessels are then deducted from that allocation. We do not currently have a mechanism for a vessel to attribute golden tilefish landings from a single trip to more than one IFQ allocation. To create such a system would increase reporting burden on vessels and dealers, and add complexity to the IFQ accounting and cost recovery systems. In order to maintain simple and efficient administration of the IFQ fishery, this action prohibits a vessel from being authorized to land tilefish under multiple IFQ allocations on the same trip. A vessel could still change IFQ allocations over the course of the year while only being authorized by one IFQ allocation at a time. In addition, IFQ allocation holders can lease quota to maintain flexibility in harvesting their allocation.
The current specification process sets the annual catch limit (ACL) equal to the acceptable biological catch (ABC). The ACL is adjusted to address any management uncertainty to set an annual catch target (ACT), then assumed discards of golden tilefish are deducted from the ACT to generate the total
On November 7, 2017, we published a final rule (82 FR 51578) setting specifications for the 2018 commercial golden tilefish fishery and announcing projected specifications for the 2019 and 2020 fishing years. As discussed in that rule, the specifications were based on the regulations that were effective at the time but were anticipated to be revised if Framework 2 was fully implemented. Table 1 shows the 2018 golden tilefish specifications as implemented by the November 7, 2017, rule and new specification values that result from this rule. When this rule becomes effective, we will adjust each IFQ allocation based on the new higher IFQ TAL. Table 2 shows updated projected specifications for the 2019 and 2020 fishing years.
We received two comments on the proposed rule. One comment did not mention or relate to the proposed measures or fishing in any way and is not discussed further. The other commenter supported all of the proposed measures and stated the changes would benefit all participants in the fishery.
There are no changes to the measures from the proposed rule. However, a final rule published on November 15, 2017 (82 FR 52851), made changes to some of the same regulatory paragraphs as this rule. As a result, the regulatory text in this action reflects the current CFR.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Administrator, Greater Atlantic Region, NMFS, has determined that this final rule is consistent with the Tilefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866. Because this rule is not significant under Executive Order 12866, this rule is not an Executive Order 13771 regulatory action.
Pursuant to 5 U.S.C. 553(d)(1), this rule is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act because the change to 50 CFR 648.7(a)(2)(ii) relieves the restriction requiring tilefish IFQ vessels to report each fishing trip through the IVR system. As explained above, this reporting requirement is redundant and no longer used for monitoring catch. A delay in effectiveness of this change would unnecessarily continue this reporting burden with no benefit to the industry, the tilefish resource, or the government. All other aspects of this rule are subject to a 30-day delay in effectiveness.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification and no information has arisen leading to a different conclusion. As a result, a regulatory flexibility analysis was not required and none was prepared.
This final rule contains a revision to a collection-of-information requirement subject to the Paperwork Reduction Act (PRA), which has been approved by OMB under control number 0648–0590. Public reporting burden for the IVR reporting requirement is estimated to average 2 minutes for each IVR response, including the time for reviewing instructions, searching
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(u) * * *
(2) * * *
(vi) Land or possess golden tilefish in or from the Tilefish Management Unit, on a vessel issued a valid tilefish permit under this part, after the incidental golden tilefish fishery is closed pursuant to § 648.295(a)(3), unless fishing under a valid tilefish IFQ allocation permit as specified in § 648.294(a), or engaged in recreational fishing.
(viii) Land or possess golden or blueline tilefish in or from the Tilefish Management Unit, on a vessel issued a valid commercial tilefish permit under this part, that do not have the head and fins naturally attached to the fish.
(ix) Engage in recreational fishing for golden tilefish with fishing gear that is not compliant with the gear restrictions specified at § 648.296.
(a)
(1)
(ii) The Tilefish Monitoring Committee shall include the fishing mortality associated with the recreational fishery in its ACT recommendations only if this source of mortality has not already been accounted for in the ABC recommended by the SSC.
(iii) The Tilefish Monitoring Committee shall allocate 5 percent of the ACT to the incidental sector of the fishery and the remaining 95 percent to the IFQ sector.
(a) * * *
(1)
(2)
(ii) The sum of the sector-specific TAL and the estimated sector-specific discards shall be less than or equal to the ACT for that sector of the fishery.
(3)
(4)
(a) * * *
(1)
(b) * * *
(4)
(ii) An IFQ allocation permit holder who wishes to authorize an additional vessel(s) to possess golden tilefish pursuant to the IFQ allocation permit must send written notification to NMFS. This notification must include:
(A) The vessel name and permit number, and
(B) The dates on which the IFQ allocation permit holder desires the vessel to be authorized to land golden tilefish pursuant to the IFQ allocation permit.
(iii) A vessel listed on the IFQ allocation permit is authorized to possess golden tilefish pursuant to the subject permit, until the end of the fishing year or until NMFS receives written notification from the IFQ allocation permit holder to remove the vessel.
(iv) A single vessel may not be listed on more than one IFQ allocation permit at the same time.
(v) A copy of the IFQ allocation permit must be carried on board each vessel so authorized to possess IFQ golden tilefish.
The revisions and addition read as follows:
(a)
(2)
(i) 500 lb (226.8 kg) of golden tilefish at any time, or
(ii) 50 percent, by weight, of the total of all species being landed; whichever is less.
(3)
(b)
(c)
(a)
(2) Any vessel engaged in recreational fishing may not retain golden tilefish, unless exclusively using rod and reel fishing gear, with a maximum limit of five hooks per rod. Anglers may use either a manual or an electric reel.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; opening.
NMFS is opening directed fishing for sablefish with fixed gear managed under the Individual Fishing Quota (IFQ) Program and the Community Development Quota (CDQ) Program. The season will open 1200 hours, Alaska local time (A.l.t.), March 24, 2018, and will close 1200 hours, A.l.t., November 7, 2018. This period is the same as the 2018 commercial halibut fishery opening dates adopted by the International Pacific Halibut Commission. The IFQ and CDQ halibut season is specified by a separate publication in the
Effective 1200 hours, A.l.t., March 24, 2018, until 1200 hours, A.l.t., November 7, 2018.
Obren Davis, 907–586–7228.
Beginning in 1995, fishing for Pacific halibut and sablefish with fixed gear in the IFQ regulatory areas defined in 50 CFR 679.2 has been managed under the IFQ Program. The IFQ Program is a regulatory regime designed to promote the conservation and management of these fisheries and to further the objectives of the Magnuson-Stevens Fishery Conservation and Management Act and the Northern Pacific Halibut Act. Persons holding quota share receive an annual allocation of IFQ. Persons receiving an annual allocation of IFQ are authorized to harvest IFQ species within specified limitations. Further information on the implementation of the IFQ Program, and the rationale
This announcement is consistent with § 679.23(g)(1), which requires that the directed fishing season for sablefish managed under the IFQ Program be specified by the Administrator, Alaska Region, and announced by publication in the
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the sablefish fishery thereby increasing bycatch and regulatory discards between the sablefish fishery and the halibut fishery, and preventing the accomplishment of the management objective for simultaneous opening of these two fisheries. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 7, 2018.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.23 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Viking Air Limited Model DHC–3 airplanes. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as pitting corrosion on the shank of the wing strut attach bolts. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
We must receive comments on this proposed AD by April 27, 2018.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Viking Air Limited Technical Support, 1959 De Havilland Way, Sidney, British Columbia, Canada, V8L 5V5; telephone: (North America) (800) 663–8444; fax: (250) 656–0673; email:
You may examine the AD docket on the internet at
Aziz Ahmed, Aerospace Engineer, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone: (516) 287–7329; fax: (516) 794–5531; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada, which is the aviation authority for Canada, has issued AD Number CF–2017–11, dated March 9, 2017 (referred to after this as “the MCAI”), to correct an unsafe condition for Viking Air Limited Model DHC–3 airplanes and was based on mandatory continuing airworthiness information originated by an aviation authority of another country. The MCAI states:
Pitting corrosion has been found on the shank of the following part number wing strut attach bolts: C3W114–3, C3W129–3 and C3W128–3. These bolts are manufactured using a standard AN12 bolt. Metallurgical evaluation concluded that pitting corrosion was present on the affected AN12 bolts prior to forming of the bolt head and threads. The pitting and un-plated voids could cause a surface condition that may have a detrimental effect on fatigue and corrosion resistance, leading to bolt failure and consequent failure of the wing.
Viking has not been able to confirm the affected batch numbers or specific manufacture date range. New wing strut bolts manufactured after 21 March 2016 are inspected for pitting during manufacturing and issued new P/Ns C3W114–5, C3W129–5 and C3W128–5 under MOD 3/1010.
You may examine the MCAI on the internet at
Viking Air Limited has issued DHC–3 Otter Service Bulletin Number V3/0006, Revision B, dated March 9, 2017. The service information describes procedures for inspection and any necessary corrective action for pitting of the wing strut shank bolts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of
We estimate that this proposed AD will affect 37 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $12,580, or $340 per product.
In addition, Table 1 is an estimate of possible necessary follow-on actions as a result of the required inspections. We have no way of determining the number of products that may need these actions. We estimate that any necessary follow-on replacement parts would cost as follows:
Replacing each affected bolt is on condition and is estimated to take about 1 work-hour at $85 for a cost of $85 per bolt.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to small airplanes and domestic business jet transport airplanes to the Director of the Policy and Innovation Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by April 27, 2018.
None.
This AD applies to Viking Air Limited Model DHC–3 airplanes with wing strut bolts wing strut bolts part numbers (P/N) C3W114–3, C3W129–3 and C3W128–3 (Pre MOD 3/1010), all serial numbers, certificated in any category.
Air Transport Association of America (ATA) Code 57: Wings.
This AD was prompted by from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as pitting corrosion on the shank of the wing strut attach bolts. We are issuing this proposed AD to detect and correct pitting and un-plated voids, which could cause a surface condition that may have a detrimental effect on fatigue and corrosion resistance, leading to bolt failure and subsequent failure of the wing.
Unless already done, do the following actions:
(1) Within the next 12 months after the effective date of this AD, inspect the wing strut attach bolts installed on the airplane for pitting on the shank following paragraph A of the Accomplishment Instructions of Viking DHC–3 Otter Service Bulletin (SB) Number: V3/0006, Revision B, dated March 9, 2017.
(2) If pitting is found after the inspection required in paragraph (f)(1) of this AD, before further flight, replace the bolt with either a post MOD 3/1010 wing strut bolt (Part Numbers (P/Ns) C3W114–5, C3W129–5 or C3W128–5 as applicable) or a new or
(3) After the effective date of this AD, pre MOD 3/1010 bolts may continue to be used provided these bolts are inspected for pitting immediately before installation following paragraph A of the Accomplishment Instructions of Viking DHC–3 Otter SB Number: V3/0006, Revision B, dated March 9, 2017, and the accomplishment of the inspection must be documented in the airplane maintenance records.
This AD allows credit for the actions required in paragraph (f)(1) or (2) of this AD if done before the effective date of this AD following SB Viking DHC–3 Otter V3/0006 Revision NC or A.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI Transport Canada AD Number CF–2017–11, dated March 9, 2017, for related information. You may examine the MCAI on the internet at
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations under section 6103(n) of the Internal Revenue Code (Code) to authorize the Department of State to disclose returns and return information to its contractors who assist the Department of State in carrying out its responsibilities under section 32101 of the Fixing America's Surface Transportation (FAST) Act. The FAST Act requires the IRS to notify the Department of State of certified seriously delinquent tax debts, and the Department of State procures services from outside contractors in connection with carrying out its responsibilities under the FAST Act.
Written and electronic comments and requests for a public hearing must be received by April 12, 2018.
Send submissions to: CC:PA:LPD:PR (REG–129260–16), Room 5207, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8:00 a.m. and 4:00 p.m. to CC:PA:LPD:PR (REG–129260–16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC 20224. Alternatively, taxpayers may submit comments electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Brittany Harrison of the Office of Associate Chief Counsel (Procedure and Administration), (202) 317–6833; concerning the submission of comments and requests for a public hearing, Regina Johnson, (202) 317–6901 (not toll-free numbers).
This document contains proposed amendments to the Procedure and Administration Regulations (26 CFR part 301) under section 6103(n) of the Code. On December 4, 2015, the FAST Act, Public Law 114–94, 129 Stat. 1312, was enacted into law. Section 32101 of the FAST Act adds section 7345 to the Internal Revenue Code. Section 7345 requires the IRS to notify the Department of State of tax debts that the IRS certifies as seriously delinquent. Section 7345(b) generally defines a seriously delinquent tax debt as an unpaid, legally enforceable Federal tax liability of an individual that has been assessed, is greater than $50,000 (as indexed for inflation), and with respect to which a notice of lien has been filed pursuant to section 6323 and the administrative rights under section 6320 with respect to such filing have been exhausted or have lapsed, or a levy has been made pursuant to section 6331. Section 32101 of the FAST Act generally requires the Department of State to deny a passport (or the renewal of a passport) in the case of an individual if notified by the IRS that the individual has been certified as having a seriously delinquent tax debt and permits the Department of State to revoke a passport previously issued to such person.
Under section 6103(a) of the Code, returns and return information are confidential unless the Code otherwise authorizes disclosure. The FAST Act added section 6103(k)(11), which provides that, upon certification under section 7345, the IRS is authorized to disclose return information to the Department of State with respect to a taxpayer who has a seriously delinquent tax debt. Specifically, upon certification under section 7345, section 6103(k)(11)(A) authorizes the IRS to disclose to officers and employees of the Department of State (i) the taxpayer identity information with respect to the certified taxpayer and (ii) the amount of such seriously delinquent tax debt. Section 6103(k)(11)(A). Section 6103(k)(11)(B) limits the use of return information disclosed under subparagraph (A) for the purposes of, and to the extent necessary in, carrying out the requirements of section 32101 of the FAST Act.
The Department of State engages contractors to assist in carrying out its responsibilities with respect to passports, including responsibilities related to implementation of section 32101 of the FAST Act. Because such contractors are not “officers and employees” of the Department of State, section 6103(k)(11) of the Code does not authorize the disclosure of return information to such contractors.
Section 6103(n) of the Code authorizes, pursuant to regulations prescribed by the Secretary, the disclosure of returns and return information to any person for purposes of tax administration to the extent necessary in connection with, among other things, a written contract for services. The definition of the term “tax administration” includes “the administration, management, conduct, direction, and supervision of the execution and application of the internal revenue laws or related statutes. . . .” Section 6103(b)(4). Because implementation of the FAST Act relates to the administration, management, conduct, direction, and supervision of the execution and application of the internal revenue laws and related statutes, disclosure of return information for the purpose of carrying out responsibilities under the FAST Act is a tax administration purpose.
The Treasury regulations provide that, pursuant to the provisions of section 6103(n) of the Code and subject to certain conditions, officers and employees of the Treasury Department, a State tax agency, the Social Security Administration, or the Department of Justice are authorized to disclose returns and return information to any person or to an officer or employee of the person, for purposes of tax administration (as defined in section 6103(b)(4)), to the extent necessary in connection with a written contract or an agreement for the acquisition of the providing of services. Section 301.6103(n)–1(a)(1). Any person, or officer or employee of the person, who receives such disclosed returns or return information may further disclose the returns or return information to its own officers or employees whose duties or responsibilities require such information in order to provide the services. Section 301.6103(n)–1(a)(2)(i). When authorized in writing by the IRS, such person, or officer or employee of the person, may further disclose such information to the extent necessary to provide services, including to its agents or subcontractors (or such agents' or subcontractors' officers or employees). Section 301.6103(n)–1(a)(2)(ii). Agents or subcontractors (or their officers or employees) who receive such returns or return information may further disclose the returns or return information to their officers or employees whose duties or responsibilities require the returns or return information for a purpose described in § 301.6103(n)–1(a). Section 301.6103(n)–1(a)(3). The regulations under section 6103(n) of the Code provide a number of rules related to limitations on such disclosures, penalties potentially applicable to recipients of returns and return information, notification requirements applicable to recipients of returns and return information, and safeguards requirements. See section 301.6103(n)–1(b), –1(c), –1(d), –1(e).
These proposed regulations add the Department of State to the list of agencies in current § 301.6103(n)–1(a)(1) whose officers and employees may disclose returns and return information to any person or to an officer or employee of such person for tax administration purposes to the extent necessary in connection with a written contract for the acquisition of property or services. These proposed regulations authorize the Department of State to disclose returns and return information to its contractors providing services in connection with the revocation or denial of passports pursuant to the requirements of section 7345 and the FAST Act.
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required.
The purpose of these regulations is to allow the Department of State to share tax return information with its contractors for tax administration purposes. As a recipient of tax return information, the Department of State is required to comply with the reporting and other requirements under section 6103(p)(4). The Department of State is also responsible for the training and inspection of its contractors and ensuring that all safeguarding standards are met. These proposed regulations do not impose a reporting burden on the Department of State's contractors and will not require the contractors to file information with the IRS. Because the proposed regulations do not impose a collection of information on entities other than the Department of State, they do not impose a collection of information on small entities. Accordingly, it is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. chapter 6).
Pursuant to section 7805(f) of the Code, these proposed regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Before the regulations proposed herein are adopted as final regulations, consideration will be given to any electronic and written comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of these proposed regulations is Brittany Harrison of the Office of the Associate Chief Counsel (Procedure and Administration).
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(g)
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a portion of a revision to the Hamilton County portion of the Tennessee State Implementation Plan (SIP) submitted by the State of Tennessee through the Tennessee Department of Environment and Conservation from Chattanooga/Hamilton County Air Pollution Control Bureau on June 25, 2008. The revision amends the definition of “volatile organic compounds” (VOC) to be consistent with state and federal regulations. This action is being taken pursuant to the Clean Air Act (CAA or Act).
Comments must be received on or before April 12, 2018.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2017–0395
Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. Ms. Bell can be reached by phone at (404) 562–9088 or via electronic mail at
Tropospheric ozone, commonly known as smog, occurs when VOC and nitrogen oxides (NO
Section 302(s) of the CAA specifies that EPA has the authority to define the meaning of “VOC,” and hence what compounds shall be treated as VOC for regulatory purposes. It has been EPA's policy that compounds of carbon with negligible reactivity need not be regulated to reduce ozone and should be excluded from the regulatory definition of VOC.
In this rulemaking, EPA is proposing action to approve Hamilton County's SIP revision which amends the definition of “Volatile Organic Compounds” in the Chattanooga Code, Chapter 4 of Part II, Section 4–2. This SIP revision also amends paragraph 3 and adds paragraphs 4 and 5 to the Chattanooga Code, Chapter 4 of Part II, Section 4–2 definition of VOC. Tennessee is updating the Hamilton County portion of its SIP to be consistent with changes to federal and other similar SIP-approved regulations.
On June 25, 2008, Tennessee submitted a SIP revision
The revision includes minor changes to paragraph 3 of Chattanooga Code, Chapter 4 of Part II, Section 4–2 definition of VOC to be consistent with federal and other similar SIP-approved regulations. As a precondition to excluding compounds as VOCs, paragraph 3 states that: “As a precondition to excluding these compounds as VOC or at any time thereafter, the Director shall require an owner or operator to provide monitoring or testing methods and results demonstrating the amount of negligibly-reactive compounds in the source's emissions.” The SIP revision changes the precondition for the director to require this testing from “shall” to “may” and adds that any testing be “to the satisfaction of the Director” of the Chattanooga-Hamilton County Air Pollution Control Bureau. The SIP
Finally, the SIP revision adds paragraph 5 which states: “The following compound(s) are VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements which apply to VOC and shall be uniquely identified in emission reports, but are not VOC for purposes of VOC emissions limitations or VOC content requirements: t-butyl acetate.” Through this revision, Hamilton County is also adding t-butyl acetate to the list of negligibly reactive compounds, but maintaining the requirements of recordkeeping, emissions reporting, and inventory. EPA is proposing to approve this revision because it is consistent with the definition of VOC at 40 CFR 51.100(s).
Pursuant to CAA section 110(l), 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 (as defined in CAA section 171), or any other applicable requirement of the Act. The State's addition of the County's exemptions from the definition of VOC, addition of recordkeeping, emissions reporting, photochemical dispersion modeling, and inventory requirements for t-butyl acetate, and other changes in paragraphs 3 and 4 to Chapter 4 of Part II, Section 4–2, of the Chattanooga Code “Definitions” are approvable under section 110(l) because they reflect changes to federal regulations based on findings that the aforementioned compounds are negligibly reactive and make a negligible contribution to troposphere ozone formation.
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Chapter 4 of Part II, Section 4–2, “Definitions” effective August 16, 1995, which revised the definition of VOC. EPA has made, and will continue to make, these materials generally available through
Pursuant to section 110 of the CAA, EPA is proposing to approve the aforementioned changes to Tennessee's SIP for Chapter 4 of Part II, Section 4–2. EPA has evaluated the relevant portions of Tennessee's June 25, 2008, SIP revision and has determined that it meets the applicable requirements of the CAA and EPA regulations and is consistent with EPA policy.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency.
Proposed rule.
On January 22, 2018, the State of South Carolina, through the Department of Health and Environmental Control (DHEC), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Greenville-Spartanburg, South Carolina fine particulate matter (PM
Comments must be received on or before April 12, 2018.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2018–0017 at
Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. Ms. Sanchez can be reached by telephone at (404) 562–9644 or via electronic mail at
The Clean Air Act (CAA or Act) establishes a process for air quality management through the establishment and implementation of the NAAQS. After the promulgation of a new or revised NAAQS, EPA is required to designate areas, pursuant to section 107(d)(1) of the CAA, as attainment, nonattainment, or unclassifiable. On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for particulate matter to add new standards for PM
The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. EPA and state air quality agencies initiated the monitoring process for the 1997 PM
Greenville County, South Carolina, had a monitor with less than three years of data since the monitor had not been in operation for the full 2001–2003 period. Based upon the data that was obtained during its operation, the monitor indicated a potential to violate the 1997 annual PM
Section 107(d)(3) of the CAA provides the framework for changing the area designations for any NAAQS pollutants. Section 107(d)(3)(A) provides that the Administrator may notify the Governor of any state that the designation of an area should be revised “on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.” The Act further provides in section 107(d)(3)(D) that even if the Administrator has not notified a state Governor that a designation should be revised, the Governor of any state may, on the Governor's own motion, submit a request to revise the designation of any area, and the Administrator must approve or deny the request.
When approving or denying a request to redesignate an area, EPA bases its decision on the air quality data for the area as well as the considerations provided under section 107(d)(3)(A).
In order to redesignate the Area from unclassifiable to unclassifiable/attainment for the 1997 primary and secondary annual PM
Because the 3-year design values, based on valid, quality-assured data, demonstrate that the Area meets the 1997 primary and secondary annual PM
EPA is proposing to approve South Carolina's January 22, 2018, request to redesignate the Greenville Area from unclassifiable to unclassifiable/attainment for the 1997 primary and secondary annual PM
Under the CAA, redesignation of an area to unclassifiable/attainment is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to unclassifiable/attainment does not in and of itself create any new requirements. Accordingly, this proposed action merely proposes to redesignate an area to unclassifiable/attainment and does not impose additional requirements. For that reason, this proposed 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 redesignations 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
• Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed action to redesignate the Greenville Area from unclassifiable to unclassifiable/attainment for the 1997 primary and secondary annual PM
Environmental protection, Air pollution control.
42 U.S.C. 7401,
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) seeks comment on its proposal to adopt recommendations from the Federal-State Joint Board on Jurisdictional Separations and to amend the Part 36 jurisdictional separations rules accordingly. Acknowledging the implications that reforms adopted in the
Comments are due on or before April 12, 2018. Reply comments are due on or before April 27, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this document, you should advise the contact listed below as soon as possible.
You may submit comments, identified by WC Docket Nos. 17–287, 11–42, and 09–197, by any of the following methods:
•
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Edward Krachmer, Pricing Policy Division, Wireline Competition Bureau, at (202) 418–1540 or via email at
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 18–22, released February 22, 2018. For a full text copy of this document please go to the following internet Address:
1. In the Notice of Proposed Rulemaking (NPRM), the Commission takes steps to harmonize its rules regarding jurisdictional separations to reflect the Commission's actions in February 2017 to reduce and eliminate unnecessary accounting rules. Today, the Commission furthers its goal of updating and modernizing the Commission's rules to minimize outdated compliance burdens on carriers and to free up scarce resources that can accordingly be used to expand modern networks that bring economic opportunity, job creation and civic engagement to all Americans.
2. In the
3. In this NPRM, the Commission proposes to adopt each of the Joint Board's recommendations and to amend the Part 36 rules consistent with those recommendations. The Commission invites comment on these proposals.
4. Jurisdictional separations are the third step in a four-step regulatory process used to establish tariffed rates for interstate and intrastate regulated services for incumbent local exchange carriers (LECs). First, carriers record their costs into various accounts in accordance with the USOA prescribed by Part 32 of the Commission's rules. Second, carriers divide the costs in these accounts between regulated and nonregulated activities in accordance with Part 64 of the Commission's rules. This division ensures that the costs of nonregulated activities will not be recovered in regulated interstate service rates. Third, carriers separate the regulated costs between the intrastate and interstate jurisdictions in accordance with the Commission's Part 36 separations rules. This process begins with the carriers assigning regulated costs to various investment and expense categories. In certain instances, carriers further disaggregate costs among service categories. Finally, carriers apportion the interstate regulated costs among the interexchange services and rate elements that form the cost basis for their exchange access tariffs. Carriers subject to rate-of-return regulation perform this apportionment in accordance with Part 69 of the Commission's rules.
5. Historically, Part 32 divided incumbent LECs into two classes for accounting purposes based on an incumbent LEC's annual regulated revenues: Class A incumbent LECs (currently those with regulated annual revenues equal to or greater than $157 million) and Class B incumbent LECs (currently those with less than $157 million in annual regulated revenues). Part 32 required Class A carriers to create and maintain substantially more accounts than it required from smaller Class B carriers. In all but one case, Class A carrier accounts could be grouped into sets that were represented by single Class B carrier accounts—that is, such Class A accounts consolidated into, or “rolled up” into Class B accounts.
6. The reforms adopted in the
7. At the request of the Commission, the Joint Board considered the impact of the Part 32 reforms on the Part 36 rules and released a recommended decision. In the
8. The Commission proposes to adopt each of the Joint Board's recommendations and to amend the Part 36 rules using, with minor exceptions, the language the Joint Board suggests. The Commission invites comment on these proposals. The Commission also welcomes comment on whether it should make other changes to the Part 36 rules to harmonize them with the changes the Commission made to Part 32 in the
9. First, the Commission proposes to adopt the Joint Board's recommendation to remove from its Part 36 rules all the provisions that deal with Class A accounts, because carriers are no longer be required to keep such accounts since the revised Part 32 rules took effect on January 1, 2018. Under this approach, the Commission proposes to: (a) Delete references to Class A accounts and the phrase “Class B accounts” in Part 32 rules that contain parallel references to Class A accounts and the Class B accounts into which they roll up; (b) delete references to current-year account balances and modify references to Class A carriers in other Part 36 rules; and (c) delete references to Class A accounts in sections 36.501 and 36.505 of the rules. The Commission seeks comment on this proposal as well as on whether there is a different approach it should take in harmonizing the Part 36 rules with the newly amended Part 32 rules.
10. Second, the Commission proposes to amend section 36.112, which concerns the apportionment of general support facilities costs. As the Joint Board observes, this is the only Part 36 rule that provides different separations procedures for Class A and Class B carriers. Consistent with the Joint Board's recommendation, the Commission proposes to allow former Class A carriers (carriers with revenue equal to or greater than $157 million for calendar year 2016) to select between these two procedures in apportioning their general support facilities costs. The Commission seeks comment on permitting such selections. The Commission also seeks comment on whether each carrier should be permitted to make an election only one time or be allowed to change the approach it takes over time. What are the practical consequences of permitting carriers to make such elections?
11. Additionally, consistent with the Joint Board's recommendations, the Commission's proposed rule changes include certain stylistic and typographical corrections to the Part 36 rules. For example, the Commission proposes to correct a spelling error in section 36.126(b) and to hyphenate the adjective “twelve month” throughout Part 36. In addition to adopting these corrections, are there other ministerial corrections that the Commission should make to those rules?
12. The Commission also seeks comment on the timing for making these changes to its Part 36 rules. The changes to its Part 32 rules took effect January 1, 2018. Should the Commission make harmonizing changes to its Part 36 rules as soon as practicable, as the Joint Board recommends? Should the Commission make changes effective January 1, 2019? The Commission asks commenters to explain the implications of different effective dates for any changes it makes to harmonize its Part 36 rules with its newly revised Part 32 rules.
13. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington DC 20554.
14. The proceeding this FNPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
15. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506(c)(4).
16. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) for this Notice of Proposed Rulemaking, of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth in Appendix C. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM indicated on the first page of this document. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
17. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the proposals in this Notice of Proposed Rulemaking (Notice). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments and reply comments on the Notice provided above. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Notice and the IRFA (or summaries thereof) will be published in the
18. In the
19. The legal basis for the Notice of Proposed Rulemaking is contained in sections 1, 2, 4(i), 201–205, 215, 218, 220, and 410 of the Communications Act of 1934, as amended.
20. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). Nationwide, there are a total of approximately 27.9 million small businesses, according to the SBA.
21.
22. The Commission has included small incumbent LECs in this RFA analysis. As noted above, a “small business” under the RFA is one that,
23. None.
24. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance and reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or part thereof, for small entities.
25. As discussed above, the purpose of the proposals in this Notice is to ensure that the Part 36 rules are consistent with the amendments to the Part 32 rules adopted in the
26. The Commission believes that the proposed rules would ease the administrative burden of regulatory compliance for incumbent LECs, including any small incumbent LECs those rules might affect. The
27. None.
28. Accordingly,
29.
Communications common carriers; Reporting and recordkeeping requirements; Telephone; Uniform system of accounts.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 36 as follows:
47 U.S.C. 151, 154(i) and (j), 205, 221(c), 254, 303(r), 403, 410, and 1302 unless otherwise noted.
(a) The costs of the general support facilities of local exchange carriers that had annual revenues from regulated telecommunications operations equal to or greater than $157 million for calendar year 2016 are apportioned among the operations on the basis of one of the following, at the election of the local exchange carrier:
(1) The separation of the costs of the combined Big Three Expenses which include the following accounts:
(2) The separation of the costs of Central Office Equipment, Information Origination/Termination Equipment, and Cable and Wire Facilities, combined.
(b) The costs of the general support facilities of local exchange carriers that had annual revenues from regulated telecommunications operations less than $157 million for calendar year 2016 are apportioned among the operations on the basis of the separation of the costs of Central Office Equipment, Information Origination/Termination Equipment, and Cable and Wire Facilities, combined.
The revision reads as follows:
(a) The costs of central office equipment are carried in the following accounts:
(a) Plant specific operations expenses include the following accounts:
The revision reads as follows:
The revisions read as follows:
Remove “(Class B Telephone Companies); Account 3410 (Class A Telephone Companies)”.
The revision reads as follows:
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by April 12, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are required regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by April 12, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street, NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by April 12, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Office of the Secretary, USDA.
Request for Information (RFI).
Consistent with Executive Order 13781, “Comprehensive Plan for Reorganizing the Executive Branch,” and using the authority of the Secretary to reorganize the Department under section 4(a) of Reorganization Plan No. 2 of 1953 the U.S. Department of Agriculture (USDA) is soliciting public comment on a proposed realignment of the Office of the Assistant Secretary for Civil Rights (OASCR), which will improve customer service, better align functions within the organization, and ensure improved consistency, resource management, and strategic decision-making.
Comments and information are requested on or before March 25, 2018.
Interested persons are invited to submit comments regarding this notice. All submissions must refer to “Improving Civil Rights” to ensure proper delivery.
•
•
Ms. Winona Lake Scott, Telephone Number: (202) 720–3808,
USDA is committed to operating efficiently, effectively, and with integrity, and minimizing the burdens on individuals, businesses, and communities for participation in and compliance with USDA programs. USDA works to support the American agricultural economy to strengthen rural communities; to protect and conserve our natural resources; and to provide a safe, sufficient, and nutritious food supply for the American people. The Department's wide range of programs and responsibilities touches the lives of every American every day.
Executive Order 13781, “Comprehensive Plan for Reorganizing the Executive Branch”, is intended to improve the efficiency, effectiveness, and accountability of the executive branch. The principles in the Executive Order provide the basis for taking actions to enhance and strengthen the delivery of USDA programs.
On March 9, 2018, Secretary Perdue will be announcing his intent to take actions to strengthen civil rights and customer service at USDA by taking the following actions to ensure integrity, consistency, and fairness:
• USDA will eliminate inefficiencies in delivering civil rights services at the agency and staff office level, thereby resulting in improved civil rights management. Under the realignment, a Civil Rights Director and appropriate Equal Opportunity staff will be aligned as follows:
(1) Departmental Administration, staff offices, and Trade and Foreign Agricultural Affairs will share civil rights resources;
(2) Each remaining Departmental Mission Area will consolidate its sub-
(3) The Office of the Inspector General (OIG) shall have an independent Civil Rights Director.
• OASCR will direct all Departmental civil rights activities, including those of the Mission Areas, Departmental Administration, staff offices, and to the extent appropriate and lawful, OIG. The delegations for the Assistant Secretary for Civil Rights shall be revised as necessary to reflect OASCR's direct responsibility in providing civil rights policy direction to Mission Area and other Civil Rights Directors and Civil Rights staff and conveying the clear guidance of the Office of the Secretary on all civil rights issues.
• OASCR will implement a timely, fair, transparent, and consistent approach to addressing all Equal Employment Opportunity or program complaints, including those based on discrimination, harassment, and retaliation that shall be adopted by all Mission Areas, Departmental Administration, staff offices and, to the extent appropriate and lawful, OIG.
• OASCR will direct an effective, robust, and compliant mandatory civil rights training program for all staff, including Mission Areas, Departmental Administration, staff offices and, to the extent appropriate and lawful, OIG.
• OASCR will monitor and evaluate the implementation of the reasonable accommodation process by the Mission Areas, Departmental Management, staff offices and, to the extent appropriate and lawful, OIG.
• OASCR will not address matters that Office of Human Resource Management (OHRM) handles exclusively, such as setting human resources policy, investigating and evaluating harassment allegations for misconduct, and reviewing and advising on requests for reasonable accommodations, but will serve as a collaborative partner with OHRM on all appropriate issues affecting civil rights policy, implementation, and compliance.
• OASCR will request the Mission Areas to provide a list of all civil rights positions on-board (full-time, part-time, or collateral duty) within 30 days from issuance of this Memorandum to determine staff needs to effectuate the purpose of this Memorandum.
• Mission Areas, Departmental Administration, and the Staff Offices will implement all organizational changes necessary to effectuate the civil rights staff realignments indicated above based upon the direction of OASCR. When conducting any reorganizations, the Mission Areas, Departmental Administration, and Staff Offices will adhere to all relevant Departmental Directives, including Departmental Regulation 1010 and the corresponding Congressional notification requirements.
• OASCR will eliminate the position of Deputy Assistant Secretary for Civil Rights (ASCR), so as to flatten the organization with the Associate Assistant Secretary for Civil Rights assuming the responsibilities of the Deputy ASCR.
• OASCR will eliminate its Policy Division, which is no longer necessary in an era of decreased regulations, and will perform reduced policy functions with staff from other areas of the organization.
• OASCR will eliminate its Training and Cultural Transformation Division and will develop training with staff from other areas of the organization.
• OASCR will eliminate its Early Resolution and Complaint Division, and the Department will carry out informal counseling within each Mission Area, with coordination from a Mission Area Liaison within OASCR.
• OASCR's career Senior Executive Service (SES) Director for the Office of Compliance, Policy, Training and Cultural Transformation will be reclassified as the career SES Executive Director for Civil Rights Operations, a position responsible for managing the Mission Area Liaison, the Compliance Division, and the Data and Records Management Division over customer service, data, and information technology. The largest component in this part of the OASCR organization is the Compliance Division, which will continue addressing compliance reporting to oversight entities as well as limited regulatory and policy review.
• OASCR's career SES Director for the Office of Adjudication will be reclassified as the career SES Executive Director for Civil Rights Enforcement, a position responsible for leading not only the Office of Adjudication, but also the Program Planning, and Accountability Division over budget, contracting and procurement, human resources management, facilities management, strategic planning, and Continuity of Operations for OASCR. The largest component of this part of the OASCR organization is the Office of Adjudication is responsible for intake, investigation, and adjudication of employment discrimination complaints from USDA employees and program complaints of discrimination arising within any program conducted or assisted by USDA.
USDA is seeking public comment on these actions and notes that this notice is issued solely for information and program-planning purposes. While responses to this notice do not bind USDA to any further actions, all submissions will be reviewed by the appropriate program office, and made publicly available on
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on a new generic information collection request,
Comments must be received in writing on or before May 14, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Send written comments to Kenli Kim, National Program Leader for Social Science Research, Forest Service, 1400 Independence Ave., SW, Mailstop 1114, Washington, DC 20250–1114, or by electronic mail to
All timely submitted comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received on this information
Kenli Kim, National Program Leader for Social Science Research at the Forest Service (
This Generic Information Collection Request (ICR) seeks Office of Management and Budget (OMB) approval to collect information that will help the Forest Service understand how individuals, communities, and organizations prepare for, respond and adapt to, and recover from natural disturbances and disasters, as well as build resilience. This information is critical to supporting the Forest Service's mission of both managing national forests and grasslands and collaborating with others to develop useful guidelines for management of the nation's forests. Under this Generic ICR, social science research methods such as surveys, interviews, and focus groups will collect information from individuals and groups who are preparing for, responding to, and/or recovering from natural disasters and disturbances. Results from the proposed research and data collections can inform prediction, preparation, response, and recovery strategies and efforts by the Forest Service and other Federal agencies, as well as related local government, civil society, and community efforts. In the long term, such knowledge can contribute to fewer societal costs from disturbance processes, more cost-effective management efforts, and more resilient communities and economies. Any specific study conducted under this Generic ICR will be posted for public comment in The
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. The Forest Service will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request for final Office of Management and Budget approval.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on a new generic information collection request,
Comments must be received in writing on or before May 14, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Send written comments to Kenli Kim, National Program Leader for Social Science Research, Forest Service, 1400 Independence Ave. SW, Mailstop 1114, Washington, DC 20250–1114,or by electronic mail to
All timely submitted comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received on this information collection at the USDA—Forest Service headquarters, 201 14th St. SW, Washington, DC 20250 between the hours of 10:00 a.m. to 5:00 p.m. on business days. Those wishing to inspect comments should contact Kenli Kim (
Kenli Kim, National Program Leader for Social Science Research at the Forest Service (
Collaborative conservation is the process of creating and executing land and resource management decisions informed by local knowledge, community participation, and science. Collaborative conservation aims to improve the health, resilience, and sustainability of natural resources and human communities and to maximize the benefits that forests, grasslands, and other natural resources provide to society. This includes environmental benefits such as clean air and water and carbon storage; economic benefits such as energy savings and timber and other forest products; and social benefits such as improved physical health, aesthetic beauty, and stress reduction. A collaborative conservation approach to land management amendments and planning revisions for forests, grasslands, and other natural resources may also help ensure environmental justice for groups and individuals whose views and concerns have not historically been taken into account in land management planning.
Managing forests, grasslands, and natural areas in a collaborative and sustainable way requires detailed, scientifically-based information about people's views on both conservation in general and about specific forests or other natural places that are important in their lives. A collaborative conservation approach to land management amendments and planning takes in-depth understanding of how groups and individuals work effectively together, how information and knowledge are shared, and how to incorporate multiple viewpoints in resource planning while effectively managing conflict.
Taking all of this into account, the Forest Service and other public and private land managers need to collect information from a wide range of stakeholders in order to make informed decisions about natural resource conservation, restoration and management, land management amendments and planning revisions. To ensure that the Forest Service can meet its statutory and regulatory responsibilities and is able to inform management of forests and other natural areas, the Forest Service is seeking OMB approval to collect information from people who use, live near, manage, make policies for, or otherwise have a stake in the management of forests and other natural resources.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. The Forest Service will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request for final Office of Management and Budget approval.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on a new generic information collection request,
Comments must be received in writing on or before May 14, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Send written comments to Kenli Kim, National Program Leader for Social Science Research, 1400 Independence Ave. SW, Mailstop 1114, Washington, DC 20250–1114, or by electronic mail to
All timely submitted comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received on this information collection at the USDA Forest Service Headquarters, 201 14th St. SW, Washington, DC 20250 between the hours of 10:00 a.m. to 5:00 p.m. on business days. Those wishing to inspect comments should contact Kenli Kim (
Kenli Kim, National Program Leader for Social Science Research at the Forest Service (
In rural, suburban, and urban parts of the country, forests, grasslands, and other natural areas provide jobs through: Logging, sawmills, and extraction of non-timber forest products; guide services, hotels, restaurants, and equipment sales that support outdoor recreation; and natural area restoration and management activities. Innovative forest products such as wood-based nano-technologies and laminated timbers are critical to the modern economies of communities large and small. Forests and natural areas provide important ecosystem services such as clean water and natural flood control and influence other critical economic factors like home and land values. Time spent in or with a view of trees, forests, and green spaces can have indirect economic impacts and provide community benefits by improving mental and physical health and well-being.
In addition to the products and services derived from forests, grasslands, or natural areas, people may also value and appreciate the natural environment itself when they experience it directly. These experiences can have meaningful and direct impacts on quality of life, sense of self, and sense of community. While such values are sometimes hard for people to express or to quantify, they play an important role in how people respond to natural resource management proposals and actions, and can often be at the root of conflict over land management policies and practices.
Understanding people's views on these goods, services, and values is critical to managing forests, grasslands, and other natural areas to meet the needs of American citizens—to provide the “greatest good to the greatest number of people for the longest time” as Gifford Pinchot, Founding Chief of the Forest Service, described it. Surveys, interviews, focus groups, and related methods administered under this Generic Clearance will collect information from individuals and groups who seek or benefit from a wide variety of goods, services, and other values from forests, grasslands, and other natural areas. Any specific study conducted under this Generic ICR will be posted for public comment in The
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. The Forest Service will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request for final Office of Management and Budget approval.
Rural Business-Cooperative Service, USDA.
Notice.
The Rural Business-Cooperative Service (the Agency) Notice of Solicitation of Applications (NOSA) is being issued prior to passage of a final appropriations act to allow potential applicants time to submit applications for financial assistance under Rural Energy for America Program (REAP) for Federal Fiscal Year (FY) 2018, and give the Agency time to process applications within the current fiscal year. This NOSA is being issued prior to enactment of full year appropriation for 2018. The Agency will publish the amount of funding received in any continuing resolution or the final appropriations act on its website at
The REAP has two types of funding assistance: (1) Renewable Energy Systems and Energy Efficiency Improvements Assistance, and (2) Energy Audit and Renewable Energy Development Assistance Grants.
The Renewable Energy Systems and Energy Efficiency Improvement Assistance provides grants and guaranteed loans to agricultural producers and rural small businesses to purchase and install renewable energy systems and make energy efficiency improvements to their operations. Eligible renewable energy systems for REAP provide energy from: Wind, solar, renewable biomass (including anaerobic digesters), small hydro-electric, ocean, geothermal, or hydrogen derived from these renewable resources.
The Energy Audit and Renewable Energy Development Assistance Grant is available to a unit of State, Tribal, or local government; instrumentality of a State, Tribal, or local government; institution of higher education; rural electric cooperative; a public power entity; or a council, as defined in 16 U.S.C. 3451. The recipient of grant funds, grantee, will establish a program to assist agricultural producers and rural small businesses with evaluating the energy efficiency and the potential to incorporate renewable energy technologies into their operations.
See under
The applicable USDA Rural Development Energy Coordinator for your respective State, as identified via the following link:
For information about this Notice, please contact Maureen Hessel, Business Loan and Grant Analyst, USDA Rural Development, Energy Division, 1400 Independence Avenue SW, Stop 3225, Room 6870, Washington, DC, 20250. Telephone: (202) 401–0142. Email:
The Rural Energy for America Program (REAP) helps agricultural producers and rural small businesses reduce energy costs and consumption and helps meet the Nation's critical energy needs. REAP has two types of funding assistance: (1) Renewable Energy Systems and Energy Efficiency Improvements Assistance and (2) Energy Audit and Renewable Energy Development Assistance Grants.
The Renewable Energy Systems and Energy Efficiency Improvements Assistance provides grants and guaranteed loans to agricultural producers and rural small businesses for renewable energy systems and energy efficiency improvements. Eligible renewable energy systems for REAP provide energy from: Wind, solar, renewable biomass (including anaerobic digesters), small hydro-electric, ocean, geothermal, or hydrogen derived from these renewable resources.
The Energy Audit and Renewable Energy Development Assistance Grant is available to a unit of State, Tribal, or local government; instrumentality of a State, Tribal, or local government; institution of higher education; rural electric cooperative; a public power entity; or a council, as defined in 16 U.S.C. 3451. The recipient of grant funds, grantee, will establish a program to assist agricultural producers and rural small businesses with evaluating the energy efficiency and the potential to incorporate renewable energy technologies into their operations.
A.
The Notice of Solicitation of Applications (NOSA) announces the acceptance of applications under REAP for Federal FY 2018 for grants, guaranteed loans, and combined grants and guaranteed loans for the development of renewable energy systems and energy efficiency projects as provided by the Agricultural Act of 2014 (2014 Farm Bill). The Notice also announces the acceptance of applications under REAP for Federal FY 2018 for energy audit and renewable energy development assistance grants as provided by the 2014 Farm Bill.
The administrative requirements in effect at the time the application window closes for a competition will be applicable to each type of funding available under REAP and are described in 7 CFR part 4280, subpart B. In addition to the other provisions of this Notice:
(1) The provisions specified in 7 CFR 4280.101 through 4280.111 apply to each funding type described in this Notice.
(2) The requirements specified in 7 CFR 4280.112 through 4280.124 apply to renewable energy system and energy efficiency improvements project grants.
(3) The requirements specified in 7 CFR 4280.125 through 4280.152 apply to guaranteed loans for renewable energy system and energy efficiency improvements projects. For Federal FY 2018, the guarantee fee amount is one percent of the guaranteed portion of the loan, and the annual renewal fee is one-quarter of 1 percent (0.250 percent) of the guaranteed portion of the loan.
(4) The requirements specified in 7 CFR 4280.165 apply to a combined grant and guaranteed loan for renewable energy system and energy efficiency improvements projects.
(5) The requirements specified in 7 CFR 4280.186 through 4280.196 apply to energy audit and renewable energy development assistance grants.
A.
B.
C.
To ensure that small projects have a fair opportunity to compete for the funding and are consistent with the priorities set forth in the statute, the Agency will set-aside not less than 20 percent of the Federal FY 2018 funds until June 29, 2018, to fund grants of $20,000 or less.
(1)
(2)
(3)
(4)
D.
E.
The eligibility requirements for the applicant, borrower, lender, and project (as applicable) are clarified in 7 CFR part 4280 subpart B, and are summarized in this Notice. Failure to meet the eligibility criteria by the time of the competition window may result in the Agency reviewing an application, but will preclude the application from receiving funding until all eligibility criteria have been met.
A.
B.
C.
D.
(1)
(2)
E.
A.
B.
(1)
(a) Information for the required content of a grant application to be considered complete is found in 7 CFR part 4280, subpart B.
(i) Grant applications for renewable energy systems and energy efficiency improvements projects with total project costs of $80,000 or less must provide information required by 7 CFR 4280.119.
(ii) Grant applications for renewable energy systems and energy efficiency improvements projects with total project costs of $200,000 or less, but more than $80,000, must provide information required by 7 CFR 4280.118.
(iii) Grant applications for renewable energy systems and energy efficiency improvements projects with total project costs of greater than $200,000 must provide information required by 7 CFR 4280.117.
(iv) Grant applications for energy audits or renewable energy development assistance grant applications must provide information required by 7 CFR 4280.190.
(b) All grant applications must be submitted either as hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located, or electronically using the Government-wide
(i) Applicants submitting a grant application as a hard copy must submit one original to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located. A list of USDA Rural Development Energy Coordinators is available via the following link:
(ii) Applicants submitting a grant application to the Agency via
(c) After successful applicants are notified of the intent to make a Federal award, applicants must meet the requirements of 7 CFR 4280.122 (a) through (h) for the grant agreement to be executed.
(2)
(a) Information for the content required for a guaranteed loan application to be considered complete is found in 7 CFR 4280.137.
(b) All guaranteed loan applications must be submitted as a hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located. A list of USDA Rural Development Energy Coordinators is available via the following link:
(c) After successful applicants are notified of the intent to make a Federal award, borrowers must meet the conditions prior to issuance of loan note guarantee as outlined in of 7 CFR 4280.142.
(3)
(a) Information for the content required for a combined guaranteed loan and grant application to be considered complete is found in 7 CFR 4280.165(c).
(b) All combined guaranteed loan and grant applications must be submitted as hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located. A list of USDA Rural Development Energy Coordinators is available via the following link:
(c) After successful applicants are notified of the intent to make a Federal award, applicants must meet the requirements, including the requisite forms and certifications, specified in 7 CFR 4280.117, 4280.118, 4280.119, and 4280.137, as applicable, for the issuance of a grant agreement and loan note guarantee.
(4)
(a) Grant applications for energy audits or renewable energy development assistance must provide the information required by 7 CFR 4280.190 to be considered a complete application.
(b) All energy audits or renewable development assistance grant applications must be submitted either as hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located, electronically using the Government-wide
(c) After successful applicants are notified of the intent to make a Federal award, applicants must meet the requirements of 7 CFR 4280.195 for the grant agreement to be executed.
5.
(a) Be registered in SAM prior to submitting a grant application; which can be obtained at no cost via a toll-free request line at (866) 705–5711 or online at
(b) Provide a valid DUNS number in its grant or loan application.
(c) Continue to maintain an active SAM registration with current information at all times during which it has an active Federal grant award or a grant application under consideration by the Agency.
(d) If an applicant has not fully complied with the requirements of IV.C. (1) through (3) at the time the Agency is ready to make an award, the Agency may determine the applicant is not eligible to receive the award.
C.
(1)
(a) For applicants requesting a grant only of $20,000 or less or a combination grant and guaranteed loan where the grant request is $20,000 or less, that wish to have their grant application compete for the “Grants of $20,000 or less set aside,” complete applications must be received no later than:
(i) 4:30 p.m. local time on October 31, 2017, or
(ii) 4:30 p.m. local time on April 30, 2018.
(b) For applicants requesting a grant only of over $20,000 (unrestricted) or a combination grant and guaranteed loan where the grant request is greater than $20,000, complete applications must be received no later than 4:30 p.m. local time on April 30, 2018.
(2)
(3)
D.
E.
(1)
(a) Applicants can be awarded only one renewable energy system grant and one energy efficiency improvement grant in Federal FY 2018.
(b) For renewable energy system grants, the minimum grant is $2,500 and the maximum is $500,000. For energy efficiency improvements grants, the minimum grant is $1,500 and the maximum grant is $250,000.
(c) For renewable energy system and energy efficiency improvements loan guarantees, the minimum REAP guaranteed loan amount is $5,000 and the maximum amount of a guaranteed loan to be provided to a borrower is $25 million.
(d) Renewable energy system and energy efficiency improvements guaranteed loan and grant combination applications. Paragraphs IV.E.(1)(b) and (c) of this Notice contain the applicable maximum amounts and minimum amounts for grants and guaranteed loans. Requests for guaranteed loan and combined grant and guaranteed loan will not exceed 75 percent of eligible project costs, with any Federal grant portion not to exceed 25 percent of the eligible project costs, whether the grant is part of a combination request or is a grant-only.
(2)
(a) Applicants may submit only one energy audit grant application and one renewable energy development assistance grant application for Federal FY 2018 funds.
(b) The maximum aggregate amount of energy audit and renewable energy development assistance grants awarded to any one recipient under this Notice cannot exceed $100,000 for Federal FY 2018.
(c) The 2014 Farm Bill mandates that the recipient of a grant that conducts an energy audit for an agricultural producer or a rural small business must require the agricultural producer or rural small business to pay at least 25 percent of the cost of the energy audit, which shall be retained by the eligible entity for the cost of the audit.
(3)
F.
(1)
(2)
(3)
(4)
(5)
A.
(1)
(a) Complete renewable energy systems and energy efficiency improvements grant applications requesting $20,000 or less are eligible to compete in up to five competitions within the Federal FY as described in 7 CFR 4280.121(b). If the application remains unfunded after the final national office competition for the Federal FY it must be withdrawn. Pursuant to the publication of this announcement, all complete and eligible applications will be limited to competing in the Federal FY that the application was received, versus rolling into the following Federal FY, which may result in less than five total competitions. This was effective for any application submitted on or after April 1, 2017.
(b) Complete renewable energy systems and energy efficiency improvements grant applications, regardless of the amount of funding requested are eligible to compete in two competitions a Federal FY—a State competition and a national competition as described in 7 CFR 4280.121(a).
(2)
(3)
(4)
B.
(1)
(a) Funds for renewable energy system and energy efficiency improvements grants of $20,000 or less will be allocated to the States. Eligible applications must be submitted by April 30, 2018, in order to be considered for these set-aside funds. Approximately 50 percent of these funds will be made available for those complete applications the Agency receives by October 31, 2017, and approximately 50 percent of the funds for those complete applications the Agency receives by April 30, 2018. All unused State allocated funds for grants of $20,000 or less will be pooled to the National Office.
(b) Eligible applications received by April 30, 2018, for renewable energy system and energy efficiency improvements grants of $20,000 or less, that are not funded by State allocations can be submitted to the National Office to compete against grant applications of $20,000 or less from other States at a national competition. Obligations of these funds will take place prior to June 29, 2018.
(c) Eligible applications for renewable energy system and energy efficiency improvements, regardless of the amount of the funding request, received by April 30, 2018, can compete for unrestricted grant funds. Unrestricted grant funds will be allocated to the States. All unused State allocated unrestricted grant funds will be pooled to the National Office.
(d) National unrestricted grant funds for all eligible renewable energy system and energy efficiency improvements grant applications received by April 30, 2018, which include grants of $20,000 or less, that are not funded by State allocations can be submitted to the National Office to compete against grant applications from other States at a final national competition.
(2)
(3)
Renewable energy system and energy efficiency improvements combined grant and guaranteed loan applications will compete with grant-only applications for grant funds allocated to their State. If the application is ranked high enough to receive State allocated grant funds, the State will request funding for the guaranteed loan portion of any combined grant and guaranteed
(4)
The criterion noted in 7 CFR 4280.120 (d) which allows for a maximum of 10 points to be awarded based on the size of the Applicant's agricultural operation or business concern, as applicable, compared to the SBA Small Business size standards categorized by NAICS found in 13 CFR 121.201, is being removed for applications for renewable energy systems or energy efficiency improvements effective as of the date of this publication.
D.
(1) May allow for applications for an under-represented technology to receive additional points.
(2) May allow for applications that help achieve geographic diversity to receive additional points. This may include priority points for smaller grant requests which enhances geographic diversity.
(3) May allow for applicants who are members of unserved or under-served populations to receive additional points if one of the following criteria are met:
(a) Owned by a veteran, including but not limited to individuals as sole proprietors, members, partners, stockholders, etc., of not less than 20 percent. In order to receive points, applicants must provide a statement in their applications to indicate that owners of the project have veteran status; or
(b) Owned by a member of a socially-disadvantaged group, which are groups whose members have been subjected to racial, ethnic, or gender prejudice because of their identity as members of a group without regard to their individual qualities. In order to receive points, the application must include a statement to indicate that the owners of the project are members of a socially-disadvantaged group.
(4) May allow for applications that further a Presidential initiative, or a Secretary of Agriculture priority, including Federally declared disaster areas, to receive additional points.
(5) The proposed project is located in an impoverished area, has experienced long-term population decline, or loss of employment.
E.
(1)
(a) For State allocated funds:
(i) The applicant must be notified that they may accept the remaining funds or submit the total request for National Office reserve funds available after pooling. If the applicant agrees to lower its grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project.
(ii) If two or more grant or combination applications have the same score and remaining funds in the State allocation are insufficient to fully award them, the Agency will notify the applicants that they may either accept the proportional amount of funds or submit their total request for National Office reserve funds available after pooling. If the applicant agrees to lower its grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project.
(b) The applicant notification for national funds will depend on the competition as follows:
(i) For an application requesting a grant of $20,000 or less or a combination application where the grant amount is $20,000 or less from set-aside pooled funds, the applicant must be notified that they may accept the remaining funds, or submit the total request to compete in the unrestricted state competition. If the applicant agrees to lower the grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project. A declined partial award counts as a competition.
(ii) For an application requesting a grant of $20,000 or less or a combination application where the grant amount is $20,000 or less from unrestricted pooled funds, in which this is the final competition or for those applications requesting grants of over $20,000 and combined grant and guaranteed loan application, the applicant must be notified that they may accept the remaining funds or their grant application will be withdrawn. If the applicant agrees to lower the grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project.
(iii) If two or more grant or combination applications have the same score and remaining funds are insufficient to fully award them, the Agency will notify the applicants that they may either accept the proportional amount of funds or be notified in accordance with V.D.(1)(b)(i) or (ii), as applicable.
(iv) At its discretion, the Agency may instead allow the remaining funds to be carried over to the next Federal FY rather than selecting a lower scoring application(s) or distributing funds on a pro-rata basis.
(2)
(3)
A.
B.
(1)
(2)
(3)
(4)
(5)
(a) Renewable energy system and energy efficiency improvements grants that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.123.
(b) Guaranteed loan applications that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.143.
(c) Combined guaranteed loan and grant applications that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.165(f).
(d) Energy audit and renewable energy development assistance grants grant applications that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.196.
For further information contact the applicable USDA Rural Development Energy Coordinator for your respective State, as identified via the following link:
For information about this Notice, please contact Maureen Hessel, Business Loan and Grant Analyst, USDA Rural Development, Energy Division, 1400 Independence Avenue SW, Stop 3225, Room 6866, Washington, DC 20250. Telephone: (202) 401–0142. Email:
In accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with renewable energy system and energy efficiency improvements grants and guaranteed loans, as covered in this Notice, have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570–0050. The information collection requirements associated with energy audit and renewable energy development assistance grants have also been approved by OMB under OMB Control Number 0570–0059.
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of communication for program information (
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD–3027, found online at
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Montana Advisory Committee (Committee) to the Commission will be held at 11:00 a.m. (Mountain Time) Thursday, March 15, 2018. The purpose of the meeting is for the Committee to discuss preparations to hear testimony on border town discrimination.
The meeting will be held on Thursday, March 15, 2018 at 11:00 a.m. MT.
Angelica Trevino at
This meeting is available to the public through the following toll-free call-in number: 888–516–2447, conference ID number: 8154017. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–877–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894–0508, or emailed Angelica Trevino at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Please click on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's website,
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a community forum of the Montana Advisory Committee to the Commission will convene at 9:00 a.m. (MDT) on Thursday, March 29, 2018, at the Hardin Middle School, 611 5th Street W, Hardin, MT 59034. The purpose of the community forum is to gather information from federal and tribal government officials and others regarding bordertown discrimination in Montana. Briefing topics will include discrimination that impacts Native Americans in the areas of education, employment, services, public accommodations, law enforcement, and the legal system.
The meeting will be held on Thursday, March 29, 2018, from 9:00 a.m. to 5:00 p.m. (MDT).
David Barreras, at
Members of the public may also listen to the discussion through the above listed toll free number. As well as attending in person, any interested member of the public may call the above listed number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–877–8339 and providing the Service with the conference call number and conference ID number.
Time will be set aside at the community forum from 4:00 p.m.–5:00 p.m. so that members of the public may address the Committee after the formal presentations have been completed. Persons interested in the issue are also invited to submit written comments; the comments must be received in the regional office by Monday, April 30, 2018. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012, faxed to (213) 894–0508, or emailed to Angelica Trevino at
Records and documents discussed during the meeting will be available for public viewing as they become available at
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Alabama Advisory Committee (Committee) will hold a meeting on Friday, March 23, 2018, at 11:00 a.m. (Central) for the purpose discussing the hearing on Access to Voting in Alabama, and assessment of the need for further testimony.
The meeting will be held on Friday, March 23, 2018, at 11:00 a.m. (Central).
David Barreras, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 877–879–6207, conference ID: 2611734. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353–8324, or emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
Janssen Ortho LLC (Janssen) submitted a notification of proposed production activity to the FTZ Board for its facility in Gurabo, Puerto Rico. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on February 27, 2018.
Janssen already has authority to produce certain pharmaceutical products within Subzone 61N. The current request would add a finished product and a foreign status material/component to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status material/component and specific finished product described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Janssen from customs duty payments on the foreign-status material/component used in export production. On its domestic sales, for the foreign-status material/component noted below and those in the existing scope of authority, Janssen would be able to choose the duty rate during customs entry procedures that applies to Erleada
The material/component sourced from abroad is apalutamide API (duty rate 6.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 23, 2018.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230–0002, and in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Christopher Wedderburn at
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Columbus Regional Airport Authority, grantee of FTZ 138, requesting subzone status for the facility of International Converter, Inc. (IC), located in Caldwell, Ohio. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a–81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on March 7, 2018.
The proposed subzone (10.29 acres) is located at 17153 Industrial Highway, Caldwell, Noble County. A notification of proposed production activity has been submitted and is being processed under 15 CFR 400.37 (Doc. B–13–2018). The proposed subzone would be subject to the existing activation limit of FTZ 138.
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is April 23, 2018. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to May 7, 2018.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230–0002, and in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Elizabeth Whiteman at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that sales of subject merchandise by Filmag Italia Spa (Filmag) were not made at less than normal value during the period of review (POR) February 1, 2016, through January 31, 2017. Interested parties are invited to comment on these preliminary results.
Applicable March 13, 2018.
John Drury or Kent Boydston, 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) 482–0195 or (202) 482–5649, respectively.
On April 10, 2017, Commerce published in the
Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. The revised deadline for the final results of this review is now March 5, 2018.
The merchandise covered by the order is certain stainless steel butt-weld pipe fittings from Italy.
The butt-weld fittings subject to the order are currently classifiable under subheading 7307.23.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive. A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for
Commerce is conducting this review in accordance with sections 751(a)(1)(B) and (2) of the Tariff Act of 1930, as amended (the Act). Export price has been calculated in accordance with section 772 of the Act. Normal value has been calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
The Preliminary Decision Memorandum is a public document and is on file electronically
We preliminarily determine that, for the period February 1, 2016, through January 31, 2017, the following dumping margin exists:
Commerce intends to disclose to parties to the proceeding any calculations performed in connection with these preliminary results of review within five days after the date of publication of this notice.
Parties who submit arguments in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a date and time to be determined.
Commerce intends to publish the final results of this administrative review, including the results of its analysis of issues addressed in any case or rebuttal brief, no later than 120 days after publication of these preliminary results, unless extended.
Upon issuance of the final results in this administrative review, Commerce shall determine, and Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries.
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Filmag will be that established in the final results of this administrative review; (2) for previously reviewed or investigated companies, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or in the investigation but the manufacturer is, the cash deposit rate will be the rate established for the most recent review period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be the all-others rate of 26.59 percent, the rate established in the
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
This notice advises the public that a direct take permit has been issued pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973 (ESA) for a program rearing and releasing summer steelhead in the Wenatchee River basin of Washington state (Columbia River basin). The permit is issued to the Public Utility District of Chelan County and the Washington Department of Fish and Wildlife.
The permit was issued on December 26, 2017, subject to certain conditions set forth therein. Subsequent to issuance, the necessary countersignatures by the applicants were received. The permit expires on December 31, 2027.
Requests for copies of the decision documents or any of the other associated documents should be addressed to the NMFS Sustainable Fisheries Division, 1201 NE Lloyd Blvd. #1100, Portland, OR 97232.
Emi Kondo at (503) 736–4739 or by email at
This notice is relevant to the following species and evolutionarily significant unit (ESU)/distinct population segment (DPS):
Steelhead (
16 U.S.C. 1531
U.S. Army Public Health Center (APHC), DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by May 14, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Army Public Health Center (APHC), ATTN: Dr. Coleen Baird, 5158 Blackhawk Road, Aberdeen Proving Ground, MD 21010–5403, or call APHC Environmental Medicine Division at (410) 436–2714.
Respondents are former soldiers who deployed in support of OIF. The post-deployment health survey will record self-reported health topics, including medical conditions, health behaviors, and exposures that may have affected the health of soldiers and veterans. The data from the completed survey will be used to compare the health status of members of the 1–24 Infantry Battalion (1–24 IN) who deployed to Mosul, Iraq in 2004–2005 and a similar exposure group consisting of other personnel in the 1st Stryker Brigade Combat Team (SBCT) to a comparable set of soldiers and veterans participating in a separate and not related Millennium Cohort Study. A deployment and environmental health surveillance investigation conducted by the APHC in 2014 was unable to discern etiologic elements connecting the multitude of health conditions and symptoms experienced by a small subset of the 1–24 IN. Deployment-associated environmental exposures which may have increased the risk of developing these conditions were not identified; however, a comprehensive comparative evaluation that includes self-reported data and all former members of the 1–24 IN who served in Mosul has not been conducted.
Defense Logistics Agency (DLA), Department of Defense.
Notice of availability (NOA).
On August 17, 2016, DLA published a NOA in the
Ira Silverberg at 703–767–0705 during normal business hours Monday through Friday, from 8:00 a.m. to 4:30 p.m. (EST) or by email:
The EA was prepared as required under the National Environmental Policy Act (NEPA) of 1969. In addition, the EA complied with DLA Regulation 1000.22. DLA completed an EA to address the potential environmental consequences associated with the Proposed Action at Defense Supply Center Richmond. This FONSI incorporates the EA by reference and summarizes the results of the analyses in the EA. Additionally, this FONSI documents the decision of DLA to implement the Proposed Action at Defense Supply Center Richmond. DLA has determined that the Proposed Action is not a major federal action significantly affecting the quality of the human environment within the context of NEPA and that no significant impacts on the human environment are associated with this decision.
DLA received two comments during the 30-day public comment period. An anonymous comment, dated September 13, 2016, concurred with DLA that the Proposed Action would not result in a significant impact. The Virginia Department of Environmental Quality (DEQ) coordinated review of the EA by state agencies, planning district commissions, and Chesterfield County and provided a consolidated comment letter dated September 15, 2016. The Virginia DEQ consolidated comment letter noted the EA did not address potential impacts to land analogous to Chesapeake Bay Preservation Areas. On September 22, 2017, DLA responded to the Virginia DEQ consolidated comment letter. DLA's response letter noted that DLA conducted a wetland delineation, stream assessment, and resource protection area (RPA) delineation and submitted a RPA Designation Application to Chesterfield County requesting redesignation of the RPA within a portion of the proposed 18.2-acre outdoor storage area on March 31, 2017. Chesterfield County confirmed DLA's perennial stream flow determination and RPA designations on April 14, 2017.
DLA determined that the Proposed Action would be consistent, to the maximum extent practicable, with the enforceable policies of Virginia's Coastal Zone Management Program and submitted a coastal zone consistency determination for Virginia DEQ review on June 9, 2016. On August 16, 2016, Virginia DEQ concurred that the Proposed Action would be consistent with Virginia's Coastal Zone Management Program provided DLA obtains all applicable permits and approvals.
The Proposed Action would take place within the Bellwood-Richmond Quartermaster Depot Historic District, which is eligible for listing in the National Register of Historic Places. Pursuant to the National Historic Preservation Act, DLA contacted the State Historic Preservation Officer to conduct Section 106 consultation for the Proposed Action on September 25, 2015. In a letter dated November 2, 2015, the State Historic Preservation Office concurred that the Proposed Action would not adversely affect historic properties.
The EA includes an appendix with the public's comments and DLA's response, coastal zone consistency documentation, and State Historic Preservation Office consultation documents. The revised EA is available electronically at the Federal eRulemaking Portal at
Mr. Phillip R. Dawson, Acting Director, DLA Installation Management, concludes that implementing the Proposed Action at the Defense Supply Center Richmond does not constitute a major federal action that would significantly affect the quality of the environment within the context of NEPA. This decision is based on the results of the analyses performed during the EA preparation as well as comments received from the public.
Therefore, an environmental impact statement for the Proposed Action is not required.
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 17–79 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
Twenty-four (24) MK 15 Phalanx Close-in Weapon System (CIWS) Block IB Baseline 1 to MK 15 Phalanx Block IB Baseline 2 Conversion Kits.
Also included is support equipment, spare parts, publications, software and associated support, and logistical 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 Japan has requested to buy twenty-four (24) MK 15 Phalanx Close-in Weapon System (CIWS) Block IB Baseline 1 to MK 15 Phalanx Block IB Baseline 2 conversion kits. Also included is support equipment, spare parts, publications, software and associated support, and logistical support services, and other related elements of logistical and program support. The estimated total case value is $45 million.
This proposed sale will contribute to the foreign policy and national security of the United States by improving the security of a major ally that has been, and continues to be, a force for political stability and economic progress in the Asia-Pacific region.
The proposed sale will improve Japan's capability in current and future defensive efforts. Japan will use the enhanced capability as a deterrent to regional threats and to strengthen homeland defense.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal 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 permanent assignment of additional U.S. Government or contractor representatives in Japan.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The CIWS Block IB Baseline 2 represents an increase in threat acquisition and firepower accuracy over previous Block 1 Baseline configurations. The Baseline 2 variant includes a radar improvement upgrade and an electro-optical sensor to improve weapon system performance against low-observable, sea-skimming threats, and provides improved capability to concentrate hard-kill ordnance in a tighter pattern on the threat. The CIWS mount and spare hardware are UNCLASSIFIED. The radar improvement/upgrade is the most sensitive portion of the Baseline 2 configuration.
2. The CIWS Block 1B Baseline 2 systems and upgrade kits will result in the transfer of a highly accurate close-in engagement technology and ship self-defense capability. The equipment, hardware, and the majority of documentation are UNCLASSIFIED. The embedded software and operational performance are classified CONFIDENTIAL. The seeker/electro-optical control section and the target detector are UNCLASSIFIED, but contain a sensitive state-of-the-art technology. Technical Manuals used to support the operation and provisioning of organizational-level maintenance are CONFIDENTIAL. The technical and operational data identified above is classified to protect vulnerabilities, design and performance parameters, and similar critical information.
3. If a technologically advanced adversary were to obtain knowledge of specific hardware, the information could be used to develop countermeasures which might reduce weapons system effectiveness or be used in the development of a system with similar or advanced capabilities.
4. A determination has been made that Japan can provide substantially the same degree of protection for sensitive technology being released as the U.S. Government. This proposed sustainment program is necessary to the furtherance of the U.S. foreign policy and national security objectives outlined in the policy justification.
5. All defense articles and services listed in this transmittal are authorized for release and export to the Government of Japan.
Office of Innovation and Improvement, Department of Education.
Notice; correction.
On March 2, 2018, we published in the
This correction is applicable March 13, 2018.
Eddie Moat, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W259, Washington, DC 20202–5970. Telephone: (202) 401–2266 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
On March 2, 2018, we published in the
In FR Doc. 2018–04294, we are revising the paragraph beginning on page 8979 in the second column, at the bottom of the page, under the heading “IV. Application and Submission Information,” to provide the link to the application submission instructions: 1.
You may also access documents of the Department published in the
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The following notice of meeting is published pursuant to section 3(a) of the government in the Sunshine Act (Pub. L. 94–409), 5 U.S.C. 552b:
Federal Energy Regulatory Commission.
March 15, 2018, 10:00 a.m.
Room 2C, 888 First Street NE, Washington, DC 20426.
Open.
Agenda.
*
Kimberly D. Bose, Secretary, Telephone (202) 502–8400.
For a recorded message listing items struck from or added to the meeting, call (202) 502–8627.
This is a list of matters to be considered by the Commission. It does not include a listing of all documents relevant to the items on the agenda. All public documents, however, may be viewed online at the Commission's website at
A free webcast of this event is available through
Immediately following the conclusion of the Commission Meeting, a press briefing will be held in the Commission Meeting Room. Members of the public may view this briefing in the designated overflow room. This statement is intended to notify the public that the press briefings that follow Commission meetings may now be viewed remotely at Commission headquarters, but will not be telecast through the Capitol Connection service.
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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:
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 the renewal of the existing information collection, as required by the Paperwork Reduction Act of 1995. On December 28, 2017, the FDIC requested comment for 60 days on a proposal to renew the information collections described below. One comment was received and was generally supportive of the requirements in the rule but did not address the paperwork burden for this information collection. The FDIC hereby gives notice of its plan to submit to OMB a request to approve the renewal of these collections, and again invites comment on this renewal.
Comments must be submitted on or before April 12, 2018.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory
Manny Cabeza, at the FDIC address above.
On December 28, 2017, the FDIC requested comment for 60 days on a proposal to renew the information collections described below. One comment was received and was generally supportive of the requirements in the rule but did not address the paperwork burden for this information collection. The FDIC hereby gives notice of its plan to submit to OMB a request to approve the renewal of this collection, and again invites comment on this renewal.
1.
There is no change in the method or substance of the collection. The overall reduction in burden hours is a result of economic fluctuation. In particular, the number of respondents has decreased while the reporting frequency and the estimated time per response remain the same.
One of the areas in which the Act directed the MSRB to promulgate rules is the qualifications of persons associated with municipal securities dealers as municipal securities principals and municipal securities representatives. The MSRB Rules require persons who are or seek to be associated with municipal securities dealers as municipal securities principals or municipal securities representatives to provide certain background information and conversely, require the municipal securities dealers to obtain the information from such persons. Generally, the information required to be furnished relates to employment history and professional background including any disciplinary sanctions and any claimed bases for exemption from MSRB examination requirements.
The FDIC and the other two Federal bank regulatory agencies, the Comptroller of the Currency, and the Federal Reserve Board, have prescribed Forms MSD–4 to satisfy these requirements and have prescribed Form MSD–5 for notification by a bank municipal securities dealer that a municipal securities principal's or a municipal securities representative's association with the dealer has terminated and the reason for such termination. State nonmember banks and state savings associations that are municipal security dealers submit these forms, as applicable, to the FDIC as their appropriate regulatory agency for each person associated with the dealer as a municipal securities principal or municipal securities representative.
2.
There is no change in the method or substance of the collection. There is an overall reduction in burden hours which is the result of (1) economic fluctuation reflected by a decrease in the number of FDIC-supervised institutions and (2) a decrease in the number of requests for deregistration of a registered transfer agent forms submitted to the FDIC.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 9, 2018.
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 28, 2018.
1.
B.
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 27, 2018.
1.
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 10, 2018.
1.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled ”Using Qualitative Methods to Understand Issues in HIV Prevention, Care and Treatment in the United States.” CDC's goal for this generic information collection mechanism is to conduct qualitative studies to quickly identify barriers and facilitators to HIV prevention, care and treatment in specific regions with high HIV burden in the US.
CDC must receive written comments on or before May 14, 2018.
You may submit comments, identified by Docket No. CDC–2018–0022 by any of the following methods:
•
•
Submit all comments through the Federal eRulemaking portal (
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road, NE, MS–D74, Atlanta, Georgia 30329; phone: 404–639–7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, 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,
5. Assess information collection costs.
Using Qualitative Methods to Understand Issues in HIV Prevention, Care and Treatment in the United States (OMB Control Number 0920–1091; expires 12/31/2018)—Extension—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention, Centers for Disease Control and Prevention (CDC).
The CDC's National Center on HIV/AIDS, Viral Hepatitis, STD and TB Prevention (NCHHSTP), Division of HIV/AIDS Prevention (DHAP) seeks a three–year extension to conduct qualitative studies to quickly identify barriers and facilitators to HIV prevention, care and treatment in specific regions with high HIV burden in the US. Proposed activities remain consistent with the national HIV prevention goals, the CDC Division of HIV/AIDS Prevention (DHAP) Strategic Plan, and DHAP's High-impact HIV Prevention approach.
The purposes for each data collection study supported under this umbrella generic information collection plan will be to understand specific barriers and facilitators to local HIV prevention, care and treatment in the United States and territories. For example, each study will seek to identify ways to improve programmatic activities along the continuum of HIV prevention, treatment and care for different populations residing in different geographic settings with greatest burden of HIV.
The target populations for the studies include, but are not limited to: (1) Persons living with HIV who are in treatment; (2) persons living with HIV who are out of treatment and who may or may not be seeking treatment at healthcare facilities; (3) persons at high risk for HIV acquisition (HIV negative) and HIV transmission (HIV positive); (4) persons from groups at high risk for HIV including gay, bisexual and other MSM, transgender persons, and injection and non-injection drug users; (5) persons from racial and ethnic minorities; and (6) healthcare providers or other professionals who provide HIV prevention, care and treatment services. Other populations may include individuals who provide non-HIV services or otherwise interact with persons living with HIV or persons at risk for HIV acquisition.
Studies will only provide local contextual information about the barriers and facilitators to HIV prevention, care, and treatment experienced by specific communities at risk for acquiring HIV infection, by HIV-positive persons across the HIV care continuum, and by organizations or individuals providing HIV prevention, care, treatment, and related support services.
Data collection methods used in any of the specific studies primarily will consist of rapid qualitative assessment methodologies, such as semi-structured and in-depth qualitative interviews, focus groups; direct observations; document reviews; and short structured surveys. Data will be analyzed using well-established qualitative analysis methods, such as coding interviews for themes about barriers and successes to HIV prevention, care, and treatment. Structured response surveys will be analyzed using descriptive statistics and other appropriate statistical methods.
CDC will use the results from each specific data collection study to help identify ways to improve local programmatic activities for specific communities along the continuum of HIV prevention, treatment and care for populations and areas with the greatest HIV burden. CDC will communicate study outcomes to local stakeholders and organizations in positions to consider and implement site-specific improvements in HIV prevention, care, and treatment for each of the study sites examined. For stakeholders, organizations, or agencies outside the local affected communities, all communications will include clear discussion of the limitations of the region-specific, qualitative methods and the non-generalizability of the study outcomes.
For a given year, each separate data collection will range from 30 (minimum) to 200 (maximum) respondents, based on the nature and scope of the research purposes. For example, if there are three data collections, the maximum combined number of expected respondents is 600. In a given year, CDC anticipates the need to screen 1,600 persons to identify 800 eligible persons, of which 600 persons will agree to participate.
CDC anticipates that screener forms will take 5 minutes to complete each, contact information forms will take 1 minute to complete each, and consent forms will take 5 minutes to complete each. CDC anticipates study eligibility for 50 percent of the targeted populations screened. Of eligible persons, 75% will agree to participate.
Brief structured surveys will take 15 minutes to complete. In-depth interviews or focus groups with respondents are expected to take 60 minutes (1 hour) to complete. In-depth interviews or focus groups with healthcare providers are expected to take 45 minutes to complete.
The total annual response burden, based on an average of 600 study respondents per year (assuming three large data collections involving 200 participants each), is 918 hours.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of availability.
NIOSH announces the availability of the final National Occupational Research Agenda for Transportation, Warehousing and Utilities
The final document was published on March 7, 2018.
The document may be obtained at the following link:
Emily Novicki, M.A., M.P.H, (
On December 1, 2017, NIOSH published a request for public review in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit either electronic or written comments on the collection of information by April 12, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202–395–7285, or emailed to
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–7726,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 1701(a)(4) of the Public Health Service Act (42 U.S.C. 300u(a)(4)) authorizes FDA to conduct research relating to health information. Section 1003(d)(2)(C) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 393(d)(2)(C)) authorizes FDA to conduct research relating to drugs and other FDA regulated products in carrying out the provisions of the FD&C Act.
Prescription drug advertising regulations require that broadcast advertisements containing product claims present the product's major side effects and contraindications in either audio or audio and visual parts of the advertisement (21 CFR 202.1(e)(1)); this is often called the major statement. The regulations also require that broadcast advertisements contain a brief summary of all necessary information related to side effects and contraindications or that “adequate provision” be made for dissemination of the approved package labeling in connection with the broadcast (§ 202.1(e)(1)). The requirement for adequate provision is generally fulfilled when a firm gives consumers the option of obtaining FDA-required labeling or other information via a toll-free telephone number, through print advertisements or product brochures, through information disseminated at health care provider offices or pharmacies, and through the internet (Ref. 1). The purpose of including all four elements is to ensure that most of a potentially diverse audience can access the information.
Internet accessibility is increasing, but many members of certain demographic groups (
In addition, building on concurrent FDA research regarding drug risk
Data collection will utilize a random digit dialing (RDD) sample that has been pre-identified as being a non-internet household, or having at least one non-internet using member. This sample solution is ideal because it relies on a dual-frame (landline and cell phone) probability sample, yet has the advantage of prior knowledge of those who are likely to be low to non-internet users (re-screening will verify this). The Social Science Research Solutions (SSRS) Omnibus, within which this survey will be embedded, utilizes a sample designed to represent the entire adult U.S. population, including Hawaii and Alaska, and including bilingual (Spanish-speaking) respondents. As reflected in the overall population of low to non-internet users, we intend to collect a small sample of Spanish-speaking individuals, which comprise a subsample of the regular landline and cell phone RDD sampling frames. We will also screen for past and present prescription drug use in order to ensure a motivated sample.
As communicated earlier, the primary focus of interview questions concern the ability and willingness of low to non-internet users to utilize the various components of adequate provision, particularly the toll-free number and print ad components. In addition to these questions, experimental manipulations will be embedded in the survey as an exploratory test to assess the impact of opening statements that could be used to introduce risks in DTC prescription drug broadcast ads, which is a related concept. To form the experimental manipulations, participants will be presented with a statement of major risks and side effects (“the major statement”) drawn from a real prescription drug product, but modified to include only serious and actionable risks. Preceding this description of major risks will be one of three opening statements: (1) “[Drug] can cause severe, life threatening reactions. These include . . .”; (2) “[Drug] can cause serious reactions. These include . . .”; or (3) “[Drug] can cause reactions. These include . . .” All risk statements will conclude with the following language: “This is not a full list of risks and side effects. Talk to your doctor and read the patient labeling for more information.” Participants will be randomly assigned to experimental condition, and all manipulations will be pre-recorded to allow for consistent administration. Following exposure to these manipulations, participants will respond to several questions designed to assess risk perceptions.
Before the main study, we will execute a pretest with a sample of 25 participants from the same sampling frame as outlined. The pretest questionnaire will take approximately 15 minutes to complete. The goal of the pretest will be to assess the questionnaire's format and the general protocol to ensure that the main study is ready for execution. To test the protocol among the target groups, we will seek to recruit a mix of participants based on demographic and other characteristics of interest. We do not plan to use incentives for the pretest or main study portions of this survey. However, upon request, cell phone respondents may be offered $5 to cover the cost of their cell phone minutes.
Questionnaire development is an iterative process and so the main study questionnaire will include any changes from pretesting, as well as other outcomes, such as OMB and public comments. Like pretesting, the main study questionnaire should take approximately 15 minutes to complete. Based on a power analyses, the main study sample will include approximately 1,996 participants. This sample size will allow us to draw statistical comparisons between the various demographic groups in the sample.
In the
As indicated in the 60-day FRN (82 FR 26934), we do intend to assess the effectiveness of non-internet options. However, as a secondary objective, it seems to us worthwhile to also consider how low to non-internet users may respond if non-internet options were unavailable. As another commenter indicates (see Comment 3b), internet use is widespread and technological sources of adequate provision may suffice (when combined with recommendation to speak to a health care professional). We hope to shed light on this question through our research.
Because we recognize the strength of data and the confidence in the robust nature of the findings is improved through the results of multiple converging studies, we continue to develop evidence to inform our thinking. We evaluate the results from our studies within the broader context of research and findings from other sources, and this larger body of knowledge collectively informs our policies as well as our research program. Our research is documented on our homepage, which can be found at:
First, FDA's proposed research appears to offer limited practical utility in several ways:
• The Agency proposes research based on an outdated, 18-year-old guidance document that fails to recognize adequately the societal and technological changes of the last two decades, including the many options now available to satisfy the adequate provision requirement.
• FDA regulations require adequate, not complete, provision. Given the prevalence of the internet and smartphones across all U.S. demographic groups, we believe that biopharmaceutical manufacturers can satisfy adequate provision simply through information dissemination at health care provider offices or pharmacies, a 1–800 number, and/or the internet.
• FDA fails to recognize existing research that demonstrates the pervasiveness of the internet and smartphones in the United States. This research limits any potential utility of the proposed study. The Agency's proposal mainly relies on data from six to 16 years ago. The smartphone is dramatically increasing internet connectivity for traditionally low to non-internet use demographic groups. Further, FDA does not acknowledge that older adults (with or without internet access) tend to rely on others, including family and health care personnel, for drug information.
The assertion that the requirement for “adequate” provision can be fulfilled by disseminating information through “health care provider offices or pharmacies, a 1–800 number, and/or the internet” may be correct, and FDA invites the commenter to submit data supportive of this perspective. FDA maintains a science-based approach to its regulatory decisionmaking, and as such, the current research is designed to inform our thinking in this area.
We disagree with the assertion that our proposal relied mainly on data from 6 to 16 years ago. A more careful review of the FRN will show that our key citations range from 2013 to the present. By necessity, we also cite the relevant 1999 guidance, as well as a few other references which speak to general patterns of human behavior.
• The instructions for Q3 of the Main Study Survey state: “Prescription drugs advertised on television provide only limited product information. For example, not all of the product's risks and side effects are described. Imagine you wanted to obtain additional product information before seeing your health care provider.” As previously mentioned, while research “reveal[s] consumers engage in some prescription drug information seeking . . . most takes place
• Further, the Main Study Survey introduces questions about privacy by stating: “Next, I will ask about privacy concerns you might have when getting full prescription-drug product information.” Such phrasing suggests that a subject should have “concerns” in this context. Q12 asks subjects to “rate the extent to which you
• The prompt for Q13 is also leading by introducing the question with: “Some people change their approach to getting information about prescription drugs when privacy is a concern.”
Likewise, in response to the second comment, we cannot inquire about privacy concerns without referencing privacy concerns. Nonetheless, we have revised Q12 to read “How much value do you place on privacy . . .”
In response to the third comment, please see Comment 1k and our associated response.
FDA estimates the burden of this collection of information as follows:
The following references are on display in the Dockets Management Staff (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by April 12, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202–395–7285, or emailed to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The draft guidance “Transfer of a Premarket Notification (510(k)) Clearance—Questions and Answers” is intended to provide information on how to notify FDA of the transfer of a 510(k) clearance from one person to another, and the procedures FDA and industry should use to ensure public information in FDA's databases about the current 510(k) holder for a specific device(s) is accurate and up-to-date. The proposed information collection seeks to provide information to notify FDA of the transfer of a premarket notification (510(k)) clearance.
The respondents to this collection of information are 510(k) holders and parties claiming to be 510(k) holders.
In the
FDA estimates the burden of this collection of information as follows:
FDA estimates that 78 percent of 510(k)s are listed outside of the annual registration cycle based on numbers in the FURLS database from fiscal year 2009 through fiscal year 2014. Fiscal year 2008 was left out of this cohort as it was the first year that registrants were required to report the 510(k) number on their listings and, therefore, an unusually high number of listings were created. An average of 5,231 510(k)s have been listed each year since 2008.
FDA estimates it will have 2,033 instances of more than one party claiming to be a 510(k) holder for a specific device as part of annual registration and listing. FDA reached this estimate by identifying the number of unique 510(k) device listings entered in FURLS between fiscal years 2009 and 2014 that conflict with a listing already entered by another party (5,304), dividing that number by the number of years (6), and multiplying by the average number of parties claiming to be the 510(k) holder when there is a conflict in the current FURLS database (2.3). The draft guidance identifies potential documentation a party could submit to FDA to establish the transfer of a 510(k) clearance. FDA estimates it will take a party approximately 4 hours to locate and submit information to establish the transfer of the 510(k) clearance, resulting in 8,132 burden hours for those 2,033 parties claiming to be 510(k) holders. FDA reached this estimate based on its expectation of the amount of time it will take a party to locate the information, copy it, and submit a copy to FDA.
The burden estimate does not include the maintenance of records used to document transferring a premarket notification (510(k)) clearance. Based on available information, FDA believes that the maintenance of these records is a usual and customary part of normal business activities. For example, in the ordinary course of business, supporting documents should be kept to verify asset information for calculating the annual depreciation or calculating gain or loss on sale of an asset on a businesses' tax return. Therefore, this recordkeeping requirement creates no additional paperwork burden.
The draft guidance also refers to previously approved collections of information found in FDA regulations. The collections of information in 21 CFR part 807 (registration and listing) are approved under OMB control number 0910–0625; the collections of information in 21 CFR part 807 subpart E (premarket notification submission) have been approved under OMB control number 0910–0120, and collections of information in 42 CFR 493.17 have been approved under OMB control number 0910–0607.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Advisory Committee on Research on Women's Health.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
A portion of the meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning
Pursuant to Public Law 92–463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA's) Center for Substance Abuse Treatment (CSAT) National Advisory Council will meet on March 26, 2018, 2:00 p.m.–3:00 p.m. (EDT) in a closed teleconference meeting.
The meeting will include discussions and evaluations of grant applications reviewed by SAMHSA's Initial Review Groups, and involve an examination of confidential financial and business information as well as personal information concerning the applicants. Therefore, the meeting will be closed to the public as determined by the SAMHSA Assistant Secretary for Mental Health and Substance Use in accordance with Title 5 U.S.C § 552b(c)(4) and (6) and Title 5 U.S.C. App. 2, 10(d).
Meeting information and a roster of Council members may be obtained by accessing the SAMHSA Committee website at
Federal Emergency Management Agency, DHS.
Notice and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on a revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning this annual requirement for the U.S. Department of Homeland Security (DHS), FEMA to identify current capability levels for all States, Territories, urban areas, and Tribes receiving non-disaster preparedness grant funds administered by DHS.
Comments must be submitted on or before May 14, 2018.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Dante Randazzo, Supervisory Emergency Management Specialist, FEMA, National Preparedness Assessment Division,
This package is a revision to the collection titled THIRA/SPR, OMB Control Number: 1660–0131. Although initially titled the State Preparedness Report (SPR), FEMA changed the name of the collection to the THIRA/SPR Unified Reporting Tool to more accurately reflect the information gathered and method of collection. The
Comments may be submitted as indicated in the
Office of the Chief Procurement Officer, Department of Homeland Security (DHS).
60-Day Notice and request for comments; Extension of a Currently Approved Collection, 1600–0005.
The DHS Office of the Chief Procurement Officer, will submit the following Information Collection
Comments are encouraged and will be accepted until May 14, 2018. This process is conducted in accordance with 5 CFR 1320.1.
You may submit comments, identified by docket number DHS–2018–0012, at:
•
Nancy Harvey, (202) 447–0956,
DHS collects information, when necessary, when inviting firms to submit bids, proposals, and offers for public contracts for supplies and service. Using solicitation methods such as requests for proposals (RFP), requests for information (RFI), and broad agency announcements (BAA), the Government requests information from prospective offerors such as pricing information, delivery schedule compliance, and evidence that the offeror has the resources (both human and financial) to accomplish requirements. The information collection is necessary for compliance with the HSAR, 48 CFR Chapter 30, and the SBIR and STTR programs, 15 U.S.C. 628. The collections under the HSAR include:
• 3052.209–70 Prohibition on Contracts with Corporate Expatriates (Required in all solicitations and contracts). The offeror must disclose whether it is a foreign incorporated entity that should be treated as an inverted domestic corporation.
• 3052.209–71 Reserve Officer Training Corps and Military Recruiting on Campus (Required in all solicitations and contracts with institutions of higher education) Requires that the Contractor represent that it does not now have, and agrees that during performance of the contract that it will not adopt, any policy or practice described in paragraph (b) of the clause.
• 3052.209–72 Organizational Conflict of Interest, paragraphs (c), (d) and (e) (Required in all solicitations and contracts where a potential organizational conflict of interest exists and mitigation may be possible). The offeror must disclose whether it is aware of any facts which create any actual or potential organizational conflicts of interest; and, provide information as required by the Government and a mitigation plan relating to the conflict, if applicable.
• 3052.209–74 Limitations on Contractors Acting as Lead System Integrators (Required in solicitations for the acquisition of a major system when the acquisition strategy envisions the use of a lead system integrator). The offeror must disclose whether it proposes to perform this contract as a lead system integrator with system responsibility, and whether it has a direct financial interest in the system that is the subject of the solicitation; and, provide evidence, as needed.
• 3052.209–76 Prohibition on Federal Protective Service (FPS) Guard Services Contracts with Business Concerns Owned, Controlled, or Operated by an Individual Convicted of a Felony, paragraphs (a) through (g) (Required in in all solicitations and contracts for FPS guard services). The offeror must disclose whether it is owned, operated or controlled by an individual convicted of any felony. A business concern owned, operated or controlled by an individual convicted of any felony may submit an award request to the Government. The request must include information that is considered personally identifiable information, and any additional information the Government deems necessary.
• 3052.215–70 Key Personnel and Facilities (Required in solicitations and contracts when the selection for award is substantially based on the offeror's possession of special capabilities regarding personnel or facilities). Before removing or replacing any of the specified individuals or facilities, the offeror must notify the Government, in writing, before the change becomes effective.
• 3052.219–72 Evaluation of Prime Contractor Participation in the DHS Mentor-Protégé Program (Required in all solicitations containing (HSAR) 48 CFR 3052.219–71, DHS Mentor-Protégé Program and (FAR) 48 CFR 52.219–9 Small Business Subcontracting Plan). The offeror must provide a signed letter of mentor-protégé agreement, if it wishes to receive credit under the source selection factor.
• 3052.247–70 F.o.b. Origin Information (Required in solicitations as appropriate) the offeror must provide information related to the offeror's shipping point.
The DHS Science and Technology (S&T) Directorate issues BAAs soliciting when white papers and proposals from the public. DHS S&T evaluates white papers and proposals received in response to a DHS S&T BAA using the evaluation criteria specified in the BAA through a peer or scientific review process in accordance with FAR 35.016(d). Unclassified white papers and proposals are typically collected via the DHS S&T BAA secure website, while classified white papers and proposals must be submitted via proper classified courier or proper classified mailing procedures as described in the National Industrial Security Program Operating Manual (NSPOM).
Federal agencies with an annual extramural research and development (R&D) budget exceeding $100 million are required to participate in the SBIR Program. Similarly, Federal agencies with an extramural R&D budget exceeding $1 billion are required to participate in the STTR Program. Federal agencies who participate in the SBIR and STTR programs must collect information from the public to meet:
1. Applicable reporting requirements under 15 U.S.C. 638 (b)(7), (g)(8), (i), (j)(1)(E), (j)(3)(C), (l), (o)(10), and (v);
2. The requirement to maintain both a publicly accessible database of SBIR/STTR award information and a government database of SBIR/STTR award information for SBIR and STTR program evaluation under 15 U.S.C. 638 g(10), (k), (o)(9), and (o)(15); and
3. Requirements for public outreach under 15 U.S.C. 638 (j)(2)(F), (o)(14), and (s).
The prior information collection request for OMB No. 1600–0005 was approved through June 30, 2018 by OMB in a Notice of OMB Action.
The information being collected is used by the Government's contracting officers and other acquisition personnel, including technical and legal staff to determine the adequacy of technical and management approach, experience, responsibility, responsiveness, and expertise of the firms submitting offers; the identification of members of the public (
Failure to collect this information would adversely affect the quality of products and services DHS receives from contractors. Potentially, contracts would be awarded to firms without sufficient experience and expertise, thereby placing the Department's operations in jeopardy. Defective and inadequate contractor deliverables would adversely affect DHS's fulfillment of the mission requirements in all areas. Additionally, the Department would be unsuccessful in identifying small businesses with R&D capabilities, which would adversely affect the mission requirements in this area.
Many sources of the requested information use automated word processing systems, databases, and web portals to facilitate preparation of material to be submitted and to post and collect information. It is common place within many of DHS's Components for submissions to be electronic as a result of implementation of e-Government initiatives.
Information technology (
DHS/ALL/PIA–006 General Contact Lists dated June15, 2007 covers the basic contact information that must be collected for DHS. Other information collected will typically pertain to the contract itself, and not individuals. All information for this information collection is submitted voluntarily. However, sensitive information (
The burden estimates provided in response to Item 12 above are based upon definitive proposals reported by DHS and its Components to the Federal Procurement Data System (FPDS) for Fiscal Year 2016. No program changes occurred and there have been no changes to the information being collected. However, the burden was adjusted to reflect an agency adjustment increase of 103,600 in the number of respondents within DHS for Fiscal Year 2016, as well as an increase in the average hourly wage rate. In addition, the average response per respondent went from 7 to 3.5 per response, a difference of 3.5 hours. The change is a result of the DHS Heads of Contracting Activities' reassessment of the response time required for each of the applicable clauses.
This is an extension of a currently approved collection, 1600–0005. OMB is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, 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,
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The purpose of this notice is to allow an additional 30 days for public comments.
Comments are encouraged and will be accepted until April 12, 2018.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529–2140, Telephone number (202) 272–8377 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until May 14, 2018.
All submissions received must include the OMB Control Number 1615–0135 in the body of the letter, the agency name and Docket ID USCIS–2015–0004. To avoid duplicate submissions, please use only
(1)
(2)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529–2140, telephone number 202–272–8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, 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,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (Act) prohibits activities with endangered and threatened species unless a Federal permit allows such activity. The Act also requires that we invite public comment before issuing recovery permits to conduct certain activities with endangered species.
Comments on these permit applications must be received on or before April 12, 2018.
Written data or comments should be submitted to the Endangered Species Program Manager, U.S. Fish and Wildlife Service, Region 8, 2800 Cottage Way, Room W–2606, Sacramento, CA 95825 (telephone: 916–414–6464; fax: 916–414–6486). Please refer to the respective permit number for each application when submitting comments.
Daniel Marquez, Fish and Wildlife Biologist; see
The following applicants have applied for scientific research permits to conduct certain activities with endangered species under section 10(a)(1)(A) of the Act (16 U.S.C. 1531
The applicant requests a permit renewal to take (harass by survey, capture, handle, photograph, and release) the arroyo toad (arroyo southwestern) (
The applicant requests a new permit to take (harass by survey, capture, handle, and release) the Fresno kangaroo rat (
The applicant requests a permit amendment to take (harass by survey) the California Clapper rail (California
The applicant requests a new permit to take (harass by survey, locate and monitor nests, capture, band, and release) the California least tern (
The applicant requests a permit renewal to take (pursuit by survey) the Quino checkerspot butterfly (
The applicant requests a permit renewal and amendment to take (harass by survey, capture, handle, mark, collect tissues samples, photograph, release, collect a limited number of voucher specimens, and conduct habitat restoration for) the California tiger salamander (Santa Barbara County and Sonoma County Distinct Population Segment (DPS)) (
The applicant requests a permit renewal and amendment to take (locate and monitor nests) the least Bell's vireo (
The applicant requests a permit renewal to take (harass by survey) the California Clapper rail (California Ridgway's rail) (
The applicant requests a permit renewal to take (harass by survey, capture, handle, mark, and release) the Stephens' kangaroo rat (
The applicant requests a permit amendment to take (harass by survey) the southwestern willow flycatcher (
The applicant requests a permit amendment to take (harass by survey, capture, handle, and release) the California tiger salamander (Santa Barbara County and Sonoma County Distinct Population Segment (DPS)) (
The applicant requests a new permit to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a new permit to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the Pacific pocket mouse (
The applicant requests a permit amendment to take (harass by survey, capture, mark, and release) the Mohave tui chub (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a new permit to take (harass by survey, capture, handle, and release) the San Bernardino Merriam's kangaroo rat (
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the San Bernardino Merriam's kangaroo rat (
The applicant requests a new permit to take (harass by survey, capture, and release) the Ohlone tiger beetle (
The applicant requests a permit renewal and amendment to take (harass by survey, capture, handle, and conduct instructional workshops involving field survey methods) the California tiger salamander (Santa Barbara County and Sonoma County Distinct Population Segment (DPS)) (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, collect branchiopod cysts, and process vernal pool soil samples) the Conservancy fairy shrimp (
The applicant requests a permit renewal and amendment to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a new permit to take (harass by survey, capture, handle, release, collect vouchers, and collect branchiopod cysts) the San Diego fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the San Bernardino Merriam's kangaroo rat (
The applicant requests a permit amendment and renewal to take (harass by survey, capture, handle, release, collect adult vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal and amendment to take (harass by survey, capture, handle, take tissue samples, conduct habitat restoration for, and release) the California tiger salamander (Santa Barbara County and Sonoma County Distinct Population Segment (DPS)) (
The applicant requests a permit renewal to take (harass by locating and monitoring nests, capture, handle, band, and remove brown-headed cowbird (
We invite public review and comment on each of these recovery permit applications. Comments and materials we receive will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Land Management (BLM), are proposing to renew an information collection request to the Office of Management and Budget (OMB), to renew control number 1004–0179, “Helium Contracts.”
Interested persons are invited to submit comments on or before May 14, 2018.
Send your comments on this information collection request (ICR) by mail to the U.S. Department of the Interior, Bureau of Land Management, 1849 C Street NW, Room 2134LM, Washington, DC 20240, Attention: Jean Sonneman; or by email to
To request additional information about this ICR, contact Samuel R.M. Burton 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.
We are 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 BLM; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BLM enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BLM 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. We will include or summarize each comment in our request to OMB to approve this ICR. 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.
• Quarterly for the Refined Helium Deliveries Detail;
• Annually for the Calculation of Excess Refining Capacity and Refiners' Annual Tolling Report; and
• On occasion for the Refiners' Tolling Occurrence 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
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Eastern Washington Resource Advisory Council (EWRAC) will meet as indicated below.
The EWRAC will hold a public meeting on Thursday, March 22, 2018. The meeting will run from 8:00 a.m. to 2:30 p.m. Pacific Time. A public comment period will be available from 1 until 1:30 p.m. There will be an EWRAC field trip to the Juniper Dunes Recreation Area on Wednesday, March 21, 2018, from 1:00 p.m. to 4:00 p.m.
The EWRAC meeting will be held in the Oak Room at the Red Lion Inn, 2525 N 20th Ave., Pasco, WA 99301. The EWRAC field trip to the Juniper Dunes Recreation Area will depart from Country Mercantile, 232 Crestloch Rd., Pasco, WA 99301.
Jeff Clark, Public Affairs Officer, 1103 N Fancher, Spokane Valley, WA 99212; 509–536–1297;
The 15-member EWRAC was chartered to provide information and advice regarding the use and development of the lands administered by the Spokane District in central and eastern Washington. Members represent an array of stakeholder interests in the land and resources from within the local area and statewide.
All meetings are open to the public in their entirety. The field trip on Wednesday, March 21, 2018, will be to the Juniper Dunes Recreation Area. Members of the public wanting to attend must provide their own transportation. The EWRAC meeting agenda on Thursday, March 22, 2018, includes a discussion of the the Juniper Dunes field trip and updates on Juniper Dunes public access and the BLM Eastern Washington Resource Management Plan. There will be a public comment period from 1:00 p.m. to 1:30 p.m. Persons wishing to make comments during the public comment period should register in person with the BLM by noon on the meeting day, at the meeting location. Depending on the number of persons wishing to comment, the length of comments may be limited. The public may send written comments
43 CFR 1784.4–2.
Bureau of Land Management, Interior.
Notice of Advisory Board meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management's (BLM) Wild Horse and Burro Advisory Board (Advisory Board) will meet as indicated below.
The Advisory Board will hold a public meeting on Tuesday, March 27, 2018, from 8 a.m. to 5 p.m. and Wednesday, March 28, 2018, from 8 a.m. to 12:00 p.m. MDT.
The meeting will be held at the Radisson Hotel Salt Lake City Downtown, 215 West South Temple, Salt Lake City, UT 84101. The final agenda for the March 27–28, 2018, public meeting will be posted on the BLM web page at:
Dorothea Boothe, Acting Wild Horse and Burro Outreach Specialist at 202–912–7654 or by email at
The Advisory Board advises the Secretary of the Interior, the BLM Director, the Secretary of Agriculture, and the Chief of the U.S. Forest Service on matters pertaining to the management and protection of wild, free-roaming horses and burros on the Nation's public lands. The tentative agenda for the meeting is:
The meeting will be live-streamed at
On Tuesday, March 27 at 3 p.m., members of the public will have the opportunity to make comments to the Advisory Board on the WHB Program. Persons wishing to make comments during the meeting should register in person with the BLM prior to 2:30 p.m. on March 27, at the meeting location. Depending on the number of commenters, the Advisory Board may limit the length of comments. At previous meetings, comments have been limited to 3 minutes in length; however, this time may vary. Public commenters are requested to submit a written copy of their statement to the addresses listed in the
Participation in the Advisory Board meeting is not required to submit written comments. The BLM invites written comments from all interested parties. We request that written comments be specific and explain the reason for any recommendation. The Advisory Board considers comments that are either supported by quantitative information or studies, or those that include citations to and analysis of applicable laws and regulations to be the most useful in developing its advice and recommendations on the management and protection of wild horses and burros.
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 in your comment that the BLM withhold your personal identifying information from public review, the BLM cannot guarantee that it will be able to do so.
43 CFR 1784.4–2.
On the basis of the record
The Commission, pursuant to section 705(b) of the Act (19 U.S.C. 1671d(b)), instituted these investigations effective May 31, 2017, following receipt of a petition filed with the Commission and Commerce by DAK Americas LLC, Charlotte, NC; Nan Ya Plastics Corporation, America, Lake City, SC; and Auriga Polymers Inc., Charlotte, NC. The final phase of the investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of fine denier PSF from China and India were being subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)). Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing 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 made these determinations pursuant to section 705(b) of the Act (19 U.S.C. 1671d(b)). It completed and filed its determinations in these investigations on March 7, 2018. The views of the Commission are contained in USITC Publication 4765 (March 2018), entitled
By order of the Commission.
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–601 and 731–TA–1411 (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 laminated woven sacks from Vietnam, provided for in subheading 6305.33.00 (statistical reporting number 6305.33.0040) 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 Vietnam. Unless the Department of Commerce (“Commerce”) extends the time for initiation, the Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by April 23, 2018. The Commission's views must be transmitted to Commerce within five business days thereafter, or by April 30, 2018.
March 7, 2018.
Drew Dushkes (202–205–3229), 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.
By order of the Commission.
On February 23, 2015, the former Deputy Assistant Administrator of the then-Office of Diversion Control, Drug Enforcement Administration (hereinafter, DEA or Government) issued an Order to Show Cause to Pharmacy Doctors Enterprises d/b/a Zion Clinic Pharmacy (hereinafter, Respondent). ALJX 1. The Show Cause Order proposed the revocation of Respondent's registration pursuant to 21 U.S.C. 824(a)(4) and 823(f) on the ground that Respondent's registration is inconsistent with the public interest. ALJX 1, at 1. For the same reason, the Show Cause Order also proposed the denial of any pending application by Respondent for renewal or modification of its registration, and the denial of any application by Respondent for any other DEA registration.
As the jurisdictional basis for the proceeding, the Show Cause Order alleged that Respondent's DEA Certification of Registration No. FP1049546 authorized it to dispense controlled substances in schedules II through V as a retail pharmacy at the registered location of 205 E. Hallandale Beach Blvd., Hallandale Beach, Florida 33009.
As the substantive grounds for the proceeding, the Show Cause Order contained seven categories of violations. First, it alleged that “Zion dispensed controlled substances where it knew, or should have known, that the prescriptions were not issued in the usual course of professional practice or for a legitimate medical purpose and therefore failed to exercise its corresponding responsibility regarding the proper prescribing and dispensing of controlled substances.”
The Show Cause Order listed 13 prescriptions, for customers who allegedly traveled long round-trip distances of approximately 166 to 661 miles from home to physician to Respondent and back home, and alleged that Respondent filled them without having resolved the long distance red flags of diversion. ALJX 1, at 2–3. Each of the 13 prescription examples was for a controlled substance written some time during the period of February 2012 through January 2013.
The Show Cause Order cited five prescriptions written by the same doctor on June 27, 2012 for five different customers for “1 ML Testosterone Cypionate 210mg/mL IM,” a controlled substance, that Respondent allegedly filled without first having resolved the red flags of diversion. ALJX 1, at 3–4; s
The Show Cause Order referenced two prescriptions for Dilaudid 8 mg., a controlled substance, written by the same doctor on June 22, 2012 for two individuals with the same last name and the exact same street address that Respondent allegedly filled without first having resolved the red flags of diversion. ALJX 1, at 4; s
The Order to Show Cause alleged that Respondent filled two prescriptions for the same customer on the same day for the same immediate release controlled substance, but for different strengths,
The Show Cause Order alleged that Respondent filled opiate (hydromorphone) and benzodiazepine (alprazolam, clonazepam, diazepam, or lorazepam) prescriptions, a “common `drug cocktail' popular with drug abusers,” for the same customer on the same day at about the same time without first having resolved the red flags of diversion.
The Order to Show Cause alleged that “[c]ustomers paying for their prescriptions with cash, where other red flags of diversion were present,” were red flags of diversion that Respondent did not resolve prior to having filled the prescriptions. ALJX 1, at 5. The Show Cause Order listed 50 examples of prescriptions paid for with cash, costing as much as $1,008 for one prescription.
The Show Cause Order alleged that Respondent filled prescriptions for “[c]ustomers [who] present[ed] new prescriptions for controlled substances when they should not have finished their previous prescription for that drug (`early fills' or `early refills')” without first having resolved the red flags of diversion. ALJX 1, at 5. The Order to Show Cause provided seven sets of examples of prescriptions that Respondent allegedly filled as many as 15 days early.
Next, the Order to Show Cause alleged that Respondent “was unable to readily retrieve prescriptions it had dispensed.”
The Show Cause Order further alleged that Respondent filled controlled substance prescriptions and shipped them to Alabama, Georgia, Illinois, Kentucky, Massachusetts, and Vermont without meeting the out-of-state pharmacy requirements of four of those states.
The Order to Show Cause next alleged that Respondent filled controlled substance prescriptions that did not contain all of the required information, such as directions for use, patient address, prescriber name, prescriber address, prescriber DEA number, and prescriber signature. ALJX 1, at 9 (citing 21 CFR 1306.05(a) and (f)). It specified eight prescriptions and the required information each one allegedly lacked.
Next, the Show Cause Order alleged that Respondent filled prescriptions written for “office use” in violation of 21 CFR 1306.04(b). ALJX 1, at 10. It provided two examples of such prescriptions.
The Show Cause Order also alleged that Respondent filled prescriptions written by physicians for their personal use in violation of Florida law. ALJX 1, at 10 (citing Fla. Stat. § 458.331(r)). It referenced six examples of prescriptions where the name of the prescribing physician was the same name as the patient.
And, lastly, the Order to Show Cause alleged that Respondent violated Florida law by “failing to report some prescriptions to E–FORCSE, in violation of Fla. Stat. § 893.055(4).” ALJX 1, at 10. It listed six prescriptions that Respondent allegedly did not report to E–FORCSE.
The Show Cause Order notified Registrant of its right to request a hearing on the allegations or to submit a written statement while waiving its right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option. ALJX 1, at 11 (citing 21 CFR 1301.43).
On February 25, 2015, the DEA Diversion Investigator (hereinafter, DI) assigned to the investigation of Respondent, personally served the Order to Show Cause on Respondent's owner and operator, Veronica Taran (hereinafter, Respondent's Owner and PIC).
Her testimony cited in this Decision and Order is quoted verbatim from the hearing transcript, without correction or “[sic]” notations in addition to those already in the transcript.
By letter from its attorneys dated March 12, 2015, Respondent timely requested a hearing and asked that a “reasonable extension to respond to an Order to Show Cause” be granted. ALJX 3 (Hearing Request dated March 12, 2015), at 1; ALJX 4 (Order for Prehearing Statements dated March 17, 2015), at 1. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ). On March 17, 2015, the CALJ established the schedule for the filing of prehearing statements and granted Respondent's request for additional time “to the extent that the hearing date set in the OSC . . . will be continued as directed at the prehearing conference scheduled by this order.” ALJX 4 (Order for Prehearing Statements), at 1, 2.
On March 27, 2015, the Government filed its Prehearing Statement. ALJX 5. On April 10, 2015, Respondent served its Prehearing Statement. ALJX 7. The April 14, 2015 Prehearing Ruling and Protective Order found that four “stipulations have been mutually agreed to and are conclusively accepted as facts.” ALJX 10, at 1.
On May 6, 2015, the Government and Respondent filed Supplemental Prehearing Statements. ALJX 6 and ALJX 9, respectively. The parties' joint filing dated May 26, 2015 included their 11 additional joint stipulations. ALJX 20, at 1–2.
On June 9 through 11, 2015 and on August 4, 2015, the CALJ conducted an evidentiary hearing in Miami, Florida.
On October 16, 2015, the CALJ issued his Recommended Decision, including that all but two of the Show Cause Order's allegations, the sixth (prescriptions written for “office use”) and the seventh (prescriptions written for the prescriber's personal use), be sustained.
The CALJ found that the Government “supplied sufficient evidence to make out a
The CALJ included in his R.D. an assessment of the degree and extent of Respondent's misconduct and concluded that Respondent had not “accepted anything meaningful in terms of responsibility or learned anything.”
On November 5, 2015, both parties filed Exceptions to the R.D. Respondent served supplemental Exceptions to the R.D. on November 16, 2015. By letter dated November 10, 2015, the record was forwarded to me for Final Agency Action.
Having considered the record in its entirety, including all of the Exceptions filed by Respondent and the Government, I agree with the CALJ that Respondent's registration should be revoked and that any pending applications for its renewal or modification should be denied. I further agree with the CALJ's conclusions that Respondent dispensed controlled substances knowing that the prescriptions were not issued in the usual course of professional practice or for a legitimate medical purpose and, therefore, violated the corresponding responsibility rule of 21 CFR 1306.04(a). I agree with the CALJ that Respondent was unable to readily retrieve prescriptions it had dispensed and, therefore, violated 21 CFR 1304.04. I agree with the CALJ that Respondent filled controlled substance prescriptions and shipped them out-of-state in violation of four States' non-resident pharmacy requirements. I agree with the CALJ that Respondent violated 21 CFR 1306.05 by filling controlled substance prescriptions that did not contain all of the required information. Based on Respondent's admissions, I find that Respondent filled prescriptions written for “office use,” although I do not sustain this allegation due to the Government's failure to comply with the notice requirements for a Show Cause Order. 21 CFR 1301.37(c). I find that Respondent filled at least one controlled substance prescription written by a physician for the physician's personal use, although I do not sustain this allegation due to the Government's failure to comply with the notice requirements for a Show Cause Order. 21 CFR 1301.37(c). I agree with the CALJ's conclusion that Respondent failed to report controlled substance prescriptions to E–FORCSE in violation of Fla. Stat. § 893.055(4) (2012). I agree with the CALJ that Respondent's acceptance of responsibility was insufficient and that Respondent did not provide sufficient notice of remedial measures.
Accordingly, I find the record as a whole established by substantial evidence that Respondent committed acts which render its continued registration inconsistent with the public interest. I conclude that revocation of Respondent's registration and denial of any pending application to renew or modify Respondent's registration are appropriate sanctions. I make the following findings.
Respondent is registered with the DEA as a retail pharmacy in schedules II through V under DEA Certificate of Registration No. FP1049546 at 205 E. Hallandale Beach Blvd., Hallandale Beach, Florida 33009. ALJX 1, at 1; s
According to the testimony of the DI, he decided to investigate Respondent after learning that it had ordered 41,700 dosage units of hydromorphone in 2012. Tr. 28. This raised his suspicion because the average pharmacy in the United States ordered approximately 5,900 dosage units of hydromorphone in the same time period.
On April 11, 2013, the DI presented Ms. Veronica Taran, Respondent's Owner and PIC, with a Notice of Inspection.
The DI also testified about approximately a dozen problematic prescriptions he had identified from E–FORCSE that Respondent's Owner and PIC “was never able to locate . . . for me.”
The DI testified that he asked Respondent's Owner and PIC questions, including how she would verify controlled substance prescriptions.
The DI testified that Respondent's Owner and PIC had posted lists: “[o]ne was for doctors she would fill prescriptions for, another list of doctors that she wouldn't fill prescriptions for, and ones that were pending verification.”
The Order to Show Cause alleged seven bases for the revocation of Respondent's registration pursuant to 21 U.S.C. 824(a)(4) and 823(f). One of them had seven subparts.
Four witnesses testified at the hearing: The DI and Dr. Tracey J. Gordon for the Government, and Louis Fisher and Respondent's Owner and PIC called by Respondent. There was factual agreement among the witnesses on a number of issues. When there was factual disagreement, I applied the CALJ's credibility recommendations.
Regarding the DI, the CALJ stated that he “presented as an objective regulator with no stake in the outcome of the proceedings” and provided “testimony [that] was sufficiently detailed, plausible, consistent, and cogent to be fully credited.” R.D., at 8. I agree with the CALJ's assessment of the DI's credibility.
At the hearing, the Government also offered testimony from Dr. Tracey Gordon, a pharmacist licensed in Florida who had practiced pharmacy for 21 years. Dr. Gordon testified to “ten-plus years of retail” experience in “at least 200” Florida retail pharmacies serving as a clerk, tech, intern, assistant manager, and manager. Tr. 282, 284. She testified to having experience dispensing controlled substances for the treatment of chronic pain.
Dr. Gordon was accepted, without objection, “as an expert in the practice of pharmacy in the [S]tate of Florida regarding the dispensing of controlled substance prescriptions.” R.D., at 8;
Respondent offered the testimony of Louis Fisher, who graduated in 1971 from the Hampden College of Pharmacy and worked for DEA or its predecessor agency from 1971 to 2003. Tr. 565. Mr. Fisher testified that, during his government service, his positions included compliance investigator, quota operation staff assistant, diversion investigator, diversion program manager, and group supervisor.
The CALJ accepted Mr. Fisher as an expert on the issue of dispensing in Florida. R.D., at 11 n.74, at 17. I agree with the CALJ that it is appropriate to “afford . . . diminished weight [to Mr. Fisher's testimony] where it conflicts with other, more persuasive evidence of record, including the testimony of Dr. Gordon.”
At the hearing, Respondent also offered testimony from Respondent's
I agree with the CALJ's conclusion that, while “[t]here were, undoubtedly, aspects of . . . [the testimony of Respondent's Owner and PIC] during which she presented as generally credible, . . . on the present record, her testimony was not sufficiently consistent or plausible to be afforded full credibility.” R.D., at 25.
Dr. Gordon, Mr. Fisher, and Respondent's Owner and PIC testified about a Florida pharmacy's/pharmacist's standard of practice when presented with a controlled substance prescription.
According to Dr. Gordon, upon a customer's presentation of a controlled substance prescription, the pharmacist should protect the safety of the patient and the community by looking for red flags of diversion, or “something that makes a pharmacist pause and think about” whether the prescription was “really for a legitimate medical purpose.” Tr. 296, 303. She discussed red flags including the quantity and dosage of the controlled substance, the doctor and practice specialty, and the patient's geographic location, doctor/pharmacy patronage, and payment (insurance/cash) method.
Regarding the quantity and dosage of a controlled substance used for pain management, Dr. Gordon explained that “I look . . . [for] a long-acting with the prescription . . . [because] [i]t helps the patient to be more adherent to therapy.”
Regarding the doctor and practice specialty, Dr. Gordon explained that, “I feel pretty comfortable filling a prescription for a large quantity of pain medication” if an oncologist wrote it.
Regarding the patient, Dr. Gordon stated that a chain pharmacy's computer would show if the customer had filled the prescription at another branch, and Florida's prescription drug monitoring program, E–FORCSE, would show what other controlled substances the customer had received from other pharmacies or doctors.
Dr. Gordon testified about the importance of the customer's payment method, explaining that “[a] lot of drug-seekers only want to pay for their medications in cash because . . . the insurance company will actually create your red flag for you to say if a prescription is refilled too soon, which means they've . . . obtained a prescription from another pharmacy.”
Dr. Gordon stated that what constituted a red flag “changed all the time. It's like the drug community gets smarter.”
Dr. Gordon testified that, although there is no codified Florida rule specifying where a pharmacist must document resolution of a red flag, the standard practice in Florida was for the resolution of a red flag to be documented on the front of the prescription.
Mr. Fisher testified that red flags “are part of the pharmacist's responsibility.”
The testimony of Respondent's Owner and PIC about diversion and what a pharmacy needed to do when presented with a controlled substance prescription was largely inconsistent with the testimony of Dr. Gordon and Mr. Fisher. Further, her testimony admitted that Respondent did not even follow the steps she described. It also, though, evidenced her knowledge and awareness that schedule II controlled substances were prone to diversion. For example, Respondent's Owner and PIC testified that “[e]ach prescription it comes with chronic nonmalignant pain, has to be addressed as a highly risky—high risk medication. It has to be addressed with proper steps.”
According to Respondent's Owner and PIC, Respondent, and she as its PIC, needed to implement specific procedures unique to schedule II prescriptions due to the diversion associated with them. Her “specific procedures” consisted of a series of steps.
When all the schedule II prescriptions—I would talk to doctor on each prescription. On schedule III I would talk to doctor when there's initial prescriptions for it. But there's not that much schedule III situations. But on schedule II, each time it's presented it has to be—there's a lot of diversion.
Respondent's Owner and PIC described the conversation she had regarding the first prescription in GX 19, a prescription for 174 tablets of Dilaudid 8 mg. She stated that she called the office and asked to speak with the doctor. “[H]onestly,” she admitted, the “doctor not always were available. But I spoke with the manager.”
Respondent's Owner and PIC continued to describe her conversation with the doctor's office. She testified that she “would ask a manager to tell me more what was happening with the patient; was he seen on that day?”
So if the patient was seen on the day that the prescription was issued, and the quantity—the reason why he had prescribed that quantity this month? And they would tell me that he has diagnosis in the proper—that doctor has a note in his chart to consider alternative treatments . . . . I would ask them, What did you prescribe today for that patient? . . . So they have to spell out what did they write this day, the quantity, to make sure there is no alteration on the way—there is no forging of the prescription. Then I would say, Is it okay for me to fill it? And they would give me approval to fill.
Despite her testimony and her stated awareness of the high risk nature of schedule II prescriptions and the risk of diversion associated with them, including the “red flag” of schedule II controlled substances being prescribed in large quantities, Respondent's Owner and PIC again admitted that she did not always follow her first step. Instead, she testified that she would have to “go one-by-one each [schedule II] prescription” before answering questions about whether or not she spoke with the doctor about any of them.
[The stamps mean that] I talk to the office and I spoke with the patient. And I fill out documentation appropriate for—I verified—and most important, I verified this prescription was issued within scope of the doctor's practice. The doctor was allowed to treat chronic pain. It was the scope of his practice. He made the decision to write this prescription according to his practice.
Second, Respondent's Owner and PIC testified that she made sure the prescriber's State medical license was active, and the prescription was within the scope of the prescriber's DEA registration. Regarding a prescriber's State license, she testified that she would make sure that “the doctor actually licensed in the State of Florida to prescribe controlled substances.”
According to Respondent's Owner and PIC, “[t]he decision of prescribing lies upon the physicians and the state who govern his practice.”
The doctor tells you it's okay to fill, just by the filling—the filling prescription. When the patient comes to the office—to the doctor, he's seen by the doctor. Doctor asking how many pills you have, what are you taking? Then he decide to issue another prescription. Once he issue the prescription, it's an order for a pharmacy—keep in mind, we still working in the medical system here. The prescription is an order for the pharmacist to fill. For me not to fill that prescription, I have to have a very good reason not to fill it, because it's an order from the doctor to me to fill that prescription for that patient.
Third, Respondent's Owner and PIC testified that her “main concern would be if this patient was checked and have relation with the doctor.”
She testified further about the “state statute and federal statutes”: “For . . . me was most important thing was to go to references of the state statute and federal statutes. So federal statute says, has to be clear relationship to establish the legitimate medical purpose. You rely on the doctors to establish the appropriateness of therapies. It's not on the pharmacy to establish the appropriateness of pharmacy. . . , that's how I understood the law. The pharmacist is just to establish that the prescription was valid—the validity of prescription based that the prescription as a requirement, and the doctor allowed to prescribe, and the doctor actually see the patients. Unless there's some issues that arise with that, like, for instance, if the patient is—not that the doctor overly treated or the patient has issues — or the doctor has issues with the patient, or I feel something suspicious, then I call the doctors. . . . Because standards only tell you that you have to actually establish the patient is not coming here for wrong reasons. That's only what the statute says. The statute says if the patient come for wrong reason you don't fill it. If the patient come from appropriate reason, you fill.”
I would talk to the patient, ask him about why did he come to my pharmacy? Where did he fill before? What is the reason he doesn't use previous pharmacy? And also, what is the reason for—how long has he been on that medication? And whether he was checked by—and then I would ask him to look at the affidavit form and sign the affidavit form for the patient. . . . I have not written those questions out. But they would be the same questions that I would ask to establish . . . the history of the patient.
Tr. 882–83, 884. When asked whether she would “essentially” ask every customer the same questions, she responded affirmatively and identified other questions she asked.
The Relationship Affidavit was a one-page form with Respondent's name at the top, and name and contact information at the bottom.
In order for prescriptions to be filled by . . . [Respondent] patients are required to sign this affidavit to ensure the following elements exist. By affirming and satisfying the conditions mentioned below . . . [Respondent] assumes that the prescription is valid pursuant to a legal Physician Patient Relationship.
Also of note was the “Warning” on the Relationship Affidavit: “In the event . . . [Respondent] has reasons to believe that prescriptions for pain medication have been prescribed and/or received fraudulently we have a legal responsibility to report such activity and individuals to local and federal authorities. These authorities will handle such individual in the manner prescribed by law.”
In sum, Respondent's Owner and PIC testified that (1) she assumed the legality of a prescription based on customers' completion of the Relationship Affidavit, (2) she gave customers “the benefit of the doubt” concerning their completion of the Relationship Affidavit, and (3) she warned customers to “better not start” the process of her “find[ing] out” that a prescription is “fraudulent.” She did not explain why it was reasonable to expect drug seekers to understand what they read, let alone be honest and
Fourth, Respondent's Owner and PIC testified that she “validate[d] that . . . it's a signature . . . not rubber signed, . . . [the prescription] was actually signed by the physician.” Tr. 892;
Respondent's Owner and PIC testified that the concept of “red flags” stood in the way of getting medicine to deserving individuals. She testified that, “by strictly following these red flags, it will prevent legitimate patient from obtaining the medication.”
Before the time she testified to having decided not to fill schedule II prescriptions, Respondent's Owner and PIC testified that her “liability was to prevent the diversion the best that I can, considering it was very, very little guidelines was provided to us at that time. We tried to update it, it was confusing, the red flags was changing.”
There are also copies of a “CII/CIII Rx Verification Form” for four customers in these two exhibits. This was a one-page form on which Respondent would document the date and time of a phone call to a prescriber's office and list the name of the person providing the information.
Finally, the exhibits contain copies of E–FORCSE printouts for five of the fourteen patients.
Respondent's Owner and PIC offered multiple comments about these timing issues: She “would not necessarily print out every time,” “the record that I kept in the file obviously was the latest one,” and “every time I check, I would check with the PDMP—with the PMP report.”
Respondent's Owner and PIC testified that this information was important to her because it told her “that this patient . . . was seen by the same doctor for over . . . [a] seven-month period. And so this patient requires therapy. And the doctor was a very local doctor . . . [a]nd he was going only to my pharmacy. So [the customer] relied on me to fill her prescription.”
While Respondent's Owner and PIC also testified that G.A.'s “established relationship” with the doctor was “one of the thing that you use—one of the tools that you use with—to establish legitimate medical purpose . . . [because] you can fairly assume that the patients are being taken [sic] by the physician properly,”
Respondent submitted a further exhibit, RX 11, which contained documentation related to other customers. Respondent's Owner & PIC testified that this exhibit was “generated . . . [t]o show in good faith that we are actually conducting best practices. . . . That we document good practice when we fill the patient—we're filling pain medication for sick patient.” Tr. 1173–74. The exhibit consist of a photocopy of the driver's licenses of three of the six customers for whom the prescriptions in GX 14 were written; a Relationship Affidavit signed by two of the six customers; and a one page E–FORCSE printout dated months after the corresponding prescriptions in GX 14 were written and filled.
I afford Dr. Gordon's statement of the pharmacy's/pharmacist's standard of practice regarding controlled substances controlling weight in this proceeding. I find that the requirements incumbent on pharmacies/pharmacists espoused by Respondent's Owner and PIC are only entitled to credit as I determine what actions Respondent took and Respondent's suitability to be a registrant. Essentially, the views of Respondent's Owner and PIC about a pharmacy's/pharmacist's obligations with respect to dispensing controlled substances reflect an abdication of her legal responsibility to a prescriber with a valid State license and whose DEA registration covered the schedule of the prescribed medication when the customer simply signed the Relationship Affidavit. Significant aspects of the pharmacy's/pharmacist's obligations espoused by Respondent's Owner and PIC were contrary to statute, regulation, and Agency precedent. I categorically reject them.
The Show Cause Order alleged that Respondent failed to exercise its corresponding responsibility under 21 CFR 1306.04(a) as evidenced by its having dispensed controlled substances without resolving “red flags of diversion” that were present. The Government alleged seven “red flags of diversion” in the Show Cause Order: Prescriptions presented by customers who traveled long distances to Respondent; multiple customers filling prescriptions written by the same prescriber, for the same drugs, in the same quantities, on the same day; multiple customers from the same address coming to Respondent at the same time with prescriptions from the same doctor for the same drug and
The Government alleged that customers traveling long distances to fill their prescriptions was a “red flag of diversion,” and that Respondent dispensed controlled substances to customers who traveled long round-trip distances, from their homes, to the prescribers, to Respondent, and then back home, without addressing or resolving the distance red flags. To support this allegation, the Government submitted 13 such prescriptions filled by Respondent.
The DI testified that he initially identified the prescriptions in GX 8/8a as “problematic” because they showed “[p]eople traveling long distance[s] to the pharmacy.” Tr. 50–51. The parties stipulated to sets of round-trip (by road) miles within the State of Florida. ALJX 20, at 1–2. Those sets of round-trip miles corresponded to miles traveled by customers for whom Respondent filled prescriptions listed in the Show Cause Order and included in GX 8/8a. In sum, the round-trips ranged from 184 miles to 661 miles. I make the following findings:
• One bottle of Buprenorphine Hydrochloride 0.3 mg/mL issued to FW of Deltona by Dr. AF of Hallandale Beach. The parties stipulated that the distance by road from Deltona to Hallandale Beach and back to Deltona is 504 miles.
• 150 tables of Dilaudid 8 mg. issued to GA of Fort Pierce by Dr. RT of Miami. The parties stipulated that the distance by road from Fort Pierce to Miami to Hallandale Beach and back to Fort Pierce is 261 miles.
• 168 tablets of Dilaudid 8 mg. issued to SB of Fort Pierce by Dr. RT of Miami. The parties stipulated that the distance by road from Fort Pierce to Miami to
Hallandale Beach and back to Fort Pierce is 261 miles.
• 150 tablets of Dilaudid 8 mg. issued to CW of Fort Pierce by Dr. RT of Miami. The parties stipulated that the distance by road from Fort Pierce to Miami to Hallandale Beach and back to Fort Pierce is 261 miles.
• One bottle of Buprenorphine Hydrochloride 0.3 mg/mL issued to MW of Hobe Sound by Dr. AF of Hallandale Beach. The parties stipulated that the distance by road from Hobe Sound to Hallandale Beach and back to Hobe Sound is 166 miles.
• 140 tablets of Dilaudid 8 mg. issued to DK of Jensen Beach by Dr. NG of Hallandale Beach. The parties stipulated that the distance by road from Jensen Beach to Hallandale Beach and back to Jensen Beach is 195 miles.
• 56 tablets of Dilaudid 8 mg. issued to BS of Port St. Lucie by Dr. ML of Hollywood. The parties stipulated that the distance from Port Saint Lucie to Hollywood to Hallandale Beach and back to Port Saint Lucie is 201 miles.
• 150 tablets of Dilaudid 8 mg. issued to TS of Sebastian by Dr. RT of Miami. The parties stipulated that the distance from Sebastian to Miami to Hallandale Beach and back to Sebastian is 318 miles.
• One bottle of testosterone cypionate 210 mg/mL issued to RV of Sebring by Dr. AF of Hallandale Beach. The parties stipulated that the distance by road from Sebring to Hallandale Beach and back to Sebring is 312 miles.
• 112 tablets of Dilaudid 8 mg. issued to BR of St. Pete Beach by Dr. DJ of Deerfield Beach. The parties stipulated that the distance by road from Saint Pete Beach to Deerfield Beach to Hallandale Beach and back to Saint Pete Beach is 538 miles.
• 112 tablets of Dilaudid 8 mg. issued to WP of Stuart by Dr. GF of Pembroke Park. The parties stipulated that the distance by road from Stuart to Pembroke Park to Hallandale Beach and back to Stuart is 184 miles.
Dr. Gordon testified that the long distances the customers traveled in connection with obtaining and filling all of the prescriptions in GX 8/8a were red flags. Tr. 353–62, 365, 368, 370, 372, 374–77, 380–82, 384–85, 387–92. She explained: “Pharmacies that dispense prescriptions that are not for legitimate medical purpose, they have a tendency to develop a reputation. And then the other drug seekers find out about it, and they'll go to any distance to get what they need for their—to satisfy their addiction.”
For 12 of the 13 prescriptions, Dr. Gordon was asked to look for notations on the prescriptions evidencing that the filling pharmacist had taken steps to attempt to resolve the prescriptions' red flags, or she looked for notations herself. She found none.
In sum, Dr. Gordon concluded that none of the 13 prescriptions was legitimate and that the pharmacist who filled the prescriptions had not exercised her corresponding responsibility to make sure the prescriptions were issued for a legitimate medical purpose by a practitioner acting in the usual course of professional practice.
Mr. Fisher's testimony about whether distance was a red flag was inconsistent. At one point, Mr. Fisher testified that the prescriptions included in GX 8 evidenced distance red flags, and that he believed they could have been resolved.
Respondent's Owner and PIC admitted that Respondent filled the prescriptions in GX 8/8a.
Respondent submitted CII/CIII Rx Verification Forms for four of the 13 prescriptions in GX 8/8a.
While the forms contained diagnosis codes, only two of the forms were initialed by the pharmacist, and none of the forms contained any notes explaining how Respondent's pharmacist resolved whatever prompted her to call the prescriber even though the form contained three lines for this purpose. RX 6, at 6, 10, 21, 29. Regarding the incompletions, Respondent's Owner and PIC testified both that: (1) “Sometime we get busy, I know the office is called” and “I did look at the paper, because I would not fill the prescription unless I look at the paper;” and (2) “[i]f it's a routine patient who comes—who's been already established by me, . . . same prescription that's filled before, we would just—probably would be a little bit more routine in the call.”
Respondent's Owner and PIC stated that she did not document all her conversations with doctors because “it's my kind of internal—I did it to make a proper, sound clinical judgment whether this patient appropriate to get . . . these filled prescriptions.”
The CALJ noted that “it seems to me that on the form that you're giving me, the place that that should have been noted is down at the bottom where it says `notes,' and also the pharmacist's initials if you had made the call.”
Based on the testimony of both Dr. Gordon and Mr. Fisher, I reject the testimony of Respondent's Owner and PIC that “the fact that a patient traveled a long distance . . . was not a major red flag.” I further find not credible the testimony of Respondent's Owner and PIC that she did not consider a controlled substance prescription presented by a customer who travelled a long distance to be a red flag and conclude the exact opposite to be the case.
I find that each of the prescriptions in GX 8/8a raised at least one red flag that required resolution in that customers traveled long distances to obtain controlled substances, including schedule II controlled substances that even Respondent's Owner and PIC admitted were “highly risky” and subject to “a lot of diversion.”
The Government alleged that prescriptions written by the same prescriber, for the same drugs, in the same quantities, and on the same day was a “red flag of diversion,” and that Respondent filled such prescriptions without resolving that red flag. As support for this allegation, the Government submitted five prescriptions that were written by the same doctor (Dr. A.F.) on the same day (June 27, 2012), and for the same strength of the same medication (testosterone cypionate).
In Dr. Gordon's view, “[t]hese prescriptions present a big red flag.” Tr. 394. “[I]t's odd,” she testified, “that a compounded script would be made exactly the same for each of these patients, which means there's not individualized therapy.”
At first, the “only comment” that Mr. Fisher had about the prescriptions in GX 10 was that “there doesn't seem to be a quantity that's identifiable.”
Respondent's Owner and PIC testified that the prescriptions raised a red flag because they were for a “schedule [sic] medication, testosterone.”
Respondent's Owner and PIC also testified that these five prescriptions raised red flags because “[t]hey came on the same day with the same medication at the same . . . dose . . . [a]nd the same doctor.”
Based on all of the evidence in the record, I find that Respondent filled prescriptions that raised the red flag of multiple customers presenting prescriptions written by the same prescriber on the same day for the same medication in the same quantity. I further find that, even if these red flags were resolvable, there was no credible evidence that Respondent addressed or resolved them before filling the prescriptions. I cannot, and do not, place any weight on the testimony of Respondent's Owner and PIC that she resolved these red flags because she produced no documentary evidence to support her claim that she attempted to and, in fact, did resolve them before filling the prescriptions.
The Government alleged that multiple customers from the same address coming to Respondent at the same time with prescriptions written by the same doctor for the same drug and strength was a “red flag of diversion,” and that Respondent filled such prescriptions without resolving that red flag. To support this allegation, the Government submitted two prescriptions for Dilaudid 8 mg. that Respondent filled within five minutes of each other.
In Dr. Gordon's opinion, these prescriptions raised multiple red flags that were not resolvable. Tr. 397–98. She testified that: “This to me is what's called rubber-stamping from a physician, and is not individualized therapy. . . . It's unusual that two patients that live at the same address would receive the same exact therapy. There's always an exception to the rule, but this is common in the drug-seeking community . . . .”
Mr. Fisher agreed with Dr. Gordon that the prescriptions raised red flags. He testified that the “same address for two different people” and the “same drug” were red flags associated with these prescriptions.
According to Respondent's Owner and PIC, the fact that the prescriptions were written by the same doctor, for the same drug and dosage, for individuals living at the same address who had the same last name and presented the prescriptions on the same day did not raise a red flag.
Based on all of the evidence in the record, I find that the prescriptions in GX 11 raised red flags because customers with the same last name and street address presented them, and they were written on the same day by the same doctor for the same drug and strength. Further, I find that Respondent admitted filling the prescriptions even though these red flags were not resolvable, according to Dr. Gordon's testimony. I find that, even if these red flags were resolvable, there was no credible evidence in the record that Respondent addressed or resolved them before it filled the prescriptions. Respondent's Owner and PIC offered no evidence to substantiate her testimony that the circumstances of the prescriptions were “understandable” and did not raise red flags. I afford her testimony no weight.
The Government alleged that a “red flag of diversion” was raised when customers presented two prescriptions for the same immediate release controlled substance, but for different strengths, and that Respondent filled such prescriptions without addressing or resolving the red flag. As support for this allegation, the Government submitted four such prescriptions filled by Respondent.
Dr. Gordon explained that giving one person two prescriptions for two immediate release opioids was not necessary because the Dilaudid 8 mg. could be broken in half to get a 4-milligram dose.
Dr. Gordon also testified that the diagnosis of “lumbar radiculopathy” was “a red flag to take pause for any reasonable pharmacist to make sure the prescriptions are legit.”
When asked if she would “reach out to the prescriber” if she “were in a retail pharmacy and . . . saw a prescription like this coming in with two short-actings,” Dr. Gordon responded “[n]o. . . . I would give the prescriptions back to the patron.”
Mr. Fisher agreed that “two prescriptions written for the same person for the same drug but different strengths” was a red flag. Tr. 620–21. He testified that he would speak to the doctor to resolve it because it's “[c]ommonly done” to “try[ ] to achieve a certain therapeutic level by combining the two doses . . . [because] [t]he 8 milligrams is not enough for the patient, so they do 12.”
Respondent's Owner and PIC testified that the only red flag she associated with the prescriptions in GX 12 was that they were for schedule II controlled substances.
When asked whether she had, for these prescriptions, “the same documentation that you've shown before . . . [l]ike . . . the patient agreement and the PMP report and a note that somebody checked with the doctor,” Respondent's Owner and PIC answered affirmatively.
Respondent's Owner and PIC was satisfied, she testified, when she filled the prescriptions in GX 12 that each “prescription was filled for medical purpose within the scope of a physician practice.”
Based on all of the evidence in the record, I find that Respondent, without addressing or resolving the red flags, filled prescriptions that raised the red flag of customers presenting two prescriptions for the same immediate release controlled substance but for different strengths. The testimony of Respondent's Owner and PIC, including her testimony that she filled each prescription in GX 12 only after being satisfied they were for a medical purpose within the scope of a physician practice, was not credible. First, it directly conflicted with her original testimony denying that the circumstances raised a red flag and, second, she did not produce any documentary evidence to corroborate her statements.
The Government alleged that prescriptions with a combination of an opiate and a benzodiazepine are “drug cocktails” popular with drug abusers and, therefore, raise “red flags of diversion,” and that Respondent filled such prescriptions without addressing or resolving those red flags. To support this allegation, the Government submitted seven sets of prescriptions (a total of 14 prescriptions) that Respondent filled and dispensed to its customers containing an opiate and a benzodiazepine.
According to Dr. Gordon, these seven pairings of prescriptions were considered “cocktail medications,” red flags, because they were multiple drugs that suppressed the central nervous system and, when taken together, could give euphoria. Tr. 408, 412, 414–15 (maximum strength of Dilaudid and Xanax), 417, 421, 422 (highest Valium dose available), 424 (highest doses available), 546, 547. She elaborated on what makes a drug cocktail by testifying that it consisted of “drugs that cause you to have a high.”
Dr. Gordon addressed whether a muscle relaxant had to be present to constitute a drug cocktail. She stated that, “Cocktail medications usually . . . are a combination of an opioid plus or minus a benzo plus or minus a muscle relaxant.”
Dr. Gordon testified that she saw no notations by the pharmacist on the prescriptions attempting to resolve the
Mr. Fisher stated that he did not consider the drugs in the prescriptions in GX 13 to be cocktails.
On cross-examination, Mr. Fisher reaffirmed his opinion that a cocktail involves an opioid, a benzodiazepine, and carisoprodol.
Respondent's Owner and PIC did not agree that the prescriptions in GX 13 constituted a drug cocktail because, in her view, a drug cocktail had four components: two opioids, carisoprodol, and a benzodiazepine.
Respondent produced an exhibit containing various documents concerning the three customers who asked Respondent to fill the prescriptions in GX 13. RX 10. According to the testimony of Respondent's Owner and PIC, Respondent compiled or generated the documents in RX 10 “at that time in 2013” because “[w]e tried to implement as much possible steps and follow them through as much as possible to make sure that . . . steps are taken . . . that's preventing. . . . Also, . . . that's why . . . when the patient knows the pharmacy takes extra steps and scrutinize the prescriptions, people who has non-valid prescription not come to me.” Tr. 1157–58.
Page 2 of RX 10 was the Relationship Affidavit signed by DC, the same DC associated with six prescriptions in GX 13 (pages 1 through 12).
Respondent also provided registration validation pages purportedly printed from DEA's website. According to Respondent's Owner and PIC, the DEA registration validation website satisfied her that, on the day she filled LF's Dilaudid and clonazepam prescriptions, the prescribing physician was “allowed to prescribe the pain medications.”
Respondent also submitted a hand-written note on a piece of prescription paper belonging to the doctor who issued Dilaudid and Valium prescriptions for BK.
Respondent also submitted a “Verification of legitimate purpose of prescribing CII–CV medications To establish legitimate Physician-patient relationship.” RX 10, at 11. It purported to be signed by BK, the individual for whom the Dilaudid and Valium prescriptions on pages 21, 23, 25, and 27 of GX 13 were written. This one-page sheet had space for the customer's name, signature, birth date, and appointment date, for the physician's name and address, and for “yes” or “no” responses to whether the physician or “qualified medical professional” conducted a medical examination, took a blood sample, and had an “MRI on file.”
I find, based on Dr. Gordon's testimony and consistent with my credibility determinations giving Dr. Gordon's testimony regarding the practice of pharmacy in Florida more weight than any other witness's testimony in these proceedings, that the prescriptions in GX 13 were “drug cocktails” popular with drug abusers. Based on all of the evidence in the record, I find that Respondent filled prescriptions without having resolved the red flags of customers presenting prescriptions with a combination of an opiate and a benzodiazepine which is a
The Government alleged that customers paying cash for their prescriptions when other red flags of diversion were present was a “red flag of diversion,” and that Respondent dispensed controlled substances to customers without resolving the red flags those prescriptions presented. As support for this allegation, the Government listed 50 prescriptions in the Show Cause Order. ALJX 1, at 5. No testimony disputed the allegations that Respondent filled the 50 prescriptions and that those prescriptions were purchased with cash. I reviewed those 50 prescriptions. Thirty-two of them were for Dilaudid 8 mg. GX 8, 11, 12, 13, 14.
The evidence shows that customers paid as much as $1,008.00 for a month's worth of Dilaudid 8 mg.
Dr. Gordon's testimony explained that payment in cash for a controlled substance was always a red flag, even if a significant sector of the public did not have health insurance. Tr. 363. Paying in cash was a red flag, she testified, because it enabled evasion of processes established to alert a pharmacy that a prescription was being filled too soon. She stated, “A lot of drug-seekers only want to pay for their medications in cash because . . . the computer systems, the insurance company will actually create your red flag for you to say if a prescription is refilled too soon, which means they've gone—obtained a prescription from another pharmacy.”
In Dr. Gordon's opinion, the cash prices that Respondent charged its customers were as high as five times the cost Dr. Gordon would have expected.
Mr. Fisher agreed that “[c]ustomers paying for their prescriptions with cash where other red flags of diversion are present” was a red flag.
Respondent challenged Dr. Gordon's cash price-level testimony based on her not having been in charge of purchasing controlled substances for resale for a small independent pharmacy.
Based on all of the evidence in the record, I find that Respondent, without resolving the red flags, filled prescriptions that raised the red flag of customers paying cash for their prescriptions when other red flags were present. I further find that Respondent's customers were charged, and paid, exorbitantly high prices for their controlled substance prescriptions.
The last red flag the Government alleged in the Show Cause Order concerned early fills. According to the Government, Respondent filled prescriptions for controlled substances that the customers presented before the customers' previous prescription for that controlled substance should have been consumed. To support this allegation, the Government submitted 22 prescriptions. GX 14, at 1–33, 37–47.
I reviewed the prescriptions the Government submitted and analyzed them according to the standard Dr. Gordon described in her testimony. GX 14; Tr. 436 (“[W]hat most pharmacies do . . . [to determine whether a prescription is an early fill is] they start at when the first prescription was filled.”);
First, Respondent filled 12 prescriptions for BK, dispensing a total of 840 Dilaudid 8 mg. tablets, from July 26, 2012 through November 8, 2012. GX 14, at 1–33, 37–47.
I note that Respondent filled all four of the prescriptions that were written on the same day, October 12, 2012.
Further, one prescription for “chronic pain due to trauma,” among other things, was written on July 16, 2012, yet BK did not have it filled until July 26, 2012. GX 14, at 1–2. Similarly, BK waited up to 16 days before filling another prescription for “chronic pain due to trauma,” among other things. GX 14, at 17–18. BK's delay in filling such Dilaudid 8 mg. prescriptions casts doubt on the prescriptions' legitimacy.
Based on the dosing instructions, six tablets each day, 840 tablets should have lasted 140 days. The number of days from July 26, 2012 through November 8, 2012, the day before BK filled the last prescription in GX 14, was 105 days. Thus, in this period, Respondent dispensed to BK a 140-day supply of Dilaudid 8 mg. in 105 days. According to my analysis, Respondent filled all but one of them significantly early, from about at least 6 days early to up to about at least 29 days early.
Second, concerning the two Dilaudid 8 mg. prescriptions in GX 14 issued to JB, Respondent filled the second prescription at least one week early.
Third, concerning the two Dilaudid 8 mg. prescriptions in GX 14 issued to LB, Respondent filled the second prescription at least 5 days early.
Fourth, Respondent filled the second Dilaudid 8 mg. prescription in GX for JS at least 5 days early.
Fifth, Respondent filled the second Dilaudid 8 mg. prescription in GX 14 for HH at least six days early.
According to Dr. Gordon, the prescriptions in GX 14 exhibited multiple red flags, yet Respondent filled them all. Tr. 429–67. For none of the prescriptions in GX 14 did Dr. Gordon testify that it included any notation recognizing or addressing red flags, that its red flags were resolvable, that it was a legitimate prescription, or that the pharmacist had exercised her corresponding responsibility to ensure that the prescription was issued for a legitimate medical purpose by a practitioner acting in the usual course of professional practice.
Regarding these prescriptions and labels, Dr. Gordon testified that “the pharmacist was not exercising her corresponding responsibility, that most of these prescriptions should not have been filled or at least held until it was due to be filled.”
Mr. Fisher agreed that an early fill was a red flag for diversion.
In Mr. Fisher's view, early fill red flags were “resolvable,” meaning “there's a number of explanations for an early fill.”
Respondent's Owner and PIC testified that an “early refill” is a red flag that “requires definite investigation.”
In sum, both Dr. Gordon and Mr. Fisher identified about the same number of early fills in GX 14. They disagreed on how many days early a pharmacy could fill a controlled substance prescription without needing to resolve the suspicion. They also disagreed about the resolvability of early fills in general and in GX 14. Dr. Gordon testified that an early fill was not legitimate and was not resolvable. Mr. Fisher testified that red flags due to early fills were resolvable, but admitted that an attempt to secure more drugs was one of the reasons for early fill requests. Mr. Fisher agreed that a pharmacist's resolution of an early fill should be documented.
Based on the testimony of Dr. Gordon and Mr. Fisher, I find that Respondent, without resolving the red flags, filled prescriptions early on at least 13 occasions. I find that the early fill-related testimony of Respondent's owner and PIC, that a prescription is a doctor's order and a pharmacist is “obligated” to fill a doctor's order, was Respondent's admission to an abdication of her corresponding responsibility.
The Show Cause Order alleged that Respondent committed six other violations, including that Respondent was unable to readily retrieve prescriptions it had dispensed. ALJX 1, at 7.
As already discussed, the DI testified that he conducted an unannounced inspection of Respondent on April 11, 2013. Tr. 36. At that time, he stated, he asked Respondent to retrieve 12 “problematic prescriptions” he had identified from a Florida Prescription Drug Monitoring Program query.
The DI testified that GX 21 consisted of Respondent's daily prescription log reports he obtained on the day of the unannounced inspection. Tr. 128. According to the DI, pages 1, 4, 6, 9, 13, and 16 of Respondent's daily prescription logs showed that Respondent had dispensed nine of the 12 prescriptions referenced in the Show Cause Order.
The DI testified that Respondent “was never able to locate these prescriptions for me.” Tr. 42;
The testimony of Respondent's Owner and PIC confirmed Respondent's failure to retrieve and provide the requested prescriptions to the DI on April 11, 2013.
I find that Respondent never provided the 12 requested prescriptions to the DI. I find that Respondent included ten of the 12 prescriptions in an exhibit for the hearing in this proceeding more than two years after they were requested during the unannounced inspection. I find that Respondent has still not provided the Government with two of the prescriptions that the DI requested on April 11, 2013.
Next, the Show Cause Order alleged that Respondent shipped controlled substances to four States (Alabama, Illinois, Kentucky, and Vermont) without complying with those States' non-resident pharmacy requirements. ALJX 1, at 8. As support for the allegation, the Government submitted prescriptions for schedule III controlled substances (testosterone cypionate, testosterone cream, and stanozolol) that Respondent filled for seven customers whose addresses were in Alabama, Georgia, Illinois, Kentucky, Massachusetts, or Vermont.
In further support of the allegation, the Government obtained certifications from Alabama, Illinois, Kentucky, and Vermont that Respondent had not complied with those States' out-of-state pharmacy requirements.
Respondent's Owner and PIC asserted that “out-of-state patients was out of question. That was for me,” indicating that she would not have filled out-of-state prescriptions “[u]nder any circumstances, even the patient was really, really sick.” Tr. 1023;
Based on the uncontroverted documentary evidence, which I find to be more persuasive than the testimony and statements of Respondent's Owner and PIC to the contrary, and Respondent's admission, I find that Respondent shipped controlled substances out-of-state to customers in Alabama, Illinois, Kentucky, and Vermont. Further, I find that, when Respondent shipped those controlled
Next, the Show Cause Order alleged that Respondent filled controlled substance prescriptions that did not contain all of the information required by 21 CFR 1306.05(a). ALJX 1, at 9. As support for the allegation, the Government submitted nine prescriptions. GX 16. The DI testified that the patient's full address was missing from six of the prescriptions. Tr. 99–101;
My review and analysis of the 13 prescriptions in GX 8/8a identified information missing from prescriptions and discrepancies between information on some of the prescriptions and/or prescription labels and information on the customers' driver's licenses.
Respondent's Owner and PIC admitted that Respondent filled the prescriptions in GX 16.
Having examined the prescriptions and all of the other evidence in the record concerning this allegation, I find the Respondent filled controlled substance prescriptions that did not contain all of the information required by 21 CFR 1306.05(a). I also find that Respondent's Owner and PIC admitted Respondent filled prescriptions not containing all of the information required by 21 CFR 1306.05(a).
Next, the Show Cause Order alleged that Respondent filled prescriptions written for “office use” in violation of 21 CFR 1306.04(b). ALJX 1, at 10. To support this allegation, the Government submitted two Respondent “RX Order Forms,” one for testosterone and one for testosterone propionate, for which “Office Use” was written on the line designated for the patient name.
Respondent's Owner and PIC testified that page 1 of GX 17 was a “prescription” for testosterone.
I find that Respondent admitted filling at least two controlled substance “prescriptions” for “office use” and delivering at least one of them to an entity engaged in hormone replacement therapy for the purpose of allergy testing.
Next, the Show Cause Order alleged that Respondent filled prescriptions written by physicians for the physicians' personal use in violation of Florida Statute § 458.331(r). ALJX 1, at 10. As support for this allegation, the Government submitted 12 documents that, according to the DI, included “controlled substance prescriptions” which doctors wrote “to themselves.” Tr. 106;
I find that Respondent admitted filling six “prescriptions” which doctors wrote “to themselves,” and that the “prescriptions” were for controlled substances.
Finally, the Show Cause Order alleged that Respondent failed to comply with Florida law by failing to report some prescriptions to E–FORCSE. ALJX 1, at 10–11;
Further, in addition to doing his own query, the DI explained that he asked the E–FORCSE program manager to “do a back-end query to see if these prescriptions were ever uploaded or any errors or . . . any attempts were made for these prescriptions.” Tr. 109;
Respondent's Owner and PIC did not challenge the Government's contention that the six prescriptions in GX 19 did not appear in E–FORCSE. Her testimony included that “I fully believe it was actually entered”; “I do not know. I did the fair attempt to provide all Schedule prescriptions, and if other prescription was in E–FORCSE, this prescription should be in E–FORCSE”; “I know that I made a fair attempt to submit this prescription along with other prescription that was accumulated for that week. That was in a compiled file”; and “I can fairly testify that I did the best effort to submit the prescription to the E–FORCSE.”
I find that Respondent did not present evidence contesting the Government's allegation that six of the controlled substance prescriptions it filled did not appear in E–FORCSE. I find that Respondent filled, but did not report to E–FORCSE, six controlled substance prescriptions for Dilaudid 8 mg. written by the same doctor from July through November of 2012.
Under Section 304 of the Controlled Substances Act (hereinafter, CSA or Act), “[a] registration . . . to . . . distribute[ ] or dispense a controlled substance . . . may be suspended or revoked by the Attorney General upon a finding that the registrant . . . has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined by such section.” 21 U.S.C. 824(a)(4). In the case of a retail pharmacy, which is a “practitioner” under 21 U.S.C. 802 (21), Congress directed the Attorney General to consider the following factors in making the public interest determination:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing . . . controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the . . . distribution[ ] or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
It is well settled that I “may rely on any one or a combination of factors and may give each factor the weight [I] deem[ ] appropriate in determining whether” to revoke a registration.
Under DEA's regulation, “[a]t any hearing for the revocation or suspension of a registration, the Administration shall have the burden of proving that the requirements for such revocation or suspension pursuant to . . . 21 U.S.C. [§ ] 824(a) . . . are satisfied.” 21 CFR 1301.44(e). In this matter, while I have considered all of the factors, the Government's evidence in support of its
While there is no evidence that Florida has revoked Respondent's license, DEA has held repeatedly that a registrant's possession of a valid State license is not dispositive of the public interest inquiry.
As to Factor Three, there is no evidence that Respondent has a “conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.” 21 U.S.C. 823(f)(3). However, as the Agency has noted, there are any number of reasons why a person who has engaged in criminal misconduct may never have been convicted of an offense under this factor, let alone prosecuted for one.
Specifically, I find that the record contains substantial evidence that Respondent's pharmacists violated their corresponding responsibility when they dispensed multiple prescriptions. I also find there is substantial evidence in the record that Respondent was unable to readily retrieve prescriptions it had dispensed, shipped controlled substances out-of-state without complying with States' non-resident pharmacy requirements, and filled controlled substance prescriptions that did not contain all the information required by 21 CFR 1306.05. Accordingly, I agree with the CALJ that Respondent's registration should be revoked. Further, I agree with the CALJ's conclusions concerning Respondent's non-acceptance of responsibility and the appropriate disposition of Respondent's efforts to
Under the CSA, it is “unlawful for any person knowingly or intentionally . . . to . . . distribute[ ] or dispense, or possess with intent to . . . distribute[ ] or dispense, a controlled substance” “[e]xcept as authorized” by the Act. 21 U.S.C. 841(a)(1). A pharmacy's registration authorizes it to “dispense,” or “deliver a controlled substance to an ultimate user . . . by, or pursuant to the lawful order of . . . a practitioner.” 21 U.S.C. 802(10).
According to the CSA's implementing regulations, a lawful controlled substance order or prescription is one that is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). While the “responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, . . . a corresponding responsibility rests with the pharmacist who fills the prescription.”
An order purporting to be a prescription issued not in the usual course of professional treatment . . . is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. [§ ] 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.
The Government must show that the pharmacist acted with the requisite degree of scienter to prove a violation of the corresponding responsibility regulation.
The Government did not allege that Respondent dispensed the prescriptions having actual knowledge that the prescriptions lacked a legitimate medical purpose. Instead, the Government alleged that Respondent violated the corresponding responsibility regulation as “evidenced” by its “dispensing of controlled substances despite the presence of red flags of diversion that . . . [it] failed to clear prior to dispensing the drugs.” ALJX 1, at 1–2 (citing
As discussed above, the testimony of Dr. Gordon, as well as testimony offered by Respondent's own witness, Mr. Fisher, supported the Government's allegations that the seven different factual circumstances the Government alleged to be “red flags of diversion” existed as alleged, and that Respondent did not resolve them before dispensing controlled substances.
Prior Agency decisions found that prescriptions with the same “red flags” at issue here were so suspicious as to support a finding that the pharmacists who filled them violated the Agency's corresponding responsibility rule due to actual knowledge of, or willful blindness to, the prescriptions' illegitimacy.
Agency precedent has made clear that, when presented with a prescription clearly not issued for a legitimate medical purpose, a pharmacist may not intentionally close her eyes and thereby avoid positive knowledge of the real purpose of the prescription.
As I detailed above, the testimony of Respondent's Owner and PIC acknowledged that schedule II controlled substances are highly risky and are subject to “a lot of diversion.” Tr. 1129, 1116 (respectively). She also specifically testified that a prescription for a large quantity of a schedule II controlled substance raised red flags.
Further, although Respondent challenged Dr. Gordon's expertise to testify that it charged exorbitantly high prices for controlled substances, Respondent did not offer any price-related evidence disputing Dr. Gordon's testimony. The evidence in the record that Respondent charged exorbitantly high prices for controlled substance prescriptions is further proof that Respondent knew or subjectively believed that there was a high probability that its customers were either abusing or diverting those controlled substances.
The so-called “proper steps” for handling schedule II prescriptions that Respondent's Owner and PIC constructed were actually abdications of her corresponding responsibility. According to Respondent's Owner and PIC, her responsibility, when presented with a controlled substance prescription, was limited to (1) making sure the prescriber's medical license was current; (2) checking the prescriber's DEA registration against the controlled substance in the prescription; (3) obtaining the patient's signature on the Relationship Affidavit as alleged verification of a
As for checking the currency of the prescriber's medical license and DEA registration, this is not enough as a prescriber must generally hold both a license and registration to even issue a prescription under the CSA. 21 CFR 1306.03(a). The fact that a practitioner possesses the requisite authority does not, however, mean that he/she acted in the usual course of professional practice in issuing any particular prescription and that the prescription was issued for a legitimate medical purpose.
As for the “proper step” of having a customer sign the Relationship Affidavit, Respondent's Owner and PIC did not explain why it was reasonable for her to expect customers who were drug seekers to understand the content of that document. Moreover, even if the customers did understand the document, she offered no explanation as to why her customers would be honest and truthful in answering the questions if they were seeking controlled substances to either personally abuse or divert to others.
Lastly, the “proper step” of ensuring that the prescription was not “signed” by a rubber stamp might have showed that the prescription was not an outright fraud, but it did nothing to ensure that the prescription was issued for a legitimate medical purpose. 21 CFR 1306.04(a).
Respondent's Owner and PIC also testified regarding the five CII/CIII Rx Verification Forms which were part of Respondent's “patient files” (
The Government also submitted prescriptions, in support of the Show Cause Order's corresponding responsibility allegation, that did not involve schedule II controlled substances. As discussed above, the controlled substance was testosterone cypionate and the same doctor wrote all of the prescriptions on the same day. GX 10. Respondent filled all of those prescriptions within the period of about an hour and a half.
Accordingly, I find the Government has proved by substantial evidence that controlled substance prescriptions Respondent, by Respondent's Owner and PIC, filled were not prescriptions issued in the usual course of professional treatment, yet Respondent, by Respondent's Owner and PIC, knowingly filled, or filled with willful blindness, those prescriptions in violation of the corresponding responsibility regulation. 21 CFR 1306.04(a);
I considered Respondent's claim that Dr. Gordon's testimony should not be credited because “she never worked as a pharmacist in an independent pharmacy” such as Respondent and, therefore, “her dispensing, managing and purchasing experience is not comparable to those of [Respondent's Owner and PIC].” Resp. Br., at 37–38. I reject this claim. I have already set out my credibility determinations, which are based on the credibility recommendations of the CALJ. Those determinations afford Dr. Gordon's testimony the appropriate weight in these proceedings regarding the practice of pharmacy in Florida. Further, Respondent's claim is simply incorrect. The corresponding responsibility of a pharmacist is the same whether the pharmacist practices at an independent pharmacy or in a chain pharmacy. In other words, the size or corporate status of the pharmacy in which a pharmacist practices does not dictate the scope of a pharmacist's obligation under federal law.
I reject Respondent's claim that the Government arbitrarily designated customers as having travelled long distances “since it is not relying on any statutory enactment, federal or state to make such a designation.”
I considered Respondent's claim that Dr. Gordon's testimony about pattern prescribing created “an unrecognized standard under, both, case law and the Florida statutory law.” Resp. Br., at 38. I find that Respondent's claim is without merit. Numerous agency and court cases have recognized that pattern prescribing is a red flag.
During the hearing, Dr. Gordon testified about the level of the cash price Respondent charged for some prescriptions, including in comparison to what another pharmacy might charge.
I reject the Exception. As to the issue of notice, for reasons previously explained, the Agency has rejected the notion that the “Agency recently imposed an increasingly rigorous standard of notice on its administrative prosecutors.”
To the extent Respondent argues that I should give no weight to Dr. Gordon's testimony, I reject its argument that I should reject her testimony because she has never purchased controlled substances for a small pharmacy. Indeed, Dr. Gordon specifically testified that she “actually looked up the national . . . price.”
In its Exceptions, Respondent argues that the “absence of Respondent's corresponding exhibit should not be interpreted as an absence of records,” and that “it simply means that . . . the records in Respondent's possession are the same records as contained in a corresponding Government's exhibit.” Resp. Exceptions, at 8 n.10. In this Exception, Respondent indicates its dispute with the Government's allegation that “Respondent failed to exercise its corresponding responsibility
Further, this Agency has applied, and I apply here, the “adverse inference rule.” As the DC Circuit explained, “Simply stated, the rule provides that when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him.”
Respondent suggested throughout the hearing and in its briefs that the Government's case was deficient.
For example, in its Exceptions, Respondent argues that the Government's Expert “admitted that she has no evidence that . . . any of the prescriptions . . . were diverted or somehow used for or with illicit purposes.” Resp. Exceptions, at 11. Notwithstanding the Government's Expert's testimony, there is ample circumstantial evidence that the prescriptions at issue in this proceeding were issued by a physician acting outside of the usual course of professional practice. The circumstantial evidence includes that the prescriptions were for large quantities of Dilaudid 8 mg., a highly abused narcotic; that customers were traveling long distances; and that many of the customers were paying cash and exorbitantly high prices. In other instances, the evidence showed that customers were obtaining early fills of prescriptions.
Second, Respondent suggests that the Government's failure to prove the prescribing doctors were not licensed or registered at the relevant time, or otherwise “unable to lawfully issue the prescription[s],” somehow exonerated Respondent.
Third, Respondent claims that the Government failed to prove the existence of any indicator of controlled substance abuse specified in Fla. Admin. Code r. 64K–1.007 (adopted May 21, 2012).
Finally, Respondent suggested that the Government's case must fail because the DI did not meet with any prescriber or speak with any customer.
The Show Cause Order alleged that Respondent filled controlled substance prescriptions that did not contain all the information required by 21 CFR 1306.05(a) and (f). According to that regulation, a “corresponding liability rests upon the pharmacist . . . who fills a prescription not prepared in the form prescribed by DEA regulations.” 21 CFR 1306.05(f). Among other things, those DEA regulations require that controlled substance prescriptions be “dated as of, and signed on, the day when issued and shall bear the full name and address of the patient, the drug name, strength, dosage form, quantity prescribed, directions for use, and the name, address and registration number of the practitioner.” 21 CFR 1306.05(a). As found above, Respondent filled controlled substance prescriptions that did not contain all of the information required by 21 CFR 1306.05.
As discussed above, the uncontroverted evidence is not only that Respondent violated this regulation, but that Respondent admitted violating this regulation. I find, based on all of the evidence in the record, that Respondent violated 21 CFR 1306.05(a) by filling multiple controlled substance prescriptions that were not prepared in the form prescribed by DEA regulation.
The Show Cause Order alleged that Respondent violated 21 CFR 1306.04(b) when it filled prescriptions issued for “an individual practitioner to obtain controlled substances for supplying the individual practitioner for the purpose of general dispensing to patients.” ALJX 1, at 10. As explained above, GX 17 included two “RX Order Forms” that Respondent referred to as “prescriptions” and, pursuant to at least one of them, admitted delivering controlled substances to an entity engaged in hormone replacement therapy for the purpose of allergy testing. Based on Respondent's admissions, I find that Respondent filled prescriptions issued in violation of 21 CFR 1306.04(b).
Neither the Show Cause Order nor the Government Prehearing Statement cited a statutory or regulatory provision that prohibited the filling of a prescription issued in violation of 21 CFR 1306.04(b). In addition, the Government did not discuss the “office use” allegation, let alone address the legal sufficiency of this allegation in the Show Cause Order or in the Government Prehearing Statement. I find that the Government did not allege a legal basis for the revocation or suspension of Registrant's registration upon a finding that Registrant “filled” prescriptions issued in violation of 21 CFR 1306.04(b).
Thus, while I find that Respondent admitted filling prescriptions issued in violation of 21 CFR 1306.04(b), I also find that the Government did not comply with the requirement that the Show Cause Order “contain a statement of the legal basis for . . . the denial, revocation, or suspension of registration and a summary of the matters of fact and law asserted.” 21 CFR 1301.37(c). Thus, I will not give any weight in the public interest assessment to Respondent's admission that it filled prescriptions issued in violation of 21 CFR 1306.04(b).
According to the Show Cause Order, Respondent “filled prescriptions written by physicians for the physicians' personal use, in violation of Fla. Stat. § 458.331(r) which prohibits `[p]rescribing, dispensing, or administering any medicinal drug appearing in any schedule set forth in chapter 893 by the physician to himself or herself.'” ALJX 1, at 10. The Show Cause Order also alleged that Respondent “violated Florida law by dispensing controlled substances pursuant to these invalid prescriptions.”
During the time period covered by the Show Cause Order, Florida law required that a pharmacist, before dispensing a controlled substance listed in schedules II through IV, first determine “in the exercise of her or his professional judgment . . . that the order is valid.” Fla. Stat. § 893.04(2)(a) (2009). The substances that Respondent admitted dispensing to physicians for their personal use, testosterone and phentermine, were listed in Florida law as controlled substances under schedules III and IV, respectively. Fla. Stat. § 893.03 (2011) (“Standards and schedules”).
The Respondent's argument against liability was that the Florida statute referenced in the Order to Show Cause was not sufficiently related to preventing the diversion of controlled substances. Resp. Br., at 17–18. According to Respondent, the “primary purpose behind § 458.331 . . . is to regulate the practice of medicine and discipline physicians that have engaged in unethical and/or unprofessional behavior.”
Respondent's argument fails as does its similar argument concerning its admitted interstate shipment of controlled substances in violation of four States' non-resident pharmacy requirements. The Florida statutes at issue concerned exactly what Respondent argued they did not. As the CALJ stated, the Florida provision cited in the Show Cause Order “prohibits an activity that `increases the opportunity for those persons who are self-abusing or engaged in diversion to obtain controlled substances.'” R.D., at 38 n.159 (citing
The dilemma posed by this Show Cause Order allegation is whether it, in its and the hearing record's brevity concerning this charge, sufficiently noticed Respondent of the charge being levied against it. The CALJ thought not.
I find that neither the Show Cause Order nor the Government Prehearing Statement specified a statutory provision that Respondent allegedly violated.
The Show Cause Order alleged that Respondent was unable to “readily retrieve prescriptions it had dispensed”
According to the regulation, which is applicable to inventories and records of controlled substances in schedules III through V, “[p]aper prescriptions for Schedules III, IV, and V controlled substances shall be maintained at the registered location . . . in such form that they are readily retrievable from the other prescription records of the pharmacy.” 21 CFR 1304.04(h)(4). The regulatory definition of “readily retrievable” calls for locating the records “in a reasonable time.” 21 CFR 1300.01(b). Agency precedent states that “what constitutes `a reasonable time' necessarily depends on the circumstances.”
As found above, Respondent never provided the 12 requested prescriptions to the DI. Respondent included ten of the 12 prescriptions in an exhibit for the hearing in this proceeding more than two years after the unannounced inspection, but this is insufficient to comply with the “readily retrievable” requirement. As of the final day of the hearing in this proceeding, or about 28 months after the unannounced inspection, Respondent still had not provided the Government with two of the prescriptions. Accordingly, I find that the Government has proved by substantial evidence that Registrant failed to comply with the requirements of 21 CFR 1304.04(h)(3) and (4).
The Order to Show Cause alleged that Respondent shipped controlled substances to customers in Alabama, Illinois, Kentucky, and Vermont without complying with those States' non-resident pharmacy requirements.
Respondent admitted that it was not in compliance with any of these four States' non-resident pharmacy requirements when it shipped controlled substances to customers at addresses in those States. Further, Respondent did not challenge the Government's contention that it violated these four States' non-resident pharmacy requirements when it argued that “[i]t should be note [sic] that other than the out-of-state dispensing instances . . . [alleged], there was no evidence that . . . [Respondent] is engaged in shipping medications to states where it does not hold a Non-resident pharmacy license.” Resp. Br., at 9. Instead, Respondent argued that its noncompliance with these four States' non-resident pharmacy statutes was insufficiently related to preventing the diversion of controlled substances to be considered under Factor Four of 21 U.S.C. 823(f).
The second public interest factor is “experience in dispensing . . . controlled substances.” 21 U.S.C. 823(f)(2). “Dispense,” according to 21 U.S.C. 802(10), means “deliver a controlled substance to an ultimate user . . . pursuant to the lawful order of . . . a practitioner.” Despite the testimony of Respondent's Owner and PIC and her statements to the DI, Respondent admitted that it “dispensed” controlled substances in violation of four States' legal requirements. Thus, I find that Respondent's experience in dispensing controlled substances includes the dispensing of controlled substances to customers living in four States in which Respondent was not licensed or legally authorized to dispense those controlled substances.
The Show Cause Order alleged that Respondent failed to comply with Florida State law by not reporting specified prescriptions to E–FORCSE. As discussed above, I found that Respondent did not challenge the Government's assertion that six controlled substance prescriptions it dispensed did not appear in E–FORCSE. The CALJ found “not persuasive” Respondent's argument that the non-reportings “had their genesis in a good-faith technical glitch.” R.D., at 46 n.184. He recommended finding the testimony of Respondent's Owner and PIC on this allegation “wholly unpersuasive,” “even if assumed,
The Florida statute that the Respondent allegedly violated required the reporting to E–FORCSE of each controlled substance dispensed “as soon thereafter as possible, but not more than 7 days after the date the controlled substance is dispensed unless an extension is approved.” Fla. Stat.
I disagree with Respondent's claim that the Florida Statute did “not provide for any penalties for non-compliance, partial compliance or reporting errors.” Resp. Br., at 25. To the contrary, the Florida Statute contained a criminal sanction for a willful and knowing failure to report the dispensing of controlled substances. Fla. Stat. § 893.055(9) (2011) (“Any person who willfully and knowingly fails to report the dispensing of a controlled substance as required by this section commits a misdemeanor of the first degree.”);
Based on all of the evidence in the record, I find that Respondent did not comply with the controlled substance reporting requirements of Fla. Stat. 893.055(4). Respondent's non-compliance is appropriate for consideration under Factor Four. In this case, due to the overwhelming egregiousness of other violations that Respondent committed, my consideration of Respondent's non-compliance with the controlled substance reporting requirements of Fla. Stat. 893.055(4) did not have a determinative impact on my public interest assessment.
As discussed above, the Government presented a
I therefore hold that the Government has established a
Where, as here, the Government has met its
Moreover, the egregiousness and extent of a registrant's misconduct are significant factors in determining the appropriate sanction.
Finally, the Agency has also held that “ `[n]either Jackson, nor any other agency decision, holds . . . that the Agency cannot consider the deterrent value of a sanction in deciding whether a registration should be [suspended or] revoked' ” or an application should be denied.
In this case, the CALJ found that Respondent's acceptance of responsibility was “limited in scope and can be fairly characterized as minimal.” R.D., at 58. Specifically, the CALJ found that Respondent's Owner and PIC, on behalf of Respondent, accepted responsibility in “only three carefully circumscribed” areas: (1) that she did not document every single conversation with every single prescriber; (2) that she, as the pharmacist-in-charge, shouldered ultimate responsibility for ensuring required documentation was properly completed; and (3) that Respondent filled controlled substance prescriptions for patients who lived a significant distance from the pharmacy. R.D., at 58.
At the hearing, Respondent's counsel asked Respondent's Owner and PIC “[w]hat is it that you're accepting responsibility for in this case?” Tr. 1025. Respondent's Owner and PIC testified: “That I don't have any intention to violate DEA rules.” Tr. 1025. This is in no sense a meaningful acknowledgement of Respondent's misconduct.
In its Exceptions, Respondent contends that it “accepted responsibility for filling long-distance prescriptions
I reject Respondent's contentions. Most significantly, Respondent's Owner and PIC has entirely failed to acknowledge that Respondent violated the CSA when it knowingly dispensed numerous controlled substance prescriptions which were clearly issued outside of the usual course of professional practice and which lacked a legitimate medical purpose. And even as to the factual matters for which the CALJ found she accepted responsibility, such as failing to adequately document her conversations with prescribers, Respondent's Owner and PIC immediately equivocated by making excuses for not doing so in the future. She stated, “Now I document every little thing that it's concerned to the conversation and the dispensing of controlled substances. However, there's a lot of conversation going on on a daily basis between doctors and offices.” Tr. 1010–11. Similarly, after acknowledging that she filled controlled substance prescriptions for patients who lived a significant distance from the pharmacy, Respondent's Owner and PIC justified her filling of the prescriptions, asserting, without any evidence to corroborate her claim, that “some of them are working locally and they all had a local doctor.”
Respondent's Owner and PIC also testified that, “If the DEA provide me, do not fill for 100 miles, like—that's why I said, I accepted my responsibility, I took remedial measures. I do not fill schedule II prescriptions in my pharmacy because of these conflicting red flags. Because it's a practice of Florida to travel.”
Notably, at no point in the hearing did Respondent's Owner and PIC accept responsibility, let alone accept responsibility unequivocally, for violating the corresponding responsibility regulation. Notably, the testimony of Respondent's Owner and PIC manifests that she still does not acknowledge the scope of a pharmacist's obligation under 21 CFR 1306.04(a). As one example, she testified that “[t]he prescription is an order for the pharmacist to fill. For me not to fill that prescription, I have to have a very good reason not to fill it, because it's an order from the doctor to me to fill that prescription for that patient.”
Here, the CALJ concluded that “the paltry nature of the Respondent's acceptance of responsibility would have rendered remedial measure evidence largely irrelevant.”
I agree with the CALJ's assessment that, “[w]here no understanding is acquired about how the regulated conduct fell short of professional and federal and state legal standards, it would be difficult (even illogical) to predict improvement.”
Respondent has not rebutted the Government's
Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 21 U.S.C. 823(f), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration FP1049546 issued to Pharmacy Doctors Enterprises d/b/a Zion Clinic Pharmacy be, and it hereby is, revoked. I further order that any pending application of Pharmacy Doctors Enterprises d/b/a Zion Clinic Pharmacy for renewal or modification of this registration be, and it hereby is, denied. This order is effective April 12, 2018.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled,
The OMB will consider all written comments that agency receives on or before April 12, 2018.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064 (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Voluntary Protection Program (VPP) information collection. The VPP is a partnership between labor, management, and government designed to recognize and promote excellence in safety and health management. In order to participate in the VPP, an applicant submits an application and an annual self-evaluation containing a detailed description of its safety and health management programs to the OSHA, which uses the information to conduct a preliminary analysis of the worksite's programs and to make a preliminary determination regarding the worksite's qualifications for the VPP. Occupational Safety and Health Act of 1970 section 2(b)(1) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
The OMB is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Mine Safety and Health Administration (MSHA), Labor.
Notice.
The Federal Mine Safety and Health Act of 1977 and the Code of Federal Regulations govern the application, processing, and disposition of petitions for modification. This
Copies of the final decisions are posted on MSHA's website at
Barbara Barron at 202–693–9447 (Voice),
Under section 101 of the Federal Mine Safety and Health Act of 1977, a mine operator may petition and the Secretary of Labor (Secretary) may modify the application of a mandatory safety standard to that mine if the Secretary determines that: (1) An alternative method exists that will guarantee no
MSHA bases the final decision on the petitioner's statements, any comments and information submitted by interested persons, and a field investigation of the conditions at the mine. In some instances, MSHA may approve a petition for modification on the condition that the mine operator complies with other requirements noted in the decision.
On the basis of the findings of MSHA's investigation, and as designee of the Secretary, MSHA has granted or partially granted the following petitions for modification:
•
•
•
•
•
•
Mine Safety and Health Administration, Labor.
Notice.
This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below.
All comments on the petitions must be received by MSHA's Office of Standards, Regulations, and Variances on or before April 12, 2018.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations, and Variances at 202–693–9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and Title 30 of the Code of Federal Regulations Part 44 govern the application, processing, and disposition of petitions for modification.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor (Secretary) determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
The petitioner states that:
(1) To comply with requirements for mine ventilation maps and mine maps in 30 CFR 75.372 and 75.1200, use of the most practical and accurate surveying equipment is necessary.
(2) Application of the existing standard would result in a diminution of safety to the miners. Underground mining by its nature, and the size and complexity of mine plans require that accurate and precise measurements be completed in a prompt and efficient manner.
As an alternative to the existing standard, the petitioner proposes the following:
(a) Use nonpermissible electronic surveying equipment when equivalent permissible electronic surveying equipment is not available. Nonpermissible equipment will include portable battery-operated total station surveying equipment, mine transits, distance meters, and data loggers.
(b) All nonpermissible electronic surveying equipment to be used in or inby the last open crosscut will be examined by surveying personnel prior to use to ensure the equipment is being maintained in safe operating condition. These examinations will include:
(i) Checking the instrument for any physical damage and the integrity of the case.
(ii) Removing the battery and inspecting for corrosion.
(iii) Inspecting the contact points to ensure a secure connection to the battery.
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections.
(v) Checking the battery compartment cover to ensure that it is securely fastened.
(c) The results of such examinations will be recorded and retained for one year and made available to MSHA on request.
(d) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment in or inby the last open crosscut.
(e) Nonpermissible surveying equipment will not be used if methane is detected in concentrations at or above one percent for the area being surveyed. When methane is detected at such levels while the nonpermissible surveying equipment is being used, the equipment will be deenergized immediately and withdrawn outby the last open crosscut.
(f) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as defined in 30 CFR 75.320.
(g) Batteries in the surveying equipment will be changed out or charged in fresh air outby the last open crosscut.
(h) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards associated with the use of nonpermissible surveying equipment in areas where methane could be present.
(i) The nonpermissible surveying equipment will not be put into service until MSHA has inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the Proposed Decision and Order (PDO) becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the District Manager. The revisions will specify initial and refresher training regarding the terms and conditions in the PDO.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded by the existing standard.
The petitioner states that:
(1) To comply with requirements for mine ventilation maps and mine maps in 30 CFR 75.372 and 75.1200, use of the most practical and accurate surveying equipment is necessary.
(2) Application of the existing standard would result in a diminution of safety to the miners. Underground mining by its nature, and the size and complexity of mine plans require that accurate and precise measurements be completed in a prompt and efficient manner.
As an alternative to the existing standard, the petitioner proposes the following:
(a) Use nonpermissible electronic surveying equipment when equivalent permissible electronic surveying equipment is not available. Nonpermissible equipment will include portable battery-operated total station surveying equipment, mine transits, distance meters, and data loggers.
(b) All nonpermissible electronic surveying equipment to be used in return airways will be examined by surveying personnel prior to use to ensure the equipment is being maintained in safe operating condition. These examinations will include:
(i) Checking the instrument for any physical damage and the integrity of the case.
(ii) Removing the battery and inspecting for corrosion.
(iii) Inspecting the contact points to ensure a secure connection to the battery.
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections.
(v) Checking the battery compartment cover to ensure that it is securely fastened.
(c) The results of such examinations will be recorded and retained for one year and made available to MSHA on request.
(d) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment in return airways.
(e) Nonpermissible surveying equipment will not be used if methane is detected in concentrations at or above one percent for the area being surveyed. When methane is detected at such levels while the nonpermissible surveying equipment is being used, the equipment will be deenergized immediately and withdrawn out of the return airways.
(f) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as defined in 30 CFR 75.320.
(g) Batteries in the surveying equipment will be changed out or charged in fresh air out of the return airway.
(h) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards associated with the use of
(i) Nonpermissible surveying equipment will not be put into service until MSHA has inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the Proposed Decision and Order (PDO) becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the District Manager. The revisions will specify initial and refresher training regarding the terms and conditions in the PDO.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded by the existing standard.
The petitioner states that:
(1) To comply with requirements for mine ventilation maps and mine maps in 30 CFR 75.372 and 75.1200, use of the most practical and accurate surveying equipment is necessary. To ensure the safety of the miners in active mines and to protect miners in future mines that may mine in close proximity to these same active mines, it is necessary to determine the exact location and the mine workings.
(2) Application of the existing standard would result in a diminution of safety to the miners. Underground mining by its nature, and the size and complexity of mine plans require that accurate and precise measurements be completed in a prompt and efficient manner.
As an alternative to the existing standard, the petitioner proposes the following:
(a) Use nonpermissible electronic surveying equipment when equivalent permissible electronic surveying equipment is not available. Nonpermissible equipment will include portable battery-operated total station surveying equipment, mine transits, distance meters, and data loggers.
(b) All nonpermissible electronic surveying equipment to be used within 150 feet of pillar workings or longwall faces will be examined by surveying personnel prior to use to ensure the equipment is being maintained in safe operating condition. These examinations will include:
(i) Checking the instrument for any physical damage and the integrity of the case.
(ii) Removing the battery and inspecting for corrosion.
(iii) Inspecting the contact points to ensure a secure connection to the battery.
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections.
(v) Checking the battery compartment cover to ensure that it is securely fastened.
(c) The results of such examinations will be recorded and retained for one year and made available to MSHA on request.
(d) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment within 150 feet of pillar workings.
(e) Nonpermissible surveying equipment will not be used if methane is detected in concentrations at or above one percent for the area being surveyed. When methane is detected at such levels while the nonpermissible surveying equipment is being used, the equipment will be deenergized immediately and withdrawn more than 150 feet from pillar workings.
(f) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as defined in 30 CFR 75.320.
(g) Batteries in the surveying equipment will be changed out or charged in fresh air more than 150 feet from pillar workings.
(h) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards associated with the use of nonpermissible surveying equipment in areas where methane could be present.
(i) The nonpermissible surveying equipment will not be put into service until MSHA has inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the Proposed Decision and Order (PDO) becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the District Manager. The revisions will specify initial and refresher training regarding the terms and conditions in the PDO.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded by the existing standard.
The petitioner states that:
(1) Application of the existing standard would result in a diminution of safety to the miners.
(2) Underground mining by its nature, and the size, complexity, and relative closeness to other abandoned mines, gas/oil wells, and other features, requires that accurate and precise measurements be completed in a prompt and efficient manner.
As an alternative to the existing standard, the petitioner proposes the following:
(a) To examine all nonpermissible electronic surveying equipment prior to use in or inby the last open crosscut to ensure the equipment is being maintained in a safe operating
(i) Checking the instrument for any physical damage and the integrity of the case.
(ii) Removing the battery and inspecting for corrosion and damage.
(iii) Inspecting the contact points to ensure a secure connection to the battery.
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections.
(v) Checking the battery compartment cover to ensure that it is securely fastened.
(b) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment in or inby the last open crosscut or in the return.
(c) Nonpermissible surveying equipment will not be used if methane is detected in concentrations at or above one percent for the area being surveyed. When methane is detected at such levels while the nonpermissible surveying equipment is being used, the equipment will be deenergized immediately and withdrawn out of the return.
(d) Nonpermissible surveying equipment will not be used in areas where float coal dust is in suspension.
(e) Batteries contained in the surveying equipment will be changed out or charged in fresh air and not in the return.
(f) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards and limitations associated with the use of nonpermissible surveying equipment.
(g) The nonpermissible surveying equipment will not be put into service until MSHA has inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the Proposed Decision and Order (PDO) becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the District Manager. The revisions will specify initial and refresher training regarding the terms and conditions in the PDO.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded by the existing standard.
National Aeronautics and Space Administration
Notice of intent to grant partially exclusive patent license.
NASA hereby gives notice of its intent to grant a partially exclusive patent license in the United States to practice the inventions described and claimed in U.S. Patent No. 7,285,306 entitled, “Process For Self-Repair Of Insulation Material,” KSC–12539; U.S. Patent No. 8,119,238 entitled, “Self-Healing Wire Insulation,” KSC–12539–2; and U.S. Patent Application Serial Number 13/523,806 entitled, “Self-Healing Polymer Materials for Wire Insulation, Polyimides, Flat Surfaces, and Inflatable Structures,” KSC–13366, to Drywired, LLC, having its principal place of business in Los Angeles, CA. Drywired, LLC has requested exclusivity for the following fields of use:
1. Wraps, films, and decals that can be applied to the exterior of vehicles with at least four wheels;
2. Wraps, films, and decals that can be applied to buildings, structures, or permanent improvements built upon or attached to real property; and
3. Coverings and insulations for electrical wiring and communications wiring in the following industries:
The prospective partially exclusive patent license may be granted unless, NASA receives written objections, including evidence and argument, no later than March 28, 2018 that establish that the grant of the license would not be consistent with the requirements regarding the licensing of federally owned inventions as set forth in the Bayh-Dole Act and implementing regulations. Competing applications completed and received by NASA
Objections relating to the prospective license may be submitted to Patent Counsel, Office of the Chief Counsel, Mail Code CC–A, NASA John F. Kennedy Space Center, Kennedy Space Center, FL 32899. Telephone: 321–867–2076; Facsimile: 321–867–1817; email:
Jonathan Leahy, Patent Attorney, Office of the Chief Counsel, Mail Code CC–A, NASA John F. Kennedy Space Center, Kennedy Space Center, FL 32899. Telephone: 321–867–6553; Facsimile: 321–867–1817.
This notice of intent to grant a partially exclusive patent license is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). The patent rights in these inventions have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective exclusive license will comply with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Information about other NASA inventions available for licensing can be found online at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the NASA Advisory Council (NAC).
Wednesday, March 28, 2018, 1:00–5:00 p.m.; and Thursday, March 29, 2018, 9:00 a.m.–4:00 p.m., Eastern Time.
NASA Headquarters, Program Review Center (PRC), Room
Ms. Marla King, NAC Administrative Officer, NASA Headquarters, Washington, DC 20546, (202) 358–1148 or
This meeting will be open to the public up to the capacity of the meeting room. This meeting is also available telephonically and by WebEx. You must use a touch-tone phone to participate in this meeting. Any interested person may dial the Toll Number 1–312–470–0117 or Toll Free Number 888–603–9752 and then the numeric passcode 4107352, followed by the # sign, on both days.
The agenda for the meeting will include reports from the following:
Attendees will be requested to sign a register and to comply with NASA Headquarters security requirements, including the presentation of a valid picture ID to NASA Security before access to NASA Headquarters. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 days prior to the meeting: Full name; gender; date/place of birth; citizenship; passport information (number, country, telephone); visa information (number, type, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee. To expedite admittance, attendees that are U.S. citizens and Permanent Residents (green card holders) are requested to provide full name and citizenship status no less than 3 working days prior to the meeting. Information should be sent to Ms. Marla King via email at
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meeting.
Pursuant to section 10 (a) (2) of the Federal Advisory Committee Act, as amended, notice is hereby given that a meeting of the National Council on the Arts will be held. Open to the public on a space available basis.
See the
Arena Stage at the Mead Center for American Theater, 1101 Sixth Street SW, Washington, DC 20024.
Victoria Hutter, Office of Public Affairs, National Endowment for the Arts, Washington, DC 20506, at 202/682–5570.
If, in the course of the open session discussion, it becomes necessary for the Council to discuss non-public commercial or financial information of intrinsic value, the Council will go into closed session pursuant to subsection (c)(4) of the Government in the Sunshine Act, 5 U.S.C. 552b, and in accordance with the July 5, 2016 determination of the Chairman. Additionally, discussion concerning purely personal information about individuals, such as personal biographical and salary data or medical information, may be conducted by the Council in closed session in accordance with subsection (c) (6) of 5 U.S.C. 552b.
Any interested persons may attend, as observers, to Council discussions and reviews that are open to the public. If you need special accommodations due to a disability, please contact Beth Bienvenu, Office of Accessibility, National Endowment for the Arts, Constitution Center, 400 7th St. SW, Washington, DC 20506, 202/682–5733, Voice/T.T.Y. 202/682–5496, at least seven (7) days prior to the meeting.
This meeting will be open.
From 9:00 a.m. to 9:30 a.m.—Opening remarks and voting on recommendations for grant funding and rejection, followed by updates from the Chairman. There also will be the following presentations (times are approximate): from 9:30 a.m. to 10:00 a.m.—
National Endowment for the Humanities.
Notice of meetings.
The National Endowment for the Humanities will hold twenty-six meetings of the Humanities Panel, a federal advisory committee, during April, 2018. The purpose of the meetings is for panel review, discussion, evaluation, and recommendation of applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965.
See
The meetings will be held at Constitution Center at 400 7th Street SW, Washington, DC 20506, unless otherwise indicated.
Elizabeth Voyatzis, Committee Management Officer, 400 7th Street SW,
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given of the following meetings:
This meeting will discuss applications on the subject of Cultural History for the Media Projects: Production Grants, submitted to the Division of Public Programs.
This meeting will discuss applications on the subjects of U.S. History and Culture for the Public Humanities Projects—Exhibitions grant program (implementation), submitted to the Division of Public Programs.
This meeting will discuss applications for the Public Humanities Projects—Community Conversations grant program, submitted to the Division of Public Programs.
This meeting will discuss applications on the subjects of Social and Political History for the Media Projects: Production Grants, submitted to the Division of Public Programs.
This meeting will discuss applications for the Landmarks of American History: Workshops for School Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications for the Landmarks of American History: Workshops for School Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications for the Public Humanities Projects—Community Conversations grant program, submitted to the Division of Public Programs.
This meeting will discuss applications for the Landmarks of American History: Workshops for School Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications on the subject of Scholarly Communications for the Digital Humanities Advancement Grants, submitted to the Office of Digital Humanities.
This meeting will discuss applications for the National Digital Newspaper Program (new partners), submitted to the Division of Preservation and Access.
This meeting will discuss applications for the National Digital Newspaper Program (continuing states), submitted to the Division of Preservation and Access.
This meeting will discuss applications on the subject of Cultural History for the Media Projects: Production Grants, submitted to the Division of Public Programs.
This meeting will discuss applications for the Institutes for School Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications for the Institutes for School Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications on the subjects of Languages, Linguistics, and Text Analysis for the Digital Humanities Advancement Grants, submitted to the Office of Digital Humanities.
This meeting will discuss applications on the subjects of Global History and Culture for the Public Humanities Projects—Exhibitions grant program (implementation), submitted to the Division of Public Programs.
This meeting will discuss applications for the Seminars for School Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications for the Seminars for School Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications for the Institutes for College and University Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications on the subjects of Digital Collections and Archives for the Digital Humanities Advancement Grants, submitted to the Office of Digital Humanities.
This meeting will discuss applications on the subject of Cultural History for the Media Projects: Production Grants, submitted to the Division of Public Programs.
This meeting will discuss applications for the Institutes for College and University Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications for the Seminars for College Teachers grant program, submitted to the Division of Education Programs.
This meeting will discuss applications on the subjects of Arts and Media Studies for the Digital Humanities Advancement Grants, submitted to the Office of Digital Humanities.
This meeting will discuss applications on the subjects of Archaeology, Geospatial, and Visualization for the Digital Humanities Advancement Grants, submitted to the Office of Digital Humanities.
This meeting will discuss applications on the subjects of Public Programs and Education for the Digital Humanities Advancement Grants, submitted to the Office of Digital Humanities.
Because these meetings will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, the meetings will be closed to the public pursuant to sections 552b(c)(4) and 552b(c)(6) of Title 5, U.S.C., as amended. I have made this determination pursuant to the authority granted me by the Chairman's
Nuclear Regulatory Commission.
Generic communications; withdrawal.
The U.S. Nuclear Regulatory Commission (NRC) is withdrawing Regulatory Issue Summary 2012–10, “NRC Staff Position on Applying Surveillance Requirements 3.0.2 and 3.0.3 to Administrative Controls Program Tests.” This document is being withdrawn because it contains guidance to addressees that is no longer applicable.
The effective date of the withdrawal of RIS 2012–10,”NRC Staff Position on Applying Surveillance Requirements 3.0.2 and 3.0.3 to Administrative Controls Program Tests” is March 13, 2018.
Please refer to Docket ID NRC–2018–0049 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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Tanya M. Mensah, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–3610, email:
The NRC is withdrawing Regulatory Issue Summary (RIS) 2012–10, “NRC Staff Position on Applying Surveillance Requirements 3.0.2 and 3.0.3 to Administrative Controls Program Tests” (ADAMS Accession No. ML12079A393), because the guidance contained in the document is no longer applicable. Specifically, on August 23, 2012, RIS 2012–10 was issued to inform addresses of Enforcement Guidance Memorandum (EGM) 12–001, “Dispositioning Noncompliance with Administrative Controls Technical Specifications Programmatic Requirements that Extend Test Frequencies and Allow Performance of Missed Tests.” Following the issuance of EGM–12–001, the NRC staff concluded that the staff's position taken in EGM–12–001 was incorrect. In addition, the period of enforcement discretion in EGM–12–001 has expired. Therefore, by memorandum dated February 14, 2018, EGM–12–001 was withdrawn by the NRC staff (ADAMS Accession No. ML18016A475). A summary of the NRC staff's basis for withdrawing EGM–12–001 is included in the memorandum.
The NRC's generic communication website will be updated to reflect RIS 2012–10 as withdrawn. The generic communications website is accessible at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued, from February 13 to February 26, 2018. The last biweekly notice was published on February 27, 2018.
Comments must be filed by April 12, 2018. A request for a hearing must be filed by May 14, 2018.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Janet Burkhardt, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–1384, email:
Please refer to Docket ID NRC–2018–0045, facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC–2018–0045, facility name, unit number(s), plant docket number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or federally recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed single pond return header operation configuration for NSWS operation and the associated proposed TS and TS Bases changes have been evaluated to assess their impact on plant operation and to ensure that the design basis safety functions of safety related systems are not adversely impacted. During single pond return header operation, the operating NSWS header will be able to discharge all required NSWS flow from safety related components. PRA [Probabilistic Risk Assessment] has demonstrated that due to the limited proposed time in the single pond return header configuration, the resultant plant risk remains acceptable.
The purpose of this amendment request is to ultimately facilitate inspections and modifications of the NSWS Pond Return buried piping between the Auxiliary Building and the Discharge to the SNSWP. Therefore, NRC approval of this request will ultimately help to enhance the long-term structural integrity of the NSWS and will help to ensure the system's reliability for many years.
In general, the NSWS serves as an accident mitigation system and cannot by itself initiate an accident or transient situation. The only exception is that the NSWS piping can serve as a source of floodwater to safety related equipment in the Auxiliary Building or in the diesel generator buildings in the event of a leak or a break in the system piping. The probability of such an event is not significantly increased as a result of this proposed request. Safety related NSWS piping is tested and inspected in accordance with all applicable in-service testing and in-service inspection requirements. Given the negligible influence of flooding events on the NSWS for the submittal configuration (
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
Implementation of this amendment will not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed request does not affect the basic operation of the NSWS or any of the systems that it supports. These include the Emergency Core Cooling System, the Containment Spray System, the Containment Valve Injection Water System, the Auxiliary Feedwater System, the Component Cooling Water System, the Control Room Area Ventilation System, the Control Room Area Chilled Water System,
No new accident causal mechanisms are created as a result of NRC approval of this amendment request. No changes are being made to the plant, which will introduce any new type of accident outside those assumed in the UFSAR.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in the margin of safety?
Response: No.
Implementation of this amendment will not involve a significant reduction in any margin of safety. Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident situation. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The performance of these fission product barriers will not be impacted by implementation of this proposed TS amendment. During single pond return header operation, the NSWS and its supported systems will remain capable of performing their required functions. No safety margins will be impacted.
The PRA analysis conducted for this proposed amendment demonstrated that the impact on overall plant risk remains acceptable during single pond return header operation. Therefore, there is not a significant reduction in the margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, Duke Energy concludes that the proposed amendment does not involve a significant hazards consideration under the standards set forth in 10 CFR 50.92, and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to the battery charger amperage requirements of SR 3.8.4.5 contained in TS 3.8.4 does not impact the physical function of plant structures, systems, or components (SSC) or the manner in which SSCs perform their design function. The proposed change does not authorize the addition of any new plant equipment or systems, nor does it alter the assumptions of any accident analyses. The DC electrical power system, including the battery chargers, is not an initiator of any accident sequence analyzed in the Updated Final Safety Analysis Report. Rather, the DC electrical power system supports operation of equipment used to mitigate accidents. Specifically, the purpose of the battery chargers is to continuously maintain their respective battery in a charged standby condition while providing power to the system loads. The proposed change does not adversely affect accident initiators or precursors, nor does it alter the design assumptions, conditions, and configuration or the manner in which the plant is operated and maintained.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change to the battery charger amperage requirements of SR 3.8.4.5 contained in TS 3.8.4 does not require any modification to the plant or change equipment operation. The proposed change will not introduce failure modes that could result in a new accident, and the change does not alter assumptions made in the safety analysis. Performance of battery testing is not a precursor to any accident previously evaluated. The proposed change will not alter the design configuration, or method of operation of plant equipment beyond its normal functional capabilities. The proposed change does not create any new credible failure mechanisms, malfunctions, or accident initiators.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from those that have been previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change to the battery charger amperage requirements of SR 3.8.4.5 contained in TS 3.8.4 does not alter or exceed a design basis or safety limit. There is no change being made to safety analysis assumptions or the safety limits that would adversely affect plant safety as a result of the proposed change. Margins of safety are unaffected by the proposed change and the applicable requirements of 10 CFR 50.36(c)(2)(ii) and 10 CFR 50, Appendix A will continue to be met.
Therefore, the proposed change does not involve any reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change addresses conditions during which the secondary containment SRs are not met. The secondary containment is not an initiator of any accident previously evaluated. As a result, the probability of any accident previously evaluated is not increased. The consequences of an accident previously evaluated while utilizing the
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously analyzed?
Response: No.
The proposed change does not alter the protection system design, create new failure modes, or change any modes of operation. The proposed change does not involve a physical alteration of the plant; and no new or different kind of equipment will be installed. Consequently, there are no new initiators that could result in a new or different kind of accident.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed change addresses conditions during which the secondary containment SRs are not met. Conditions in which the secondary containment vacuum is less than the required vacuum are acceptable provided the conditions do not affect the ability of the SGT [Standby Gas Treatment] System to establish the required secondary containment vacuum under post-accident conditions within the time assumed in the accident analysis. This condition is incorporated in the proposed change by requiring an analysis of actual environmental and secondary containment pressure conditions to confirm the capability of the SGT System is maintained within the assumptions of the accident analysis. Therefore, the safety function of the secondary containment is not affected. The allowance for both an inner and outer secondary containment door to be open simultaneously for entry and exit does not affect the safety function of the secondary containment as the doors are promptly closed after entry or exit, thereby restoring the secondary containment boundary.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The changes are administrative in nature and would in no way affect the initial conditions, assumptions, or conclusions of Columbia's accident analyses. In addition, the proposed changes would not affect the operation or performance of any equipment assumed in the accident analyses.
Therefore there is no significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously analyzed?
Response: No.
The changes are administrative in nature and would in no way impact or alter the configuration or operation of the facility and would create no new modes of operation.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The changes are administrative in nature and would in no way affect plant or equipment operation or the accident analysis.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment was evaluated for impact on the following previously evaluated events and accidents:
Operation in accordance with the proposed Technical Specifications will not significantly increase the probability of multiple misloads, misplaced assembly, dropped assembly and misloaded assembly accidents because:
a. There are no changes to the equipment for fuel handling or how fuel assemblies are handled, including how fuel assemblies are inserted into and removed from SFP storage locations. There are no changes to how RCCAs will be handled, including how
b. The processes and procedures that are currently in place are sufficiently robust. The proposed Technical Specifications utilize the same basic fuel assembly classification and storage location concepts as those currently in place. However, they do represent a minimal increase in complexity:
The minimal increase in complexity of current and future fuel categorization and SFP storage restrictions is offset by the significant number of fuel assemblies that have been pre-categorized in TS Tables 3.7.13–2 and Table 3.7.13–3. The minimal increase is also offset by the use of two curves to determine the minimum required burnup (instead of the 10 currently used).
Operation in accordance with the proposed TS will not significantly increase the consequences of multiple misloads, misplaced assembly, dropped assembly and misloaded assembly criticality accidents because the proposed CSA [criticality safety analysis] demonstrates that the acceptance criteria continue to be met for each of these accidents.
Operation in accordance with the proposed TS will not significantly increase the probability of an over temperature accident because the proposed change does not alter the manner in which the IP2 spent fuel cooling loop is designed, operated, or maintained.
Operation in accordance with the proposed TS will not significantly increase the consequences of an over temperature accident because the proposed CSA demonstrates that the acceptance criteria continue to be met for this accident.
Operation in accordance with the proposed TS will not significantly increase the probability of a seismic event because there are no elements of the proposed changes that influence the occurrence of any natural event.
Operation in accordance with the proposed TS will not significantly increase the consequences of a seismic event because the proposed changes do not significantly alter the physical arrangement of the spent fuel racks and do not increase the allowable number of fuel assemblies to be stored in the pool. The proposed TS changes require two cell blockers to be in place. These cell blockers have been evaluated and they have a negligible effect on the seismic response of the SFP racks. In addition, the proposed TS changes allow for the placement of miscellaneous non-actinide materials, for example, empty or full trash baskets in fuel positions of any category, in Water Holes and in 50% Water Holes. The placement of miscellaneous materials in the identified locations has been evaluated and has a negligible effect on the seismic response of the SFP racks.
Operation in accordance with the proposed TS will not significantly increase the probability of a boron dilution event because the proposed change does not alter the manner in which the IP2 spent fuel cooling system or any other plant system is designed, operated, or maintained, or otherwise increase the likelihood of adding significant quantities of unborated water into the spent fuel pit.
Operation in accordance with the proposed TS will not significantly increase the consequences of a boron dilution event because the TS minimum soluble boron concentration remains unchanged at 2000 ppm and the boron concentration required to ensure k
Operation in accordance with the proposed TS will not significantly increase the probability of a[n] FHA [fuel handling accident] because the individual fuel assemblies will be moved using the same equipment, procedures, and other administrative controls (
Operation in accordance with the proposed TS will not significantly increase the consequences of a[n] FHA because the radiological source term of a single fuel assembly will remain the same.
Operation in accordance with the proposed TS will not significantly increase the probability of a loss of spent fuel pit cooling because the proposed change does not alter the manner in which the IP2 spent fuel cooling loop is designed, operated, or maintained.
Operation in accordance with the proposed TS will not significantly increase the consequences of a loss of spent fuel pit cooling because the proposed change credits empty cells whereas the thermal design basis for the spent fuel pit cooling loop provides for all fuel pit rack locations to be filled at the end of a full core discharge. The proposed TS changes require two cell blockers to be in place. These cell blockers have been evaluated and they have a negligible effect on the thermal response to a loss of spent fuel pool cooling. In addition, the proposed TS changes allow for the placement of miscellaneous non-actinide materials, for example, empty or full trash baskets in fuel positions of any category, in Water Holes and in 50% Water Holes. The placement of miscellaneous materials in the identified locations has been evaluated and has a negligible effect on the thermal response to a loss of spent fuel pool cooling.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
Operation in accordance with the proposed TS do not create the possibility of a new or different kind of accident from any accident previously evaluated. No new modes of operation are introduced by the proposed changes. The proposed changes will not create any failure mode not bounded by previously evaluated accidents.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident, from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
Operation in accordance with the proposed TS does not involve a significant reduction in a margin of safety.
The margin of safety required by 10 CFR 50.68(b)(4) remains unchanged. The evaluations in the CSA confirm that operation in accordance with the proposed amendment continues to meet the required subcriticality margins for both normal operations and accident conditions. In addition, the SFP seismic and thermal margins are essentially unchanged.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed amendment involves changes to the IP3 containment leakage rate testing program. The proposed amendment does not involve a physical change to the plant or a change in the manner in which the plant is operated or controlled. The primary containment function is to provide an essentially leak tight barrier against the uncontrolled release of radioactivity to the environment for postulated accidents. As such, the containment itself and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident do not involve any accident precursors or initiators. Therefore, the probability of occurrence of an accident previously evaluated is not significantly increased by the proposed amendment.
The proposed amendment adopts the NRC accepted guidelines of NEI [Nuclear Energy Institute] 94–01, Revision 3–A, for development of the IP3 performance-based testing program for the Type A testing. Implementation of these guidelines continues to provide adequate assurance that during design basis accidents, the primary containment and its components would limit leakage rates to less than the values assumed in the plant safety analyses. The potential consequences of extending the ILRT interval one-time to 16 years have been evaluated by analyzing the resulting changes in risk. The increase in risk in terms of person-rem per year within 50 miles resulting from design basis accidents was estimated to be acceptably small and determined to be within the guidelines published in the NRC Final Safety Evaluation for NEI Topical Report (TR) 94–01, Revision 3–A. Additionally, the proposed change maintains defense-in-depth by preserving a reasonable balance among prevention of core damage, prevention of containment failure, and consequence mitigation. Entergy has determined that the increase in conditional containment failure probability due to the proposed change would be very small. Therefore, it is concluded that the proposed amendment does not significantly increase the consequences of an accident previously evaluated. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment adopts the NRC-accepted guidelines of NEI 94–01, Revision 3–A, for the establishment of a one-time only 16-year interval for the performance of the containment ILRT. The containment and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident do not involve any accident precursors or initiators. The proposed change does not involve a physical change to the plant (
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed amendment adopts the NRC-accepted guidelines of NEI 94–01, Revision 3–A, for the establishment of a one-time only 16-year interval for the performance of the containment ILRT. This amendment does not alter the manner in which safety limits, limiting safety system setpoints, or limiting conditions for operation are determined. The specific requirements and conditions of the containment leakage rate testing program, as defined in the TS, ensure that the degree of primary containment structural integrity and leak-tightness that is considered in the plant's safety analysis is maintained. The overall containment leakage rate limit specified by the TS is maintained, and the Type A, Type B, and Type C containment leakage tests would be performed at the frequencies established in accordance with the NRC accepted guidelines of NEI 94–01, Revision 3–A. Containment inspections performed in accordance with other plant programs serve to provide a high degree of assurance that the containment would not degrade in a manner that is not detectable by an ILRT. A risk assessment using the current IP3 PSA [probabilistic safety analysis] model concluded that extending the ILRT test interval one-time from 15 years to 16 years results in a very small change to the risk profile. Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or
Response: No.
The proposed change results in higher Control Room X/Qs [atmospheric dispersion values] which are equivalent to reduced atmospheric dispersion. The increased Control Room X/Qs, in turn, result in higher post-accident Control Room doses. Neither the higher X/Qs, nor the resultant increase in the Control Room doses affect any initiator or precursor of any accident previously evaluated. Therefore, the proposed change does not involve a significant increase in the probability of an accident previously evaluated.
The proposed change results in an increase in the post-LOCA radiological dose to a Control Room occupant. However, the resultant post-LOCA Control Room dose remains within the regulatory limits of 10 CFR 50.67 [, “Accident source term”] and 10 CFR 50, Appendix A, “General Design Criteria for Nuclear Power Plants” Criterion 19, “Control Room.” Therefore, the proposed change does not involve a significant increase in the consequences of an accident previously evaluated.
In summary, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not alter the design function of operation of the Control Room heating, ventilation, and air-conditioning (HVAC) system, or the ability of this system to perform its design function. The only change is the removal of the Control Room dose reduction factor credit taken for providing a dual remote Control Room air intake. The proposed change does not alter the safety limits, or safety analysis associated with the operation of the plant. Accordingly, the change does not introduce any new accident initiators. Rather, this proposed change is the result of an evaluation of the Control Room doses following the most limiting LOCA that can occur at CPS. The proposed change does not introduce any new modes of plant operation. As a result, no new failure modes are introduced.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The revised post-LOCA dose consequences to a Control Room occupant were calculated in accordance with the requirements of 10 CFR 50.67, [Regulatory Guide (RG)] 1.183, [“Alternative Radiological Source Terms for Evaluating Design Basis Accidents at Nuclear Power Reactors”] and NRC SRP [Standard Review Plan] Section 15.0.1, “Radiological Consequences Analyses Using Alternative Source Terms.”
The margin of safety is considered to be that provided by meeting the applicable regulatory limits. The increased Control Room X/Qs result in an increase in Control Room dose following the design basis LOCA; however, since the Control Room dose following the design basis accident remains within the regulatory limits, there is not a significant reduction in a margin of safety.
Therefore, operation of CPS in accordance with the proposed change will not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review it appears the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The proposed changes modify TS 3.7.2 to include a 7-day Completion Time (CT) when one or more required DGCW subsystem(s) are inoperable. The proposed changes to TS 3.8.1 include a 7-day CT when a Division 2 Diesel Generator (DG) and the required opposite unit Division 2 DG are inoperable. The proposed changes will only be used during four refueling outages, two for Unit 1 prior to July 1, 2024, and two for Unit 2 prior to July 1, 2023. The current planned schedule, subject to change, is L2R17 (2019), L1R18 (2020), L2R18 (2021), and L1R19 (2022).
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The previously analyzed accidents are initiated by the failure of plant structures, systems, or components. The proposed change does not have a detrimental impact on the integrity of any plant structure, system, or component that initiates an analyzed event. No active or passive failure mechanisms that could lead to an accident are affected. Non-Code line stops required to provide isolation will maintain the availability of the online unit's CSCS. The non-Code line stops being used to isolate the system during the specified refueling outages are being designed to the same or greater pressure rating and seismic requirements as the CSCS piping.
Redundancy is provided by designing the CSCS as multiple independent subsystems. Divisional separation between subsystems assures that no single failure can affect more than one division's subsystem. Therefore, assuming a single failure in any division's subsystem including the subsystem shared between units, two other divisional subsystems in each unit will remain unaffected. This ensures adequate redundancy to supply the minimum required cooling water for safe shutdown of the operating unit or mitigate the consequences of an accident.
The proposed limited use of increased CT's of the operating unit's CSCS maintains the design basis assumptions. Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any previously evaluated?
Response: No.
The proposed change involves the temporary installation of new equipment (mechanical line stops) that will be designed and installed to the same or greater pressure rating and seismic design as the CSCS piping. The currently installed equipment will not be operated in a new or different manner. No new or different system interactions are created and no new processes are introduced. The proposed changes will not introduce any new failure mechanisms, malfunctions, or accident initiators not already considered in the design and licensing bases.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed change does not alter any existing setpoints at which protective actions are initiated and no new setpoints or protective actions are introduced. The design and operation of the CSCS remains unchanged. The proposed change provides a limited period to restore inoperable DGCW subsystems and Division 2 DGs instead of interrupting plant operations, possibly requiring an orderly plant shutdown of the operating unit. The potential to avoid a plant transient in conjunction with maintaining availability of the DGCW subsystems and Division 2 DGs offsets any risk associated with the limited CT. The proposed change
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change does not impact the physical configuration or function of plant structures, systems, or components (SSCs) or the manner in which SSCs are operated, maintained, modified, tested, or inspected. No actual facility equipment or accident analyses are affected by the proposed changes.
The change revises the NextEra Emergency Action Levels to be consistent with the NRC endorsed EAL scheme contained in NEI 99–01, Revision 6, “Methodology for Development of Emergency Action Levels,” but does not alter any of the requirements of the Operating License or the Technical Specifications.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). The proposed change does not create any new failure modes for existing equipment or any new limiting single failures. Additionally, the proposed change does not involve a change in the methods governing normal plant operation, and all safety functions will continue to perform as previously assumed in the accident analyses. Thus, the proposed change does not adversely affect the design function or operation of any structures, systems, and components important to safety.
No new accident scenarios, failure mechanisms, or limiting single failures are introduced as a result of the proposed change. The proposed change does not challenge the performance or integrity of any safety-related system. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The margin of safety associated with the acceptance criteria of any accident is unchanged. The proposed change will have no affect [sic] on the availability, operability, or performance of safety-related systems and components. The proposed change will not adversely affect the operation of plant equipment or the function of equipment assumed in the accident analysis.
The proposed amendment does not involve changes to any safety analyses assumptions, safety limits, or limiting safety system settings. The changes do not adversely impact plant operating margins or the reliability of equipment credited in the safety analyses.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The separation of the LHGR requirements and actions from the APLHGR TS is an administrative change. No actions within the TS are changed. The addition of the LCO [limiting condition for operation] for APLHGR and the proposed LCO for LHGR to the LCO for 3.3.4.1, End of Cycle Recirculation Pump Trip (EOC–RPT) Instrumentation and the LCO for TS 3.7.7, Main Turbine Bypass System reflect within the TS requirements APLHGR and LHGR actions which are already occurring via the core monitoring processes in place. None of those changes affect any plant systems, structures, or components designed for the prevention or mitigation of previously evaluated accidents. No new equipment is added nor is installed equipment being changed or operated in a different manner.
LHGR limits have been defined to provide sufficient margin between the steady-state operating condition and any fuel damage condition to accommodate uncertainties and to assure that no fuel damage results even during the worst anticipated transient condition at any time.
The proposed change does not modify the limits, change assumptions for the accident analysis, or change operation of the station. Therefore, the proposed change does not involve an increase in the probability or consequences of a previously evaluated accident.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The separation of the LHGR requirements and actions from the APLHGR TS is an administrative change. No actions within the TS are changed. The addition of the LCO for APLHGR and the proposed LCO for LHGR to the LCO for 3.3.4.1, End of Cycle
The proposed change does not modify the limits, change assumptions for the accident analysis, or change operation of the station. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The margin of safety is not affected by the separation of the LHGR requirements and actions from the APLHGR TS. Similarly, the margin of safety is not affected by the addition of the LCO for APLHGR and the proposed LCO for LHGR to the LCO for 3.3.4.1, End of Cycle Recirculation Pump Trip (EOC–RPT) Instrumentation and the LCO for TS 3.7.7, Main Turbine Bypass System.
Appropriate measures exist to control the values of these limits since it is required by TS that only NRC-approved methods be used to determine the limits. The proposed change continues to require operation within the core thermal limits as obtained from NRC-approved reload design methodologies and the actions to be taken if a limit is exceeded remain unchanged, again, in accordance with existing TS.
The proposed change does not modify the limits, change assumptions for the accident analysis, or change operation of the station. Therefore, the proposed change has no impact to the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes to the completion times and bypass test time reduce the potential for inadvertent reactor trips and spurious actuations, and therefore do not increase the probability of any accident previously evaluated. The proposed changes to the completion times and bypass test time do not change the response of the plant to any accidents and have an insignificant impact on the reliability of the reactor trip system and engineered safety feature actuation system (RTS and ESFAS) signals. The RTS and ESFAS will remain highly reliable and the proposed changes will not result in a significant increase in the risk of plant operation. This is demonstrated by showing that the impact on plant safety as measured by core damage frequency (CDF) is less than 1.0E–06 per year and the impact on large early release frequency (LERF) is less than 1.0E–07 per year. In addition, for the completion time change, the incremental conditional core damage probabilities (ICCDP) and incremental conditional large early release probabilities (ICLERP) are less than 5.0E–7 and 5.0E–08, respectively. These changes meet the acceptance criteria in Regulatory Guides 1.174 and 1.177. Therefore, since the RTS and ESFAS will continue to perform their functions with high reliability as originally assumed, and the increase in risk as measured by CDF, LERF, ICCDP, ICLERP is within the acceptance criteria of existing regulatory guidance, there will not be a significant increase in the consequences of any accidents.
The proposed changes do not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, or configuration of the facility or the manner in which the plant is operated and maintained. The proposed changes do not alter or prevent the ability of structures, systems, and components (SSCs) from performing their intended function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed changes do not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. The proposed changes are consistent with safety analysis assumptions and resultant consequences.
Therefore, this change does not significantly increase the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes do not result in a change in the manner in which the RTS and ESFAS provide plant protection. The RTS and ESFAS will continue to have the same setpoints after the proposed changes are implemented. There are no design changes associated with the license amendment. The changes to completion times and bypass test time do not change any existing accident scenarios, nor create any new or different accident scenarios.
The proposed changes do not involve a modification to the physical configuration of the plant or changes in the methods governing normal plant operation. The proposed changes will not impose any new or different requirement or introduce a new accident initiator, accident precursor, or malfunction mechanism.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Do the proposed changes involve a significant reduction in a margin of safety?
Response: No.
The proposed changes do not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not impacted by these changes. Redundant RTS and ESFAS trains are maintained, and diversity with regard to the signals that provide reactor trip and engineered safety features actuation is also maintained. All signals credited as primary or secondary, and all operator actions credited in the accident analyses will remain the same. The proposed changes will not result in plant operation in a configuration outside the design basis. The calculated impact on risk is insignificant and meets the acceptance criteria contained in Regulatory Guides 1.174 and 1.177.
Therefore, since the proposed changes do not impact the response of the plant to a design basis accident, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes allow for pneumatic testing of the VES ASME Section III components and piping. ASME Section III, ND–6000 contains the requirements for pressure testing of piping and components. ASME Section III, ND–6112.1(a) allows for a pneumatic test to be used in lieu of a hydrostatic test when components, appurtenances or systems cannot be readily dried and traces of the testing medium cannot be tolerated. Due to the design and layout of the VES, it may be difficult to dry the system following a hydrostatic test. Traces of water could result in sending a slug of water through the system or rust to form. Allowing for pneumatic testing continues to meet the ASME Section III code. The proposed changes do not affect the operation of the VES. The VES maintains its design function to maintain control room habitability.
The proposed changes do not affect the operation of any systems or equipment that initiate an analyzed accident or alter any structures, systems, and components (SSCs) accident initiator or initiating sequence of events. Therefore, the probabilities of accidents previously evaluated are not affected.
The proposed changes do not affect the prevention and mitigation of other abnormal events (
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes do not affect the operation of any systems or equipment that may initiate a new or different kind of accident, or alter any SSC such that a new accident initiator or initiating sequence of events is created.
The proposed changes do not affect any other SSC design functions or methods of operation in a manner that results in a new failure mode, malfunction, or sequence of events that affect safety-related or nonsafety related equipment. Therefore, this activity does not allow for a new fission product release path, result in a new fission product barrier failure mode, or create a new sequence of events that result in significant fuel cladding failures.
Therefore, the requested amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes allow for pneumatic testing of the VES ASME Section III components and piping. The VES ASME Section III components and piping continue to meet the ASME Section III code. The proposed changes do not have any effect on the ability of the safety-related SSCs to perform their design basis functions. The proposed changes do not affect the ability of the VES to maintain control room habitability.
No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes, and no margin of safety is reduced. Therefore, the requested amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and based on this review it appears that the three standards of 10 CFR 50.92 (c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazard consideration.
The request also proposes moving TS Limiting Condition for Operation Notes regarding reactor coolant pump starts from TS 3.4.4, Reactor Coolant System (RCS) Loops, 3.4.8, Minimum RCS Flow, and 3.4.14, Low Temperature Overpressure Protection (LTOP), to TS 3.4.3, RCS Pressure/Temperature (P/T) Limits.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes do not affect the operation of any systems or equipment that initiate an analyzed accident or alter any structures, systems, and components (SSCs) accident initiator or initiating sequence of events.
The proposed changes do not affect the physical design of SSCs related to the TS on Engineered Safety Features Actuation System (ESFAS), RCS P/T limits, RCS loops, RCS flow, pressurizer, PSVs, LTOP, or Reactor Vessel head vent (RVHV), as described in the Updated Final Safety Analysis Report (UFSAR). Therefore, the operation of the listed functions and components is not affected. Therefore, the proposed changes do not affect the probability of an accident previously evaluated.
The proposed changes do not affect the physical design of SSCs related to the TS on ESFAS, RCS P/T limits, RCS loops, RCS flow, pressurizer, PSVs, LTOP, or RVHV to meet their design functions. The design of the functions and components continue to meet the same regulatory acceptance criteria, codes, and standards as stated in the UFSAR. In addition, the proposed changes maintain the capabilities of the ESFAS, RCS P/T
The proposed changes do not affect the prevention and mitigation of other abnormal events (
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes do not affect the operation of any systems or equipment that may initiate a new or different kind of accident, or alter any SSC such that a new accident initiator or initiating sequence of events is created.
The proposed changes do not affect any other SSC design functions or methods of operation in a manner that results in a new failure mode, malfunction, or sequence of events that affect safety-related or nonsafety related equipment. Therefore, this activity does not allow for a new fission product release path, result in a new fission product barrier failure mode, or create a new sequence of events that result in significant fuel cladding failures.
Therefore, the requested amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes maintain existing safety margins. The proposed changes verify and maintain the physical design of SSCs related to ESFAS, RCS P/T limits, RCS loops, RCS flow, pressurizer, PSVs, LTOP, and RVHV to perform their design functions. Therefore, the proposed changes satisfy the same design functions in accordance with the same codes and standards as stated in the UFSAR. These changes do not affect any design code, function, design analysis, safety analysis input or result, or design/safety margin.
No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes, and no margin of safety is reduced. Therefore, the requested amendment does not involve a significant reduction in margin of safety.
The NRC staff has reviewed the licensee's analysis and based on this review it appears that the three standards of 10 CFR 50.92 (c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazard consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes are administrative and editorial changes consistent with the requirements described elsewhere in the TS and in the UFSAR, and do not adversely affect the operation of any systems or equipment that initiate an analyzed accident or alter any structures, systems, and components (SSCs) accident initiator or initiating sequence of events. The proposed changes to the analytical methods approved for maintaining core operating limits do not result in any increase in probability of an analyzed accident occurring, and prevent power oscillations and maintain the initial conditions and operating limits required by the accident analysis, and the analyses of normal operation and anticipated operational occurrences, so that fuel design limits are not exceeded for events resulting in positive reactivity insertion and reactivity feedback effects, and so that the consequences of postulated accidents are not changed. The proposed changes do not adversely affect the ability of the automatic reactor trips to perform the required safety function to trip the reactor when necessary to protect fuel design limits, and do not adversely affect the probability of inadvertent operation or failure of the automatic reactor trips.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes are administrative and editorial changes consistent with the requirements described elsewhere in the TS and in the UFSAR, and do not affect the operation of any systems or equipment that may initiate a new or different kind of accident, or alter any SSC such that a new accident initiator or initiating sequence of events is created. The proposed changes to the analytical methods approved for maintaining core operating limits do not result in any increase in probability of an analyzed accident occurring, and prevent power oscillations and maintain the initial conditions and operating limits required by the accident analysis, and the analyses of normal operation and anticipated operational occurrences, so that fuel design limits are not exceeded for events resulting in positive reactivity insertion and reactivity feedback effects, and so that the consequences of postulated accidents are not changed. The proposed changes do not adversely affect the ability of the automatic reactor trips to perform the required safety function to trip the reactor when necessary to protect fuel design limits, and do not adversely affect the probability of inadvertent operation or failure of the automatic reactor trips.
These proposed changes do not adversely affect any other SSC design functions or methods of operation in a manner that results in a new failure mode, malfunction, or sequence of events that affect safety-related or nonsafety-related equipment. Therefore, this activity does not allow for a new fission product release path, result in a new fission product barrier failure mode, or create a new sequence of events that results in significant fuel cladding failures.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes are administrative and editorial changes consistent with the requirements described elsewhere in the TS and in the UFSAR, and maintain existing safety margins through continued application of the existing requirements of the UFSAR. The proposed changes maintain the initial conditions and operating limits required by the accident analysis, and the analyses of normal operation and anticipated operational occurrences, so that the existing fuel design limits specified in the UFSAR are not exceeded for events resulting in positive reactivity insertion and reactivity feedback effects, and so that the consequences of postulated accidents are not changed. Therefore, the proposed changes satisfy the same safety functions in accordance with the
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and based on this review it appears that the three standards of 10 CFR 50.92 (c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazard consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change deletes the augmented testing requirement for these containment isolation valves and allows the surveillance intervals to be set in accordance with the Containment Leakage Rate Testing Program. This change does not affect the system function or design. The purge valves are not an initiator of any previously analyzed accident. Leakage rates do not affect the probability of the occurrence of any accident. Operating history has demonstrated that the valves do not degrade and cause leakage as previously anticipated. Because these valves have been demonstrated to be reliable, these valves can be expected to perform the containment isolation function as assumed in the accident analyses. The proposed changes do not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. Further, the proposed changes do not increase the types or amounts of radioactive effluent that may be released offsite, nor significantly increase individual or cumulative occupational/public radiation exposures. The proposed changes do not significantly increase the probability of an accident and are consistent with safety analysis assumptions and resultant consequences.
Therefore, the changes do not increase the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
This change does not involve a physical alteration to the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The only margin of safety that has the potential of being impacted by the proposed change involves the offsite dose consequences of postulated accidents, which are directly related to the containment leakage rate. The proposed change does not alter the method of performing the tests nor does it change the leakage acceptance criteria. Sufficient data has been collected to demonstrate these resilient seals do not degrade at an accelerated rate. Because of this demonstrated reliability, this change will provide sufficient surveillance to determine an increase in the unfiltered leakage prior to the leakage exceeding that assumed in the accident analysis.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change reflects a design change to the turbine control system that results in the use of an increased control oil pressure system, necessitating a change to the value at which a low fluid oil pressure initiates a reactor trip on turbine trip. The low fluid oil pressure is an input to the reactor trip instrumentation in response to a turbine trip event. The value at which the low fluid oil initiates a reactor trip is not an accident initiator. A change in the nominal control oil pressure does not introduce any mechanisms that would increase the probability of an accident previously analyzed. The reactor trip on turbine trip function is initiated by the same protective signal as used for the existing auto stop low fluid oil system trip signal. There is no change in form or function of this signal and the probability or consequences of previously analyzed accidents are not impacted.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The EHC fluid oil pressure rapidly decreases in response to a turbine trip signal. The value at which the low fluid oil pressure switches initiates a reactor trip is not an accident initiator. The proposed TS change reflects the higher pressure that will be sensed after the pressure switches are relocated from the auto stop low fluid oil system to the EHC high pressure header. Failure of the new switches would not result in a different outcome than is considered in the current design basis. Further, the change does not alter assumptions made in the safety analysis but ensures that the instruments perform as assumed in the accident analysis.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
Response: No.
The change involves a parameter that initiates an anticipatory reactor trip following a turbine trip. The safety analyses do not credit this anticipatory trip for reactor core protection. The original pressure switch configuration and the new pressure switch configuration both generate the same reactor trip signal. The difference is that the initiation of the trip will now be adjusted to a different system of higher pressure. This system function of sensing and transmitting a reactor trip signal on turbine trip remains the same. There is no impact to safety analysis acceptance criteria as described in the plant licensing basis because no change is made to the accident analysis assumptions.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated February 15, 2018.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated February 16, 2018.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated February 26, 2018.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated February 26, 2018.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated February 15, 2018.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated February 20, 2018.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated February 16, 2018.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated February 12, 2018.
No significant hazards consideration comments received: No.
For the Nuclear Regulatory Commission.
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 elements of the certification information of Tier 1 of the generic AP1000 design control document (DCD) and is issuing License Amendment Nos. 107 and 106 to Combined Licenses (COL), NPF–91 and NPF–92, respectively. The COLs were issued to Southern Nuclear Operating Company, and Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC, MEAG Power SPVJ, LLC, MEAG Power SPVP, LLC, and the City of Dalton, Georgia (collectively referred to as 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 revises the plant-specific Tier 1 information and corresponding changes to COL Appendix C, and the amendment changes the associated plant-specific DCD Tier 2 material incorporated into the VEGP Updated Final Safety Analysis Report (UFSAR), to address mitigation of fire protection system flooding of the Auxiliary Building identified following completion of the pipe rupture hazards analysis for the VEGP Units 3 and 4.
The exemption and amendment were issued on February 1, 2018.
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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William (Billy) Gleaves, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–5848; email:
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
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. ML18017A608 and ML18017A524, 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. ML18017A386 and ML18017A577, 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 March 31, 2017, as supplemented and revised by letters dated August 21, October 9, November 1, December 1 and December 15, 2017, and January 3, 2018, Southern Nuclear Operating Company requested from the Nuclear Regulatory Commission (NRC or Commission) an exemption to allow departures from Tier 1 information in the certified DCD incorporated by reference in Title 10 10 CFR part 52, appendix D, “Design Certification Rule for the AP1000 Design,” as part of license amendment request (LAR) 17–010, “Request for License Amendment and Exemption: Pipe Rupture Hazard and Flooding Analyses.”
For the reasons set forth in Section 3.1 of the NRC staff's Safety Evaluation, which can be found at ADAMS Accession No. ML18017A261 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 AP1000 DCD Tier 1 information, with corresponding changes to Appendix C of the Facility Combined License as described in the request dated March 31, 2017, as supplemented and revised by letters dated August 21, October 9, November 1, December 1 and December 15, 2017 and January 3, 2018. This exemption is related to, and necessary for, the granting of License Amendment Nos.107 and 106, which is issued concurrently with this exemption.
3. As explained in Section 6.0 of the NRC staff's Safety Evaluation (ADAMS Accession Number ML18017A261, 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 March 31, 2017 (ADAMS Accession No. ML17090A570), and revised and supplemented by letters dated August 21, October 9, November 1, December 1, and December 15, 2017, and January 3, 2018 (ADAMS Accession Nos. ML17233A325, ML17282A014, ML17305B507, ML17335A762, ML17349A928, and ML18003B082, respectively), 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 by letter dated March 31, 2017, (ADAMS Accession No. ML17090A570) and revised and supplemented by letters dated August 21, October 9, November 1, December 1, and December 15, 2017, and January 3, 2018 (ADAMS Accession Nos. ML17233A325, ML17282A014, ML17305B507, ML17335A762, ML17349A928, and ML18003B082, respectively).
The exemption and amendment were issued to the licensee on February 1, 2018, as part of a combined package (ADAMS Accession No. ML18017A721).
For the Nuclear Regulatory Commission.
Office of Personnel Management.
30-Day notice and request for comments.
Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on the reinstatement with change of an expired information collection, Evidence to Prove Dependency of a Child, RI 25–37.
Comments are encouraged and will be accepted until April 12, 2018.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this information collection, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW, Room 3316–L, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
As required by the Paperwork Reduction Act of 1995, (Pub. L. 104–13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104–106), OPM is soliciting comments for this collection. The information collection (OMB No. 3206–0206) was previously published in the
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, 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,
Form RI 25–37 is designed to collect sufficient information for the Office of Personnel Management to determine whether the surviving child of a deceased Federal employee is eligible to receive benefits as a dependent child.
Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from November 1, 2017 to November 30, 2017.
Senior Executive Resources Services, Senior Executive Service and Performance Management, Employee Services, 202–606–2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No schedule A Authorities to report during November 2017.
No schedule B Authorities to report during November 2017.
The following Schedule C appointing authorities were approved during November 2017.
The following Schedule C appointing authorities were revoked during November 2017.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218.
1:45 p.m. on Thursday, March 15, 2018.
Closed Commission Hearing Room 10800.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
Commissioner Stein, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matters of the closed meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's transaction fees at Rule 7014 to eliminate the Small Cap Incentive Program and the Limit Up Limit Down Pricing Program, as described below.
While these amendments are effective upon filing, the Exchange has designated the proposed amendments to be operative on March 1, 2018.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend Rule 7014 of the Exchange's Rules to eliminate the Small Cap Incentive Program (“SCIP”) and the Limit Up Limit Down (“LULD”) Pricing Program.
The SCIP is a rebate program that presently applies to Exchange market markers (“Nasdaq Market Makers”) registered in Nasdaq-listed companies with a market capitalization (“cap”) of less than $100 million. Under the program, Nasdaq Market Makers registered in a designated SCIP symbol receive an additional displayed liquidity rebate of $0.0005 per share executed for executions at or above $1.00 (“SCIP Rebate”) if their percent of time at the NBBO is above 50% for the month (“NBBO Test”). The SCIP Rebate is in addition to all other applicable displayed rebates. For shares executed below $1.00, Nasdaq Market Makers are subject to the following rates: (i) The rebate to add liquidity is 0.10% of the total dollar volume; and (ii) the fee to remove liquidity is 0.25% of the total dollar volume.
The Exchange established the SCIP to encourage Nasdaq Market Makers to improve market quality for Nasdaq-listed companies with market caps of under $100 million. Although the program has had some limited success, it has not been effective to the extent intended when introduced. Accordingly, the Exchange no longer believes that the operation of the SCIP is an appropriate allocation of its limited resources and it proposes to eliminate the program.
The LULD program is a rebate program designed to provide incentives to market participants to provide liquidity during periods of extraordinary volatility in a select group of NMS Stocks chosen by the Exchange (“LULD Liquidity Symbols”).
Specifically, for LULD Liquidity Symbol securities priced $1 or more, the Exchange offers an incentive in the form of a $0.0010 per share executed rebate to Nasdaq Market Makers that enter displayed orders to buy (other than Designated Retail Orders, as defined in Rule 7018) when the LULD Liquidity Symbol security enters a Limit State based on an NBO that equals the lower price band and does not cross the NBB (“Limit Down Limit State”). To be eligible, the Nasdaq Market Maker must be registered as a market maker for the LULD Liquidity Symbol.
Similarly, for LULD Liquidity Symbol securities priced $1 or more, the Exchange provides a $0.0010 per share executed rebate to Nasdaq Market Makers that enter displayed orders to buy (other than Designated Retail Orders, as defined in Rule 7018) when the LULD Liquidity Symbol security enters a Straddle State based on an NBB that is below the lower price band (“Limit Down Straddle State”).
Finally, the Exchange provides an incentive to all market participants that enter Orders in an LULD Liquidity Symbol during a Trading Pause and receive an execution of that Order. The Exchange provides a $0.0005 per share executed rebate, which is provided upon execution of the eligible Order in the reopening process at the conclusion of the Trading Pause.
The Exchange intended for the LULD Pricing Program to improve market quality by promoting liquidity and price discovery for LULD Liquidity Symbols that have triggered Limit Up/Limit Down processes. Subsequent to the introduction of the LULD Pricing Program, certain enhancements to the LULD Plan have been implemented which reduced LULD pauses and supported a more orderly resumption of securities subject to LULD pauses. Therefore, the LULD Pricing Program is no longer needed and the Exchange proposes to eliminate it.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposals to eliminate the SCIP and the LULP Pricing Program are reasonable
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the proposed elimination of the SCIP and the LULD Pricing Program will not impose a burden on competition because the Exchange's execution services are completely voluntary and subject to extensive competition both from other exchanges and from off-exchange venues. In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets. Further, the Exchange does not believe that elimination of the programs will impose a burden on competition among market participants because the impact of the proposal will apply equally to all members that presently qualify for the programs.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 8, 2018, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the comment letters. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the MIAX Options Fee Schedule (the “Fee Schedule”).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fee Schedule to introduce a cap on the amount of Member Participant Identifier (“MPID”)
The amount of MPID fees assessed by the Exchange on a particular EEM in a particular month is based on the number of MPIDs assigned to the particular EEM in the System
The Exchange now proposes to cap MPID fees at $1,000.00 per month per EEM, regardless the actual number of MPIDs assigned to such EEM. As a practical matter, using the current fee table in Section 5e) of the Fee Schedule, the 14th MPID assigned to an EEM and each MPID thereafter would not incur an additional MPID fee, as the EEM would reach the cap of $1,000.00 after assignment of the 13th MPID for that month.
The Exchange believes that establishing a monthly cap on MPID fees will give Members greater flexibility to accommodate their varying business models and customer configurations, as many Members often request multiple MPIDs from the Exchange, and the Exchange does not want MPID costs to serve as a barrier for requesting multiple MPIDs. The Exchange notes that several other
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b)
The Exchange believes that the proposed amendment to establish a fee cap on MPID fees is reasonable, equitable, and not unfairly discriminatory. The proposal to cap the total amount of MPID fees that can be assessed upon an EEM to a maximum of $1,000.00 per month is designed to promote just and equitable principles of trade by encouraging Members to configure their MPID assignments with greater granularity and for MPID costs to not serve as a barrier for requesting multiple MPIDs. Because any EEM is eligible to take advantage of the fee cap, the Exchange believes the fee cap is fair and equitable and not unreasonably discriminatory because it applies equally to all Members, and access to such fee cap is offered on terms that are not unfairly discriminatory.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change would promote transparency by providing Members with more flexibility to configure their MPIDs with greater granularity by offering a reasonably designed fee structure and fee cap. Additionally, respecting intra-market competition, the fee cap on MPID assignments is available to all Members, thus providing all Members with an even playing field with respect to amount of fees that can be assessed by the Exchange for MPID assignments. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees and fee waivers to remain competitive with other exchanges and to attract order flow to the Exchange.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 21, 2017, The Nasdaq Stock Market LLC (“Exchange” or “Nasdaq”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposed to offer the MELO order type. A MELO would be a non-displayed order priced at the midpoint between the National Best Bid and Offer (“NBBO”) and would not be eligible to execute until a minimum period of one half of a second (“Holding Period”) has passed after acceptance of the order by the system.
If a MELO is modified by a member (other than to decrease the size of the order or to modify the marking of a sell order as long, short, or short exempt) during the Holding Period, the system would restart the Holding Period.
Movements in the NBBO while a MELO is in the Holding Period would not reset the Holding Period, even if, as a result of the NBBO move, the MELO's limit price is less aggressive than the NBBO midpoint.
MELOs may be entered via any of the Exchange's communications protocols and the type of communications protocol used would not affect how the system handles MELOs.
MELOs would be active only during Market Hours.
MELOs must be entered with a size of at least one round lot, and any shares of a MELO remaining after an execution that are less than one round lot would be cancelled.
Once a MELO becomes eligible to execute by existing unchanged for the Holding Period, the MELO may only execute against other eligible MELOs.
As proposed, MELOs would be subject to real-time surveillance to determine if the order type is being abused by market participants.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment Nos. 1, 2, and 3, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission has carefully considered the MELO order type and finds that it is consistent with the Act. The Commission believes that the MELO order type could create
As noted above, the Commission received four comment letters on the proposed rule change.
Two commenters expressed the concern that MELOs would create a separate order book within the Nasdaq matching system where only MELOs could interact with each other.
In addition, one commenter remarked that market participants with marketable held orders or resting orders seeking to execute against marketable held order flow would be unlikely to utilize MELOs because marketable held orders are typically required to be executed fully and promptly.
In contrast, one commenter stated that allowing MELOs to interact with non-MELOs would defeat the purpose of the MELO order type.
The Exchange responded to these comments in Amendment No. 2, and stated that although MELOs may forgo the opportunity to interact with other liquidity on the Exchange, MELO users will have accepted this possibility in return for the ability to interact with other market participants with the same time horizon.
The Commission believes that the proposed MELO order type is reasonably designed to enhance midpoint execution quality on the Exchange. The Commission notes that the concept of exchange order types or attributes that permit market participants to elect not to execute against certain contra-side interest is not novel. Existing order functionalities, such as the minimum quantity and post-only conditions, enable market participants to direct their orders to execute only if certain conditions are met by contra-side order flow. The Commission also notes that the Holding Period introduced by the Exchange's proposal is specific to MELOs and thus does not introduce latency with respect to any other type of trading interest on the Exchange. Moreover, as noted above, the MELO order type (including its Holding Period) could create additional and more efficient trading opportunities on the Exchange for investors with longer investment time horizons. In addition, the Commission notes that, unlike a scenario in which orders are directed among multiple separate trading venues where price priority might not be available among the orders,
One commenter raised the concern that, under the proposal, MELO executions would be reported to the Securities Information Processors and provided on Nasdaq's proprietary data feed in the same manner as all other transactions on Nasdaq.
By contrast, one commenter stated that it does not believe that the lack of specific identification of MELOs in trade reports would result in any difficulties for the markets, or complexity for investors or other market participants when assessing execution quality.
The Exchange responded to these comments in Amendment No. 2, and noted that transactions in MELOs would be reported to the Securities Information Processors and provided in Nasdaq's proprietary data feed in the same manner as all other transactions occurring on Nasdaq are done currently (
The Commission notes that the proposed MELO order type is intended to provide additional execution opportunities on the Exchange for market participants that may not be as sensitive to very short-term changes in the NBBO and are willing to wait a prescribed period of time following their order submission to receive a potential execution against other market participants that have similarly elected to forgo an immediate execution. In particular, the proposed MELO order type is intended to mitigate the risk that an opportunistic low-latency trader will be able to execute against a member's order at a time that is disadvantageous to the member, such as just prior to a change in the NBBO. The Commission also believes that the proposal to publish delayed aggregated statistics for MELO executions is reasonably designed to provide transparency regarding MELO executions on the Exchange without undermining the usefulness of the order type by limiting the potential information leakage and the resulting market impact that could be associated with non-delayed identification of individual MELO executions.
One commenter asserted that allowing MELOs to be cancelled at any time during the Holding Period does not appear to be consistent with the intended use of the order type.
In Amendment No. 2, the Exchange responded that MELOs may be cancelled at any time, including during the Holding Period, to allow members to effectively manage risk.
The Commission believes that the Exchange's proposed measures are reasonably designed to deter potential improper use of the proposed MELO order type. In particular, the Commission notes that the Exchange has represented that it will conduct real-time surveillance to monitor the use of MELOs and ensure that such usage is appropriately tied to the intent of the order type.
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment No. 3 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment Nos. 1, 2, and 3, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 3 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order to amend a prior order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d–1 under the Act permitting certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d–1 under the Act.
Applicants request an order to amend a prior order that permits certain business development companies (“BDCs”) and registered closed-end investment companies (“closed-end funds”) to co-invest in portfolio companies with each other and with affiliated investment funds and accounts.
Secretary, U.S. Securities and Exchange Commission, 100 F St. NE, Washington, DC 20549–1090. Applicants: 555 California Street 50th Floor, San Francisco, CA 94104
Bruce MacNeil, Senior Counsel, at (202) 551–6817 or David J. Marcinkus, Branch Chief, at (202) 551–6821 (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 website by searching for the file number, or for an applicant using the Company name box, at
1. On June 19, 2017, the Applicants received an order under Sections 17(d) and 57(i) of the Act and Rule 17d–1 thereunder, permitting certain joint transactions that otherwise may be prohibited by Sections 17(d) and 57(a)(4) and Rule 17d–1 (the “Prior Order”).
2. The Applicants seek an order (the “Order”) to amend the Prior Order to extend the relief granted therein to Future Regulated Entities whose investment adviser is a KKR Credit Adviser.
3. FS/KKR Advisor is a Delaware limited liability company, and, prior to relying on the requested relief, will be registered as an investment adviser under the Advisers Act and controlled by KKR Credit.
4. Applicants state that the legal analysis in the Prior Application is equally applicable to this application.
If the Order is granted, the Conditions of the Prior Order, as stated in the Prior Application, will remain in effect.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
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 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act. The requested order would permit (a) actively-managed series of certain open-end management investment companies (“Funds”) to issue shares redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Fund shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain Funds to pay redemption proceeds, under certain circumstances, more than seven days after the tender of shares for redemption; (d) certain affiliated persons of a Fund to deposit securities into, and receive securities from, the Fund in connection with the purchase and redemption of Creation Units; (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the Funds (“Funds of Funds”) to acquire shares of the Funds; and (f) certain Funds (“Feeder Funds”) to create and redeem Creation Units in-kind in a master-feeder structure.
Nationwide Fund Advisors (the “Initial Adviser”), a business trust organized under the laws of the state of Delaware 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
The application was filed on December 1, 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 April 2, 2018, 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: W. John McGuire, Esq., Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue NW, Washington, DC 20004–2541 and Michael D. Barolsky, Esq., U.S. Bancorp Fund Services, LLC, 615 E Michigan Street, Milwaukee, WI 53202.
Courtney S. Thornton, Senior Counsel, at (202) 551–6812, or Andrea Ottomanelli Magovern, Branch Chief, at (202) 551–6821 (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 website 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 (as defined below) to operate as actively-managed exchange traded funds (“ETFs”).
2. Each Fund will consist of a portfolio of securities and other assets and investment positions (“Portfolio Instruments”). Each Fund will disclose on its website the identities and quantities of the Portfolio Instruments that will form the basis for the Fund's calculation of NAV at the end of the day.
3. Shares will be purchased and redeemed in Creation Units only 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 hold non-U.S. Portfolio Instruments and that effect creations and redemptions of Creation Units in kind, applicants request relief from the requirement imposed by section 22(e) in order to allow such Funds to pay redemption proceeds within fifteen calendar days following the tender of Creation Units for redemption. Applicants assert that the requested relief would not be inconsistent with the spirit and intent of section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds.
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 Portfolio Instruments 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
9. Applicants also request relief to permit a Feeder Fund to acquire shares of another registered investment company managed by the Adviser having substantially the same investment objectives as the Feeder Fund (“Master Fund”) beyond the limitations in section 12(d)(1)(A) and permit the Master Fund, and any principal underwriter for the Master Fund, to sell shares of the Master Fund to the Feeder Fund beyond the limitations in section 12(d)(1)(B).
10. 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.
In notice document 2017–03306 beginning on page 7279 in the issue of Tuesday, February 20, 2017, make the following correction:
On page 7282, in the first column, in the twelfth through thirteenth lines, “March 9, 2018” should read “March 13, 2018”.
Pursuant to the authority vested in me by section 506(a)(2)(A)(i)(II) of the Foreign Assistance Act of 1961 (FAA), and the President's Memorandum of Delegation dated December 4, 2017, I hereby determine that it is in the national interest of the United States to draw down articles and services from the inventory and resources of any agency of the U.S. government, and military education and training from the Department of Defense, for the purposes and under the authorities of chapter 9 of Part I of the FAA. I therefore direct the drawdown of up to $22,000,000 of articles and services from the inventory and resources of any agency of the U.S. government, and military education and training from the Department of Defense, to provide assistance for Iraq.
This determination shall be reported to Congress and published in the
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Secretary of State is authorized to issue U.S. passports under 22 U.S.C. 211a
Passport applicants can submit their form electronically on
Federal Aviation Administration, (FAA), DOT.
Notice of availability.
The FAA, Western Service Area is issuing this notice to advise the public of the availability of the Categorical Exclusion/Record of Decision (CATEX/ROD) for the Area Navigation (RNAV) standard instrument arrival (STAR) procedure for the Ontario International Airport (KONT) in Ontario, CA. The FAA reviewed the action and determined it to be categorically excluded from further environmental documentation.
Ms. Janelle Cass, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S 216th St., Des Moines, WA 98198–6547 (206) 231–2231 or
The KONT JCKIE STAR procedure is designed to provide aircraft arriving KONT from the east, a nighttime arrival procedure when curfew hours are in place for the Long Beach Airport (KLGB) ROOBY TWO RNAV STAR and the John Wayne KSNA DSNEE TWO RNAV STAR. This alternative routing will provide a high level of safety and efficiency benefits similar to the EAGLZ STAR with the use of performance based navigation (PBN) technology. The JCKIE ONE STAR procedure will operate between the approximate hours of 11:00 p.m. to 6:00 a.m. but would depend on dynamic airspace safety and air traffic conditions which could include, but are not limited, to air traffic volume, weather conditions, airport demands, and air traffic control workload.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for review and approval. The purpose of this ICR titled “Motor Carrier Records Change Form,” is to more efficiently collect information the Office of Registration and Safety Information (MC–RS) requires to process name and address changes and reinstatements of operating authority.
Please send your comments by April 12, 2018. OMB must receive your comments by this date in order to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA–2017–0267. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of
Jeff Secrist, Division Chief, East-South Division, FMCSA Office of Registration and Safety Information, Department of Transportation, Federal Motor Carrier Safety Administration, 6th Floor, West Building, 1200 New Jersey Avenue SE, Washington, DC 20590–0001. Telephone: 202–385–2367 Email Address:
FMCSA registers for-hire motor carriers under 49 U.S.C. 13902, surface freight forwarders under 49 U.S.C. 13903, and property brokers under 49 U.S.C. 13904. Each registration is effective from the date specified under 49 U.S.C. 13905(c). 49 CFR part 365.413 states for-hire motor carriers, brokers and freight forwarders are required to notify the Office of Registration and Safety Information when they change the name or form of business. Currently, the name change request can be filed online through the Licensing and Insurance (L&I) website, or companies can fax or mail a letter requesting either name or address changes. Carriers can also request reinstatement of a revoked operating authority either via fax or online via the L&I website. About 39% of name change, address change, and reinstatement requests are received by mail; 38% are filed online; and 23% are filed by faxing a request letter to MC–RS. The information collected is then entered in the L&I database by FMCSA staff. This enables FMCSA to maintain up-to-date records so that the agency can recognize the entity in question in case of enforcement actions or other procedures required to ensure that the carrier is fit, willing and able to provide for-hire transportation services, and so that entities whose authority has been revoked can resume operation if they are not otherwise blocked from doing so. This multi-purpose form simplifies the process of gathering the information needed to process the entities' requests in a timely manner, with the least amount of effort for all parties involved. This multi-purpose form is filed by registrants on an as-needed basis. This multi-purpose form is on the FMCSA website so entities could access and print/fax/email the form to MC–RS.
The form prompts users to report the following data points (whichever are relevant to their records change request): (1) What are the legal/doing business as (dba) names of the entity/representative? (2) What is the contact information of entity/representatives (phone number, address, fax number, email address)? (3) What are the requested changes to name or address of entity? (4) What is the docket MC/MX/FX number of the entity? (5) What is the US DOT number of the entity? (6) Is there any change in ownership, management or control of the entity? (7) What kind of changes is the entity making to the company? (8) Which authority does the entity/representative wish to reinstate, motor carrier or broker? (9) Does the entity/representative authorize the fee for the name change or reinstatement? (10) Does the entity/representative authorize the reinstatement of operating authority or name/address change? (11) What is the credit card information (name, number, expiration date, address, date) for the card used to pay the fee?
The Agency received three comments on the 60-day notice (82 FR 50481). The comments were not directly related to the information collection. Therefore, FMCSA did not make any changes to the information collection.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of Unified Carrier Registration Plan Board of Directors Meeting.
The meeting will be held on March 15, 2018, from Noon to 3:00 p.m., Eastern Standard Time.
This meeting will be open to the public via conference call. Any interested person may call 1–877–422–1931, passcode 2855443940, to listen and participate in this meeting.
Open to the public.
The Unified Carrier Registration Plan Board of Directors (the Board) will continue its work in developing and implementing the Unified Carrier Registration Plan and Agreement and to that end, may consider matters properly before the Board. An agenda for this meeting will be available no later than 5:00 p.m. EST, March 2, 2018 at:
Mr. Avelino Gutierrez, Chair, Unified Carrier Registration Board of Directors at (505) 827–4565.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that the Truck Renting and Leasing Association Inc. (TRALA) has requested an exemption until December 31, 2018, from the electronic logging device (ELD) requirements for all drivers of property-carrying commercial motor vehicles rented for 30 days or fewer. A waiver for the same purpose and group of drivers was issued to TRALA on January 19, 2018, and expires on April 19, 2018. TRALA states that the waiver period, which is limited to 90 days, is not sufficient to address the ELD problems that they and their short-term lessors are encountering. This request, if granted, would provide rental-vehicle owners, carriers, and drivers with additional time to develop compliance strategies for dealing with the unique issues relating to the use of ELDs in short-term rental vehicles. TRALA believes that the exemption, if granted, would not have any adverse impacts on operational safety, as drivers would continue to remain subject to the hours-of-service regulations as well as the requirements to maintain a paper record of duty status. FMCSA requests public comment on TRALA's application for exemption.
Comments must be received on or before April 12, 2018.
You may submit comments identified by Federal Docket Management System (FDMS) Number FMCSA–2016–0428 by any of the following methods:
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For information concerning this notice, contact Mr. Tom Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (202) 366–4325. Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA–2016–0428), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comments online, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
TRALA is a national trade association of companies whose members rent and lease vehicles. TRALA's membership encompasses the full spectrum of the industry, including major independent firms such as Budget, Enterprise Truck Rental, Penske Truck Leasing, Ryder System, and U Haul, as well as small and medium size businesses that generally participate as members of four leasing group systems, three of which are affiliated with a major manufacturer. TRALA states that it has nearly 500 members whose vehicles account for between 25–30% of all commercial motor vehicles (CMVs) on the highways today.
TRALA advised that operators of short-term CMV rentals face challenges in complying with the ELD requirements that no other segment of the industry faces. Businesses renting CMVs to customers must offer ELD compliance options for a variety of technical platforms. Motor carrier fleets use rental vehicles to meet seasonal
TRALA states that FMCSA has recognized the unique compliance concerns of the short-term CMV rental vehicle market by granting a partial exemption from the ELD requirements for vehicles rented for no longer than 8 days (82 FR 47306, October 11, 2017). In addition, FMCSA has granted an ELD waiver to TRALA until April 19, 2018, for CMVs rented for no longer than 30 days (83 FR 2868, January 19, 2018).
TRALA states that since FMCSA's October 11, 2017, decision granting an exemption of only 8 days for rental trucks, TRALA members have taken several steps to resolve the ELD issues. These include meeting with customers, building cloud-based portal systems between ELD providers, and purchasing thousands of ELDs for rental trucks. Nevertheless, TRALA members and their customers state that they need additional time to come into full compliance with ELD requirements.
TRALA is requesting an exemption until December 31, 2018, from the ELD requirements in 49 CFR part 395, as applied to drivers of property-carrying CMVs rented for any reason for no longer than 30 days. Lessors of short-term CMV rentals are struggling to meet the current April 19, 2018, waiver expiration deadline. TRALA states that its members continue to work diligently with their customers, developing systems that will allow renters to record and report their hours seamlessly, and partnering with ELD providers to give the most options available to rental customers.
According to TRALA, every customer's needs are unique. An additional period through the end of this year to prepare for this transition would allow their members to continue resolving the issues presented by new technology and the need for individual customer-based compliance strategies. It would also allow lessors to meet seasonal demand for short-term rental vehicles through the holiday season in November and December of this year without disruptions.
TRALA states that allowing short-term CMV rental truck drivers to not comply with ELD requirements until December 31, 2018, will not have any impact on safety, nor will it provide a safe harbor for drivers who may try to avoid compliance with the hours-of-service (HOS) regulations in general. Nearly half the States now impose daily rental fees which are a significant disincentive to rent solely for the purpose of avoiding the ELD regulations.
TRALA also states that, if the exemption is granted, law enforcement officers would be better able to identify short-term rental vehicles. Under 49 CFR 390.21(e), a CMV rented for a period not to exceed 30 days is not required to be marked with the name and USDOT number of the operating motor carrier if the vehicle otherwise is marked with the lessor's name and USDOT number, and a copy of the rental agreement is carried in the vehicle in accordance with that provision. Enforcement officials inspecting such a vehicle would examine the short-term rental agreement to determine that the ELD requirement does not apply to that vehicle. The official would then check the driver's paper record of duty status for compliance with the HOS regulations.
According to TRALA, their members represent about 25–30% of CMVs on the road and are a key component of the trucking industry. Allowing a further exemption through December 31, 2018, to continue the transition efforts ongoing since the final rule was published will give all businesses that use rental trucks comfort that systems can be deployed to better address the difficulties confronted by the rental truck market.
A copy of TRALA's application for exemption is available for review in the docket for this notice.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, the Alcohol and Tobacco Tax and Trade Bureau (TTB) invites comments on the proposed or continuing information collections listed below in this document.
Comments are due on or before May 14, 2018.
As described below, you may send comments on the information collections listed in this document using the “Regulations.gov” online comment form for this document, or you may send written comments via U.S. mail or hand delivery. TTB no longer accepts public comments via email or fax.
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Please submit separate comments for each specific information collection listed in this document. You must reference the information collection's title, form or recordkeeping requirement number, and OMB number (if any) in your comment.
You may view copies of this document, the information collections listed in it and any associated instructions, and all comments received in response to this document within Docket No. TTB–2018–0001 at
Michael Hoover, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; telephone (202) 453–1039, ext. 135; or email
The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau (TTB), as part of a continuing
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please do not include any confidential or inappropriate material in comments.
For each information collection listed below, we invite comments on: (a) Whether the information collection is necessary for the proper performance of the agency's functions, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the information collection's burden; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the information collection's burden on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide the requested information.
Currently, we are seeking comments on the following information collections (forms, recordkeeping requirements, or questionnaires):
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort
Written comments should be received on or before May 14, 2018 to be assured of consideration.
Direct all written comments and requests for additional information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4–A, Parkersburg, WV 26106–1328, or
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing an update to the identifying information of a person currently included in OFAC's Specially Designated Nationals and Blocked Persons List.
See
OFAC: Associate Director for Global Targeting, tel.: 202–622–2420; Assistant Director for Licensing, tel.: 202–622–2480; Assistant Director for Regulatory Affairs, tel.: 202–622–4855; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202–622–2490; or the Department of the Treasury's Office of the General Counsel: Office of the Chief Counsel (Foreign Assets Control), tel.: 202–622–2410.
The list of Specially Designated Nationals and Blocked Persons (SDN List) and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 7, 2018 OFAC updated the SDN List for the following person, whose property and interests in property continue to be blocked under the relevant sanctions authority listed below.
EMPRESA CUBANA DE PESCADOS Y MARISCOS (a.k.a. CARIBBEAN EXPORT ENTERPRISE; a.k.a. CARIBEX), Paris, France; Milan, Italy; Moscow, Russia; Madrid, Spain; Cologne, Germany; Downsview, Ontario, Canada; Tokyo, Japan [CUBA]
-to-
EMPRESA CUBANA DE PESCADOS Y MARISCOS (a.k.a. CARIBBEAN EXPORT ENTERPRISE; a.k.a. “CARIBEX”), Paris, France; Milan, Italy; Moscow, Russia; Madrid, Spain; Cologne, Germany; Downsview, Ontario, Canada; Tokyo, Japan [CUBA].
Designated pursuant to the Cuban Assets Control Regulations, 31 CFR part 515.
United States Mint, Treasury.
Notice of Change in Numismatic Customer Return Policy.
The United States Mint has modified its Numismatic Customer Return Policy to address the issue of excessive returns. Effective immediately, the United States Mint reserves the right to limit or refuse a return or to charge a fee for excessive returns. In addition, the United States Mint reserves the right to suspend accounts of customers with a pattern of excessive returns.
This change is applicable upon publication.
Cortez Carrington, Numismatic and Bullion Directorate, United States Mint, at (202) 354–6679; or
The revised policy may be reviewed in its entity at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Special Medical Advisory Group will meet on April 11, 2018 in SimLEARN Center (Building 3) at the Orlando VA Medical Center, 13800 Veterans Way, Orlando, Florida, 32827 from 9:15 a.m. to 3:30 p.m. The meeting is open to the public.
The purpose of the Group is to advise the Secretary of Veterans Affairs and the Under Secretary for Health on the care and treatment of Veterans, and other matters pertinent to the Veterans Health Administration (VHA).
The agenda for the meeting will include discussions on VHA Modernization, VA New Hampshire Vision 2025 Task Force recommendations, and an update on provider payments within Community Care.
Fifteen (15) minutes will be allocated at the end of the meeting for receiving oral presentations from the public—No more than 3 minutes each. Members of the public may submit written statements for review by the Committee to: Department of Veterans Affairs, Office of Under Secretary for Health (10), Veterans Health Administration, 810 Vermont Avenue NW, Washington, DC 20420 or by email at
Any member of the public wishing to attend the meeting or seeking additional information should email
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments and information.
NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the training and testing activities conducted in the Atlantic Fleet Training and Testing (AFTT) Study Area. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue regulations and subsequent Letters of Authorization (LOAs) to the Navy to incidentally take marine mammals during the specified activities. NMFS will consider public comments prior to issuing any final rule and making final decisions on the issuance of the requested MMPA authorizations. Agency responses to public comments will be summarized in the final notice of our decision. The Navy's activities qualify as military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (2004 NDAA).
Comments and information must be received no later than April 26, 2018.
You may submit comments, identified by NOAA–NMFS–2018–0037, by any of the following methods:
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Stephanie Egger, Office of Protected Resources, NMFS; phone: (301) 427–8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity:
(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.”
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
The 2004 NDAA (Pub. L. 108–136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).
On June 16, 2017, NMFS received an application from the Navy requesting incidental take regulations and LOAs to take individuals of 39 marine mammal species by Level A and B harassment incidental to training and testing activities (categorized as military readiness activities) from the use of sonar and other transducers, in-water detonations, airguns, and impact pile driving/vibratory extraction in the AFTT Study Area over five years. In addition, the Navy is requesting incidental take authorization for up to nine mortalities of four marine mammal species during ship shock trials, and authorization for up to three takes by serious injury or mortality from vessel
The Navy's requests for two five-year LOAs, one for training and one for testing activities to be conducted within the AFTT Study Area (which includes areas of the western Atlantic Ocean along the east coast of North America, portions of the Caribbean Sea, and the Gulf of Mexico), covers approximately 2.6 million square nautical miles (nmi
This will be NMFS' third rulemaking for AFTT activities under the MMPA. NMFS published the first rule effective from January 22, 2009 through January 22, 2014 on January 27, 2009 (74 FR 4844) and the second rule applicable from November 14, 2013 through November 13, 2018 on December 4, 2013 (78 FR 73009). For this third rulemaking, the Navy is proposing to conduct similar activities as they have conducted over the past nine years under the previous two rulemakings.
The Navy's mission is to organize, train, equip, and maintain combat-ready naval forces capable of winning wars, deterring aggression, and maintaining freedom of the seas. This mission is mandated by federal law (10 U.S.C. 5062), which ensures the readiness of the naval forces of the United States. The Navy executes this responsibility by establishing and executing training programs, including at-sea training and exercises, and ensuring naval forces have access to the ranges, operating areas (OPAREAs), and airspace needed to develop and maintain skills for conducting naval activities.
The Navy proposes to conduct training and testing activities within the AFTT Study Area. The Navy has been conducting military readiness activities in the AFTT Study Area for well over a century and with active sonar for over 70 years. The tempo and types of training and testing activities have fluctuated because of the introduction of new technologies, the evolving nature of international events, advances in warfighting doctrine and procedures, and changes in force structure (organization of ships, weapons, and personnel). Such developments influenced the frequency, duration, intensity, and location of required training and testing activities. This rulemaking and LOA request reflects the most up to date compilation of training and testing activities deemed necessary to accomplish military readiness requirements. The types and numbers of activities included in the proposed rule accounts for fluctuations in training and testing in order to meet evolving or emergent military readiness requirements.
The Navy's rulemaking and LOA request covers training and testing activities that would occur for a 5-year period following the expiration of the current MMPA authorization for the AFTT Study Area, which expires on November 13, 2018.
The Navy is requesting authorization to take marine mammals incidental to conducting training and testing activities. The Navy has determined that acoustic and explosives stressors are most likely to result in impacts on marine mammals that could rise to the level of harassment. Detailed descriptions of these activities are provided in the AFTT Draft Environmental Impact Statement (EIS)/Overseas EIS (OEIS) (DEIS/OEIS) and in the Navy's rulemaking and LOA application (
The Navy routinely trains in the AFTT Study Area in preparation for national defense missions. Training and testing activities and exercises covered in the Navy's rulemaking and LOA application are briefly described below, and in more detail within chapter 2 of the AFTT DEIS/OEIS. Each military training and testing activity described meets mandated Fleet requirements to deploy ready forces.
The Navy categorizes its activities into functional warfare areas called primary mission areas. These activities generally fall into the following seven primary mission areas: Air warfare; amphibious warfare; anti-submarine warfare (ASW); electronic warfare; expeditionary warfare; mine warfare (MIW); and surface warfare (SUW). Most activities addressed in the AFTT DEIS/OEIS are categorized under one of the primary mission areas; the testing community has three additional categories of activities for vessel evaluation, unmanned systems, and acoustic and oceanographic science and technology (inclusive of ship shock trials). Activities that do not fall within one of these areas are listed as “other warfare activities.” Each warfare community (surface, subsurface, aviation, and expeditionary warfare) may train in some or all of these primary mission areas. The testing community also categorizes most, but not all, of its testing activities under these primary mission areas.
The Navy describes and analyzes the impacts of its training and testing activities within the AFTT DEIS/OEIS and the Navy's rulemaking and LOA application (documents available at
The Navy's training and testing activities in air warfare and electronic warfare do not involve sonar or other transducers, in-water detonations, pile driving/extraction, airguns or any other stressors that could result in harassment, serious injury, or mortality of marine mammals. Therefore, the activities in air warfare or electronic warfare are not discussed further, but are analyzed fully in the Navy's AFTT DEIS/OEIS.
The mission of amphibious warfare is to project military power from the sea to the shore (
Amphibious warfare training ranges from individual, crew, and small unit events to large task force exercises. Individual and crew training include amphibious vehicles and naval gunfire support training. Such training includes shore assaults, boat raids, airfield or port seizures, and reconnaissance. Largescale amphibious exercises involve ship-to-shore maneuver, naval fire support, such as shore bombardment, and air strike and attacks on targets that are in close proximity to friendly forces.
Testing of guns, munitions, aircraft, ships, and amphibious vessels and vehicles used in amphibious warfare are often integrated into training activities and, in most cases, the systems are used in the same manner in which they are used for fleet training activities. Amphibious warfare tests, when integrated with training activities or conducted separately as full operational evaluations on existing amphibious vessels and vehicles following maintenance, repair, or modernization, may be conducted independently or in conjunction with other amphibious ship and aircraft activities. Testing is performed to ensure effective ship-to-shore coordination and transport of personnel, equipment, and supplies. Tests may also be conducted periodically on other systems, vessels, and aircraft intended for amphibious operations to assess operability and to investigate efficacy of new technologies.
The mission of anti-submarine warfare is to locate, neutralize, and defeat hostile submarine forces that threaten Navy forces. ASW is based on the principle that surveillance and attack aircraft, ships, and submarines all search for hostile submarines. These forces operate together or independently to gain early warning and detection, and to localize, track, target, and attack submarine threats. ASW training addresses basic skills such as detection and classifying submarines, as well as evaluating sounds to distinguish between enemy submarines and friendly submarines, ships, and marine life. More advanced training integrates the full spectrum of anti-submarine warfare from detecting and tracking a submarine to attacking a target using either exercise torpedoes (
Testing of ASW systems is conducted to develop new technologies and assess weapon performance and operability with new systems and platforms, such as unmanned systems. Testing uses ships, submarines, and aircraft to demonstrate capabilities of torpedoes, missiles, countermeasure systems, and underwater surveillance and communications systems. Tests may be conducted as part of a large-scale fleet training event involving submarines, ships, fixed-wing aircraft, and helicopters. These integrated training events offer opportunities to conduct research and acquisition activities and to train aircrew in the use of new or newly enhanced systems during a largescale, complex exercise.
The mission of expeditionary warfare is to provide security and surveillance in the littoral (at the shoreline), riparian (along a river), or coastal environments. Expeditionary warfare is wide ranging and includes defense of harbors, operation of remotely operated vehicles, defense against swimmers, and boarding/seizure operations. Expeditionary warfare training activities include underwater construction team training, dive and salvage operations, and insertion/extraction operations via air, surface, and subsurface platforms.
The mission of MIW is to detect, classify, and avoid or neutralize (disable) mines to protect Navy ships and submarines and to maintain free access to ports and shipping lanes. MIW also includes offensive mine laying to gain control of or deny the enemy access to sea space. Naval mines can be laid by ships, submarines, or aircraft. MIW neutralization training includes exercises in which ships, aircraft, submarines, underwater vehicles, unmanned vehicles, or marine mammal detection systems search for mine shapes. Personnel train to destroy or disable mines by attaching underwater explosives to or near the mine or using remotely operated vehicles to destroy the mine.
Testing and development of MIW systems is conducted to improve sonar, laser, and magnetic detectors intended to hunt, locate, and record the positions of mines for avoidance or subsequent neutralization. MIW testing and development falls into two primary categories: mine detection and classification, and mine countermeasure and neutralization. Mine detection and classification testing involves the use of air, surface, and subsurface vessels and uses sonar, including towed and sidescan sonar, and unmanned vehicles to locate and identify objects underwater. Mine detection and classification systems are sometimes used in conjunction with a mine neutralization system. Mine countermeasure and neutralization testing includes the use of air, surface, and subsurface units to evaluate the effectiveness of tracking devices, countermeasure and neutralization systems, and general purpose bombs to neutralize mine threats. Most neutralization tests use mine shapes, or non-explosive practice mines, to evaluate a new or enhanced capability. For example, during a mine neutralization test, a previously located mine is destroyed or rendered nonfunctional using a helicopter or manned/unmanned surface vehicle based system that may involve the deployment of a towed neutralization system.
A small percentage of MIW tests require the use of high-explosive mines to evaluate and confirm the ability of the system to neutralize a high-explosive mine under operational conditions. The majority of MIW systems are deployed by ships, helicopters, and unmanned vehicles. Tests may also be conducted in support of scientific research to support these new technologies.
The mission of SUW is to obtain control of sea space from which naval forces may operate, and entails offensive action against other surface, subsurface, and air targets while also defending against enemy forces. In surface warfare, aircraft use cannons, air-launched cruise missiles, or other precision-guided munitions; ships employ torpedoes, naval guns, and surface-to-surface missiles; and submarines attack surface ships using torpedoes or submarine-launched, anti-ship cruise missiles. SUW includes surface-to-surface gunnery and missile exercises, air-to-surface gunnery and missile exercises, and submarine missile or torpedo launch events, and other munitions against surface targets.
Testing of weapons used in SUW is conducted to develop new technologies and to assess weapon performance and operability with new systems and platforms, such as unmanned systems. Tests include various air-to-surface guns and missiles, surface-to-surface guns and missiles, and bombing tests. Testing events may be integrated into training activities to test aircraft or aircraft systems in the delivery of ordnance on a surface target. In most cases the tested systems are used in the same manner in which they are used for fleet training activities.
Naval forces conduct additional training and maintenance activities which fall under other primary mission areas that are not listed above. The AFTT DEIS/OEIS combines these training activities together in an “other activities” grouping for simplicity. These training activities include, but are not limited to, sonar maintenance for ships and submarines, submarine navigation and under ice certification, elevated causeway system, oceanographic research, and surface ship object detection. These activities include the use of various sonar systems, impact pile driving/vibratory extraction, and air guns.
A major training exercise is comprised of several “unit level” range exercises conducted by several units operating together while commanded and controlled by a single commander. These exercises typically employ an exercise scenario developed to train and evaluate the strike group in naval tactical tasks. In a major training exercise, most of the activities being directed and coordinated by the strike group commander are identical in nature to the activities conducted during individual, crew, and smaller unit level training events. In a major training exercise, however, these disparate training tasks are conducted in concert, rather than in isolation.
Some integrated or coordinated anti-submarine warfare exercises are similar in that they are comprised of several unit level exercises but are generally on a smaller scale than a major training exercise, are shorter in duration, use fewer assets, and use fewer hours of hull-mounted sonar per exercise. These coordinated exercises are conducted under anti-submarine warfare. Three key factors used to identify and group the exercises are the scale of the exercise, duration of the exercise, and amount of hull-mounted sonar hours modeled/used for the exercise.
NMFS considered the effects of all training exercises, not just these major training exercises in this proposed rule.
The Navy's research and acquisition community engages in a broad spectrum of testing activities in support of the fleet. These activities include, but are not limited to, basic and applied scientific research and technology development; testing, evaluation, and maintenance of systems
Testing activities occur in response to emerging science or fleet operational needs. For example, future Navy experiments to develop a better understanding of ocean currents may be designed based on advancements made by non-government researchers not yet published in the scientific literature. Similarly, future but yet unknown Navy operations within a specific geographic area may require development of modified Navy assets to address local conditions. However, any evolving testing activities that would be covered under this rule would be expected to fall within the range of platforms, operations, sound sources, and other equipment described in this rule and to have impacts that fall within the range (
Some testing activities are similar to training activities conducted by the fleet. For example, both the fleet and the research and acquisition community fire torpedoes. While the firing of a torpedo might look identical to an observer, the difference is in the purpose of the firing. The fleet might fire the torpedo to practice the procedures for such a firing, whereas the research and acquisition community might be assessing a new torpedo guidance technology or testing it to ensure the torpedo meets performance specifications and operational requirements.
Naval Air Systems Command testing activities generally fall in the primary mission areas used by the fleets. Naval Air Systems Command activities include, but are not limited to, the testing of new aircraft platforms (
The majority of testing activities conducted by Naval Air Systems Command are similar to fleet training activities, and many platforms and systems currently being tested are already being used by the fleet or will ultimately be integrated into fleet training activities. However, some testing activities may be conducted in different locations and in a different manner than similar fleet training activities and, therefore, the analysis for those events and the potential environmental effects may differ.
Naval Sea Systems Command activities are generally aligned with the
Testing activities are conducted throughout the life of a Navy ship, from construction through deactivation from the fleet, to verification of performance and mission capabilities. Activities include pierside and at-sea testing of ship systems, including sonar, acoustic countermeasures, radars, launch systems, weapons, unmanned systems, and radio equipment; tests to determine how the ship performs at sea (sea trials); development and operational test and evaluation programs for new technologies and systems; and testing on all ships and systems that have undergone overhaul or maintenance.
One ship of each new class (or major upgrade) of combat ships constructed for the Navy typically undergoes an at-sea ship shock trial to allow the Navy to assess the survivability of the hull and ship's systems in a combat environment as well as the capability of the ship to protect the crew.
As the Department of the Navy's science and technology provider, the Office of Naval Research provides technology solutions for Navy and Marine Corps needs. The Office of Naval Research's mission is to plan, foster, and encourage scientific research in recognition of its paramount importance as related to the maintenance of future naval power and the preservation of national security. The Office of Naval Research manages the Navy's basic, applied, and advanced research to foster transition from science and technology to higher levels of research, development, test, and evaluation. The Office of Naval Research is also a parent organization for the Naval Research Laboratory, which operates as the Navy's corporate research laboratory and conducts a broad multidisciplinary program of scientific research and advanced technological development. Testing conducted by the Office of Naval Research in the AFTT Study Area includes acoustic and oceanographic research, large displacement unmanned underwater vehicle (innovative naval prototype) research, and emerging mine countermeasure technology research.
The proposed training and testing activities were evaluated to identify specific components that could act as stressors (acoustic and explosive) by having direct or indirect impacts on the environment. This analysis included identification of the spatial variation of the identified stressors.
The Navy uses a variety of sensors, platforms, weapons, and other devices, including ones used to ensure the safety of Sailors and Marines, to meet its mission. Training and testing with these systems may introduce acoustic (sound) energy into the environment. The Navy's rulemaking and LOA application describes specific components that could act as stressors by having direct or indirect impacts on the environment. This analysis included identification of the spatial variation of the identified stressors. The following subsections describe the acoustic and explosive stressors for biological resources within the AFTT Study Area. Stressor/resource interactions that were determined to have de minimus or no impacts (
Acoustic stressors include acoustic signals emitted into the water for a specific purpose, such as sonar, other transducers (devices that convert energy from one form to another—in this case, to sound waves), and airguns, as well as incidental sources of broadband sound produced as a byproduct of impact pile driving and vibratory extraction. Explosives also produce broadband sound but are characterized separately from other acoustic sources due to their unique characteristics. Characteristics of each of these sound sources are described in the following sections.
In order to better organize and facilitate the analysis of approximately 300 sources of underwater sound used for training and testing by the Navy including sonars, other transducers, airguns, and explosives, a series of source classifications, or source bins, were developed.
Active sonar and other transducers emit non-impulsive sound waves into the water to detect objects, safely navigate, and communicate. Passive sonars differ from active sound sources in that they do not emit acoustic signals; rather, they only receive acoustic information about the environment, or listen. In the Navy's rulemaking and LOA request, the terms sonar and other transducers are used to indicate active sound sources unless otherwise specified.
The Navy employs a variety of sonars and other transducers to obtain and transmit information about the undersea environment. Some examples are mid-frequency hull-mounted sonars used to find and track enemy submarines; high-frequency small object detection sonars used to detect mines; high frequency underwater modems used to transfer data over short ranges; and extremely high-frequency (>200 kilohertz [kHz]) Doppler sonars used for navigation, like those used on commercial and private vessels. The characteristics of these sonars and other transducers, such as source level, beam width, directivity, and frequency, depend on the purpose of the source. Higher frequencies can carry more information or provide more information about objects off which they reflect, but attenuate more rapidly. Lower frequencies attenuate less rapidly, so may detect objects over a longer distance, but with less detail.
Propagation of sound produced underwater is highly dependent on environmental characteristics such as bathymetry, bottom type, water depth, temperature, and salinity. The sound received at a particular location will be different than near the source due to the interaction of many factors, including propagation loss; how the sound is reflected, refracted, or scattered; the potential for reverberation; and interference due to multi-path propagation. In addition, absorption greatly affects the distance over which higher-frequency sounds propagate. The effects of these factors are explained in Appendix D (Acoustic and Explosive Concepts) of the AFTT DEIS/OEIS. Because of the complexity of analyzing sound propagation in the ocean environment, the Navy relies on acoustic models in its environmental analyses that consider sound source characteristics and varying ocean conditions across the AFTT Study Area.
The sound sources and platforms typically used in naval activities analyzed in the Navy's rulemaking and LOA request are described in Appendix A (Navy Activity Descriptions) of the AFTT DEIS/OEIS. Sonars and other transducers used to obtain and transmit information underwater during Navy training and testing activities generally fall into several categories of use described below.
Sonar used during ASW would impart the greatest amount of acoustic energy of any category of sonar and other transducers analyzed in the Navy's
Most ASW sonars are mid frequency (1–10 kHz) because mid-frequency sound balances sufficient resolution to identify targets with distance over which threats can be identified. However, some sources may use higher or lower frequencies. Duty cycles can vary widely, from rarely used to continuously active. For example, a submarine`s mission revolves around its stealth; therefore, submarine sonar is used infrequently because its use would also reveal a submarine's location. ASW sonars can be wide-ranging in a search mode or highly directional in a track mode.
Most ASW activities involving submarines or submarine targets would occur in waters greater than 600 feet (ft) deep due to safety concerns about running aground at shallower depths. Sonars used for ASW activities would typically be used beyond 12 nautical miles (nmi) from shore. Exceptions include use of dipping sonar by helicopters, maintenance of systems while in port, and system checks while transiting to or from port.
Sonars used to locate mines and other small objects, as well those used in imaging (
Mine detection sonar use would be concentrated in areas where practice mines are deployed, typically in water depths less than 200 ft and at established training or testing minefields or temporary minefields close to strategic ports and harbors. Kingfisher mode on vessels is most likely to be used when transiting to and from port. Sound sources used for imaging could be used throughout the AFTT Study Area.
Similar to commercial and private vessels, Navy vessels employ navigational acoustic devices including speed logs, Doppler sonars for ship positioning, and fathometers. These may be in use at any time for safe vessel operation. These sources are typically highly directional to obtain specific navigational data.
Sound sources used to transmit data (such as underwater modems), provide location (pingers), or send a single brief release signal to bottom-mounted devices (acoustic release) may be used throughout the AFTT Study Area. These sources typically have low duty cycles and are usually only used when it is desirable to send a detectable acoustic message.
Sonars and other transducers are grouped into classes that share an attribute, such as frequency range or purpose of use. Classes are further sorted by bins based on the frequency or bandwidth; source level; and, when warranted, the application in which the source would be used, as follows:
Frequency of the non-impulsive acoustic source.
Sound pressure level of the non-impulsive source.
Application in which the source would be used.
The bins used for classifying active sonars and transducers that are quantitatively analyzed in the AFTT Study Area are shown in Table 1 below. While general parameters or source characteristics are shown in the table, actual source parameters are classified.
Airguns are essentially stainless steel tubes charged with high-pressure air via a compressor. An impulsive sound is generated when the air is almost instantaneously released into the surrounding water. Small airguns with capacities up to 60 cubic inches would be used during testing activities in various offshore areas in the AFTT Study Area, as well as near shore at Newport, RI.
Generated impulses would have short durations, typically a few hundred milliseconds, with dominant frequencies below 1 kHz. The root-mean-square sound pressure level (SPL) and peak pressure (SPL peak) at a distance 1 meter (m) from the airgun would be approximately 215 dB re 1 μPa and 227 dB re 1 μPa, respectively, if operated at the full capacity of 60 cubic inches. The size of the airgun chamber can be adjusted, which would result in lower SPLs and sound exposure level (SEL) per shot.
Impact pile driving and vibratory pile removal would occur during construction of an Elevated Causeway System, a temporary pier that allows the offloading of ships in areas without a permanent port. Construction of the elevated causeway could occur in sandy shallow water coastal areas at Joint Expeditionary Base Little Creek-Fort Story in the Virginia Capes Range Complex or Marine Corps Base Camp Lejeune in the Navy Cherry Point Range Complex.
Installing piles for elevated causeways would involve the use of an impact hammer (impulsive) mechanism with both it and the pile held in place by a crane. The hammer rests on the pile, and the assemblage is then placed in position vertically on the beach or, when offshore, positioned with the pile in the water and resting on the seafloor. When the pile driving starts, the hammer part of the mechanism is raised up and allowed to fall, transferring energy to the top of the pile. The pile is thereby driven into the sediment by a repeated series of these hammer blows. Each blow results in an impulsive sound emanating from the length of the pile into the water column as well as from the bottom of the pile through the sediment. Because the impact wave travels through the steel
Pile removal involves the use of vibratory extraction (non-impulsive), during which the vibratory hammer is suspended from the crane and attached to the top of a pile. The pile is then vibrated by hydraulic motors rotating eccentric weights in the mechanism, causing a rapid up and down vibration in the pile. This vibration causes the sediment particles in contact with the pile to lose frictional grip on the pile. The crane slowly lifts up on the vibratory driver and pile until the pile is free of the sediment. Vibratory removal creates continuous non-impulsive noise at low source levels for a short duration.
The source levels of the noise produced by impact pile driving and vibratory pile removal from an actual elevated causeway pile driving and removal are shown in Table 2.
In addition to underwater noise, the installation and removal of piles also results in airborne noise in the environment. Impact pile driving creates in-air impulsive sound about 100 dBA re 20 μPa at a range of 15 m (Illingworth and Rodkin, 2016). During vibratory extraction, the three aspects that generate airborne noise are the crane, the power plant, and the vibratory extractor. The average sound level recorded in air during vibratory extraction was about 85 dBA re 20 μPa (94 dB re 20 μPa) within a range of 10–15 m (Illingworth and Rodkin, 2015).
The size of the pier and number of piles used in an Elevated Causeway System (ELCAS) event is assumed to be no greater than 1,520 ft long, requiring 119 supporting piles. Construction of the ELCAS would involve intermittent impact pile driving over approximately 20 days. Crews work 24 hours (hrs) a day and would drive approximately 6 piles in that period. Each pile takes about 15 minutes to drive with time taken between piles to reposition the driver. When training events that use the ELCAS are complete, the structure would be removed using vibratory methods over approximately 10 days. Crews would remove about 12 piles per 24-hour period, each taking about six minutes to remove.
Pile driving for ELCAS training would occur in shallower water, and sound could be transmitted on direct paths through the water, be reflected at the water surface or bottom, or travel through bottom substrate. Soft substrates such as sand bottom at the proposed ELCAS locations would absorb or attenuate the sound more readily than hard substrates (rock), which may reflect the acoustic wave. Most acoustic energy would be concentrated below 1,000 hertz (Hz) (Hildebrand, 2009).
This section describes the characteristics of explosions during naval training and testing. The activities analyzed in the Navy's rulemaking and LOA application that use explosives are described in Appendix A (Navy Activity Descriptions) of the AFTT DEIS/OEIS. Explanations of the terminology and metrics used when describing explosives in Navy's rulemaking and LOA application are in also in Appendix D (Acoustic and Explosive Concepts) of the AFTT DEIS/OEIS.
The near-instantaneous rise from ambient to an extremely high peak pressure is what makes an explosive shock wave potentially damaging. Farther from an explosive, the peak pressures decay and the explosive waves propagate as an impulsive, broadband sound. Several parameters influence the effect of an explosive: The weight of the explosive warhead, the type of explosive material, the boundaries and characteristics of the propagation medium, and, in water, the detonation depth. The net explosive weight, the explosive power of a charge expressed as the equivalent weight of trinitrotoluene (TNT), accounts for the first two parameters. The effects of these factors are explained in Appendix D (Acoustic and Explosive Concepts) of the AFTT DEIS/OEIS.
Explosive detonations during training and testing activities are associated with high-explosive munitions, including, but not limited to, bombs, missiles, rockets, naval gun shells, torpedoes, mines, demolition charges, and explosive sonobuoys. Explosive detonations during training and testing involving the use of high-explosive munitions, including bombs, missiles, and naval gun shells could occur near the water's surface. Explosive detonations associated with torpedoes and explosive sonobuoys would occur in the water column; mines and demolition charges could be detonated in the water column or on the ocean bottom. Most detonations would occur in waters greater than 200 ft in depth, and greater than 3 nmi from shore, although mine warfare, demolition, and some testing detonations would occur in shallow water close to shore.
In order to better organize and facilitate the analysis of explosives used by the Navy during training and testing that could detonate in water or at the water surface, explosive classification bins were developed. The use of explosive classification bins provides the same benefits as described for acoustic source classification bins in Section 1.4.1 (Acoustic Stressors) of the Navy's rulemaking and LOA application.
Explosives detonated in water are binned by net explosive weight. The bins of explosives that are proposed for use in the AFTT Study Area are shown in Table 3 below.
Propagation of explosive pressure waves in water is highly dependent on environmental characteristics such as bathymetry, bottom type, water depth, temperature, and salinity, which affect how the pressure waves are reflected, refracted, or scattered; the potential for reverberation; and interference due to multi-path propagation. In addition, absorption greatly affects the distance over which higher frequency components of explosive broadband noise can propagate. Appendix D (Acoustic and Explosive Concepts) in the AFTT DEIS/OEIS explains the characteristics of explosive detonations and how the above factors affect the propagation of explosive energy in the water. Because of the complexity of analyzing sound propagation in the ocean environment, the Navy relies on acoustic models in its environmental analyses that consider sound source characteristics and varying ocean conditions across the AFTT Study Area.
There is a very small chance that a vessel utilized in training or testing activities could strike a large whale. Vessel strikes are not specific to any particular training or testing activity, but rather a limited, sporadic, and incidental result of Navy vessel movement within the Study Area. Vessel strikes from commercial, recreational, and military vessels are known to seriously injure and occasionally kill cetaceans (Abramson
The Navy's proposed activities are presented and analyzed as a representative year of training to account for the natural fluctuation of training cycles and deployment schedules that generally influences the maximum level of training from occurring year after year in any five-year period. Both unit-level training and major training exercises are adjusted to meet this representative year, as discussed below. For the purposes of this application, the Navy assumes that some unit-level training would be conducted using synthetic means
The Optimized Fleet Response Plan and various training plans identify the number and duration of training cycles that could occur over a five-year period. The Proposed Activity considers fluctuations in training cycles and deployment schedules that do not follow a traditional annual calendar but instead are influenced by in-theater demands and other external factors. Similar to unit-level training, the Proposed Activity does not analyze a maximum number carrier strike group Composite Training Unit Exercises (one
The training activities that the Navy proposes to conduct in the AFTT Study Area are summarized in Table 4. The table is organized according to primary mission areas and includes the activity name, associated stressors applicable to this rulemaking and LOA request, number of proposed activities and locations of those activities in the AFTT Study Area. For further information regarding the primary platform used (
Testing activities covered in this rulemaking and LOA request are described in Table 5 through Table 7. The five-year Proposed Activity presented here is based on the level of testing activities anticipated to be conducted into the reasonably foreseeable future, with adjustments that account for changes in the types and tempo (increases or decreases) of testing activities to meet current and future military readiness requirements. The Proposed Activity includes the testing of new platforms, systems, and related equipment that will be introduced after November 2018 and during the period of the rule. The majority of testing activities that would be conducted under the Proposed Activity are the same as or similar as those conducted currently or in the past. The Proposed Activity includes the testing of some new systems using new technologies and takes into account inherent uncertainties in this type of testing.
Under the Proposed Activity, the Navy proposes a range of annual levels of testing that reflects the fluctuations in testing programs by recognizing that the maximum level of testing will not be conducted each year, but further indicates a five-year maximum for each activity that will not be exceeded. The Proposed Activity contains a more realistic annual representation of activities, but includes years of a higher maximum amount of testing to account for these fluctuations.
Table 5 summarizes the proposed testing activities for the Naval Air Systems Command analyzed within the AFTT Study Area.
Table 6 summarizes the proposed testing activities for the Naval Sea Systems Command analyzed within the AFTT Study Area.
Table 7 summarizes the proposed testing activities for the Office of Naval Research analyzed within the AFTT Study Area.
Table 8 through Table 11 show the acoustic source classes and numbers, explosive source bins and numbers, airgun sources, and pile driving and removal activities associated with Navy training and testing activities in the AFTT Study Area that were analyzed in the Navy's rulemaking and LOA application. Table 8 shows the acoustic source classes (
Table 9 shows the number of airguns shots proposed in AFTT Study Area for training and testing activities.
Table 10 summarizes the impact pile driving and vibratory pile removal activities that would occur during a 24-hour period. Annually, for impact pile driving, the Navy will drive 119 piles, two times a year for a total of 238 piles. Over the five-year period of the rule, the Navy will drive a total of 1190 piles by impact pile driving. Annually, for vibratory pile driving, the Navy will drive 119 piles, two times a year for a total of 238 piles. Over the 5-year period of the rule, the Navy will drive a total of 1190 piles by vibratory pile driving.
Table 11 shows the number of in-water explosives that could be used in any year under the Proposed Activity for training and testing activities. Under the Proposed Activity, bin use would vary annually, consistent with the number of annual activities summarized above. The five-year total for the Proposed Activity takes into account that annual variability.
Vessels used as part of the Proposed Activity include ships, submarines and boats ranging in size from small, 22 ft (7 m) rigid hull inflatable boats to aircraft carriers with lengths up to 1,092 ft (333 m). Large Navy ships greater than 60 ft (18 m) generally operate at speeds in the range of 10 to 15 knots for fuel conservation. Submarines generally operate at speeds in the range of 8 to 13 knots in transits and less than those speeds for certain tactical maneuvers. Small craft, less than 60 ft (18 m) in length, have much more variable speeds (dependent on the mission). For small craft types, sizes and speeds vary during training and testing. Speeds generally range from 10 to 14 knots. While these speeds for large and small crafts are representative of most events, some vessels need to temporarily operate outside of these parameters.
The number of Navy vessels used in the AFTT Study Area varies based on military training and testing requirements, deployment schedules, annual budgets, and other unpredictable factors. Most training and testing activities involve the use of vessels. These activities could be widely dispersed throughout the AFTT Study Area, but would be typically conducted near naval ports, piers, and range areas. Activities involving vessel movements occur intermittently and are variable in duration, ranging from a few hours up to two weeks. The number of activities that include the use of vessels for testing events is lower (around 10 percent) than the number of training activities.
For training and testing to be effective, personnel must be able to safely use their sensors and weapon systems as they are intended to be used in a real-world situation and to their optimum capabilities. While standard operating procedures are designed for the safety of personnel and equipment and to ensure the success of training and testing activities, their implementation often yields additional benefits on environmental, socioeconomic, public health and safety, and cultural resources.
Because standard operating procedures are essential to safety and mission success, the Navy considers them to be part of the proposed activities under the Proposed Activity, and has included them in the environmental analysis. Standard operating procedures that are recognized as providing a potential secondary benefit on marine mammals during training and testing activities are noted below and discussed in more detail within the AFTT Draft EIS/OEIS.
Standard operating procedures (which are implemented regardless of their secondary benefits) are different from mitigation measures (which are designed entirely for the purpose of avoiding or reducing potential impacts on the environment.) Refer to Section 1.5.5 Standing Operating Procedures of the Navy's rulemaking and LOA application for greater detail.
Training and testing activities would be conducted in the AFTT Study Area throughout the year from 2018 through 2023 for the five-year period covered by the regulations.
The AFTT Study Area (see Figure 1.1–1 of the Navy's rulemaking and LOA application) includes areas of the western Atlantic Ocean along the east coast of North America, portions of the Caribbean Sea, and the Gulf of Mexico. The AFTT Study Area begins at the mean high tide line along the U.S. coast and extends east to the 45-degree west longitude line, north to the 65 degree north latitude line, and south to approximately the 20-degree north latitude line. The AFTT Study Area also includes Navy pierside locations, bays, harbors, and inland waterways, and civilian ports where training and testing occurs. The AFTT Study Area generally follows the Commander Task Force 80 area of operations, covering approximately 2.6 million nmi
A Navy range complex consists of geographic areas that encompasses a water component (above and below the surface) and airspace, and may encompass a land component where training and testing of military platforms, tactics, munitions, explosives, and electronic warfare systems occur. Range complexes include established operating areas and special use airspace, which may be further divided to provide better control of the area for safety reasons. Please refer to the regional maps provided in the Navy's rulemaking and LOA application (Figure 2.2–1 through Figure 2.2–3) for additional detail of the range complexes and testing ranges. The range complexes and testing ranges are described in the following sections.
The Northeast Range Complexes include the Boston Range Complex, Narragansett Bay Range Complex, and Atlantic City Range Complex (see Figure 2.2–1 in the Navy's rulemaking and LOA application). These range complexes span 761 miles (mi) along the coast from Maine to New Jersey. The Northeast Range Complexes include special use airspace with associated warning areas and surface and subsurface sea space of the Boston OPAREA, Narragansett Bay OPAREA, and Atlantic City OPAREA. The Northeast Range Complexes include over 25,000 nmi
The Naval Undersea Warfare Center Division, Newport Testing Range includes the waters of Narragansett Bay, Rhode Island Sound, Block Island Sound, Buzzards Bay, Vineyard Sound, and Long Island Sound (see Figure 2.2–1 in the Navy's rulemaking and LOA application). A portion of Naval Undersea Warfare Center Division, Newport Testing Range air space is under restricted area R–4105A, known as No Man's Land Island, and a minimal amount of testing occurs in this airspace. Three restricted areas are located within the Naval Undersea Warfare Center Division, Newport Testing Range:
Coddington Cove Restricted Area, 0.5 nmi
Narragansett Bay Restricted Area (6.1 nmi
Rhode Island Sound Restricted Area, a rectangular box (27.2 nmi
The Virginia Capes (VACAPES) Range Complex spans 270 mi. along the coast from Delaware to North Carolina from the shoreline to 155 nmi seaward (see Figure 2.2–1 in the Navy's rulemaking and LOA application). The VACAPES Range Complex includes special use airspace with associated warning and restricted areas, and surface and subsurface sea space of the VACAPES OPAREA. The VACAPES Range Complex also includes established mine warfare training areas located within the lower Chesapeake Bay and off the coast of Virginia. The VACAPES Range Complex includes over 28,000 nmi
The Navy Cherry Point Range Complex, off the coast of North Carolina and South Carolina, encompasses the sea space from the shoreline to 120 nmi seaward. The Navy Cherry Point Range Complex includes special use airspace with associated warning areas and surface and subsurface sea space of the Navy's Cherry Point OPAREA (see Figure 2.2–2 in the Navy's rulemaking and LOA application). The Navy Cherry Point Range Complex is adjacent to the U.S. Marine Corps Cherry Point and Camp Lejeune Range Complexes associated with Marine Corps Air Station Cherry Point and Marine Corps Base Camp Lejeune. The Navy Cherry Point Range Complex includes over 18,000 nmi
The Jacksonville (JAX) Range Complex spans 520 mi along the coast from North Carolina to Florida from the shoreline to 250 nmi seaward. The JAX Range Complex includes special use airspace with associated warning areas and surface and subsurface sea space of the Charleston and JAX OPAREAs. The Undersea Warfare Training Range is located within the JAX Range Complex (see Figure 2.2–2 in the Navy's rulemaking and LOA application).
The Naval Surface Warfare Center Carderock Division operates the South Florida Ocean Measurement Facility Testing Range, an offshore testing area in support of various Navy and non-Navy programs. The South Florida Ocean Measurement Facility Testing Range is located adjacent to the Port Everglades entrance channel in Fort Lauderdale, Florida (see Figure 2.2–2 in the Navy's rulemaking and LOA application). The test area at the South Florida Ocean Measurement Facility Testing Range includes an extensive cable field located within a restricted anchorage area and two designated submarine operating areas. The South Florida Ocean Measurement Facility Testing Range does not have associated special use airspace. The airspace adjacent to the South Florida Ocean Measurement Facility Testing Range is managed by the Fort Lauderdale International Airport. Air operations at the South Florida Ocean Measurement Facility Testing Range are coordinated with Fort Lauderdale International Airport by the air units involved in the testing events. The South Florida Ocean Measurement Facility Testing Range is divided into four subareas:
The Port Everglades Shallow Submarine Operating Area is a 120-nmi
The Training Minefield is a 41-nmi
The Port Everglades Deep Submarine Operating Area is a 335-nmi
The Port Everglades Restricted Anchorage Area is an 11-nmi
The Key West Range Complex lies off the southwestern coast of mainland Florida and along the southern Florida Keys, extending seaward into the Gulf of Mexico 150 nmi and south into the Straits of Florida 60 nmi. The Key West Range Complex includes special use airspace with associated warning areas and surface and subsurface sea space of the Key West OPAREA (see Figure 2.2–3 in the Navy's rulemaking and LOA application). The Key West Range Complex includes over 20,000 nmi
The Naval Surface Warfare Center, Panama City Division Testing Range is located off the panhandle of Florida and Alabama, extending from the shoreline to 120 nmi seaward, and includes St. Andrew Bay. Naval Surface Warfare Center, Panama City Division Testing Range also includes special use airspace and offshore surface and subsurface waters of offshore OPAREAs (see Figure 2.2–3 of the Navy's rulemaking and LOA application). Special use airspace associated with Naval Surface Warfare Center, Panama City Division Testing Range includes three warning areas. The Naval Surface Warfare Center, Panama City Division Testing Range includes the waters of St. Andrew Bay and the sea space within the Gulf of Mexico from the mean high tide line to 120 nmi offshore. The Panama City OPAREA covers just over 3,000 nmi
Unlike most of the range complexes previously described, the Gulf of Mexico (GOMEX) Range Complex includes geographically separated areas throughout the Gulf of Mexico. The GOMEX Range Complex includes special use airspace with associated warning areas and restricted airspace and surface and subsurface sea space of the Panama City, Pensacola, New Orleans, and Corpus Christi OPAREAs (see Figure 2.2–3 of the Navy's rulemaking and LOA application). The GOMEX Range Complex includes approximately 20,000 nmi
Panama City OPAREA lies off the coast of the Florida panhandle and totals approximately 3,000 nmi
Pensacola OPAREA lies off the coast of Florida west of the Panama City OPAREA and totals approximately 4,900 nmi
New Orleans OPAREA lies off the coast of Louisiana and totals approximately 2,600 nmi
Corpus Christi OPAREA lies off the coast of Texas and totals approximately 6,900 nmi
Although within the boundaries of the Range Complexes and testing ranges detailed above, various inshore locations including piers, bays, and civilian ports are identified in Figure 2.2–1 through Figure 2.2–3 of the Navy's rulemaking and LOA application.
Pierside locations include channels and transit routes in ports and facilities associated with the following Navy ports and naval shipyards:
Portsmouth Naval Shipyard, Kittery, Maine;
Naval Submarine Base New London, Groton, Connecticut;
Naval Station Norfolk, Norfolk, Virginia;
Joint Expeditionary Base Little Creek-Fort Story, Virginia Beach, Virginia;
Norfolk Naval Shipyard, Portsmouth, Virginia;
Naval Submarine Base Kings Bay, Kings Bay, Georgia;
Naval Station Mayport, Jacksonville, Florida; and
Port Canaveral, Cape Canaveral, Florida.
Commercial shipbuilding facilities in the following cities are also in the AFTT Study Area:
Bath, Maine;
Groton, Connecticut;
Newport News, Virginia;
Mobile, Alabama; and
Pascagoula, Mississippi.
Inland waterways used for training and testing activities include:
Narragansett Bay Range Complex/Naval Undersea Warfare Center Division, Newport Testing Range: Thames River, Narragansett Bay;
VACAPES Complex: James River and tributaries, Broad Bay, York River, Lower Chesapeake Bay;
JAX Range Complex: southeast Kings Bay, Cooper River, St. Johns River; and
GOMEX Range Complex/Naval Surface Warfare Center, Panama City Division (including Naval Surface Warfare Center, Panama City Division): St. Andrew Bay Civilian Ports.
Civilian ports included for civilian port defense training events are listed in Section A.2.7.3 of Appendix A (Navy Activity Descriptions) of the Navy's AFTT DEIS/OEIS and include:
Boston, Massachusetts;
Earle, New Jersey;
Delaware Bay, Delaware;
Hampton Roads, Virginia;
Morehead City, North Carolina;
Wilmington, North Carolina;
Savannah, Georgia;
Kings Bay, Georgia;
Mayport, Florida;
Port Canaveral, Florida;
Tampa, Florida;
Beaumont, Texas; and
Corpus Christi, Texas.
Marine mammal species that have the potential to occur in the AFTT Study Area and their associated stocks are presented in Table 12 along with an abundance estimate, an associated coefficient of variation value, and best/minimum abundance estimates. Some marine mammal species, such as manatees, are not managed by NMFS, but by the U.S. Fish and Wildlife Service and therefore not discussed below. The Navy proposes to take individuals of 39 marine mammal species by Level A and B harassment incidental to training and testing activities from the use of sonar and other transducers, in-water detonations, airguns, and impact pile driving/vibratory extraction. In addition, the Navy is requesting nine mortalities of four marine mammal stocks during ship shock trials, and three takes by serious injury or mortality from vessel strikes over the five-year period. One marine mammal species, the North Atlantic right whale (
Information on the status, distribution, abundance, and vocalizations of marine mammal species in the AFTT Study Area may be found in Chapter 4 Affected Species Status and Distribution of the Navy's rulemaking and LOA application. Additional information on the general biology and ecology of marine mammals are included in the AFTT DEIS/OEIS. In addition, NMFS annually publishes Stock Assessment Reports (SARs) for all marine mammals in U.S. Exclusive Economic Zone (EEZ) waters, including stocks that occur within the AFTT
The species carried forward for analysis are those likely to be found in the AFTT Study Area based on the most recent data available, and do not include stocks or species that may have once inhabited or transited the area but have not been sighted in recent years and therefore are extremely unlikely to occur in the AFTT Study Area (
The species not carried forward for analysis are the bowhead whale, beluga whale, and narwhal as these would be considered extralimital species. Bowhead whales are likely to be found only in the Labrador Current open ocean area, but in 2012 and 2014, the same bowhead whale was observed in Cape Cod Bay, which represents the southernmost record of this species in the western North Atlantic. In June 2014, a beluga whale was observed in several bays and inlets of Rhode Island and Massachusetts (Swaintek, 2014). This sighting likely represents an extralimital beluga whale occurrence in the Northeast United States Continental Shelf Large Marine Ecosystem. There is no stock of narwhal that occurs in the U.S. EEZ in the Atlantic Ocean; however, populations from Hudson Strait and Davis Strait may extend into the AFTT Study Area at its northwest extreme. However, narwhals prefer cold Arctic waters those wintering in Hudson Strait occur in smaller numbers. For these reasons, the likelihood of any Navy activities encountering and having any effect on any of these three species is so slight as to be unlikely; therefore, these species do not require further analysis.
The only ESA-listed marine mammal with designated critical habitat within the AFTT Study Area is the North Atlantic right whale (NARW). On February 26, 2016, NMFS issued a final rule (81 FR 4837) to replace the critical habitat for NARW with two new areas. The areas now designated as critical habitat contain approximately 29,763 nmi
Unit 1 encompasses the Gulf of Maine and Georges Bank region including the large embayments of Cape Cod Bay and Massachusetts Bay and deep underwater basins, as well as state waters, except for inshore areas, bays, harbors, and inlets, from Maine through Massachusetts in addition to Federal waters, all of which are key areas. Unit 1 includes the large embayments of Cape Cod Bay and Massachusetts Bay but does not include inshore areas, bays, harbors and inlets. It also does not include waters landward of the 72 COLREGS lines (33 CFR part 80). A large portion of the critical habitat of Unit 1 lies within the coastal waters of the Boston OPAREA (see Figure 4.1–1 of the Navy's rulemaking and LOA application).
Unit 2 consists of all marine waters from Cape Fear, North Carolina, southward to approximately 27 nmi below Cape Canaveral, Florida, within the area bounded on the west by the shoreline and the 72 COLREGS lines, and on the east by rhumb lines connecting the specific points described below. The physical features correlated with the distribution of NARW in the southern critical habitat area provide an optimum environment for calving in the waters of Brunswick County, North Carolina; Horry, Georgetown, Charleston, Colleton, Beaufort, and Jasper Counties, South Carolina; Chatham, Bryan, Liberty, McIntosh, Glynn, and Camden Counties, Georgia; and Nassau, Duval, St. John's, Flagler, Volusia, and Brevard Counties, Florida. For example, the bathymetry of the inner and nearshore middle shelf area minimizes the effect of strong winds and offshore waves, limiting the formation of large waves and rough water. The average temperature of critical habitat waters is cooler during the time right whales are present due to a lack of influence by the Gulf Stream and cool freshwater runoff from coastal areas. The water temperatures may provide an optimal balance between offshore waters that are too warm for nursing mothers to tolerate, yet not too cool for calves that may only have minimal fatty insulation. Reproductive females and calves are expected to be concentrated in the critical habitat from December through April. A majority of the critical habitat of Unit 2 lies within the coastal waters of the Jacksonville OPAREA and the Charleston OPAREA (see Figure 4.1–1 of the Navy's rulemaking and LOA application).
Sperm whales aggregate at the mouth of the Mississippi River and along the continental slope in or near cyclonic cold-core eddies (counterclockwise water movements in the northern hemisphere with a cold center) or
Biologically Important Areas (BIAs) include areas of known importance for reproduction, feeding, or migration, or areas where small and resident populations are known to occur (LeBrecque
On the East Coast, 19 of the 24 identified BIAs fall within or overlap with the AFTT Study area—10 feeding (2 for minke whale, 1 for sei whale, 3 for fin whale, 3 for NARW, and 1 for humpback), 1 migration (NARW), 2 reproduction (NARW), 6 small and resident population (1 for harbor porpoise and 5 for bottlenose dolphin). Figures 11.2–1 through11.2–2 of the Navy's rulemaking and LOA application illustrate how these BIAs overlap with Navy OPAREAs on the East Coast. In the Gulf of Mexico, 4 of the 12 identified BIAs for small and resident populations overlap the AFTT study area (1 for Bryde's whale and 3 for Bottlenose dolphin). Figures 11.2–3 of the Navy's rulemaking and LOA application illustrate how these BIAs overlap with Navy OPAREAs in the Gulf of Mexico.
Two minke whale feeding BIAs are located in the northeast Atlantic from March through November in waters less than 200 m in the southern and southwestern section of the Gulf of Maine including Georges Bank, the Great South Channel, Cape Cod Bay and Massachusetts Bay, Stellwagen Bank, Cape Anne, and Jeffreys Ledge (LaBrecque
LaBrecque
LaBrecque
LaBrecque
LaBrecque
The Gulf of Mexico Bryde's whale is a very small population that is genetically distinct from other Bryde's whales and not genetically diverse
Under Title III of the Marine Protection, Research, and Sanctuaries Act of 1972 (also known as the National Marine Sanctuaries Act (NMSA)), NOAA can establish as national marine sanctuaries (NMS) areas of the marine environment with special conservation, recreational, ecological, historical, cultural, archaeological, scientific, educational, or aesthetic qualities. Sanctuary regulations prohibit destroying, causing the loss of, or injuring any sanctuary resource managed under the law or regulations for that sanctuary (15 CFR part 922). NMS are managed on a site-specific basis, and each sanctuary has site-specific regulations. Most, but not all sanctuaries have site-specific regulatory exemptions from the prohibitions for certain military activities. Additionally, section 304(d) of the NMSA requires Federal agencies to consult with the NOAA Office of National Marine Sanctuaries whenever their Proposed Activity are likely to destroy, cause the loss of, or injure a sanctuary resource.
Three NMS are in the vicinity of or overlap with the AFTT Study Area including the Gerry E. Studds Stellwagen Bank National Marine Sanctuary (Stellwagen Bank NMS), Gray's Reef National Marine Sanctuary (Gray's Reef NMS), and Florida Keys National Marine Sanctuary (Florida Keys NMS). Stellwagen Bank NMS sits at the mouth of Massachusetts Bay, just three miles south of Cape Ann, three miles north of Cape Cod and 25 mi due east of Boston and provides feeding and nursery grounds for marine mammals including NARW, humpback, sei, and fin whales. The Stellwagen Bank NMS is within critical habitat for the NARW for foraging (Unit 1). Gray's Reef NMS is 19 mi east of Sapelo Island Georgia, in the South Atlantic Bight (the offshore area between Cape Hatteras, North Carolina and Cape Canaveral, Florida) and is within the designated critical habitat for NARW calving in the southeast (Unit 2). Florida Keys NMS protects 2,900 nmi
A UME is defined under Section 410(6) of the MMPA as a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response. From 1991 to the present, there have been 34 formally recognized UMEs affecting marine mammals along the Atlantic Coast and the Gulf of Mexico involving species under NMFS's jurisdiction. The NARW, humpback whale, and minke whale UMEs on the Atlantic Coast are still active and involve ongoing investigations and the impacts to Barataria Bay bottlenose dolphins from the expired UME associated with the Deepwater Horizon (DWH) oil spill in the Gulf of Mexico are thought to be persistent and continue to inform population analyses. The other UMEs expired several years ago and little is known about how the effects of those events might be appropriately applied to an impact assessment several years later. The three UMEs that could inform the current analysis are discussed below.
Since June 7, 2017, elevated mortalities of NARW have occurred. A total of 16 confirmed dead stranded NARW (12 in Canada; 4 in the United States), and five live whale entanglements in Canada have been documented to date predominantly in the Gulf of St. Lawrence region of Canada and around the Cape Cod area of Massachusetts. An additional whale stranded in the United States in April 2017 prior to the start of the UME bringing the annual 2017 total to 17 confirmed dead stranded whales (12 in Canada; 5 in the United States) as of December 5, 2017. Historically (2006–2016), the annual average for dead strandings in Canada and the United States combined is 3.8 whales per year. This event was declared a UME and is under investigation. Full necropsy examinations have been conducted on 11 of the 17 whales and final results from the examinations are pending. Necropsy results from six of the Canadian whales suggest mortalities of four whales were compatible with blunt trauma likely caused by vessel collision and one mortality confirmed from chronic entanglement in fishing gear. The sixth whale was too decomposed to determine the cause of mortality, but some observations in this animal suggested blunt trauma. A seventh necropsy has been performed, but the results are not currently available (Daoust
As part of the UME investigation process, an independent team of scientists (Investigative Team) was assembled to coordinate with the Working Group on Marine Mammal Unusual Mortality Events to review the data collected, sample future whales that strand and to determine the next steps for the investigation. For more information on this UME, please refer to
Since January 2016, elevated mortalities of humpback whales along the Atlantic coast from Maine through North Carolina have occurred. As of December 1, 2017 a total of 58 humpback strandings have occurred (26 and 32 whales in 2016 and 2017, respectively). As of April 2017, partial or full necropsy examinations were conducted on 20 cases, or approximately half of the 42 strandings (at that time). Of the 20 whales examined, 10 had evidence of blunt force trauma or pre-mortem propeller wounds indicative of vessel strike,
Since January 2017, elevated mortalities of minke whale along the Atlantic coast from Maine through South Carolina have occurred. As of February 16, 2018, a total of 30 strandings have occurred (28 and 2 whales in 2017 and 2018, respectively). As of February 16, 2018 full or partial necropsy examinations were conducted on over 60 percent of the whales. Preliminary findings in several of the whales have shown evidence of human interactions, primarily fisheries interactions, or infectious disease. These findings are not consistent across all of the whales examined, so more research is needed. This investigation is ongoing. Please refer to
The cetacean UME in the northern Gulf of Mexico UME occurred from March 2010 through July 2014. The event included all cetaceans stranded during this time in Alabama, Mississippi, and Louisiana and all cetaceans other than bottlenose dolphins stranded in the Florida Panhandle (Franklin County through Escambia County), with a total of 1,141 cetaceans stranded or reported dead offshore. For reference, the same area experienced a normal average of 75 strandings per year from 2002–09 (Litz
Increased dolphin strandings occurred in northern Louisiana and Mississippi before the DWH oil spill (March–mid–April 2010). Some previous Gulf of Mexico cetacean UMEs had included environmental influences (
The UME investigation and the DWH Natural Resource Damage Assessment (described below) determined that the DWH oil spill is the most likely explanation of the persistent, elevated stranding numbers in the northern Gulf of Mexico after the spill that began on April 20, 2010. The evidence to date supports that exposure to hydrocarbons released during the DWH oil spill was the most likely explanation of adrenal and lung disease in dolphins, which contributed to increased deaths of dolphins living within the oil spill footprint and increased fetal loss. The longest and most prolonged stranding cluster of the UME was in Barataria Bay, Louisiana in 2010–11, followed by Mississippi and Alabama in 2011, consistent with timing and spatial distribution of oil, while the number of deaths was not elevated for areas which were not as heavily oiled.
In order to assess the health of free-ranging (not stranded) dolphin capture-release health assessments were conducted in Barataria Bay, during which physical examinations, including weighing and morphometric measurements, were conducted, routine biological samples (
The prevalence of brucellosis and morbillivirus infections was low and biotoxin levels were low or below the detection limit, meaning that these were not likely primary causes of the UME (Venn-Watson
While the number of dolphin mortalities in the area decreased after the peak from March 2010–July 2014, it does not follow that the effects of the oil spill on these populations have ended. Researchers still saw evidence of chronic lung disease and adrenal impairment four years after the spill (in July 2014) and saw evidence of failed pregnancies in 2015 (Smith
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz, with best hearing estimated to be from 100 Hz to 8 kHz;
Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz, with best hearing from 10 kHz to less than 100 kHz;
High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz.
Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz, with best hearing between 1–50 kHz;
Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz, with best hearing between 2–48 kHz.
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups above and associated frequency ranges, please see NMFS (2016) for a review of available information.
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take of Marine Mammals” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section considers the content of this section, the “Estimated Take of Marine Mammals” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
The Navy has requested authorization for the take of marine mammals that may occur incidental to training and testing activities in the AFTT Study Area. The Navy analyzed potential impacts to marine mammals from acoustics and explosives sources as well as vessel strikes.
Other potential impacts to marine mammals from training and testing activities in the AFTT Study Area were analyzed in the AFTT DEIS/OEIS, in consultation with NMFS as a cooperating agency, and determined to be unlikely to result in marine mammal take in the form of harassment, serious injury, or mortality. Therefore, the Navy has not requested authorization for take of marine mammals that might occur incidental to other components of their proposed activities and we agree that take is unlikely to occur from those components. In this proposed rule, NMFS analyzes the potential effects on marine mammals from the activity components that may cause the take of marine mammals: Exposure to non-impulsive (sonar and other active acoustic sources) and impulsive (explosives, ship shock trials, impact pile driving, and airguns) stressors, and vessel strikes.
For the purpose of MMPA incidental take authorizations, NMFS' effects assessments serve four primary purposes: (1) To prescribe the permissible methods of taking (
In the Potential Effects Section, NMFS' provides a general description of the ways marine mammals may be affected by these activities in the form of mortality, physical trauma, sensory impairment (permanent and temporary threshold shifts and acoustic masking), physiological responses (particular stress responses), behavioral disturbance, or habitat effects. Ship shock and vessel strikes, which have the potential to result in incidental take from serious injury and/or mortality, will be discussed in more detail in the “Estimated Take of Marine Mammals” section. The Estimated Take of Marine Mammals section also discusses how the potential effects on marine mammals from non-impulsive and impulsive sources relate to the MMPA definitions of Level A and Level B Harassment, and quantifies those effects that rise to the level of a take along with
Note that, in the following discussion, we refer in many cases to a review article concerning studies of noise-induced hearing loss conducted from 1996–2015 (
Richardson
We also describe more severe effects (
Based on the literature, there are two basic ways that non-impulsive sources might directly result in direct physiological effects. Noise-induced loss of hearing sensitivity (more commonly-called “threshold shift”) is the both the better-understood of these two effects, and the only one that is actually expected to occur. Acoustically mediated bubble growth and other pressure-related physiological impacts are addressed briefly below, but are not expected to result from the Navy's activities. Separately, an animal's behavioral reaction to an acoustic exposure might lead to physiological effects that might ultimately lead to injury or death, which is discussed later in the Stranding Section.
When animals exhibit reduced hearing sensitivity within their auditory range (
The following physiological mechanisms are thought to play a role in inducing auditory TS: Effects to sensory hair cells in the inner ear that reduce their sensitivity; modification of the chemical environment within the sensory cells; residual muscular activity in the middle ear; displacement of certain inner ear membranes; increased blood flow; and post-stimulatory reduction in both efferent and sensory neural output (Southall
PTS is considered auditory injury (Southall
Although the published body of scientific literature contains numerous theoretical studies and discussion papers on hearing impairments that can occur with exposure to a loud sound, only a few studies provide empirical information on the levels at which noise-induced loss in hearing sensitivity occurs in nonhuman animals. The NMFS 2016 Acoustic Technical Guidance, which was used in the assessment of effects for this action, compiled, interpreted, and synthesized the best available scientific information for noise-induced hearing effects for marine mammals to derive updated thresholds for assessing the impacts of noise on marine mammal hearing, as noted above. For cetaceans, published data on the onset of TTS are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (summarized in Finneran, 2015). TTS studies involving exposure to other Navy activities (
Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Depending on the degree and frequency range, the effects of PTS on an animal could also range in severity, although it is considered generally more serious than TTS because it is a permanent condition. Of note, reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall
One theoretical cause of injury to marine mammals is rectified diffusion (Crum and Mao, 1996), the process of increasing the size of a bubble by exposing it to a sound field. This process could be facilitated if the environment in which the ensonified bubbles exist is supersaturated with gas. Repetitive diving by marine mammals can cause the blood and some tissues to accumulate gas to a greater degree than is supported by the surrounding environmental pressure (Ridgway and Howard, 1979). The deeper and longer dives of some marine mammals (for example, beaked whales) are theoretically predicted to induce greater supersaturation (Houser
It is unlikely that the short duration (in combination with the source levels) of sonar pings would be long enough to drive bubble growth to any substantial size, if such a phenomenon occurs. However, an alternative but related hypothesis has also been suggested: Stable bubbles could be destabilized by
Yet another hypothesis (decompression sickness) has speculated that rapid ascent to the surface following exposure to a startling sound might produce tissue gas saturation sufficient for the evolution of nitrogen bubbles (Jepson
Although theoretical predictions suggest the possibility for acoustically mediated bubble growth, there is considerable disagreement among scientists as to its likelihood (Piantadosi and Thalmann, 2004; Evans and Miller, 2003; Cox
In 2009, Hooker
In their study, they compared results for previously published time depth recorder data (Hooker and Baird, 1999; Baird
Bernaldo de Quiros
To summarize, there is little data to support the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
Sound can disrupt behavior through masking, or interfering with, an animal's ability to detect, recognize, or discriminate between acoustic signals of interest (
In humans, significant masking of tonal signals occurs as a result of exposure to noise in a narrow band of similar frequencies. As the sound level increases, though, the detection of frequencies above those of the masking stimulus decreases also. This principle is expected to apply to marine mammals as well because of common biomechanical cochlear properties across taxa.
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
Richardson
The echolocation calls of toothed whales are subject to masking by high-frequency sound. Human data indicate low-frequency sound can mask high-frequency sounds (
Parks
Risch
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The dominant background noise may be highly directional if it comes from a particular anthropogenic source such as a ship or industrial site. Directional hearing may significantly reduce the masking effects of these sounds by improving the effective signal-to-noise ratio.
The functional hearing ranges of mysticetes, odontocetes, and pinnipeds underwater all overlap the frequencies of the sonar sources used in the Navy's LFAS/MFAS/HFAS training and testing exercises. Additionally, almost all species' vocal repertoires span across the frequencies of these sonar sources used by the Navy. The closer the characteristics of the masking signal to the signal of interest, the more likely masking is to occur. Although hull-mounted sonar accounts for a large portion of the area ensonified by Navy activities (because of the source strength and number of hours it is conducted), the pulse length and low duty cycle of the MFAS/HFAS signal makes it less likely that masking would occur as a result.
In addition to making it more difficult for animals to perceive acoustic cues in their environment, anthropogenic sound presents separate challenges for animals that are vocalizing. When they vocalize, animals are aware of environmental conditions that affect the “active space” of their vocalizations, which is the maximum area within which their vocalizations can be detected before it drops to the level of ambient noise (Brenowitz, 2004; Brumm
Many animals will combine several of these strategies to compensate for high levels of background noise. Anthropogenic sounds that reduce the signal-to-noise ratio of animal vocalizations, increase the masked auditory thresholds of animals listening for such vocalizations, or reduce the active space of an animal's vocalizations impair communication between animals. Most animals that vocalize have evolved strategies to compensate for the effects of short-term or temporary increases in background or ambient noise on their songs or calls. Although the fitness consequences of these vocal adjustments are not directly known in all instances, like most other trade-offs animals must make, some of these strategies probably come at a cost (Patricelli
Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg, 2000; Sapolsky
According to Moberg (2000), in the case of many stressors, an animal's first and sometimes most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effect on an animal's welfare.
An animal's third line of defense to stressors involves its neuroendocrine systems or sympathetic nervous systems; the system that has received the most study has been the hypothalmus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987; Rivier and Rivest, 1991), altered metabolism (Elasser
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic function, which impairs those functions that experience the diversion. For example, when a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When a stress response diverts energy from a fetus, an animal's reproductive success and its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle, 1950) or “allostatic loading” (McEwen and Wingfield, 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response exposure to stimuli.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiments; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton
There is limited information on the physiological responses of marine mammals to anthropogenic sound exposure, as most observations have been limited to short-term behavioral responses, which included cessation of feeding, resting, or social interactions. Information has also been collected on the physiological responses of marine mammals to exposure to anthropogenic sounds (Fair and Becker, 2000; Romano
Despite the lack of robust information on stress responses for marine mammals exposed to anthropogenic sounds, studies of other marine animals and terrestrial animals would also lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as “distress” upon exposure to high frequency, mid-frequency and low-frequency sounds. For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans
Behavioral responses to sound are highly variable and context-specific. Many different variables can influence an animal's perception of and response to (nature and magnitude) an acoustic event. An animal's prior experience with a sound or sound source affects whether it is less likely (habituation) or more likely (sensitization) to respond to certain sounds in the future (animals can also be innately pre-disposed to respond to certain sounds in certain ways) (Southall
Studies by DeRuiter
Ellison
Friedlaender
Exposure of marine mammals to sound sources can result in, but is not limited to, no response or any of the following observable response: Increased alertness; orientation or attraction to a sound source; vocal modifications; cessation of feeding; cessation of social interaction; alteration of movement or diving behavior; habitat abandonment (temporary or permanent); and, in severe cases, panic, flight, stampede, or stranding, potentially resulting in death (Southall
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus, 1996). Flight responses have been speculated as being a component of marine mammal strandings associated with sonar activities (Evans and England, 2001). If marine mammals respond to Navy vessels that are transmitting active sonar in the same way that they might respond to a predator, their probability of flight responses should increase when they perceive that Navy vessels are approaching them directly, because a direct approach may convey detection and intent to capture (Burger and Gochfeld, 1981, 1990; Cooper, 1997, 1998). In addition to the limited data on flight response for marine mammals, there are examples of this response in terrestrial species. For instance, the probability of flight responses in Dall's sheep
Evidence suggests that at least some marine mammals have the ability to acoustically identify potential predators. For example, harbor seals that reside in the coastal waters off British Columbia are frequently targeted by certain groups of killer whales, but not others. The seals discriminate between the calls of threatening and non-threatening killer whales (Deecke
Changes in dive behavior can vary widely. They may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive. Variations in dive behavior may reflect interruptions in biologically significant activities (
Nowacek
Due to past incidents of beaked whale strandings associated with sonar operations, feedback paths are provided between avoidance and diving and indirect tissue effects. This feedback accounts for the hypothesis that variations in diving behavior and/or avoidance responses can possibly result in nitrogen tissue supersaturation and nitrogen off-gassing, possibly to the point of deleterious vascular bubble formation (Jepson
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators
Variations in respiration naturally vary with different behaviors and variations in respiration rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Mean exhalation rates of gray whales at rest and while diving were found to be unaffected by seismic surveys conducted adjacent to the whale feeding grounds (Gailey
Social interactions between mammals can be affected by noise via the disruption of communication signals or by the displacement of individuals. Disruption of social relationships therefore depends on the disruption of other behaviors (
Vocal changes in response to anthropogenic noise can occur across the repertoire of sound production modes used by marine mammals, such as whistling, echolocation click production, calling, and singing. Changes may result in response to a need to compete with an increase in background noise or may reflect an increased vigilance or startle response. For example, in the presence of low-frequency active sonar, humpback whales have been observed to increase the length of their ”songs” (Miller
Cerchio
Castellote
Seismic pulses at average received levels of 131 dB re 1 micropascal squared per second (µPa2-s) caused blue whales to increase call production (Di Iorio and Clark, 2010). In contrast, McDonald
Avoidance is the displacement of an individual from an area as a result of the presence of a sound. Richardson
In 1998, the Navy conducted a Low Frequency Sonar Scientific Research Program (LFS SRP) specifically to study behavioral responses of several species of marine mammals to exposure to LF sound, including one phase that focused on the behavior of gray whales to low frequency sound signals. The objective of this phase of the LFS SRP was to determine whether migrating gray whales respond more strongly to received levels (RL), sound gradient, or distance from the source, and to compare whale avoidance responses to an LF source in the center of the migration corridor versus in the offshore portion of the migration corridor. A single source was used to broadcast LFA sonar sounds at RLs of 170–178 dB re 1µPa. The Navy reported that the whales showed some avoidance responses when the source was moored one mile (1.8 km) offshore, and located within in the migration path, but the whales returned to their migration path when they were a few kilometers beyond the source. When the source was moored two miles (3.7 km) offshore, responses were much less even when the source level was increased to achieve the same RLs in the middle of the migration corridor as whales received when the source was located within the migration corridor (Clark
Also during the LFS SRP, researchers sighted numerous odontocete and pinniped species in the vicinity of the sound exposure tests with LFA sonar. The MF and HF hearing specialists present in the AFTT Study Area showed no immediately obvious responses or changes in sighting rates as a function of source conditions. Consequently, the researchers concluded that none of these species had any obvious behavioral reaction to LFA sonar signals at received levels similar to those that produced only minor short-term behavioral responses in the baleen whales (
Maybaum (1993) conducted sound playback experiments to assess the effects of MFAS on humpback whales in Hawaiian waters. Specifically, she exposed focal pods to sounds of a 3.3-kHz sonar pulse, a sonar frequency sweep from 3.1 to 3.6 kHz, and a control (blank) tape while monitoring behavior, movement, and underwater vocalizations. The two types of sonar signals differed in their effects on the humpback whales, but both resulted in avoidance behavior. The whales responded to the pulse by increasing their distance from the sound source and responded to the frequency sweep by increasing their swimming speeds and track linearity. In the Caribbean, sperm whales avoided exposure to mid-frequency submarine sonar pulses, in the range of 1000 Hz to 10,000 Hz (IWC 2005).
Kvadsheim
Southall
In the Southall
The studies that address responses of low-frequency cetaceans to non-pulse sounds include data gathered in the field and related to several types of sound sources (of varying similarity to MFAS/HFAS) including: vessel noise, drilling and machinery playback, low-frequency M-sequences (sine wave with multiple phase reversals) playback, tactical low-frequency active sonar playback, drill ships, Acoustic Thermometry of Ocean Climate (ATOC) source, and non-pulse playbacks. These studies generally indicate no (or very limited) responses to received levels in the 90 to 120 dB re: 1 µPa range and an increasing likelihood of avoidance and other behavioral effects in the 120 to 160 dB re: 1 µPa range. As mentioned earlier, though, contextual variables play a very important role in the reported responses and the severity of effects are not linear when compared to received level. Also, few of the laboratory or field datasets had common conditions, behavioral contexts or sound sources, so it is not surprising that responses differ.
The studies that address responses of mid-frequency cetaceans to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources (of varying similarity to MFAS/HFAS) including: Pingers, drilling playbacks, ship and ice-breaking noise, vessel noise, Acoustic Harassment Devices (AHDs), Acoustic Deterrent Devices (ADDs), MFAS, and non-pulse bands and tones. Southall
The studies that address responses of high-frequency cetaceans to non-pulse sounds include data gathered both in the field and the laboratory and related to several different sound sources (of varying similarity to MFAS/HFAS) including: Pingers, AHDs, and various laboratory non-pulse sounds. All of these data were collected from harbor porpoises. Southall
The studies that address the responses of pinnipeds in water to non-impulsive sounds include data gathered both in the field and the laboratory and related to several different sound sources including: AHDs, ATOC, various non-pulse sounds used in underwater data communication, underwater drilling, and construction noise. Few studies exist with enough information to include them in the analysis. The limited data suggested that exposures to non-pulse sounds between 90 and 140 dB re: 1 µPa generally do not result in strong behavioral responses in pinnipeds in water, but no data exist at higher received levels.
In 2007, the first in a series of behavioral response studies (BRS) on deep diving odontocetes conducted by NMFS, Navy, and other scientists showed one Blainville's beaked whale responding to an MFAS playback. Tyack
Stimpert
Reaction to mid-frequency sounds included premature cessation of clicking and termination of a foraging dive, and a slower ascent rate to the surface. Results from a similar behavioral response study in southern California waters have been presented for the 2010–2011 field season (Southall
In the 2007–2008 Bahamas study, playback sounds of a potential predator—a killer whale—resulted in a similar but more pronounced reaction, which included longer inter-dive intervals and a sustained straight-line departure of more than 20 km from the area (Boyd
In the 2010 BRS study, researchers again used controlled exposure experiments (CEE) to carefully measure behavioral responses of individual animals to sound exposures of MF active sonar and pseudo-random noise. For each sound type, some exposures were conducted when animals were in a surface feeding (approximately 164 ft (50 m) or less) and/or socializing behavioral state and others while animals were in a deep feeding (greater than 164 ft (50 m)) and/or traveling mode. The researchers conducted the largest number of CEEs on blue whales (n = 19) and of these, 11 CEEs involved exposure to the MF active sonar sound type. For the majority of CEE transmissions of either sound type, they noted few obvious behavioral responses detected either by the visual observers or on initial inspection of the tag data. The researchers observed that throughout the CEE transmissions, up to the highest received sound level (absolute RMS value approximately 160 dB re: 1μPa with signal-to-noise ratio values over 60 dB), two blue whales continued surface feeding behavior and remained at a range of around 3,820 ft (1,000 m) from the sound source (Southall
Through analysis of the behavioral response studies, a preliminary overarching effect of greater sensitivity to all anthropogenic exposures was seen in beaked whales compared to the other odontocetes studied (Southall
Southall
Baleen whales have shown a variety of responses to impulse sound sources, including avoidance, reduced surface intervals, altered swimming behavior, and changes in vocalization rates (Richardson
Gray whales migrating along the U.S. west coast showed avoidance responses to seismic vessels by 10 percent of animals at 164 dB re 1 µPa, and by 90 percent of animals at 190 dB re 1 µPa, with similar results for whales in the Bering Sea (Malme 1986, 1988). In contrast, noise from seismic surveys was not found to impact feeding behavior or exhalation rates while resting or diving in western gray whales off the coast of Russia (Yazvenko
Humpback whales showed avoidance behavior at ranges of five to eight km from a seismic array during observational studies and controlled exposure experiments in western Australia (McCauley, 1998; Todd
A shift in an animal's resting state or an attentional change via an orienting response represent behaviors that would be considered mild disruptions if occurring alone. As previously mentioned, the responses may co-occur with other behaviors; for instance, an animal may initially orient toward a sound source, and then move away from it. Thus, any orienting response should be considered in context of other reactions that may occur.
Under some circumstances, some of the individual marine mammals that are exposed to active sonar transmissions will continue their normal behavioral activities. In other circumstances, individual animals will respond to sonar transmissions at lower received levels and move to avoid additional exposure or exposures at higher received levels (Richardson
It is difficult to distinguish between animals that continue their pre-disturbance behavior without stress responses, animals that continue their behavior but experience stress responses (that is, animals that cope with disturbance), and animals that habituate to disturbance (that is, they may have experienced low-level stress responses initially, but those responses abated over time). Watkins (1986) reviewed data on the behavioral reactions of fin, humpback, right and minke whales that were exposed to continuous, broadband low-frequency shipping and industrial noise in Cape Cod Bay. He concluded that underwater sound was the primary cause of behavioral reactions in these species of whales and that the whales responded behaviorally to acoustic stimuli within their respective hearing ranges. Watkins also noted that whales showed the strongest behavioral reactions to sounds in the 15 Hz to 28 kHz range, although negative reactions (avoidance, interruptions in vocalizations, etc.) were generally associated with sounds that were either unexpected, too loud, suddenly louder or different, or perceived as being associated with a potential threat (such as an approaching ship on a collision course). In particular, whales seemed to react negatively when they were within 100 m of the source or when received levels increased suddenly in excess of 12 dB relative to ambient sounds. At other times, the whales ignored the source of the signal and all four species habituated to these sounds. Nevertheless, Watkins concluded that whales ignored most sounds in the background of ambient noise, including sounds from distant human activities even though these sounds may have had considerable energies at frequencies well within the whales' range of hearing. Further, he noted that of the whales observed, fin whales were the most sensitive of the four species, followed by humpback whales; right whales were the least likely to be disturbed and generally did not react to low-amplitude engine noise. By the end of his period of study, Watkins (1986) concluded that fin and humpback whales have generally habituated to the continuous and broad-band noise of Cape Cod Bay while right whales did not appear to change their response. As mentioned above, animals that habituate to a particular disturbance may have experienced low-level stress responses initially, but those responses abated over time. In most cases, this likely means a lessened immediate potential effect from a disturbance. However, there is cause for concern where the habituation occurs in a potentially more harmful situation. For example, animals may become more vulnerable to vessel strikes once they habituate to vessel traffic (Swingle
Aicken
Underwater explosive detonations send a shock wave and sound energy through the water and can release gaseous by-products, create an oscillating bubble, or cause a plume of water to shoot up from the water surface. The shock wave and accompanying noise are of most concern to marine animals. Depending on the intensity of the shock wave and size, location, and depth of the animal, an animal can be injured, killed, suffer non-lethal physical effects, experience hearing related effects with or without behavioral responses, or exhibit temporary behavioral responses or tolerance from hearing the blast sound. Generally, exposures to higher levels of impulse and pressure levels would result in greater impacts to an individual animal.
Injuries resulting from a shock wave take place at boundaries between tissues of different densities. Different velocities are imparted to tissues of different densities, and this can lead to their physical disruption. Blast effects are greatest at the gas-liquid interface (Landsberg, 2000). Gas-containing organs, particularly the lungs and gastrointestinal tract, are especially susceptible (Goertner, 1982; Hill, 1978; Yelverton
Because the ears are the most sensitive to pressure, they are the organs most sensitive to injury (Ketten, 2000). Sound-related damage associated with sound energy from detonations can be theoretically distinct from injury from the shock wave, particularly farther from the explosion. If a noise is audible to an animal, it has the potential to damage the animal's hearing by causing decreased sensitivity (Ketten, 1995). Lethal impacts are those that result in immediate death or serious debilitation in or near an intense source and are not, technically, pure acoustic trauma (Ketten, 1995). Sublethal impacts include hearing loss, which is caused by exposures to perceptible sounds. Severe damage (from the shock wave) to the ears includes tympanic membrane rupture, fracture of the ossicles, damage to the cochlea, hemorrhage, and cerebrospinal fluid leakage into the middle ear. Moderate injury implies partial hearing loss due to tympanic membrane rupture and blood in the middle ear. Permanent hearing loss also can occur when the hair cells are damaged by one very loud event, as well as by prolonged exposure to a loud
The different ways that marine mammals respond to sound are sometimes indicators of the ultimate effect that exposure to a given stimulus will have on the well-being (survival, reproduction, etc.) of an animal. There are few quantitative marine mammal data relating the exposure of marine mammals to sound to effects on reproduction or survival, though data exists for terrestrial species to which we can draw comparisons for marine mammals. Several authors have reported that disturbance stimuli may cause animals to abandon nesting and foraging sites (Sutherland and Crockford, 1993); may cause animals to increase their activity levels and suffer premature deaths or reduced reproductive success when their energy expenditures exceed their energy budgets (Daan
One consequence of behavioral avoidance results in the altered energetic expenditure of marine mammals because energy is required to move and avoid surface vessels or the sound field associated with active sonar (Frid and Dill, 2002). Most animals can avoid that energetic cost by swimming away at slow speeds or speeds that minimize the cost of transport (Miksis-Olds, 2006), as has been demonstrated in Florida manatees (Miksis-Olds, 2006).
Those energetic costs increase, however, when animals shift from a resting state, which is designed to conserve an animal's energy, to an active state that consumes energy the animal would have conserved had it not been disturbed. Marine mammals that have been disturbed by anthropogenic noise and vessel approaches are commonly reported to shift from resting to active behavioral states, which would imply that they incur an energy cost.
Morete
Constantine and Brunton (2001) reported that bottlenose dolphins in the Bay of Islands, New Zealand engaged in resting behavior just five percent of the time when vessels were within 300 m, compared with 83 percent of the time when vessels were not present. However, Heenehan
Attention is the cognitive process of selectively concentrating on one aspect of an animal's environment while ignoring other things (Posner, 1994). Because animals (including humans) have limited cognitive resources, there is a limit to how much sensory information they can process at any time. The phenomenon called “attentional capture” occurs when a stimulus (usually a stimulus that an animal is not concentrating on or attending to) “captures” an animal's attention. This shift in attention can occur consciously or subconsciously (for example, when an animal hears sounds that it associates with the approach of a predator) and the shift in attention can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has captured an animal's attention, the animal can respond by ignoring the stimulus, assuming a “watch and wait” posture, or treat the stimulus as a disturbance and respond accordingly, which includes scanning for the source of the stimulus or “vigilance” (Cowlishaw
Vigilance is normally an adaptive behavior that helps animals determine the presence or absence of predators, assess their distance from conspecifics, or to attend cues from prey (Bednekoff and Lima, 1998; Treves, 2000). Despite those benefits, however, vigilance has a cost of time; when animals focus their attention on specific environmental cues, they are not attending to other activities such as foraging. These costs have been documented best in foraging animals, where vigilance has been shown to substantially reduce feeding rates (Saino, 1994; Beauchamp and Livoreil, 1997; Fritz
Several authors have established that long-term and intense disturbance stimuli can cause population declines by reducing the physical condition of individuals that have been disturbed, followed by reduced reproductive success, reduced survival, or both (Daan
The primary mechanism by which increased vigilance and disturbance appear to affect the fitness of individual animals is by disrupting an animal's time budget and, as a result, reducing the time they might spend foraging and resting (which increases an animal's activity rate and energy demand while decreasing their caloric intake/energy). Ridgway
Lusseau and Bejder (2007) present data from three long-term studies illustrating the connections between disturbance from whale-watching boats and population-level effects in cetaceans. In Sharks Bay Australia, the abundance of bottlenose dolphins was compared within adjacent control and tourism sites over three consecutive 4.5-year periods of increasing tourism levels. Between the second and third time periods, in which tourism doubled, dolphin abundance decreased by 15 percent in the tourism area and did not change significantly in the control area. In Fiordland, New Zealand, two populations (Milford and Doubtful Sounds) of bottlenose dolphins with tourism levels that differed by a factor of seven were observed and significant increases in travelling time and decreases in resting time were documented for both. Consistent short-term avoidance strategies were observed in response to tour boats until a threshold of disturbance was reached (average 68 minutes between interactions), after which the response switched to a longer term habitat displacement strategy. For one population tourism only occurred in a part of the home range, however, tourism occurred throughout the home range of the Doubtful Sound population and once boat traffic increased beyond the 68-minute threshold (resulting in abandonment of their home range/preferred habitat), reproductive success drastically decreased (increased stillbirths) and abundance decreased significantly (from 67 to 56 individuals in short period). Last, in a study of northern resident killer whales off Vancouver Island, exposure to boat traffic was shown to reduce foraging opportunities and increase traveling time. A simple bioenergetics model was applied to show that the reduced foraging opportunities equated to a decreased energy intake of 18 percent, while the increased traveling incurred an increased energy output of 3–4 percent, which suggests that a management action based on avoiding interference with foraging might be particularly effective.
On a related note, many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant for fitness if they last more than one diel cycle or recur on subsequent days (Southall
In order to understand how the effects of activities may or may not impact species and stocks of marine mammals, it is necessary to understand not only what the likely disturbances are going to be, but how those disturbances may affect the reproductive success and survivorship of individuals, and then how those impacts to individuals translate to population-level effects. Following on the earlier work of a committee of the U.S. National Research Council (NRC, 2005), New
The definition for a stranding under title IV of the MMPA is that (A) a marine mammal is dead and is (i) on a beach or shore of the United States; or (ii) in waters under the jurisdiction of the United States (including any navigable waters); or (B) a marine mammal is alive and is (i) on a beach or shore of the United States and is unable to return to the water; (ii) on a beach or shore of the United States and, although able to return to the water, is in need of apparent medical attention; or (iii) in the waters under the jurisdiction of the United States (including any navigable waters), but is unable to return to its natural habitat under its own power or without assistance (16 U.S.C. 1421h).
Marine mammals are known to strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series. However, the cause or causes of most strandings are unknown (Geraci
Several sources have published lists of mass stranding events of cetaceans in an attempt to identify relationships between those stranding events and military active sonar (Hildebrand, 2004; IWC, 2005; Taylor
Most of the stranding events reviewed by the IWC involved beaked whales. A mass stranding of Cuvier's beaked whales in the eastern Mediterranean Sea occurred in 1996 (Frantzis, 1998) and mass stranding events involving Gervais' beaked whales, Blainville's beaked whales, and Cuvier's beaked whales occurred off the coast of the Canary Islands in the late 1980s (Simmonds and Lopez-Jurado, 1991). The stranding events that occurred in the Canary Islands and Kyparissiakos Gulf in the late 1990s and the Bahamas in 2000 have been the most intensively-studied mass stranding events and have been associated with naval maneuvers involving the use of tactical sonar.
During a Navy training event on March 4, 2011 at the Silver Strand Training Complex in San Diego, California, three or possibly four dolphins were killed in an explosion. During an underwater detonation training event, a pod of 100 to 150 long-beaked common dolphins were observed moving towards the 700-yd (640.1-m) exclusion zone around the explosive charge, monitored by personnel in a safety boat and participants in a dive boat. Approximately five minutes remained on a time-delay fuse connected to a single 8.76 lb (3.97 kg) explosive charge (C–4 and detonation cord). Although the dive boat was placed between the pod and the explosive in an effort to guide the dolphins away from the area, that effort was unsuccessful and three long-beaked common dolphins near the explosion died. In addition to the three dolphins found dead on March 4, the remains of a fourth dolphin were discovered on March 7, 2011 near Oceanside, California (3 days later and approximately 68 km north of the detonation, which might also have been related to this event. Association of the fourth stranding with the training event is uncertain because dolphins strand on a regular basis in the San Diego area. Details such as the dolphins' depth and distance from the explosive at the time of the detonation could not be estimated from the 250 yd (228.6 m) standoff point of the observers in the dive boat or the safety boat.
These dolphin mortalities are the only known occurrence of a U.S. Navy training or testing event involving impulsive energy (underwater detonation) that caused mortality or injury to a marine mammal. Despite this being a rare occurrence, the Navy has reviewed training requirements, safety procedures, and possible mitigation measures and implemented changes to reduce the potential for this to occur in the future. Discussions of procedures associated with underwater explosives training and other training events are presented in the Proposed Mitigation section.
On July 22, 2011 a mass stranding event involving long-finned pilot whales occurred at Kyle of Durness, Scotland. An investigation by Brownlow
Over the past 21 years, there have been five stranding events coincident with military MF active sonar use in which exposure to sonar is believed to have been a contributing factor: Greece (1996); the Bahamas (2000); Madeira (2000); Canary Islands (2002); and Spain (2006). NMFS refers the reader to DoN (2013) for a report on these strandings associated with Navy sonar activities; Cox
Twelve Cuvier's beaked whales stranded atypically (in both time and space) along a 38.2-km strand of the Kyparissiakos Gulf coast on May 12 and 13, 1996 (Frantzis, 1998). From May 11 through May 15, the North Atlantic Treaty Organization (NATO) research vessel Alliance was conducting sonar tests with signals of 600 Hz and 3 kHz and source levels of 228 and 226 dB re: 1μPa, respectively (D'Amico and Verboom, 1998; D'Spain
Necropsies of eight of the animals were performed but were limited to basic external examination and sampling of stomach contents, blood, and skin. No ears or organs were collected, and no histological samples were preserved. No apparent abnormalities or wounds were found. Examination of photos of the animals, taken soon after their death, revealed that the eyes of at least four of the individuals were bleeding. Photos were taken soon after their death (Frantzis, 2004). Stomach contents contained the flesh of cephalopods, indicating that feeding had recently taken place (Frantzis, 1998).
All available information regarding the conditions associated with this stranding event were compiled, and many potential causes were examined including major pollution events, prominent tectonic activity, unusual physical or meteorological events, magnetic anomalies, epizootics, and conventional military activities (International Council for the Exploration of the Sea, 2005a). However, none of these potential causes coincided in time or space with the mass stranding, or could explain its characteristics (International Council for the Exploration of the Sea, 2005a). The robust condition of the animals, plus the recent stomach contents, is inconsistent with pathogenic causes. In addition, environmental causes can be ruled out as there were no unusual environmental circumstances or events before or during this time period and within the general proximity (Frantzis, 2004).
Because of the rarity of this mass stranding of Cuvier's beaked whales in the Kyparissiakos Gulf (first one in historical records), the probability for the two events (the military exercises and the strandings) to coincide in time and location, while being independent of each other, was thought to be extremely low (Frantzis, 1998). However, because full necropsies had not been conducted, and no abnormalities were noted, the cause of the strandings could not be precisely determined (Cox
NMFS and the Navy prepared a joint report addressing the multi-species stranding in the Bahamas in 2000, which took place within 24 hours of U.S. Navy ships using MFAS as they passed through the Northeast and Northwest Providence Channels on March 15–16, 2000. The ships, which operated both AN/SQS–53C and AN/SQS–56, moved through the channel while emitting sonar pings approximately every 24 seconds. Of the 17 cetaceans that stranded over a 36-hr period (Cuvier's beaked whales, Blainville's beaked whales, minke whales, and a spotted dolphin), seven animals died on the beach (five Cuvier's beaked whales, one Blainville's beaked whale, and the spotted dolphin), while the other 10 were returned to the water alive (though their ultimate fate is unknown). As discussed in the Bahamas report (DOC/DON, 2001), there is no likely association between the minke whale and spotted dolphin strandings and the operation of MFAS.
Necropsies were performed on five of the stranded beaked whales. All five necropsied beaked whales were in good body condition, showing no signs of infection, disease, ship strike, blunt trauma, or fishery related injuries, and three still had food remains in their stomachs. Auditory structural damage was discovered in four of the whales, specifically bloody effusions or hemorrhaging around the ears. Bilateral intracochlear and unilateral temporal region subarachnoid hemorrhage, with blood clots in the lateral ventricles, were found in two of the whales. Three of the whales had small hemorrhages in their acoustic fats (located along the jaw and in the melon).
A comprehensive investigation was conducted and all possible causes of the stranding event were considered, whether they seemed likely at the outset or not. Based on the way in which the strandings coincided with ongoing naval activity involving tactical MFAS use, in terms of both time and geography, the nature of the physiological effects experienced by the dead animals, and the absence of any other acoustic sources, the investigation team concluded that MFAS aboard U.S. Navy ships that were in use during the active sonar exercise in question were the most plausible source of this acoustic or impulse trauma to beaked whales. This sound source was active in a complex environment that included the presence of a surface duct, unusual and steep bathymetry, a constricted channel with limited egress, intensive use of multiple, active sonar units over an extended period of time, and the presence of beaked whales that appear to be sensitive to the frequencies produced by these active sonars. The investigation team concluded that the cause of this stranding event was the confluence of the Navy MFAS and these contributory factors working together, and further recommended that the Navy avoid operating MFAS in situations where these five factors would be likely to occur. This report does not conclude that all five of these factors must be present for a stranding to occur, nor that beaked whales are the only species that could potentially be affected by the confluence of the other factors. Based on this, NMFS believes that the operation of MFAS in situations where surface ducts exist, or in marine environments defined by steep bathymetry and/or
From May 10–14, 2000, three Cuvier's beaked whales were found atypically stranded on two islands in the Madeira archipelago, Portugal (Cox
The bodies of the three stranded whales were examined post mortem (Woods Hole Oceanographic Institution, 2005), though only one of the stranded whales was fresh enough (24 hours after stranding) to be necropsied (Cox
Several observations on the Madeira stranded beaked whales, such as the pattern of injury to the auditory system, are the same as those observed in the Bahamas strandings. Blood in and around the eyes, kidney lesions, pleural hemorrhages, and congestion in the lungs are particularly consistent with the pathologies from the whales stranded in the Bahamas, and are consistent with stress and pressure related trauma. The similarities in pathology and stranding patterns between these two events suggest that a similar pressure event may have precipitated or contributed to the strandings at both sites (Woods Hole Oceanographic Institution, 2005).
Even though no definitive causal link can be made between the stranding event and naval exercises, certain conditions may have existed in the exercise area that, in their aggregate, may have contributed to the marine mammal strandings (Freitas, 2004): exercises were conducted in areas of at least 547 fathoms (1,000 m) depth near a shoreline where there is a rapid change in bathymetry on the order of 547 to 3,281 fathoms (1,000 to 6,000 m) occurring across a relatively short horizontal distance (Freitas, 2004); multiple ships were operating around Madeira, though it is not known if MFAS was used, and the specifics of the sound sources used are unknown (Cox
The southeastern area within the Canary Islands is well known for aggregations of beaked whales due to its ocean depths of greater than 547 fathoms (1,000 m) within a few hundred meters of the coastline (Fernandez
Eight Cuvier's beaked whales, one Blainville's beaked whale, and one Gervais' beaked whale were necropsied, 6 of them within 12 hours of stranding (Fernandez
The association of NATO MFAS use close in space and time to the beaked whale strandings, and the similarity between this stranding event and previous beaked whale mass strandings coincident with sonar use, suggests that a similar scenario and causative mechanism of stranding may be shared between the events. Beaked whales stranded in this event demonstrated brain and auditory system injuries, hemorrhages, and congestion in multiple organs, similar to the pathological findings of the Bahamas and Madeira stranding events. In addition, the necropsy results of Canary Islands stranding event lead to the hypothesis that the presence of disseminated and widespread gas bubbles and fat emboli were indicative of nitrogen bubble formation, similar to what might be expected in decompression sickness (Jepson
On July 3 and 4, 2004, approximately 150 to 200 melon-headed whales occupied the shallow waters of the Hanalei Bay, Kaua'i, Hawaii for over 28 hrs. Attendees of a canoe blessing observed the animals entering the Bay in a single wave formation at 7 a.m. on July 3, 2004. The animals were observed moving back into the shore from the mouth of the Bay at 9 a.m. The usually pelagic animals milled in the shallow bay and were returned to deeper water with human assistance beginning at 9:30 a.m. on July 4, 2004, and were out of sight by 10:30 a.m.
Only one animal, a calf, was known to have died following this event. The animal was noted alive and alone in the Bay on the afternoon of July 4, 2004, and was found dead in the Bay the morning of July 5, 2004. A full necropsy, magnetic resonance imaging, and computerized tomography examination were performed on the calf
Environmental factors, abiotic and biotic, were analyzed for any anomalous occurrences that would have contributed to the animals entering and remaining in Hanalei Bay. The Bay's bathymetry is similar to many other sites within the Hawaiian Island chain and dissimilar to sites that have been associated with mass strandings in other parts of the U.S. The weather conditions appeared to be normal for that time of year with no fronts or other significant features noted. There was no evidence of unusual distribution, occurrence of predator or prey species, or unusual harmful algal blooms, although Mobley
The Hanalei event was spatially and temporally correlated with RIMPAC. Official sonar training and tracking exercises in the Pacific Missile Range Facility (PMRF) warning area did not commence until approximately 8 a.m. on July 3 and were thus ruled out as a possible trigger for the initial movement into the Bay. However, six naval surface vessels transiting to the operational area on July 2 intermittently transmitted active sonar (for approximately nine hours total from 1:15 p.m. to 12:30 a.m.) as they approached from the south. The potential for these transmissions to have triggered the whales' movement into Hanalei Bay was investigated. Analyses with the information available indicated that animals to the south and east of Kaua'i could have detected active sonar transmissions on July 2, and reached Hanalei Bay on or before 7 a.m. on July 3. However, data limitations regarding the position of the whales prior to their arrival in the Bay, the magnitude of sonar exposure, behavioral responses of melon-headed whales to acoustic stimuli, and other possible relevant factors preclude a conclusive finding regarding the role of sonar in triggering this event. Propagation modeling suggests that transmissions from sonar use during the July 3 exercise in the PMRF warning area may have been detectable at the mouth of the Bay. If the animals responded negatively to these signals, it may have contributed to their continued presence in the Bay. The U.S. Navy ceased all active sonar transmissions during exercises in this range on the afternoon of July 3. Subsequent to the cessation of sonar use, the animals were herded out of the Bay.
While causation of this stranding event may never be unequivocally determined, NMFS consider the active sonar transmissions of July 2–3, 2004, a plausible, if not likely, contributing factor in what may have been a confluence of events. This conclusion is based on the following: (1) The evidently anomalous nature of the stranding; (2) its close spatiotemporal correlation with wide-scale, sustained use of sonar systems previously associated with stranding of deep-diving marine mammals; (3) the directed movement of two groups of transmitting vessels toward the southeast and southwest coast of Kauai; (4) the results of acoustic propagation modeling and an analysis of possible animal transit times to the Bay; and (5) the absence of any other compelling causative explanation. The initiation and persistence of this event may have resulted from an interaction of biological and physical factors. The biological factors may have included the presence of an apparently uncommon, deep-diving cetacean species (and possibly an offshore, non-resident group), social interactions among the animals before or after they entered the Bay, and/or unknown predator or prey conditions. The physical factors may have included the presence of nearby deep water, multiple vessels transiting in a directed manner while transmitting active sonar over a sustained period, the presence of surface sound ducting conditions, and/or intermittent and random human interactions while the animals were in the Bay.
A separate event involving melon-headed whales and rough-toothed dolphins took place over the same period of time in the Northern Mariana Islands (Jefferson
The Spanish Cetacean Society reported an atypical mass stranding of four beaked whales that occurred January 26, 2006, on the southeast coast of Spain, near Mojacar (Gulf of Vera) in the Western Mediterranean Sea. According to the report, two of the whales were discovered the evening of January 26 and were found to be still alive. Two other whales were discovered during the day on January 27, but had already died. The first three animals were located near the town of Mojacar and the fourth animal was found dead, a few kilometers north of the first three animals. From January 25–26, 2006, Standing NATO Response Force Maritime Group Two (five of seven ships including one U.S. ship under NATO Operational Control) had conducted active sonar training against a Spanish submarine within 50 nmi (93 km) of the stranding site.
Veterinary pathologists necropsied the two male and two female Cuvier's beaked whales. According to the pathologists, the most likely primary cause of this type of beaked whale mass stranding event was anthropogenic acoustic activities, most probably anti-submarine MFAS used during the military naval exercises. However, no positive acoustic link was established as
Although the confluence of Navy MFAS with the other contributory factors noted in the report was identified as the cause of the 2000 Bahamas stranding event, the specific mechanisms that led to that stranding (or the others) are not understood, and there is uncertainty regarding the ordering of effects that led to the stranding. It is unclear whether beaked whales were directly injured by sound (
Although causal relationships between beaked whale stranding events and active sonar remain unknown, several authors have hypothesized that stranding events involving these species in the Bahamas and Canary Islands may have been triggered when the whales changed their dive behavior in a startled response to exposure to active sonar or to further avoid exposure (Cox
Because many species of marine mammals make repetitive and prolonged dives to great depths, it has long been assumed that marine mammals have evolved physiological mechanisms to protect against the effects of rapid and repeated decompressions. Although several investigators have identified physiological adaptations that may protect marine mammals against nitrogen gas supersaturation (alveolar collapse and elective circulation; Kooyman
Zimmer and Tyack (2007) modeled nitrogen tension and bubble growth in several tissue compartments for several hypothetical dive profiles and concluded that repetitive shallow dives (defined as a dive where depth does not exceed the depth of alveolar collapse, approximately 72 m for Ziphius), perhaps as a consequence of an extended avoidance reaction to sonar sound, could pose a risk for decompression sickness and that this risk should increase with the duration of the response. Their models also suggested that unrealistically rapid rates of ascent from normal dive behaviors are unlikely to result in supersaturation to the extent that bubble formation would be expected. Tyack
If marine mammals respond to a Navy vessel that is transmitting active sonar in the same way that they might respond to a predator, their probability of flight responses could increase when they perceive that Navy vessels are approaching them directly, because a direct approach may convey detection and intent to capture (Burger and Gochfeld, 1981, 1990; Cooper, 1997, 1998). The probability of flight responses could also increase as received levels of active sonar increase (and the ship is, therefore, closer) and as ship speeds increase (that is, as approach speeds increase). For example, the probability of flight responses in Dall's sheep (
Despite the many theories involving bubble formation (both as a direct cause of injury (see Acoustically Mediated Bubble Growth Section) and an indirect cause of stranding (See Behaviorally Mediated Bubble Growth Section), Southall
Stranding events, specifically UMEs that occurred on the Atlantic Coast and the Gulf of Mexico (inclusive of the AFTT Study Area) were previously discussed in the Description of Marine Mammals section.
Vessel collisions with marine mammals, also referred to as vessel strikes or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or an animal just below the surface could be cut by a vessel's propeller. Superficial strikes may not kill or result in the death of the animal. These interactions are typically associated with large whales, which are occasionally found draped across the bulbous bow of large commercial ships upon arrival in port. Although smaller cetaceans are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to strike. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus, 2001; Laist
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death or serious injury (Knowlton and Kraus, 2001; Laist
Jensen and Silber (2003) detailed 292 records of known or probable ship strikes of all large whale species from 1975 to 2002. Of these, vessel speed at the time of collision was reported for 58 cases. Of these cases, 39 (or 67 percent) resulted in serious injury or death (19 of those resulted in serious injury as determined by blood in the water, propeller gashes or severed tailstock, and fractured skull, jaw, vertebrae, hemorrhaging, massive bruising or other injuries noted during necropsy and 20 resulted in death). Operating speeds of vessels that struck various species of large whales ranged from 2 to 51 knots. The majority (79 percent) of these strikes occurred at speeds of 13 knots or greater. The average speed that resulted in serious injury or death was 18.6 knots. Pace and Silber (2005) found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 knots, and exceeded 90 percent at 17 knots. Higher speeds during collisions result in greater force of impact and also appear to increase the chance of severe injuries or death. While modeling studies have suggested that hydrodynamic forces pulling whales toward the vessel hull increase with increasing speed (Clyne, 1999; Knowlton
In a separate study, Vanderlaan and Taggart (2007) analyzed the probability of lethal mortality of large whales at a given speed, showing that the greatest rate of change in the probability of a lethal injury to a large whale as a function of vessel speed occurs between
The Jensen and Silber (2003) report notes that the database represents a minimum number of collisions, because the vast majority probably goes undetected or unreported. In contrast, Navy vessels are likely to detect any strike that does occur, and they are required to report all ship strikes involving marine mammals. Overall, the percentage of Navy traffic relative to overall large shipping traffic are very small (on the order of two percent) and therefore represent a correspondingly smaller threat of potential ship strikes when compared to commercial shipping.
Over a period of 18 years from 1995 to 2012 there have been a total of 19 Navy vessel strikes in the AFTT Study Area. Eight of the strikes resulted in a confirmed death; but in 11 of the 19 strikes, the fate of the animal was unknown. It is possible that some of the 11 reported strikes resulted in recoverable injury or were not marine mammals at all, but another large marine species (
Between 2007 and 2009, the Navy developed and distributed additional training, mitigation, and reporting tools to Navy operators to improve marine mammal protection and to ensure compliance with permit requirements. In 2007, the Navy implemented Marine Species Awareness Training designed to improve effectiveness of visual observation for marine resources including marine mammals. In subsequent years, the Navy issued refined policy guidance on ship strikes in order to collect the most accurate and detailed data possible in response to a possible incident.
The Navy's proposed training and testing activities could potentially affect marine mammal habitat through the introduction of impacts to the prey species of marine mammals, acoustic habitat (sound in the water column), water quality, and important habitat for marine mammals. Each of these components was considered in the AFTT DEIS/OEIS and was determined by the Navy to have no effect on marine mammal habitat. Based on the information below and the supporting information included in the AFTT DEIS/OEIS, NMFS has determined that the proposed training and training activities would not have adverse or long-term impacts on marine mammal habitat.
Sound may affect marine mammals through impacts on the abundance, behavior, or distribution of prey species (
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fish react to sounds which are especially strong and/or intermittent low-frequency sounds, and behavioral responses such as flight or avoidance are the most likely effects. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. The reaction of fish to acoustic sources depends on the physiological state of the fish, past exposures, motivation (
Some studies have shown no or slight reaction to airgun sounds (
SPLs of sufficient strength have been known to cause injury to fish and fish mortality and, in some studies, fish auditory systems have been damaged by airgun noise (McCauley
Injury caused by barotrauma can range from slight to severe and can
It is uncertain whether some permanent hearing loss over a part of a fish's hearing range would have long-term consequences for that individual. It is possible for fish to be injured or killed by an explosion. Physical effects from pressure waves generated by underwater sounds (
Invertebrates appear to be able to detect sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive to low-frequency sounds (Packard
Impacts to benthic communities from impulsive sound generated by active acoustic sound sources are not well documented. There are no published data that indicate whether threshold shift injuries or effects of auditory masking occur in benthic invertebrates, and there are little data to suggest whether sounds from seismic surveys would have any substantial impact on invertebrate behavior (Hawkins
There is little information concerning potential impacts of noise on zooplankton populations. However, one recent study (McCauley
Prey species exposed to sound might move away from the sound source, experience TTS, experience masking of biologically relevant sounds, or show no obvious direct effects. Mortality from decompression injuries is possible in close proximity to a sound, but only limited data on mortality in response to airgun noise exposure are available (Hawkins
Acoustic habitat is the soundscape—which encompasses all of the sound present in a particular location and time, as a whole—when considered from the perspective of the animals experiencing it. Animals produce sound for, or listen for sounds produced by, conspecifics (communication during feeding, mating, and other social activities), other animals (finding prey or avoiding predators), and the physical environment (finding suitable habitats, navigating). Together, sounds made by animals and the geophysical environment (
Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of airgun arrays), or for Navy training and testing purposes (as in the use of sonar and explosives and other acoustic sources). Anthropogenic noise varies widely in its frequency, content, duration, and loudness and these characteristics greatly influence the potential habitat-
The term “listening area” refers to the region of ocean over which sources of sound can be detected by an animal at the center of the space. Loss of communication space concerns the area over which a specific animal signal, used to communicate with conspecifics in biologically-important contexts (
Sound produced from training and testing activities in the AFTT Study Area is temporary and transitory. The sounds produced during training and testing activities can be widely dispersed or concentrated in small areas for varying periods. Any anthropogenic noise attributed to training and testing activities in the AFTT Study Area would be temporary and the affected area would be expected to immediately return to the original state when these activities cease.
The AFTT DEIS/OEIS analyzed the potential effects on water quality from military expended materials. Training and testing activities may introduce water quality constituents into the water column. Based on the analysis of the AFTT DEIS/OEIS, military expended materials (
Indirect effects of explosives and unexploded ordnance to marine mammals via sediment is possible in the immediate vicinity of the ordnance. Degradation products of Royal Demolition Explosive are not toxic to marine organisms at realistic exposure levels (Rosen & Lotufo, 2010). Relatively low solubility of most explosives and their degradation products means that concentrations of these contaminants in the marine environment are relatively low and readily diluted. Furthermore, while explosives and their degradation products were detectable in marine sediment approximately 6–12 in (0.15–0.3 m) away from degrading ordnance, the concentrations of these compounds were not statistically distinguishable from background beyond 3–6 ft (1–2 m) from the degrading ordnance. Taken together, it is possible that marine mammals could be exposed to degrading explosives, but it would be within a very small radius of the explosive (1–6 ft (0.3–2 m)).
Equipment used by the Navy within the AFTT Study Area, including ships and other marine vessels, aircraft, and other equipment, are also potential sources of by-products. All equipment is properly maintained in accordance with applicable Navy or legal requirements. All such operating equipment meets Federal water quality standards, where applicable.
The only ESA-listed marine mammal with designated critical habitat within the AFTT Study Area is the NARW. This critical habitat was discussed in the Description of Marine Mammals section. BIAs were also discussed in the Description of Marine Mammals section.
This section indicates the number of takes that NMFS is proposing to authorize which are based on the amount of take that NMFS anticipates could, or are likely to occur depending on the type of take and the methods used to estimate it, as described in detail below. NMFS coordinated closely with the Navy in the development of their incidental take application, and with one exception, preliminarily agrees that the methods the Navy has put forth described herein to estimate take (including the model, thresholds, and density estimates), and the resulting numbers proposed for authorization, are appropriate and based on the best available science. Where we did not concur with the Navy's analysis and proposed take numbers (
Takes are predominantly in the form of harassment, but a small number of mortalities are also proposed. For this military readiness activity, the MMPA defines “harassment” as: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).
Authorized takes would primarily be by Level B harassment, as use of the acoustic and explosive sources (
Described in the most basic way, we estimate the amount and type of harassment by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.
Using the best available science NMFS, in coordination with the Navy, has established acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would reasonably expected to be experience a disruption in behavior, or to incur TTS (equated to Level B harassment) or PTS of some degree (equated to Level A harassment). Thresholds have also been developed to identify the pressure levels above which animals may incur different types of tissue damage from exposure to pressure waves from explosive detonation.
NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The Technical Guidance also identifies criteria to predict TTS, which is not considered injury and falls into the Level B Harassment category. The Navy's proposed activity includes the use of non-impulsive (sonar, vibratory pile driving) and impulsive (explosives, airguns, impact pile driving) and sources.
These thresholds (Tables 13–14) were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Based on the best available science, the Navy (in coordination with NMFS) used the acoustic and pressure thresholds indicated in Table 14 to predict the onset of TTS, PTS, tissue damage, and mortality for explosives (impulsive) and other impulsive sound sources.
Impact pile driving produces impulsive noise; therefore, the criteria used to assess the onset of TTS and PTS are identical to those used for airguns, as well as explosives (see Table 14 above) (see Hearing Loss from Airguns in Section 6.4.3.1, Methods for Analyzing Impacts from Airguns in the Navy's rulemaking and LOA application). Refer to the
Vibratory pile removal (that will be used during the Elevated Causeway System) creates continuous non-impulsive noise at low source levels for a short duration. Therefore, the criteria used to assess the onset of TTS and PTS due to exposure to sonars (non-impulsive, see Table 13 above) are also used to assess auditory impacts to marine mammals from vibratory pile driving (see Hearing Loss from Sonar and Other Transducers in Section 6.4.2.1, Methods for Analyzing Impacts from Sonars and Other Transducers in the Navy's rulemaking and LOA application). Refer to the
Marine mammal responses (some of which are considered disturbances that rise to the level of a take) to sound are highly variable and context specific (affected by differences in acoustic conditions, differences between species and populations; differences in gender, age, reproductive status, or social behavior; or other prior experience of the individuals), which means that there is support for alternative approaches for estimating behavioral harassment. Although the statutory definition of Level B harassment for military readiness activities requires that the natural behavior patterns of a marine mammal be significantly altered or abandoned, the current state of science for determining those thresholds is somewhat unsettled. In its analysis of impacts associated with sonar acoustic sources (which was coordinated with NMFS), the Navy proposes an updated conservative approach that likely overestimates the number of takes by Level B harassment due to behavioral disturbance and response to some degree. Many of the behavioral responses estimated using the Navy's quantitative analysis are most likely to be moderate severity (see Southall
Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
The existing NMFS Level B harassment thresholds were also applied to estimate behavioral effects from impact and vibratory pile driving (Table 15).
As noted, the Navy coordinated with NMFS to propose behavioral harassment thresholds specific to their military readiness activities utilizing active sonar. The way the criteria were derived is discussed in detail in
In the Navy acoustic impact analyses during Phase II, the likelihood of behavioral effects to sonar and other transducers was based on a probabilistic function (termed a behavioral response function—BRF), that related the likelihood (
Developing the new behavioral criteria for Phase III involved multiple steps: All available behavioral response studies conducted both in the field and on captive animals were examined in order to understand the breadth of behavioral responses of marine mammals to sonar and other transducers. Marine mammal species were placed into behavioral criteria groups based on their known or suspected behavioral sensitivities to sound. In most cases these divisions were driven by taxonomic classifications (
The information currently available regarding harbor porpoises suggests a very low threshold level of response for both captive and wild animals. Threshold levels at which both captive (Kastelein
The range to received sound levels in 6-dB steps from five representative sonar bins and the percentage of animals that may exhibit a potentially significant behavioral response under each behavioral response function (or step function in the case of the harbor porpoise) are shown in Table 17 through Table 21. Cells are shaded if the mean range value for the specified received level exceeds the distance cutoff range for a particular hearing group and therefore are not included in the estimated take. Table 17 illustrates the potentially significant behavioral response for LFAS.
Table 21 illustrates the potentially significant behavioral response for HFAS.
Phase III explosive criteria for behavioral thresholds for marine mammals is the hearing groups TTS threshold minus 5 dB (see Table 22 and Table 14 for the TTS thresholds for explosives) for events that contain multiple impulses from explosives underwater. This was the same approach as taken in Phase II for explosive analysis.
The Navy's Acoustic Effects Model calculates sound energy propagation from sonar and other transducers and explosives during naval activities and the sound received by animat dosimeters. Animat dosimeters are virtual representations of marine mammals distributed in the area around the modeled naval activity that each records its individual sound “dose.” The model bases the distribution of animats over the AFTT Study Area on the density values in the Navy Marine Species Density Database and distributes animats in the water column proportional to the known time that species spend at varying depths.
The model accounts for environmental variability of sound propagation in both distance and depth when computing the received sound level on the animats. The model conducts a statistical analysis based on multiple model runs to compute the estimated effects on animals. The number of animats that exceed the thresholds for effects is tallied to provide an estimate of the number of marine mammals that could be affected.
Assumptions in the Navy model intentionally err on the side of overestimation when there are unknowns. Naval activities are modeled as though they would occur regardless of proximity to marine mammals, meaning that no mitigation is considered (
The model estimates the impacts caused by individual training and testing exercises. During any individual modeled event, impacts to individual animats are considered over 24-hour periods. The animats do not represent actual animals, but rather they represent a distribution of animals based on density and abundance data, which allows for a statistical analysis of the number of instances that marine mammals may be exposed to sound levels resulting in an effect. Therefore, the model estimates the number of instances in which an effect threshold was exceeded over the course of a year, but does not estimate the number of individual marine mammals that may be impacted over a year
The Navy's quantitative analysis estimates the sound and energy received by marine mammals distributed in the area around planned Navy activities involving airguns. See the technical report titled
The following section provides range to effects for sonar and other active acoustic sources as well as explosives to specific criteria determined using the Navy Acoustic Effects Model. Marine mammals exposed within these ranges for the shown duration are predicted to experience the associated effect. Range to effects is important information in not only predicting acoustic impacts, but also in verifying the accuracy of model results against real-world situations and determining adequate mitigation ranges to avoid higher level effects, especially physiological effects to marine mammals.
The range to received sound levels in 6-dB steps from five representative sonar bins and the percentage of the total number of animals that may exhibit a significant behavioral response (and therefore Level B harassment) under each behavioral response function (or step function in the case of the harbor porpoise) are shown in Table 17 through Table 21 above, respectively. See Section 6.4.2.1 (Methods for Analyzing Impacts from Sonars and Other Transducers) of the Navy's rulemaking and LOA application for additional details on the derivation and use of the behavioral response functions, thresholds, and the cutoff distances.
The ranges to the PTS for five representative sonar systems for an exposure of 30 seconds is shown in Table 23 relative to the marine mammal's functional hearing group. This period (30 seconds) was chosen based on examining the maximum amount of time a marine mammal would realistically be exposed to levels that could cause the onset of PTS based on platform (
The tables below illustrate the range to TTS for 1, 30, 60, and 120 seconds from five representative sonar systems (see Table 24 through Table 28).
The following section provides the range (distance) over which specific physiological or behavioral effects are expected to occur based on the explosive criteria (see Chapter 6.5.2.1.1 of the Navy's rulemaking and LOA application and
Table 29. shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for high-frequency cetaceans based on the developed thresholds.
Table 30 shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for mid-frequency cetaceans based on the developed thresholds.
Table 31 shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for low-frequency cetaceans based on the developed thresholds.
Table 32. shows the minimum, average, and maximum ranges to onset of auditory and behavioral effects for phocids based on the developed thresholds.
Table 33 below shows the average and ranges due to varying propagation conditions to non-auditory injury as a function of explosive bin (
Ranges to mortality, based on animal mass, are shown in Table 34 below.
Table 35 and Table 36 present the approximate ranges in meters to PTS, TTS, and potential behavioral reactions for airguns for 10 and 100 pulses, respectively. Ranges are specific to the AFTT Study Area and also to each marine mammal hearing group, dependent upon their criteria and the specific locations where animals from the hearing groups and the airgun activities could overlap. Small air guns (12–60 in.
Table 37 and Table 38 present the approximate ranges in meters to PTS, TTS, and potential behavioral reactions for impact pile driving and vibratory pile removal, respectively. Non-auditory injury is not predicted for pile driving activities.
There have been three recorded Navy vessel strikes of marine mammals in the AFTT Study Area to from 2009 through 2017 (nine years). There are incidents in which a vessel struck animal has remained unidentified to species and the Navy cannot quantifiably predict that the possible takes from vessel strike will be of any particular species. Therefore, the Navy requested mortal takes of three large whales over the course of the five-year rule, and no more than two of any species of humpback whale, fin whale, sei whale, minke whale, blue whale, or sperm whale (either GOM or North Atlantic). NMFS concurs that the request for mortal takes of three large whales (of any species listed in previous sentence) over the five-year period of the rule is reasonable based on the available strike data and the Navy's analysis (see their updated ship strike analysis on NMFS website
A quantitative analysis of impacts on a species or stock requires data on number of animals that may be affected by anthropogenic activities and distribution in the potentially impacted area. The most appropriate metric for this type of analysis is density, which is the number of animals present per unit area. Marine species density estimation requires a significant amount of effort to both collect and analyze data to produce a reasonable estimate. Unlike surveys for terrestrial wildlife, many marine species spend much of their time submerged, and are not easily observed. In order to collect enough sighting data to make reasonable density estimates, multiple observations are required, often in areas that are not easily accessible (
For most cetacean species, abundance is estimated using line-transect surveys or mark-recapture studies (
To characterize the marine species density for large areas such as the AFTT Study Area, the Navy compiled data from several sources. The Navy developed a protocol to select the best available data sources based on species, area, and time (season). The resulting Geographic Information System database called the Navy Marine Species Density Database includes seasonal density values for every marine mammal species present within the AFTT Study Area. This database is described in the technical report titled
A variety of density data and density models are needed in order to develop a density database that encompasses the entirety of the AFTT Study Area. Because this data is collected using different methods with varying amounts of accuracy and uncertainty, the Navy has developed a model hierarchy to ensure the most accurate data is used when available. The density technical report describes these models in detail and provides detailed explanations of the models applied to each species density estimate. The below list describes possible models in order of preference.
1. Spatial density models (see Roberts
2. Design-based density models predict animal density based on survey data. Like spatial density models, they are applied to areas with survey data. Design-based density models may be stratified, in which a density is predicted for each sub-region of a survey area, allowing for better prediction of species distribution across the density model area. In the AFTT Study Area, stratified density models are used for certain species on both the east coast and the Gulf of Mexico. In addition, a few species' stratified density models are applied to areas east of regions with available survey data and cover a substantial portion of the Atlantic Ocean portion of the AFTT Study Area.
3. Extrapolative models are used in areas where there is insufficient or no survey data. These models use a limited set of environmental variables to predict possible species densities based on environmental observations during actual marine mammal surveys (see Mannocci
4. Existing Relative Environmental Suitability models include a high degree of uncertainty, but are applied when no other model is available.
When interpreting the results of the quantitative analysis, as described in the density technical report (U.S. Department of the Navy, 2017), “it is important to consider that even the best estimate of marine species density is really a model representation of the values of concentration where these animals might occur. Each model is limited to the variables and assumptions considered by the original data source provider. No mathematical model representation of any biological population is perfect and with regards to marine species biodiversity, any single model method will not completely explain the actual distribution and abundance of marine mammal species. It is expected that there would be anomalies in the results that need to be evaluated, with independent information for each case, to support if we might accept or reject a model or portions of the model.”
The AFTT DEIS/OEIS considered all training and testing activities proposed to occur in the AFTT Study Area that have the potential to result in the MMPA defined take of marine mammals. The Navy determined that the three stressors below could result in the incidental taking of marine mammals. NMFS has reviewed the Navy's data and analysis and determined that it is complete and accurate and agrees that the following stressors have the potential to result in takes of marine mammals from the Proposed Activity.
Acoustics (sonar and other transducers; airguns; pile driving/extraction).
Explosives (explosive shock wave and sound; explosive fragments).
Physical Disturbance and Strike (vessel strike).
Acoustic and explosive sources have the potential to result in incidental takes of marine mammals by harassment, serious injury, or mortality. Vessel strikes have the potential to result in incidental take from serious injury or mortality.
The quantitative analysis process used for the AFTT DEIS/OEIS and the Navy's take request in the rulemaking and LOA application to estimate potential exposures to marine mammals resulting from acoustic and explosive stressors is detailed in the technical report titled
Based on the methods outlined in the previous sections, Navy's model analysis, the Navy's summarizes the take request for acoustic and explosive sources for training and testing activities annually (based on the maximum number of activities per 12-month period), and the summation over a five-year period, as well as the Navy's take request for individual small and large ship shock trials, and the take that could occur over a five-year period for all ship shock activities. NMFS has reviewed the Navy's data and analysis and preliminary determined that it is complete and accurate and that the takes by harassment proposed for authorization are reasonably expected to occur and that the takes by mortality could occur as in the case of vessel strikes.
Table 39 summarizes the Navy's take request and the amount and type of take that is reasonably likely to occur (Level A and Level B harassment) by species associated with all training activities. Note that Level B take includes both behavioral disruption and TTS. Navy figures 6.4–10 through 6.5–69 in Section 6 of the Navy's rulemaking and LOA application illustrate the comparative amounts of TTS and behavioral disruption for each species, noting that if a “taken” animal was exposed to both TTS and behavioral disruption in the model, it was recorded as a TTS.
Table 40 summarizes the Navy's take request and the amount and type of take that is reasonably likely to occur (Level A and Level B harassment) by species associated with all testing activities.
Table 41 summarizes the Navy's take request and the maximum amount and type of take that could potentially occur (Level B and Level A harassment, or serious injury/mortality) by species for ship shock trials under testing activities per small and large ship shock events and the summation over a five-year period. The table below displays maximum ship shock impacts to marine mammals by species (in bold text), as well as maximum impacts on individual stocks. The maximum is derived by selecting the highest number of potential impacts across all locations and all seasons for each species/stock. Small Ship Shock trials could take place any season within the deep offshore water of the Virginia Capes Range Complex or in the spring, summer, or fall within the Jacksonville Range Complex and could occur up to three times over a five-year period. The Large Ship Shock trial could take place in the Jacksonville Range Complex during the Spring, Summer, or Fall and during any season within the deep offshore water of the Virginia Capes Range Complex or within the Gulf of Mexico. The Large Ship Shock Trial could occur once over 5 years. For serious injury/mortality takes over the five-year period, an annual average of 0.2 whales from each dolphin species/stock listed below (
Vessel strike to marine mammals is not associated with any specific training or testing activity but is rather an extremely limited and sporadic, but possible, accidental result of Navy vessel movement within the AFTT Study Area or while in transit. There have been three recorded Navy vessel strikes of large whales (
The Navy estimated that it may strike, and take by serious injury or mortality, up to three large whales incidental to the Proposed Activity over the course of the five years of the AFTT regulations. Because of the number of incidents in which the struck animal has remained unidentified to species, the Navy cannot quantifiably predict that the potential takes will be of any particular species, and therefore requested incidental take authorization for up to two of any the following species in the five-year period: Humpback whale (Gulf of Maine stock), fin whale (Western North Atlantic stock), minke (Canadian East Coast stock), and sperm whale (North Atlantic stock) and one of any of the following: Sei whale (Nova Scotia stock), blue whale (Western North Atlantic stock), sperm whale (Gulf of Mexico Oceanic stock).
NMFS agrees that the request for mortal takes of three large whales (of any species listed in previous bullet) over the five-year period of the rule is reasonable based on the available strike data (three strikes by Navy over nine years) and the Navy's analysis, but does not agree that two mortal takes of any one species is likely. When the probability of hitting more than one individual of the same species within the five-year period is considered in combination with the available data indicating the proportional historical strikes of different species and the probability of hitting the same species twice, the likelihood of hitting the same species of whale twice in five years is very low (under to well under 10 percent). Therefore, we find that it is unlikely that the same species would be struck twice during the five-year regulatory period and are proposing to authorize up to three mortal takes of no more than one from any of the species of large whales over the five-year period, which means an annual average of 0.2 whales from each species/stock listed above (
In addition to procedural mitigation, the Navy will implement measures in mitigation areas used by NARW for foraging, calving, and migration (see Section 11, Mitigation Measures of the Navy's rulemaking and LOA application and a full analysis of Mitigation in Chapter 5 of the AFTT DEIS/OEIS). These measures, which go above and beyond those focused on other species (
Regarding the Bryde's whale, due to low numbers, almost exclusively limited to Gulf of Mexico, and limited ship traffic that overlaps with Bryde's whale habitat, Navy does not anticipate any ship strike takes.
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on
In
Before NMFS can issue incidental take regulations under section 101(a)(5)(A) of the MMPA, it must make a finding that the total taking will have a “negligible impact” on the affected “species or stocks” of marine mammals. NMFS' and U.S. Fish and Wildlife Service's implementing regulations for section 101(a)(5)(A) both define “negligible impact” as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” (50 CFR 216.103 and 50 CFR 18.27(c)) Recruitment (
As we stated in the preamble to the final rule for the incidental take implementing regulations, not every population-level impact violates the negligible impact requirement. The negligible impact standard does not require a finding that the anticipated take will have “no effect” on population numbers or growth rates: The statutory standard does not require that the same recovery rate be maintained, rather that no significant effect on annual rates of recruitment or survival occurs. [T]he key factor is the significance of the level of impact on rates of recruitment or survival. See 54 FR 40338, 40341–42 (September 29, 1989).
While some level of impact on population numbers or growth rates of a species or stock may occur and still satisfy the negligible impact requirement—even without consideration of mitigation—the least practicable adverse impact provision separately requires NMFS to prescribe means of “effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance [. . .], which are typically identified as mitigation measures.”
The negligible impact and least practicable adverse impact standards in the MMPA both call for evaluation at the level of the “species or stock.” The MMPA does not define the term “species.” However, Merriam-Webster defines “species” to include “related organisms or
This interpretation is consistent with Congress's statutory findings for enacting the MMPA, nearly all of which are most applicable at the species or stock (
Recognizing this common focus of the least practicable adverse impact and negligible impact provisions on the “species or stock” does not mean we conflate the two standards; despite some common statutory language, we recognize the two provisions are different and have different functions. First, a negligible impact finding is required before NMFS can issue an incidental take authorization. Although it is acceptable to use mitigation measures to reach a negligible impact finding, 50 CFR 216.104(c), no amount of mitigation can enable NMFS to issue an incidental take authorization for an activity that still would not meet the negligible impact standard. Moreover, even where NMFS can reach a negligible impact finding—which we emphasize does allow for the possibility of some “negligible” population-level impact—the agency must still prescribe measures that will effect the least practicable amount of adverse impact upon the affected species or stock.
Section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction with its authorization, binding—and enforceable—restrictions (in the form of regulations) setting forth how the activity must be conducted, thus
In
We have carefully reviewed and considered the Ninth Circuit's opinion in
Given this most recent Court decision, we further clarify how we determine whether a measure or set of measures meets the “least practicable adverse impact” standard. Our evaluation of potential mitigation measures includes consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of the potential measure(s) is expected to reduce adverse impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). This analysis considers such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation.
(2) The practicability of the measures for applicant implementation. Practicability of implementation may consider such things as cost, impact on operations, and, in the case of a military readiness activity, specifically considers personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. 16 U.S.C. 1371(a)(5)(A)(ii).
While the language of the least practicable adverse impact standard calls for minimizing impacts to affected species or stocks, we recognize that the reduction of impacts to those species or stocks accrues through the application of mitigation measures that limit impacts to individual animals. Accordingly, NMFS' analysis focuses on measures designed to avoid or minimize impacts on marine mammals from activities that are likely to increase the probability or severity of population-level effects.
While direct evidence of impacts to species or stocks from a specified activity is not always available for every activity type, and additional study is still needed to describe how specific disturbance events affect the fitness of individuals of certain species, there have been significant improvements in understanding the process by which disturbance effects are translated to the population. With recent scientific advancements (both marine mammal energetic research and the development of energetic frameworks), the relative likelihood or degree of impacts on species or stocks may typically be predicted given a detailed understanding of the activity, the environment, and the affected species or stocks. This same information is used in the development of mitigation measures and helps us understand how mitigation measures contribute to lessening effects to species or stocks. We also acknowledge that there is always the potential that new information, or a new recommendation that we had not previously considered, becomes available and necessitates reevaluation of mitigation measures (which may be addressed through adaptive management) to see if further reduction of population impacts are possible and practicable.
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two primary factors discussed above (expected reduction of impacts and practicability), and will be carefully considered to determine the types of mitigation that are appropriate under the least practicable adverse impact standard. Analysis of how a potential mitigation measure may reduce adverse impacts on a marine mammal stock or species, consideration of personnel safety, practicality of implementation, and consideration of the impact on effectiveness of military readiness activities are not issues that can be meaningfully evaluated through a yes/no lens. The manner in which, and the degree to which, implementation of a measure is expected to reduce impacts, as well as its practicability in terms of these considerations, can vary widely. For example, a time/area restriction could be of very high value for decreasing population-level impacts (
1.
The ultimate impact on any individual from a disturbance event (which informs the likelihood of adverse species- or stock-level effects) is dependent on the circumstances and associated contextual factors, such as duration of exposure to stressors. Though any proposed mitigation needs to be evaluated in the context of the specific activity and the species or stocks affected, measures with the following types of goals are often applied to reduce the likelihood or severity of adverse species- or stock-level impacts: Avoiding or minimizing injury or mortality; limiting interruption of known feeding, breeding, mother/young, or resting behaviors; minimizing the abandonment of important habitat (temporally and spatially); minimizing the number of individuals subjected to these types of disruptions; and limiting degradation of habitat. Mitigating these types of effects is intended to reduce the likelihood that the activity will result in energetic or other types of impacts that are more likely to result in reduced reproductive success or survivorship. It is also important to consider the degree of impacts that were expected in the absence of mitigation in order to assess the added value of any potential measures. Finally, because the least practicable adverse impact standard authorizes NMFS to weigh a variety of factors when evaluating appropriate mitigation measures, it does not compel mitigation for every kind of take, or every individual taken, even when practicable for implementation by the applicant.
The status of the species or stock is also relevant in evaluating the appropriateness of certain mitigation measures in the context of least practicable adverse impact. The following are examples of factors that may (either alone, or in combination) result in greater emphasis on the importance of a mitigation measure in reducing impacts on a species or stock: The stock is known to be decreasing or status is unknown, but believed to be declining; the known annual mortality (from any source) is approaching or exceeding the Potential Biological Removal (PBR) level (as defined in 16 U.S.C. 1362(20)); the affected species or stock is a small, resident population; or the stock is involved in an unusual mortality event (UME) or has other known vulnerabilities, such as recovering from an oil spill.
Habitat mitigation, particularly as it relates to rookeries, mating grounds, and areas of similar significance, is also relevant to achieving the standard and can include measures such as reducing impacts of the activity on known prey utilized in the activity area or reducing impacts on physical habitat. As with species- or stock-related mitigation, the emphasis given to a measure's ability to reduce impacts on a species or stock's habitat considers the degree, likelihood, and context of the anticipated reduction of impacts to habitat. Because habitat value is informed by marine mammal presence and use, in some cases there may be overlap in measures for the species or stock and for use of habitat.
We consider available information indicating the likelihood of any measure to accomplish its objective. If evidence shows that a measure has not typically been effective or successful, then either that measure should be modified or the potential value of the measure to reduce effects is lowered.
2.
NMFS reviewed the proposed activities and the suite of proposed mitigation measures as described in the Navy's rulemaking and LOA application and the AFTT DEIS/OEIS to determine if they would result in the least practicable adverse effect on marine mammals. NMFS worked with the Navy in the development of the Navy's initially proposed measures, which are informed by years of experience and monitoring. A complete discussion of the evaluation process used by the Navy to develop, assess, and select mitigation measures, which was informed by input form NMFS, can be found in Chapter 5 (Mitigation) of the AFTT DEIS/OEIS and is summarized below. The Navy proposes to implement mitigation measures to avoid potential impacts from acoustic, explosive, and physical disturbance and strike stressors.
In summary, the Navy proposes a suite of procedural mitigation measures that we expect to result in a reduction in the probability and/or severity of impacts expected to result from acute exposure to acoustic sources or explosives, ship strike, and impacts to marine mammal habitat. Specifically, the Navy uses a combination of delayed starts, powerdowns, and shutdowns to avoid serious injury or mortality, minimize the likelihood or severity of PTS or other injury, and reduce instances of TTS or more severe behavioral disruption. Additional procedural vessel operation mitigation is included to minimize or avoid the likelihood of ship strikes, with an additional focus on right whales. The Navy also proposes to implement time/area restrictions intended to reduce take of marine mammals in areas or times where they are known to engage in important behaviors, such as feeding or calving, where the disruption of those behaviors would be more likely to result in population-level impacts. The Navy assessed the practicability of the measures it proposed in the context of personnel safety, practicality, and their impacts on the Navy's ability to meet their Title 10 requirements and found that the measures were supportable. NMFS has evaluated the mitigation measures the Navy has proposed and the measures will both sufficiently reduce impacts on the affected marine
The Navy also evaluated several measures in the Navy's AFTT DEIS/OEIS that are not included in the Navy's rulemaking and LOA application for the Proposed Activity, and NMFS concurs that their inclusion was not appropriate to support the least practicable adverse impact standard based on our assessment. In summary, first, commenters sometimes recommend that the Navy reduce their overall amount of training, reduce explosive use, modify their sound sources, completely replace live training with computer simulation, or include time of day restrictions. All of these proposed measures could potentially reduce the number of marine mammals taken, via direct reduction of the activities or amount of sound energy put in the water. However, as the Navy has described in Chapter 5 of the AFTT DEIS/OEIS, they need to train and test in the conditions in which they fight—and these types of modifications fundamentally change the activity in a manner that would not support the purpose and need for the training and testing (
Below are the mitigation measures that NMFS determined will ensure the least practicable adverse impact on all affected species and stocks and their habitat, including the specific considerations for military readiness activities. The following sections summarize the mitigation measures that will be implemented in association with the training and testing activities analyzed in this document. The Navy's mitigation measures are organized into two categories: procedural mitigation and mitigation areas.
Procedural mitigation is mitigation that the Navy will implement whenever and wherever an applicable training or testing activity takes place within the AFTT Study Area. The Navy customizes procedural mitigation for each applicable activity category or stressor. Procedural mitigation generally involves: (1) The use of one or more trained Lookouts to diligently observe for specific biological resources (including marine mammals) within a mitigation zone, (2) requirements for Lookouts to immediately communicate sightings of specific biological resources to the appropriate watch station for information dissemination, and (3) requirements for the watch station to implement mitigation (
Mitigation measures for acoustic stressors are provided in Tables 43 through 46.
Procedural mitigation for active sonar is described in Table 43 below.
Procedural mitigation for airguns is described in Table 44 below.
Procedural mitigation for pile driving is described in Table 45 below.
Procedural mitigation for weapons firing noise is described in Table 46 below.
Mitigation measures for explosive stressors are provided in Tables 47 through 57.
Procedural mitigation for explosive sonobuoys is described in Table 47 below.
Procedural mitigation for explosive torpedoes is described in Table 48 below.
Procedural mitigation for medium- and large-caliber projectiles is described in Table 49 below.
Procedural mitigation for explosive missiles and rockets is described in Table 50 below.
Procedural mitigation for explosive bombs is described in Table 51 below.
Procedural mitigation for sinking exercises is described in Table 52 below.
Procedural mitigation for explosive mine countermeasure and neutralization activities is described in Table 53 below.
Procedural mitigation for explosive mine neutralization activities involving Navy divers is described in Table 54 below.
Procedural mitigation for maritime security operations—anti-swimmer grenades is described in Table 55 below.
Procedural mitigation for line charge testing is described in Table 56 below.
Procedural mitigation for ship shock trials is described in Table 57 below.
Mitigation measures for physical disturbance and strike stressors are provided in Table 58 through Table 62.
Procedural mitigation for vessel movement used during the Proposed Activities is described in Table 58 below.
Procedural mitigation for towed in-water devices is described in Table 59 below.
Procedural mitigation for small-, medium-, and large-caliber non-explosive practice munitions is described in Table 60 below.
Procedural mitigation for non-explosive missiles and rockets is described in Table 61 below.
Procedural mitigation for non-explosive bombs and mine shapes is described in Table 62 below.
In addition to procedural mitigation, the Navy will implement mitigation measures within specific areas and/or times to avoid or minimize potential impacts on marine mammals (see Figures 11.2–1 through 11.2–3 of the Navy's rulemaking and LOA application). The Navy reanalyzed existing mitigation areas and considered new habitat areas suggested by the public, NMFS, and other non-Navy organizations, including NARW critical habitat, important habitat for sperm whales, biologically important areas (BIAs), and National Marine Sanctuaries. The Navy worked collaboratively with NMFS to develop mitigation areas using inputs from the Navy's operational community, the best available science discussed in Chapter 3 of the AFTT DEIS/OEIS (Affected Environment and Environmental Consequences), published literature, predicted activity impact footprints, and marine species monitoring and density data. The Navy will continue to work with NMFS to finalize its mitigation areas through the development of the rule. The Navy considered a mitigation area to be effective and thereby warranted, if it met all three of the following criteria and also was determined to be practicable:
The mitigation area is a key area of biological or ecological importance or contains cultural resources: The best available science suggests that the mitigation area contains submerged cultural resources (
The mitigation would result in an avoidance or reduction of impacts: Implementing the mitigation would likely result in an avoidance or reduction of impacts on (1) species, stocks, or populations of marine mammals based on data regarding seasonality, density, and animal behavior; or (2) other biological or cultural resources based on their distribution and physical properties; and
The mitigation area would result in a net benefit to the biological or cultural resource: Implementing the mitigation would not simply shift from one area or species to another, resulting in a similar or worse level of effect.
Information on the mitigation measures that the Navy will implement within mitigation areas is provided in Table 63 through Table 65. The mitigation applies year-round unless specified otherwise in the tables.
Mitigation areas for of the Northeastern United States are described in Table 63 below and also depicted in Figure 11.2–1 in the Navy's rulemaking and LOA application.
Mitigation areas off the Mid-Atlantic and Southeastern United States are described in Table 64 below and also depicted in Figure 11.2–2 in the Navy's rulemaking and LOA application.
Mitigation areas in the Gulf of Mexico are described in Table 65 below and also depicted in Figure 11.2–3 in the Navy's rulemaking and LOA application.
The Navy's mitigation measures are summarized in Tables 66 and 67. Figure 11.3–1 in the Navy's rulemaking and LOA application depicts the mitigation areas that the Navy developed for marine mammals in the AFTT Study Area.
A summary of procedural mitigation is described in Table 66 below.
A summary of mitigation areas is described in Table 67 below. Mitigation areas for marine mammals in the AFTT Study Area are also depicted in Figure 11.3–1 in the Navy's rulemaking and LOA application.
Mitigation areas for seafloor resources are described in Table 68 and Table 69 below. Because these measures, in particular, are not related directly to protecting marine mammals and their habitat, they are not a requirement of this MMPA rulemaking. However, they are part of the Navy's Proposed Activity and are therefore included here for informational purposes.
NMFS has carefully evaluated the Navy's proposed mitigation measures—many of which were developed with NMFS' input during the previous phases of Navy training and testing authorizations—and considered a broad range of other measures (
Based on our evaluation of the Navy's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the Navy's proposed mitigation measures (especially when the adaptive management component is taken into consideration (see Adaptive Management, below)) are appropriate means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, while also considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The proposed rule comment period provides the public an opportunity to submit recommendations, views, and/or concerns regarding these activities and the proposed mitigation measures. While NMFS has preliminarily determined that the Navy's proposed mitigation measures would effect the least practicable adverse impact on the affected species or stocks and their habitat, NMFS will consider all public comments to help inform our final decision. Consequently, the proposed mitigation measures may be refined, modified, removed, or added to prior to the issuance of the final rule based on public comments received, and where appropriate, further analysis of any additional mitigation measures.
Section 101(a)(5)(A) of the MMPA states that in order to authorize incidental take for an activity, NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
The Navy's ICMP is intended to coordinate marine species monitoring efforts across all regions and to allocate the most appropriate level and type of effort for each range complex based on a set of standardized objectives, and in acknowledgement of regional expertise and resource availability. The ICMP is designed to be flexible, scalable, and adaptable through the adaptive management and strategic planning processes to periodically assess progress and reevaluate objectives. This process includes conducting an annual adaptive management review meeting, at which the Navy and NMFS jointly consider the prior-year goals, monitoring results, and related scientific advances to determine if monitoring plan modifications are warranted to more effectively address program goals. Although the ICMP does not specify actual monitoring field work or individual projects, it does establish a matrix of goals and objectives that have been developed in coordination with NMFS. As the ICMP is implemented through the Strategic Planning Process, detailed and specific studies will be developed which support the Navy's top-level monitoring goals. In essence, the ICMP directs that monitoring activities relating to the effects of Navy training and testing activities on marine species should be designed to contribute towards one or more of the following top-level goals:
An increase in our understanding of the likely occurrence of marine mammals and/or ESA-listed marine species in the vicinity of the action (
An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammals and/or ESA-listed species to any of the potential stressor(s) associated with the action (
An increase in our understanding of how individual marine mammals or ESA-listed marine species respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: (1) The long-term fitness and survival of an individual; or (2) the population, species, or stock (
An increase in our understanding of the effectiveness of mitigation and monitoring measures;
A better understanding and record of the manner in which the authorized entity complies with the incidental take regulations and LOAs and ESA Incidental Take Statement;
An increase in the probability of detecting marine mammals (through improved technology or methods), both specifically within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals; and
Ensuring that adverse impact of activities remains at the least practicable level.
The Navy also developed the Strategic Planning Process for Marine Species Monitoring, which establishes the guidelines and processes necessary to develop, evaluate, and fund individual projects based on objective scientific study questions. The process uses an underlying framework designed around intermediate scientific objectives and a
NMFS has received multiple years' worth of annual exercise and monitoring reports addressing active sonar use and explosive detonations within the AFTT Study Area and other Navy range complexes. The data and information contained in these reports have been considered in developing mitigation and monitoring measures for the proposed training and testing activities within the AFTT Study Area. The Navy's annual exercise and monitoring reports may be viewed at:
The Navy's marine species monitoring program typically supports 10–15 projects in the Atlantic at any given time with an annual budget of approximately $3.5M. Current projects cover a range of species and topics from collecting baseline data on occurrence and distribution, to tracking whales and sea turtles, to conducting behavioral response studies on beaked whales and pilot whales. The navy's marine species monitoring web portal provides details on past and current monitoring projects, including technical reports, publications, presentations, and access to available data and can be found at:
The final regulations governing the take of marine mammals incidental to Navy training and testing activities in the AFTT Study Area would contain an adaptive management component. Our understanding of the effects of Navy training and testing activities (
The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider whether any changes to existing mitigation and monitoring requirements are appropriate. NMFS and the Navy would meet to discuss the monitoring reports, Navy R&D developments, and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring and exercises reports, as required by MMPA authorizations; (2) compiled results of Navy funded R&D studies; (3) results from specific stranding investigations; (4) results from general marine mammal and sound research; and (5) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOA. The results from monitoring reports and other studies may be viewed at
In order to issue incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Some of the reporting requirements are still in development and the final rulemaking may contain additional minor details not contained here. Additionally, proposed reporting requirements may be modified, removed, or added based on information or comments received during the public comment period. Reports from individual monitoring events, results of analyses, publications, and periodic progress reports for specific monitoring projects would be posted to the Navy's Marine Species Monitoring web portal:
The Navy will abide by the Notification and Reporting Plan, which sets out notification, reporting, and other requirements when injured, live stranded, or dead marine mammals are detected. The Notification and Reporting Plan is available for review at
The Navy shall submit an annual report to NMFS of the AFTT monitoring describing the implementation and results from the previous calendar year. Data collection methods will be standardized across range complexes and AFTT Study Area to allow for comparison in different geographic locations. The report shall be submitted either 90 days after the calendar year, or 90 days after the conclusion of the monitoring year to be determined by the Adaptive Management process. Such a report would describe progress of knowledge made with respect to intermediate scientific objectives within the AFTT Study Area associated with the Integrated Comprehensive Monitoring Program. Similar study questions shall be treated together so that summaries can be provided for each topic area. The report need not include analyses and content that does not provide direct assessment of cumulative progress on the monitoring plan study questions.
Each year, the Navy shall submit a preliminary report to NMFS detailing the status of authorized sound sources within 21 days after the anniversary of the date of issuance of the LOA. Each year, the Navy shall submit a detailed report to NMFS within 3 months after the anniversary of the date of issuance of the LOA. The annual report shall contain information on Major Training
The Navy shall submit an electronic report to NMFS within fifteen calendar days after the completion of any major training exercise indicating: Location of the exercise; beginning and end dates of the exercise; and type of exercise.
This report will be included as part of the 2023 annual exercise report. This report will provide the annual totals for each sound source bin with a comparison to the annual allowance and the five-year total for each sound source bin with a comparison to the five-year allowance. Additionally, if there were any changes to the sound source allowance, this report will include a discussion of why the change was made and include the analysis to support how the change did or did not result in a change in the EIS and final rule determinations. The report will be submitted to NMFS three months after the expiration of the rule. NMFS will provide comments to the Navy on the draft close-out report, if any, within three months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or three months after the submittal of the draft if NMFS does not provide comments.
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
In the Estimated Take section, we identified the subset of potential effects that would be expected to rise to the level of takes, and then identified the number of each of those takes that we believe could occur (mortality) or are likely to occur (harassment) based on the methods described. Not all takes are created equal, in other words, the impact that any given take will have is dependent on many case-specific factors that need to be considered in the negligible impact analysis (
The Navy's proposed activity reflects representative levels/ranges of training and testing activities, accounting for the natural fluctuation in training, testing, and deployment schedules. This approach is representative of how Navy's activities are conducted over any given year over any given five-year period. Specifically, to calculate take, the Navy provided a range of levels for each activity/source type for a year—they used the maximum annual level to calculate annual takes, and they used the sum of three nominal years (average level) and two maximum years to calculate five-year takes for each source type. The Proposed Activity contains a more realistic annual representation of activities, but includes years of a higher maximum amount of testing to account for these fluctuations. There may be some flexibility in that the exact number of hours, items, or detonations that may vary from year to year, but take totals would not exceed the five-year totals indicated in Tables 39 through 41. We base our analysis and negligible impact determination (NID) on the maximum number of takes that could occur or are likely to occur, although, as stated before, the number of takes are only a part of the analysis, which includes extensive qualitative consideration of other contextual factors that influence the degree of impact of the takes on the affected individuals. To avoid repetition, we provide some general analysis immediately below that applies to all the species listed in Tables 39 through 41, given that some of the anticipated effects of the Navy's training and testing activities on marine mammals are expected to be relatively similar in nature. However, below that, we break our analysis into species (and/or stock), or groups of species (and the associated stocks) where relevant similarities exist, to provide more specific information related to the anticipated effects on individuals or where there is information about the status or structure of any species that would lead to a differing assessment of the effects on the species or stock.
The Navy's harassment take request is based on its model and post-model analysis, which NMFS believes appropriately predicts that amount of harassment that is likely to occur. In the discussions below, the “acoustic analysis” refers to the Navy's modeling results and post-model analysis. The model calculates sound energy propagation from sonar, other active acoustic sources, and explosives during
Generally speaking, the Navy and NMFS anticipate more severe effects from takes resulting from exposure to higher received levels (though this is in no way a strictly linear relationship for behavioral effects throughout species, individuals, or circumstances) and less severe effects from takes resulting from exposure to lower received levels. However, there is also growing evidence of the importance of distance in predicting marine mammal behavioral response to sound—
Some of the lower level physiological stress responses (
The estimates calculated using the behavioral response function do not differentiate between the different types of behavioral responses that rise to the level of Level B harassments. As described in the Navy's application, the Navy identified (with NMFS' input) the types of behaviors that would be considered a take (moderate behavioral responses as characterized in Southall
For sonar (LFAS/MFAS/HFAS) used in the AFTT Study Area, the Navy provided information estimating the percentage of animals that may exhibit a significant behavior response under each behavioral response function that would occur within 6-dB increments (percentages discussed below in the Group and Species-Specific Analysis section). As mentioned above, an animal's exposure to a higher received level is more likely to result in a behavioral response that is more likely to lead to adverse effects on the reproductive success or survivorship of the animal. The majority of Level B takes are expected to be in the form of milder responses (
As noted previously, many animals perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hour cycle). Behavioral reactions to noise exposure (when taking place in a biologically important context, such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Durations of Navy activities utilizing tactical sonar sources and explosives vary and are fully described in Appendix A of the AFTT DEIS/OEIS. Sonar used during ASW would impart the greatest amount of acoustic energy of any category of sonar and other transducers analyzed in the Navy's rulemaking and LOA request and included hull-mounted, towed, line array, sonobuoy, helicopter dipping, and torpedo sonars. Most ASW sonars are MFAS (1–10 kHz); however, some sources may use higher or lower frequencies. Duty cycles can vary widely, from rarely used to continuously active. ASW training activities using hull mounted sonar proposed for the AFTT Study Area generally last for only a few hours. Some ASW exercises can generally last for 2–10 days, or as much as 21 days for an MTE -Large Integrated ASW (see Table 4). For these multi-day exercises there will be extended intervals of non-activity in between active sonar periods. Because of the need to train in a large variety of situations, the Navy does not typically conduct successive ASW exercises in the same locations. Given the average length of ASW exercises (times of sonar use) and typical vessel speed, combined with the fact that the majority of the cetaceans in the would not likely remain in proximity to the sound source, it is unlikely that an animal would be exposed to LFAS/MFAS/HFAS at levels or durations likely to result in a substantive response that would then be carried on for more than one day or on successive days.
Most planned explosive events are scheduled to occur over a short duration (1–8 hours); however, the explosive component of the activity only lasts for minutes (see Tables 4 through 7). Although explosive exercises may sometimes be conducted in the same general areas repeatedly, because of their short duration and the fact that they are in the open ocean and animals can easily move away, it is similarly unlikely that animals would be exposed for long, continuous amounts of time. Although SINKEXs may last for up to 48 hrs, (4–8 hours, possibly 1–2 days), they are almost always completed in a single day and only one event is planned annually for the AFTT training activities. They are stationary and conducted in deep, open water (where fewer marine mammals would typically be expected to be randomly encountered), and they have rigorous monitoring (
Last, as described previously, Navy modeling uses the best available science to predict the instances of exposure above certain acoustic thresholds, which are equated, as appropriate, to harassment takes (and further corrected to account for mitigation and avoidance). As further noted, for active acoustics, it is more challenging to parse out the number of individuals taken from this larger number of instances. One method that NMFS can use to help better understand the overall scope of the impacts is to compare these total instances of take against the abundance of that stock. For example, if there are 100 takes in a population of 100, one can assume either that every individual was exposed above acoustic thresholds in no more than one day, or that some smaller number were exposed in one day but a few of those individuals were exposed in multiple days. At a minimum, it provides a relative picture of the scale of impacts to each stock. When calculating the proportion of a population affected by takes (
The estimates found in NMFS's SARs remain the official estimates of stock abundance where they are current. These estimates are typically generated from the most recent shipboard and/or aerial surveys conducted. Studies based on abundance and distribution surveys restricted to U.S. waters are unable to detect temporal shifts in distribution beyond U.S. waters that might account for any changes in abundance within U.S. waters. NMFS's SAR estimates also may not incorporate correction for detection bias. In these cases, they should generally be considered as underestimates, especially for cryptic or long-diving species (
The Navy uses, and NMFS supports the use of spatially and temporally explicit density models that vary in space and time to estimate their potential impacts to species. See the
Models may predict different population abundances for many
The Navy Study Area covers a broad area in the western North Atlantic Ocean and the Navy has tried to find density estimates for this entire area, where appropriate given species distributions. However, only a small number of Navy training and testing activities occur outside of the U.S. EEZ. As such, NMFS believes that the average population predicted by Navy models across seasons in the U.S. EEZ is the best baseline to use when analyzing takes as a proportion of population. This is a close approximation of the actual population used in Navy take analysis as occasionally sound can propagate outside of the U.S. EEZ and a small number of exercises do occur in international waters. This approximation will be less accurate for species with major changes in density close to the U.S. EEZ or far offshore. In all cases it is important to understand the differences between Navy models and the SARs on a species by species case. Models of individual species or stocks were not available for all species and takes had to be proportioned to the species or stock level from takes predicted on models at higher taxonomic levels. See the various Navy technical reports mentioned previously in this rule that detail take estimation and density model selection for details.
NMFS and the Navy have estimated that some individuals of some species of marine mammals may sustain some level of TTS from active sonar. As mentioned previously, TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths, all of which determine the severity of the impacts on the affected individual, which can range from minor to more severe. Tables 72–77 indicate the amounts of TTS that may be incurred by different stocks from exposure to active sonar and explosives. No TTS is estimated from airguns or piledriving activities. The TTS sustained by an animal is primarily classified by three characteristics:
1. Frequency—Available data (of mid-frequency hearing specialists exposed to mid- or high-frequency sounds; Southall
2. Degree of the shift (
3. Duration of TTS (recovery time)—In the TTS laboratory studies (see Threshold Shift) section), some using exposures of almost an hour in duration or up to 217 SEL, almost all individuals recovered within 1 day (or less, often in minutes), although in one study (Finneran
Based on the range of degree and duration of TTS reportedly induced by exposures to non-pulse sounds of energy higher than that to which free-swimming marine mammals in the field are likely to be exposed during LFAS/MFAS/HFAS training and testing exercises in the AFTT Study Area, it is unlikely that marine mammals would ever sustain a TTS from MFAS that alters their sensitivity by more than 20 dB for more than a few hours (and any incident of TTS would likely be far less severe due to the short duration of the majority of the events and the speed of a typical vessel). Also, for the same reasons discussed in the Diel Cycle section, and because of the short distance within which animals would need to approach the sound source, it is unlikely that animals would be exposed to the levels necessary to induce TTS in subsequent time periods such that their recovery is impeded. Additionally, though the frequency range of TTS that marine mammals might sustain would overlap with some of the frequency ranges of their vocalization types, the frequency range of TTS from MFAS (the source from which TTS would most likely be sustained because the higher source level and slower attenuation make it more likely that an animal would be exposed to a higher received level) would not usually span the entire frequency range of one vocalization type, much less span all types of vocalizations or other critical auditory cues. If impaired, marine mammals would typically be aware of their impairment and are sometimes able to implement behaviors to compensate (see Acoustic Masking or Communication Impairment section), though these compensations may incur energetic costs.
Masking only occurs during the time of the signal (and potential secondary arrivals of indirect rays), versus TTS, which continues beyond the duration of the signal. Standard MFAS typically pings every 50 seconds for hull-mounted sources. Hull-mounted anti-submarine sonars can also be used in an object detection mode known as “Kingfisher” mode (
Most ASW sonars and countermeasures use MF ranges and a few use LF and HF ranges. Most of these sonar signals are limited in the temporal, frequency, and spatial domains. The duration of most individual sounds is short, lasting up to a few seconds each. Some systems operate with higher duty cycles or nearly continuously, but typically use lower power. Nevertheless, masking may be more prevalent at closer ranges to these high-duty cycle and continuous active sonar systems. Most ASW activities are geographically dispersed and last for only a few hours, often with intermittent sonar use even within this period. Most ASW sonars also have a narrow frequency band (typically less than one-third octave). These factors reduce the likelihood of sources causing significant masking in mysticetes. HF sonars are typically used for mine hunting, navigation, and object detection, HF (greater than 10 kHz) sonars fall outside of the best hearing and vocalization ranges of mysticetes). Furthermore, HF (above 10 kHz) attenuate more rapidly in the water due to absorption than do lower frequency signals, thus producing only a small zone of potential masking. Masking in mysticetes due to exposure to high-frequency sonar is unlikely. Masking effects from LFAS/MFAS/HFAS are expected to be minimal. If masking or communication impairment were to occur briefly, it would be in the frequency range of MFAS, which overlaps with some marine mammal vocalizations; however, it would likely not mask the entirety of any particular vocalization, communication series, or other critical auditory cue, because the signal length, frequency, and duty cycle of the MFAS/HFAS signal does not perfectly resemble the characteristics of any marine mammal's vocalizations. Masking could occur in mysticetes due to the overlap between their low-frequency vocalizations and the dominant frequencies of airgun pulses, however, masking in odontocetes or pinnipeds is less likely unless the airgun activity is in close range when the pulses are more broadband. Masking is more likely to occur in the presence of broadband, relatively continuous noise sources such as during vibratory pile driving and from vessels. The other sources used in Navy training and testing, many of either higher frequencies (meaning that the sounds generated attenuate even closer to the source) or lower amounts of operation, are similarly not expected to result in masking.
Tables 72–77 indicates the number of individuals of each of species and stock for which Level A harassment in the form of PTS resulting from exposure to active sonar and/or explosives estimated to occur. Tables 72–77 also indicate the number of individuals of each of species and stock for which Level A harassment in the form of tissue damage resulting from exposure to explosive detonations is estimated to occur. The number of individuals to potentially incur PTS annually (from sonar and explosives) for the predicted species ranges from 0 to 471 (471 for harbor porpoise), but is more typically a few up to 33 (with the exception of a few species). The number of individuals to potentially incur tissue damage from explosives for the predicted species ranges from 0 to 36 (36 for short-beaked common dolphin), but is typically zero in most cases. Overall the Navy's model estimated that 8 delphinidae annually would be exposed to explosives during training and testing at levels that could result in non-auditory injury. The Navy's model estimated that 1 sperm whale and 94 delphinidae annually could experience non-auditory injury. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
NMFS believes that many marine mammals would deliberately avoid exposing themselves to the received levels of active sonar necessary to induce injury by moving away from or at least modifying their path to avoid a close approach. Additionally, in the unlikely event that an animal approaches the sonar-emitting vessel at a close distance, NMFS believes that the mitigation measures (
If a marine mammal is able to approach a surface vessel within the distance necessary to incur PTS, the likely speed of the vessel (nominally 10–15 knots) would make it very difficult for the animal to remain in range long enough to accumulate enough energy to result in more than a mild case of PTS. As mentioned previously and in relation to TTS, the likely consequences to the health of an individual that incurs PTS can range from mild to more serious dependent upon the degree of PTS and the frequency band it is in, and many animals are able to compensate for the shift, although it may include energetic costs. We also assume that the acoustic exposures sufficient to trigger onset PTS (or TTS) would be accompanied by physiological stress responses, although the sound characteristics that correlate with specific stress responses in marine mammals are poorly understood. As discussed above for Behavioral Harassment, we would not expect the Navy's generally short-term, intermittent, and (in the case of sonar) transitory activities to create conditions of long-term, continuous noise leading to long-term physiological stress responses in marine mammals.
For explosive activities, the Navy implements mitigation measures (described in Proposed Mitigation Measures) during explosive activities, including delaying detonations when a marine mammal is observed in the mitigation zone. Observing for marine mammals during the explosive activities will include aerial and passive acoustic detection methods (when they are available and part of the activity) before the activity begins, in order to cover the mitigation zones that can range from 200 yds (183 m) to 2,500 yds (2,286 m) depending on the source (
Observing for marine mammals during ship shock (which includes lookouts in aircraft or on multiple vessels), begins 5 hrs before the detonation and extends 3.5 nmi from the ship's hull (see Table 57). Nearly all
NMFS proposes to authorize a very small number of serious injuries or mortalities that could occur in the event of a ship strike or as a result of marine mammal exposure to explosive detonations (ship shock trials). We note here that the takes from potential ship strikes or explosive exposures enumerated below could result in non-serious injury, but their worse potential outcome (mortality) is analyzed for the purposes of the negligible impact determination.
In addition, we discuss here the connection between the mechanisms for authorizing incidental take under section 101(a)(5) for activities, such as Navy's testing and training in the AFTT Study Area, and for authorizing incidental take from commercial fisheries. In 1988, Congress amended the MMPA's provisions for addressing incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to develop a system suited to the unique circumstances of commercial fishing operations led NMFS to suggest a new conceptual means and associated regulatory framework. That concept, Potential Biological Removal (PBR), and a system for developing plans containing regulatory and voluntary measures to reduce incidental take for fisheries that exceed PBR were incorporated as sections 117 and 118 in the 1994 amendments to the MMPA.
PBR is defined in the MMPA (16 U.S.C. 1362(20)) as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population,” and is a measure that can help evaluate the effects of M/SI on a marine mammal species or stock. OSP is defined by the MMPA (16 U.S.C. 1362(9)) as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” A primary goal of the MMPA is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock (N
PBR can be used as a consideration of the effects of M/SI on a marine mammal stock but was applied specifically to work within the management framework for commercial fishing incidental take. PBR cannot be applied appropriately outside of the section 118 regulatory framework for which it was designed to inform without consideration of how it applies in 118 and how other statutory management frameworks differ. PBR was not designed as an absolute threshold limiting commercial fisheries, but rather as a means to evaluate the relative impacts of those activities on marine mammal stocks. Even where commercial fishing is causing M/SI at levels that exceed PBR, the fishery is not suspended. When M/SI exceeds PBR, NMFS may develop a take reduction plan, usually with the assistance of a take reduction team. The take reduction plan will include measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below the stock's PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather utilizes the take reduction process to further mitigate the effects of fishery activities via additional bycatch reduction measures. PBR is not used to grant or deny authorization of commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent consideration of PBR may be relevant to considering the impacts of incidental take from activities other than commercial fisheries, using it as the sole reason to deny incidental take authorization for those activities would be inconsistent with Congress's intent under section 101(a)(5) and the use of PBR under section 118. The standard for authorizing incidental take under section 101(a)(5) continues to be, among other things, whether the total taking will have a negligible impact on the species or stock. When Congress amended the MMPA in 1994 to add section 118 for commercial fishing, it did not alter the standards for authorizing non-commercial fishing incidental take under section 101(a)(5), acknowledging that negligible impact under section 101(a)(5) is a separate standard from PBR under section 118. In fact, in 1994 Congress also amended section 101(a)(5)(E) (a separate provision governing commercial fishing incidental take for species listed under the Endangered Species Act) to add compliance with the new section 118 but kept the requirement for a negligible impact finding, showing that the determination of negligible impact and application of PBR may share certain features but are different.
Since the introduction of PBR, NMFS has used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries management-related provisions of the MMPA. The MMPA requires that PBR be estimated in stock assessment reports and that it be used in applications related to the management of take incidental to commercial fisheries (
Nonetheless, NMFS recognizes that as a quantitative tool, PBR may be useful in certain instances as a consideration when evaluating the impacts of other human-caused activities on marine mammal stocks. Outside the commercial fishing context, PBR can help inform the potential effects of M/SI, most readily for determining when anticipated M/SI clearly would not contribute to exceeding the negligible impact level. We first calculate a metric for each
Where M/SI for a species or stock exceeds the insignificance threshold—or even residual PBR—that information is relevant to, but not determinative of, whether the M/SI along with any anticipated take by harassment exceeds negligible impact. We also consider all relevant information that could either increase or reduce the level of concern related to the significance of a given level of take. Specifically, we consider implementation of mitigation measures, additional population stressors, and other possible effects—both positive and negative—in addition to the interaction of those mortalities with incidental taking by harassment.
Our evaluation of the M/SI for each of the species and stocks for which mortality could occur follows. No mortalities or serious injuries are anticipated from Navy's sonar activities. In addition, all mortality authorized for some of the same species or stocks over the next several years pursuant to our final rulemaking for the NMFS Northeast Fisheries Science Center has been incorporated into the residual PBR.
We first consider maximum potential incidental M/SI from Navy's ship strike analysis for the affected mysticetes and sperm whales (see Table 70) and from the Navy's explosive detonations for the affected dolphin species (see Table 71) in consideration of NMFS's threshold for identifying insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July 20, 2004)). By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through Navy's ship strikes and explosive detonations may affect the species' or stock's annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity.
Based on the methods discussed previously, NMFS believes that mortal takes of three large whales over the course of the five-year rule could occur, but that no more than one of any species of humpback whale, fin whale, sei whale, minke whale, blue whale, or sperm whale (either GOM or North Atlantic) would occur. This means an annual average of 0.2 whales from each species as described in Table 70 (
The Navy has also requested a small number of takes by serious injury or mortality from explosives. To calculate the annual average of mortalities for explosives in Table 71 we used the same method as described for vessel strikes. The annual average is the number of takes divided by 5 years to get the annual number.
For humpback whale (Gulf of Maine stock) PBR is currently set at 13 and the total annual M/SI of 9.05 yielding a residual PBR of 3.95. The M/SI value includes incidental fishery interaction records of 7.25, and records of vessel collisions of 1.8. The proposed authorization of 0.2 mortalities is below the insignificance threshold of 10 percent of residual PBR (0.395); therefore, we consider the addition of 0.2 an insignificant incremental addition to human-caused mortality. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
While the proposed authorization of mortalities is below the insignificant threshold, because of the going UME for humpback whales, we address what actions may be occurring that may reduce the risk of mortalities of humpbacks. Of note, the Atlantic Large Whale Take Reduction Plan (ALWTRP) is a program to reduce the risk of serious injury and death of large whales caused by accidental entanglement in U.S. commercial trap/pot and gillnet fishing gear. It aims to reduce the number of whales taken by gear entanglements focusing on fin whales, humpback whales, and NARW. Effective September 1, 2015 the ALWTRP included new gear marking areas for gillnets and trap/pots for Jeffrey's Ledge and Jordan Basin (Gulf of Maine), two important high-use areas for humpback whales and NARWs. The only study available that examined the effectiveness of the ALWTRP reviewed the regulations up to 2009 (Pace
For sperm whales (North Atlantic stock) PBR is currently set at 3.6 and the total annual M/SI of 0.8 yielding a residual PBR of 2.8. The M/SI value includes incidental fishery interaction records of 0.6, and records of vessel collisions of 2.0. The proposed authorization of 0.2 mortalities falls below the insignificance threshold of 10 percent of residual PBR (0.28), therefore, we consider the addition of 0.2 an insignificant incremental addition to human-caused mortality. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
For sperm whales (Gulf of Mexico stock) PBR is currently set at 1.1 and the total annual M/SI of 0 yielding a residual PBR of 1.1. The M/SI value includes incidental fishery interaction records of 0, and records of vessel collisions of 0. The proposed authorization of 0.2 mortalities does not fall below the insignificance threshold of 10 percent of residual PBR (0.11), but is below residual PBR, which means that the total anticipated human-caused mortality is still not expected to exceed that needed to allow the stock to reach or maintain its OSP level. The information contained here will be considered in combination with the harassment assessment included later in this section.
Additional information on sperm whale mortalities was considered in our analysis because the proposed mortalities did not fall below the insignificant threshold of 10 percent of residual PBR (however, still below residual PBR). Sperm whales associated with a UME (described below) appears to be an isolated event and the UME investigation determined that the DWH oil spill is the most likely explanation for the elevated stranding numbers in the northern Gulf of Mexico. An UME was declared for cetaceans in the northern Gulf of Mexico 2010–2014 (for more information refer to the Description of Marine Mammals section). During 2010–2013, five sperm whales from this stock were considered to be part of the UME. No vessel strikes have been documented in recent years (2009–2013) for sperm whales in the Gulf of Mexico. Historically, one possible sperm whale mortality due to a vessel strike has been documented for the Gulf of Mexico. The incident occurred in 1990 in the vicinity of Grande Isle, Louisiana. Deep cuts on the dorsal surface of the whale indicated the ship strike was probably pre-mortem (Jensen and Silber 2004). The status of sperm whales in the northern Gulf of Mexico, relative to OSP, is unknown.
For minke whales (Canadian East Coast stock) PBR is currently set at 14 and the total annual M/SI of 8.25 yielding a residual PBR of 5.75. The M/SI value includes incidental fishery interaction records of 6.45, and records of vessel collisions of 1.6. The proposed authorization of 0.2 mortalities annually from the Navy's activities (in addition to the 1.0 annual mortality from the NEFSC) yields a total of 1.2 mortalities, which does not fall below the insignificance threshold of 10 percent of residual PBR (0.575), but is below residual PBR. This means that the total anticipated human-caused mortality is still not expected to exceed that needed to allow the stock to reach or maintain its OSP level. In addition, the abundance of minke whales is likely greater as the most recent estimate is substantially lower than the estimate from the previous 2015 SAR abundance (20,741 minkes with a PBR of 162). The 2015 SAR abundance included data from the 2007 Canadian Trans-North Atlantic Sighting Surveys (TNASS) while the current estimate did not. For the purposes of the 2016 SAR, as recommended in the GAMMS II Workshop Report (Wade and Angliss 1997), estimates older than eight years are deemed unreliable, so the 2016 SAR estimate must not include data from the 2007 TNASS. The 2016 SARS indicated that the estimate should not be interpreted as a decline in abundance of this stock, as previous estimates are not directly comparable. Therefore, the PBR is likely much greater for this species, which could mean that the real residual PBR may not be exceeded. The information contained here will be considered in combination with the harassment assessment included later in this section.
For blue whales (Western North Atlantic stock) PBR is currently set at 0.9 and the total annual M/SI is unknown and therefore residual PBR is unknown. The proposed authorization of 0.2 mortalities is below PBR and there is no other known mortality, so the total anticipated human-caused mortality is not expected to exceed PBR. Additional information on blue whale mortalities was considered in our analysis because the proposed mortalities did not fall below the insignificant threshold of 10 percent of residual PBR (however, still below PBR). There have been no observed fishery-related mortalities or serious injury. There are no recent confirmed records of mortality or serious injury to blue whales in the U.S. Atlantic EEZ. One historical record points to a ship strike; however it was concluded that the whale may have been died outside the U.S. Atlantic EEZ. In March 1998, a dead 20 m (66 ft) male blue whale was brought into Rhode Island waters on the bow of a tanker. The cause of death was determined to be ship strike; however, some of the injuries were difficult to explain from the necropsy. Therefore, we think the likelihood of the Navy hitting a blue whale is discountable. There are insufficient data to determine population trends for this species. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
For fin whales (Western North Atlantic stock) PBR is currently set at 2.5 and the total annual M/SI of 3.8 yielding a residual PBR of −1.3. The fact that residual PBR is negative means that the total anticipated human-caused mortality is expected to exceed PBR even in the absence of additional take by the Navy. However, we note that there is a strong likelihood the abundance estimate used to calculate PBR was biased low due to incomplete coverage of the stock's range, and, therefore, this PBR calculation is likely low. The best abundance estimate available for the fin whale stock is 1,618 and that it is likely that the available estimate underestimates this stock's abundance because much of the stock's range was not included in the surveys upon which the estimate is based.
Proposed mortality above residual PBR (however, still below PBR) necessitates the consideration of all additional available information on mortality in the analysis. Of note, the ALWTRP (as described above) is a program to reduce the risk of serious injury and death of large whales caused by accidental entanglement in U.S. commercial trap/pot and gillnet fishing gear. It aims to reduce the number of whales taken by gear entanglements focusing on fin whales, humpback whales, and NARW. NMFS Fisheries Science Centers are convening a working group in January 2018 to make recommendations on the best analytical approach to measure how effective these regulations have been.
As noted previously, PBR, as a tool, is inherently conservative and is not intended to be used as an absolute cap. The Navy's proposed serious injury or mortality take of 0.2 individual fin whales is low in and of itself (the lowest non-zero value possible over a five-year period), and as a portion of the total projected overage of human-caused mortality of 3.8. Additionally, as noted above, PBR may be underestimated, which could mean that the real residual PBR may not be exceeded. However, the exceedance of residual PBR necessitates that close attention to the remainder of the impacts on fin whales from this activity to ensure that the total authorized impacts are negligible.
For sei whales (Nova Scotia stock) PBR is currently set at 0.5 and the total annual M/SI of 0.8 yielding a residual PBR of −0.3. The M/SI value includes incidental fishery interaction records of 0, and records of vessel collisions of 0.8. The fact that residual PBR is negative means that the total anticipated human-caused mortality is expected to exceed PBR even in the absence of additional take by the Navy. However, we note that there is a strong likelihood the abundance estimate used to calculate PBR was biased low due to incomplete coverage of the stock's range, and, therefore, this PBR calculation may also be low. It should be noted that the population abundance estimate of 357 is considered the best available for the Nova Scotia stock of sei whales. However, this estimate must be considered conservative because all of the known range of this stock was not surveyed. It should be noted that the abundance survey from which it was derived excluded waters off the Scotian Shelf, an area encompassing a large portion of the stated range of the stock. The status of this stock relative to OSP in the U.S. Atlantic EEZ is unknown. There are insufficient data to determine population trends for sei whales.
Proposed mortality above residual PBR (however, still below PBR) necessitates the consideration of all additional available information on mortality in the analysis. As noted previously, PBR, as a tool, is inherently conservative and is not intended to be used as an absolute cap. The Navy's proposed serious injury or mortality take of 0.2 individual sei whales is low in and of itself (the lowest non-zero value possible over a five-year period), and the total projected overage of human-caused mortality of 0.8 is also low. However, the exceedance of residual PBR necessitates that close attention to the remainder of the impacts on sei whales from the Navy's activities to ensure that the total authorized impacts are negligible.
For Atlantic white-sided dolphins (Western Atlantic stock) PBR is currently set at 304 and the total annual M/SI of 74 yielding a residual PBR of 230. The proposed authorization of 0.2 mortalities from the Navy's activities (in addition to 0.6 mortalities from the NEFSC) yields a total of 0.8 mortalities, which falls below the insignificance threshold of 10 percent of residual PBR (23.0). Therefore, we consider the addition of 0.8 an insignificant incremental increase to human-caused mortality and do not consider additional factors related to mortality further. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
The Pantropical spotted dolphins (Northern Gulf of Mexico stock) PBR is currently set at 407 and the total annual M/SI of 4.4 yielding a residual PBR of 402.6. The proposed authorization of 0.2 mortalities annually falls below the insignificance threshold of 10 percent of residual PBR (40.26) and, therefore, we consider the addition of 0.2 an insignificant incremental increase to human-caused mortality and do not consider additional factors related to mortality further. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
For short-beaked common dolphins (Western North Atlantic stock) PBR is currently set at 577 and the total annual M/SI of 409 yielding a residual PBR of 168. The proposed authorization of 1.2 mortalities annually from the Navy's activities (in addition to the 2.0 mortalities from the NEFSC) yields a total of 3.2 mortalities annually and falls below the insignificance threshold of 10 percent of residual PBR (16.8) and, therefore, we consider the addition of 3.2 an insignificant incremental increase to human-caused mortality and do not consider additional factors related to mortality further. This information will be considered in combination with our assessment of the impacts of harassment takes later in the section.
The spinner dolphins (Northern Gulf of Mexico stock) PBR is currently set at 62 and the total annual M/SI of 0 yielding a residual PBR of 62. The proposed authorization of 0.2 mortalities annually falls below the insignificance threshold of 10 percent of residual PBR (6.2) and, therefore, we consider the addition of 0.2 an insignificant incremental increase to human-caused mortality and do not consider additional factors related to mortality further. This information will be considered in combination with our assessment of the impacts of harassment.
In the discussions below, the “acoustic analysis” refers to the Navy's analysis, which includes the use of several models and other applicable calculations as described in the Estimated Take of Marine Mammals section. The quantitative analysis process used for the AFTT DEIS/OEIS and the Navy's rulemaking and LOA application to estimate potential exposures to marine mammals resulting from acoustic and explosive stressors is detailed in the technical report titled Quantitative Analysis for Estimating Acoustic and Explosive Impacts to Marine Mammals and Sea Turtles (U.S. Department of the Navy, 2017a). The Navy Acoustic Effects Model estimates acoustic and explosive effects without taking mitigation into account; therefore, the model overestimates predicted impacts on marine mammals within mitigation zones. To account for mitigation, as well as avoidance, for marine mammals, the Navy developed a methodology to conservatively quantify the likely degree that mitigation and avoidance will reduce model-estimated PTS to TTS for exposures to sonar and other transducers, and reduce model-estimated mortality and injury for exposures to explosives.
The amount and type of incidental take of marine mammals anticipated to occur from exposures to sonar and other active acoustic sources and explosions during the five-year training and testing period are shown in Tables 39 and 40 as well as ship shock trials shown in Table 41. The vast majority of predicted exposures (greater than 99 percent) are expected to be Level B harassment (non-injurious TTS and behavioral reactions) from acoustic and explosive sources during training and testing activities at relatively low received levels.
The analysis below may in some cases (
In Table 72 below, for mysticetes, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
Of these species, North Atlantic right whale, blue whale, fin whale, and sei whale are listed as endangered under the ESA and depleted under the MMPA. NMFS is currently engaged in an internal Section 7 consultation under the ESA and the outcome of that consultation will further inform our final decision.
As noted previously, the estimated takes represent instances of take, not the number of individuals taken, and in almost all cases—some individuals are expected to be taken more than one time, which means that the number of individuals taken is smaller than the total estimated takes. In other words, where the instances of take exceed 100 percent of the population, repeated takes of some individuals are predicted. Generally speaking, the higher the number of takes as compared to the population abundance, the more repeated takes of individuals are likely, and the higher the actual percentage of individuals in the population that are likely taken at least once in a year. We look at this comparative metric to give us a relative sense across species/stocks of where larger portions of the stocks are being taken by Navy activities and where there is a higher likelihood that the same individuals are being taken across multiple days and where that number of days might be higher. In the ocean, the use of sonar and other active acoustic sources is often transient and is unlikely to repeatedly expose the same individual animals within a short period, for example within one specific exercise. However, some repeated exposures across different activities could occur over the year, especially where numerous activities occur in generally the same area with more resident species. In short, we expect that the total anticipated takes represent exposures of a smaller number of individuals of which some would be exposed multiple times, but based on the nature of the Navy's activities and the movement patterns of marine mammals, it is unlikely that any particular subset would be taken over more than a few sequential days—
Use of sonar and other transducers would typically be transient and temporary. The majority of acoustic effects to mysticetes from sonar and other active sound sources during testing and training activities would be primarily from ASW events. It is important to note although ASW is one of the warfare areas of focus during MTEs, there are significant periods when active ASW sonars are not in use. Nevertheless, behavioral reactions are assumed more likely to be significant during MTEs than during other ASW activities due to the duration (
Most Level B harassments to mysticetes from hull-mounted sonar (MF1) in the AFTT Study Area would result from received levels between 160 and 172 dB SPL (64 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses (
Research and observations show that if mysticetes are exposed to sonar or other active acoustic sources they may react in a number of ways depending on the characteristics of the sound source, their experience with the sound source, and whether they are migrating or on seasonal grounds (
While MTEs may have a longer duration they are not concentrated in small geographic areas over that time period. MTES use thousands to 10s of thousands of square miles of ocean space during the course of the event. There is no Navy activity in the proposed action that is both long in duration (more than a day) and concentrated in the same location. For example, Goldbogen
Richardson
The implementation of mitigation and the sightability of mysticetes (due to their large size) reduces the potential for a significant behavioral reaction or a threshold shift to occur, though we have analyzed the impacts that are anticipated to occur that we have therefore proposed to authorize. As noted previously, when an animal incurs a threshold shift, it occurs in the frequency from that of the source up to one octave above—this means that threshold shift caused by Navy sonar sources will typically occur in the range of 2–20 kHz, and if resulting from hull-mounted sonar, will be in the range of 3.5–7 kHz. The majority of mysticete vocalizations, including for right whales, occurs in frequencies below 1kHz, which means that TTS incurred by mysticetes will not interfere with conspecific communication. When we look in ocean areas where the Navy has been intensively training and testing with sonar and other active acoustic sources for decades, there is no data suggesting any long-term consequences to mysticetes from exposure to sonar and other active acoustic sources.
The Navy will implement mitigation areas that will avoid or reduce impacts to mysticetes and contains BIAs for large whales and critical habitat for NARW. The NARW is a small, at risk species with an ongoing UME. In order to mitigate the number and potential severity of any NARW takes, from November 15 through April 15, the Navy will not conduct LFAS/MFAS/HFAS, except for sources that will be minimized to the maximum extent practicable during helicopter dipping, navigation training, and object detection exercises within the Southeast NARW Mitigation Area. As discussed previously, the majority of takes result from exposure to the higher power hull-mounted sonar during major training exercises, which will not occur here. The activities that are allowed to occur such as those used for navigation training or object detection exercises use lower level sources that operate in a manner less likely to result in more concerning affects (
The Navy will also minimize the use of active sonar in the Northeast NARW Mitigation Area. Refer to Proposed Mitigation Measures for a description of the area. A limited number of torpedo activities (non-explosive) would be conducted in August and September. Many NARW will have migrated south out of the area by that time. Torpedo training or testing activities would not occur within 2.7 nmi of the Stellwagen Bank NMS which is critical habitat for NARW foraging. Stellwagen Bank NMS also provides feeding and nursery grounds for NARW, humpback, sei and fin whales. The Northeast NARW Mitigation Area also contains the NARW feedings BIAs (3), NARW mating BIA (1), and NARW critical habitat.
The large whale feeding BIAs are included in the Navy's Gulf of Maine Mitigation Area. The humpback whale (1), minke whale (2), fin whale (2), and sei whale (1) feeding BIAs are within the Gulf of Maine Mitigation Area where the Navy will not plan MTEs, and will not conduct more than 200 hrs of hull-mounted MFAS per year. The Northeast Mitigation Area, which is just south of the Gulf of Maine Mitigation Area, will also avoid MTEs to the maximum extent possible and not conduct more than four MTEs per year.
The Bryde's whale BIA is inclusive of the Gulf of Mexico Planning Awareness Mitigation Areas where the Navy will avoid planning MTEs (
As described previously there are three ongoing UMEs for NARW, humpback whales, and minke whales. There is significant concern regarding the status of the NARW, both because of the ongoing UME and because of the overall status of the stock. However, the Navy's mitigation measures make NARW mortality unlikely—and we do not propose to authorize such take—and the newly expanded mitigation areas further reduce the extent of potential behavioral disruption in areas that are important for NARW, hence reducing the significance of such disruption. NMFS also has concern regarding the UME for humpback whales. NMFS, in coordination with our stranding network partners, continue to investigate the recent mortalities, environmental conditions, and population monitoring to better understand how the recent humpback whale mortalities occurred. Ship speed reduction rules are in effect for commercial and large vessel during high concentrations of NARW, and require vessels greater than or equal to 65 feet in length to reduce speeds to 10 knots or less while entering or departing ports. While this rule was put into place primarily for the NARW presence in New England and Mid-Atlantic waters, it does benefit other whale species, such as humpback whales that are in those areas from November through July. NOAA is reviewing ship-tracking data to ensure compliance with the ship speed reduction rule around Cape Cod, New York, and the Chesapeake Bay areas. However, the Navy's mitigation measures make humpback mortality low to unlikely and therefore, NMFS proposes to authorize only one mortality over the entire five-year period of the rule. The UME for minke whales was recently declared. More research is needed on the preliminary findings of the necropsies. As part of the UME investigation process, NOAA is assembling an independent team of scientists to coordinate with the Working Group on Marine Mammal Unusual Mortality Events to review the data collected, sample stranded whales, and determine the next steps for the investigation.
In summary and as described above, the following information primarily supports our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect the mysticete stocks taken through effects on annual rates of recruitment or survival:
• As described in the “Serious Injury or Mortality” section above, up to one serious injury or mortality over five years is proposed for authorization for large whales (see Table 70). As described above, the proposed mortality for humpback whale and sperm whale (North Atlantic stock) fall below the insignificance threshold, the proposed mortality for the sperm whale (Gulf of Mexico stock) and minke whale is below residual PBR, and while residual PBR is not known for blue whales (as total annual M/SI is unknown), no other fishery-related or ship strike mortalities are known to have occurred, so the total human-caused mortality is very low. The total human-caused mortality for fin and sei whales is already projected to exceed PBR even in the absence of additional mortality caused by the Navy. However, as discussed in greater detail previously, the ALWTRP is in place to reduce the likelihood of entanglement of large whales by trap/pot and gillnet fishing gear and NMFS is currently analyzing its effectiveness. When we consider the factors discussed above, the fact that the PBR metric is inherently conservative, and the fact that the Navy's potential incremental increase in the mortal takes is fractionally small (0.2 annually) are considered, NMFS believes that this single death over five years will not result in adverse impacts on annual rates of recruitment or survival.
• As described above, any PTS that may occur is expected to be of a small degree, and any TTS of a relatively small degree because of the unlikelihood that animals would be close enough for a long enough period of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives. Further, as noted above, any threshold shift incurred from sonar would be in the frequency range of 2–20 kHz, which above the frequency of the majority of mysticete vocalizations, and therefore would not be expected to interfere with conspecific communication.
• While the majority of takes are caused by exposure during ASW activities the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days,
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cut offs for mysticetes are applied, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 160 dB. However, the majority (
• For the total instances of all of the different types of takes, the numbers indicating the instances of total take as a percentage of abundance are between 7 and 118 percent over the whole Navy Study Area, and between 118 and 672 percent in the US EEZ alone (Table 72). While these percentages may seem high, when spread over the entire year and a very large range, the scale of the effects are such that over the whole Navy Study area, individuals are taken an average of 0 or 1–2 times per year, and some subset of these individuals in the US EEZ are taken an average of 1–7 times (based on the percentages above, respectively, but with some taken more or less). These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for weeks or months out of the year, much less on sequential days. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low.
• NMFS is very concerned about the status of the NARW stock, both because of the increased number of deaths and because of the health of the rest of the stock. However, the Navy's mitigation measures make ship strike unlikely (and it is unauthorized) and the newly expanded mitigation areas further reduce the behavioral disruption in areas that are important for NARW, hence reducing the likelihood of more severe impacts that would be more likely to lead to fitness impacts, as discussed above.
• The Navy's mitigation areas are inclusive of BIAs for mysticetes and will avoid or reduce the number and severity of impacts to these stocks (Table 72).
Consequently, the AFTT activities are not expected to adversely impact rates of recruitment or survival of any of the stocks of mysticete whales (Table 72 above in this section).
In Table 73 below, for sperm whale, dwarf sperm whales, and pygmy sperm whales, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
Sperm whales (
As noted previously, the estimated takes represent instances of take, not the number of individuals taken, and in almost all cases—some individuals are expected to be taken more than one time, which means that the number of individuals taken is smaller than the total estimated takes. In other words, where the instances of take exceed 100 percent of the population, repeated takes of some individuals are predicted. Generally speaking, the higher the number of takes as compared to the population abundance, the more repeated takes of individuals are likely, and the higher the actual percentage of individuals in the population that are likely taken at least once in a year. We look at this comparative metric to give us a relative sense across species/stocks of where larger portions of the stocks are being taken by Navy activities and where there is a higher likelihood that the same individuals are being taken across multiple days and where that number of days might be higher. In the ocean, the use of sonar and other active acoustic sources is often transient and is unlikely to repeatedly expose the same individual animals within a short period, for example within one specific exercise, however, some repeated exposures across different activities could occur over the year, especially where events occur in the generally the same area with more resident species. In short, we expect that the total
Most Level B harassments to sperm whales and
Sperm whales have shown resilience to acoustic and human disturbance, although they may react to sound sources and activities within a few kilometers. Sperm whales that are exposed to activities that involve the use of sonar and other active acoustic sources may alert, ignore the stimulus, avoid the area by swimming away or diving, or display aggressive behavior (Richardson, 1995; Nowacek, 2007; Southall
The quantitative analysis predicts a few PTS per year from sonar and other transducers (during training and testing activities); however,
The Navy will implement a mitigation area that will avoid or reduce impacts to sperm whales (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect sperm whales and
• As described in the “Serious Injury or Mortality” section above, up to one mortality over five years (0.2 annually) is proposed for authorization for sperm whales (either Gulf of Mexico or North Atlantic stocks). The proposed serious injury or mortality for sperm whales falls below the insignificant threshold for the North Atlantic stock. It does not fall below the insignificance threshold for the Gulf of Mexico stock, but is below residual PBR, which means that the total anticipated human-caused mortality is not expected to exceed PBR. Historically, one possible sperm whale mortality due to a vessel strike has been documented for the Gulf of Mexico in 1990. NMFS believes that this single death over five years will not result in adverse impacts on annual rates of recruitment or survival.
• As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that animals would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• Large threshold shifts are not anticipated for these activities because of the unlikelihood that animals will remain within the ensonified area (due to the short duration of the majority of exercises, the speed of the vessels (relative to marine mammals swim speeds), and the short distance within which the animal would need to approach the sound source) at high levels for the duration necessary to induce larger threshold shifts.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days,
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cut offs are applied for odontecetes, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 160 dB. However, the majority (
• For the total instances of all of the different types of takes, the numbers indicating the instances of total take as a percentage of abundance are between 54 and 362 percent over the whole Navy Study Area, and between 54 and 579 percent in the US EEZ alone for all species except the Western North Atlantic dwarf and pygmy sperm whales, which are 2116 (Table 73). While these percentages may seem high, when spread over the entire year and a very large range, the scale of the effects are such that over the whole Navy Study area, individuals are taken an average of 0 or 1–4 times per year, and some subset of these individuals for all but pygmy and dwarf sperm whales in the US EEZ are taken an average of 1–6 times (based on the percentages above, respectively, but with some taken more or less). A subset of dwarf and pygmy sperm whales in the US EEZ (about 16 percent of the total abundance of the Navy Study Area) could be taken an average of 21 times each. These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for weeks or months out of the year, much less on sequential days. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low.
• For the endangered sperm whale (Gulf of Mexico), additional mitigation measures further reduce the likelihood of behavioral disruption in areas that are important for sperm whales. Nearly the entire important sperm whale habitat (Mississippi Canyon) is included in the Gulf of Mexico Mitigation Area.
•
• The AFTT activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for sperm whales or
Consequently, the AFTT activities are not expected to adversely impact rates of recruitment or survival of any of the analyzed stocks of sperm whales, dwarf sperm whales, or pygmy sperm whales (Table 73 above in this section).
In Table 74 below, for dolphins and small whales, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
As noted previously, the estimated takes represent instances of take, not the number of individuals taken, and in almost all cases—some individuals are expected to be taken more than one time, which means that the number of
Most Level B harassments to dolphins and small whales from hull-mounted sonar (MF1) in the AFTT Study Area would result from received levels between 160 and 166 dB SPL (66 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses (
Research and observations show that if delphinids are exposed to sonar or other active acoustic sources they may react in a number of ways depending on their experience with the sound source and what activity they are engaged in at the time of the acoustic exposure. Delphinids may not react at all until the sound source is approaching within a few hundred meters to within a few kilometers depending on the environmental conditions and species. Delphinids that are exposed to activities that involve the use of sonar and other active acoustic sources may alert, ignore the stimulus, change their behaviors or vocalizations, avoid the sound source by swimming away or diving, or be attracted to the sound source (Richardson, 1995; Nowacek, 2007; Southall
Many of the recorded delphinid vocalizations overlap with the MFAS/HFAS TTS frequency range (2–20 kHz); however, as noted above, NMFS does not anticipate TTS of a serious degree or extended duration to occur as a result of exposure to MFAS/HFAS.
Of the BIAs for small and resident populations of bottlenose dolphin (Gulf of Mexico and East Coast), these identified areas are within bays and estuaries where the Navy does not use explosives and conduct limited activities by sonar and other transducers. For example, in the Northern North Carolina Estuarine dolphins (BIA), one-third of the takes are from sub-navigation and ship object avoidance (less impactful sonar activity) events which occur in/out of Chesapeake Bay. This area is on the northern border of this BIA which further reduces the possibility of modeled takes that would result in significant impacts. The other two-thirds of the takes for the Northern North Carolina Estuarine dolphins are from Civilian Port Defense which would occur at most only once in five years in the vicinity of that BIA. Similarly, for the Indian River Lagoon Estuarine system bottlenose dolphins (BIA), all the level B takes are from also from the less impactful sonar activity of sub-navigation and ship object avoidance and are events of short duration (approx. 30 minutes). Two small and resident populations of bottlenose dolphin BIAs (Northern North Carolina Estuarine System and Southern North Carolina Estuarine System) may be impacted during pile driving activities for the Elevated Causeway System at Marine Corps Base Camp Lejeune, North Carolina; however, only one modeled take of a Northern North Carolina Estuarine System bottlenose dolphin is predicted. There are no modeled takes from any activities to Southern North Carolina Estuarine System bottlenose dolphins (BIA) and only one modeled take to Mississippi Sound BIA from sonar. No takes are predicted from airguns for any bottlenose dolphin BIAs. Therefore, impacts are expected to be short-term and minor by Level B harassment and mostly all behavioral takes. Abandonment of the area would not be anticipated to the small and resident bottlenose dolphin populations (BIAs) from the Navy's training and testing activities.
One of these BIAs, the bottlenose dolphin of Barataria Bay, Louisiana (and showing persistent impacts by the Cetacean UME in the Northern Gulf of Mexico) were recently fitted with satellite-linked transmitters, showing that most dolphins remained within the bay, while those that entered nearshore coastal waters remained within 1.75 km (Wells
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect dolphins and small whales taken through effects on annual rates of recruitment or survival:
• As described in the “Serious Injury or Mortality” section (Table 71), up to nine serious injuries or mortalities over five years are proposed for authorization for four species of dolphins (short-beaked common dolphin, Atlantic white-sided dolphin, pantropical spotted dolphin, and spinner dolphins). However, the proposed serious injury or mortality for these species falls below the insignificance threshold, and, therefore, we consider the addition an insignificant incremental increase to human-caused mortality.
• As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that animals would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cut offs are applied for odontecetes, this means that all of the takes from hull-mounted (MF1) sonar result from above exposure 160 dB. However, the majority (
• For the total instances of all of the different types of takes, the numbers indicating the instances of total take as a percentage of abundance are between 1 and 984 percent over the whole Navy Study Area (with more than half the stocks being under 100), and between 1 and 1053 percent in the US EEZ alone (Table 74). While these percentages may seem high, when spread over the entire year and a very large range, the scale of the effects are such that over the whole Navy Study area, individuals are taken an average of 0 or 1–10 times per year (with the majority closer to 1), and some subset of these individuals in the US EEZ are taken an average of 1–11 times (based on the percentages above, respectively, but with some taken more or less). These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for weeks or months out of the year, much less on sequential days. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low.
• Of the BIAs for small and resident populations of bottlenose dolphin BIAs (Gulf of Mexico and East Coast), these identified areas are within bays and estuaries where the Navy does not use explosives nor generally train/test with sonar and other transducers. Therefore, impacts are short-term and minor mostly due to Level B harassment behavioral takes. Significant impacts are not anticipated to the small and resident bottlenose dolphin populations (BIAs) from the Navy's training and testing activities.
• No takes are anticipated or authorized for the Barataria Bay dolphins (one of the BIAs for bottlenose dolphin and showing persistent impacts by the Cetacean UME in the Northern Gulf of Mexico).
• The AFTT activities are not expected to occur routinely in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for delphinids. Stocks of delphinid species found in the AFTT Study Area are not depleted under the MMPA, nor are they listed under the ESA.
Consequently, the activities are not expected to adversely impact rates of recruitment or survival of any of the stocks of analyzed delphinid species (Table 74, above in this section).
In Table 75, below for porpoises, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
Nearly 100 percent of takes annually for harbor porpoises are from Level B harassment either behavioral or TTS (less than 1 percent for PTS) (Table 75 above). No mortalities are anticipated. As noted previously, the estimated takes
The greater likelihood is that not every individual is taken or perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for months out of the year, much less on sequential days.
Most Level B harassments to harbor porpoise from hull-mounted sonar (MF1) in the AFTT Study Area would result from received levels between 154 and 160 dB SPL (59 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses (
The number of harbor porpoise behaviorally harassed by exposure to LFAS/MFAS/HFAS in the AFTT Study Area is generally higher than the other species. Of note, harbor porpoises have been shown to be particularly sensitive to sound and therefore have been assigned a lower harassment threshold,
A small and resident population area for harbor porpoises identified by LaBrecque
Animals that experience hearing loss (TTS or PTS) may have reduced ability to detect relevant sounds such as predators, prey, or social vocalizations. Some porpoise vocalizations might overlap with the MFAS/HFAS TTS frequency range (2–20 kHz). Recovery from a threshold shift (TTS; partial hearing loss) can take a few minutes to a few days, depending on the exposure duration, sound exposure level, and the magnitude of the initial shift, with larger threshold shifts and longer exposure durations requiring longer recovery times (Finneran
Harbor porpoises have been observed to be especially sensitive to human activity (Tyack
ASW training activities using hull mounted sonar proposed for the AFTT Study Area generally last for only a few hours. Some ASW exercises can generally last for 2–10 days, or as much as 21 days for an MTE-Large Integrated ASW (see Table 1.3–1 of the Navy's rulemaking and LOA application). For these multi-day exercises there will be extended intervals of non-activity in between active sonar periods. In addition, the Navy does not typically conduct ASW activities in the same locations. Given the average length of ASW events (times of continuous sonar use) and typical vessel speed, combined with the fact that the majority of porpoises in the AFTT Study Area would not likely remain in an area for successive days, it is unlikely that an animal would be exposed to active sonar at levels likely to result in a substantive response (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from Navy's activities are not expected to adversely affect harbor porpoises taken through effects on annual rates of recruitment or survival:
• No mortalities of harbor porpoises are proposed for authorization or anticipated to occur.
• As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that harbor porpoise would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammal swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cut offs are applied for harbor porpoise, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 154 dB. However, the majority (
• For the total instances of all of the different types of takes, the number indicating the instances of total take as a percentage of abundance is 994 percent over the whole Navy Study Area, and 85 percent in the US EEZ alone (Table 75). While these percentages may seem high, when spread over the entire year and a very large range, the scale of the effects are such that over the whole Navy Study area, individuals are taken an average of 0 or 1 times per year, and the 8 percent of these individuals in the US EEZ are taken an average of 10 times (based on the percentages above in Table 75, respectively, but with some taken more or less). These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for weeks or months out of the year, much less on sequential days. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low.
• The AFTT activities could occur in areas important for harbor porpoises; however, due to the geographic dispersion and limited duration of those activities, they are unlikely to have a significant impact on feeding, reproduction, or other known critical behaviors.
• Harbor porpoise found in the AFTT Study Area are not depleted under the MMPA, nor are they listed under the ESA.
• The harbor porpoise BIA is included in the Gulf of Maine Mitigation Area where the Navy will not plan MTEs (Composite Training Unit or Fleet/Sustainment Exercises) and will not conduct more than 200 hrs of hull-mounted MFAS per year.
Consequently, the activities are not expected to adversely impact rates of recruitment or survival of any of the analyzed harbor porpoise stocks (Table 65).
In Table 76 below, for beaked whales, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
As noted previously, the estimated takes represent instances of take, not the number of individuals taken, and in almost all cases—some individuals are expected to be taken more than one time, which means that the number of individuals taken is smaller than the total estimated takes. In other words, where the instances of take exceed 100 percent of the population, repeated takes of some individuals are predicted. Generally speaking, the higher the number of takes as compared to the population abundance, the more repeated takes of individuals are likely, and the higher the actual percentage of individuals in the population that are likely taken at least once in a year. We look at this comparative metric to give us a relative sense across species/stocks of where larger portions of the stocks are being taken by Navy activities and where there is a higher likelihood that the same individuals are being taken across multiple days and where that number of days might be higher. In the ocean, the use of sonar and other active acoustic sources is often transient and is unlikely to repeatedly expose the same individual animals within a short period, for example within one specific exercise, however, some repeated exposures across different activities could occur over the year, especially where events occur in the generally the same area with more resident species. In short, we expect that the total anticipated takes represent exposures of a smaller number of individuals of which some were exposed multiple times, but based on the nature of the Navy activities and the movement patterns of marine mammals, it is unlikely any particular subset would be taken over more than a few sequential days—
Most Level B harassments to beaked whales from hull-mounted sonar (MF1) in the AFTT Study Area would result from received levels between 148 and 160 dB SPL (91 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses (
As is the case with harbor porpoises, beaked whales have been shown to be particularly sensitive to sound and therefore have been assigned a lower harassment threshold,
Behavioral responses can range from a mild orienting response, or a shifting of attention, to flight and panic (Richardson, 1995; Nowacek, 2007; Southall
It has been speculated for some time that beaked whales might have unusual sensitivities to sonar sound due to their likelihood of stranding in conjunction with MFAS use. Research and observations show that if beaked whales are exposed to sonar or other active acoustic sources they may startle, break off feeding dives, and avoid the area of the sound source to levels of 157 dB re 1 µPa, or below (McCarthy
Populations of beaked whales and other odontocetes on the Bahamas and other Navy fixed ranges that have been operating for decades, appear to be stable. Behavioral reactions (avoidance of the area of Navy activity) seem likely in most cases if beaked whales are exposed to anti-submarine sonar within a few tens of kilometers, especially for prolonged periods (a few hours or more) since this is one of the most sensitive marine mammal groups to anthropogenic sound of any species or group studied to date and research indicates beaked whales will leave an area where anthropogenic sound is present (Tyack
Based on the findings above, it is clear that the Navy's long-term ongoing use of sonar and other active acoustic sources has not precluded beaked whales from also continuing to inhabit those areas. Based on the best available science, the Navy and NMFS believe that beaked whales that exhibit a significant TTS or behavioral reaction due to sonar and other active acoustic training or testing activities would generally not have long-term consequences for individuals or populations.
NMFS does not expect strandings, serious injury, or mortality of beaked whales to occur as a result of training activities. Stranding events coincident with Navy MFAS use in which exposure to sonar is believed to have been a contributing factor were detailed in the Stranding and Mortality section of this proposed rule. However, for some of these stranding events, a causal relationship between sonar exposure and the stranding could not be clearly established (Cox
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from the Navy's activities are not expected to adversely affect beaked whales taken through effects on annual rates of recruitment or survival:
• No mortalities of beaked whales are proposed for authorization or anticipated to occur.
• As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that animals would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• While the majority of takes are caused by exposure during ASW activities the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammals swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cut offs are applied for beaked whales, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 148 dB. However, the majority (
• For the total instances of all of the different types of takes of the three Gulf of Mexico stocks of beaked whales, the numbers indicating the instances of total take as a percentage of abundance are between 148 and 155 (Table 76). When spread over the entire year and a very large range, the scale of the effects are such that individuals are taken an average of 1–2 times per year (based on the percentages above, respectively, but with some taken more or less). These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken for more than several days out of the year, much less on sequential days. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low.
• For the total instances of all of the different types of takes of the Atlantic stocks of beaked whales, the numbers indicating the instances of total take as a percentage of abundance are between 170 and 308 percent over the whole Navy Study Area, and between 1658 and 1910 percent in the US EEZ alone (Table 76). While these percentages may seem high, when spread over the entire year and a very large range, the scale of the effects are such that over the whole Navy Study area, individuals are taken an average of 1–3 times per year, and the 10 percent or fewer of these individuals in the US EEZ are taken an average of 16–19 times (based on the percentages above, respectively, but with some taken more or less). These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken every day for weeks or months out of the year, much less on sequential days. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low.
• The AFTT activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for beaked whales.
• Beaked whales found in the AFTT Study Area are not depleted under the MMPA, nor are they listed under the ESA.
Consequently, the activities are not expected to adversely impact rates of recruitment or survival of any of the beaked whale stocks analyzed (Table 76 above in this section).
In Table 77 below, for pinnipeds, we indicate the total annual mortality, Level A and Level B harassment, and a number indicating the instances of total take as a percentage of abundance. Overall, takes from Level A harassment (PTS and Tissue Damage) account for less than one percent of all total takes.
As noted previously, the estimated takes represent instances of take, not the number of individuals taken, and in almost all cases—some individuals are expected to be taken more than one time, which means that the number of individuals taken is smaller than the total estimated takes. In other words, where the instances of take exceed 100 percent of the population, repeated takes of some individuals are predicted. Generally speaking, the higher the number of takes as compared to the population abundance, the more repeated takes of individuals are likely, and the higher the actual percentage of individuals in the population that are likely taken at least once in a year. We
Most Level B harassments to beaked whales from hull-mounted sonar (MF1) in the AFTT Study Area would result from received levels between 166 and 172 dB SPL (76 percent). Therefore, the majority of Level B takes are expected to be in the form of milder responses (
Research and observations show that pinnipeds in the water may be tolerant of anthropogenic noise and activity (a review of behavioral reactions by pinnipeds to impulsive and non-impulsive noise can be found in Richardson
Thus, even repeated Level B harassment of some small subset of an overall stock is unlikely to result in any significant realized decrease in fitness to those individuals, and would not result in any adverse impact to the stock as a whole. Evidence from areas where the Navy extensively trains and tests provides some indication of the possible consequences resulting from those proposed activities. Almost all of the impacts estimated by the quantitative assessment are due to navigation and object avoidance (detection) activities in navigation lanes entering Groton, Connecticut. Navigation and object avoidance (detection) activities normally involve a single ship or submarine using a limited amount of sonar, therefore significant reactions are unlikely, especially in phocid seals. If seals are exposed to sonar or other active acoustic sources, they may react in various ways, depending on their experience with the sound source and what activity they are engaged in at the time of the acoustic exposure. Seals may not react at all until the sound source is approaching within a few hundred meters and then may alert, ignore the stimulus, change their behaviors, or avoid the immediate area by swimming away or diving. The use of sonar from navigation and object avoidance in Groton, Connecticut likely exposes the same sub-population of animals multiple times throughout the year. However, phocid seals are likely to only have minor and short-term behavioral reactions to these types of activities and significant behavioral reactions would not be expected in most cases, and long-term consequences for individual seals from a single or several impacts per year are unlikely.
Generally speaking, most pinniped stocks in the AFTT Study Area are thought to be stable or increasing. In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from the Navy's activities are not expected to adversely affect pinnipeds taken through effects on annual rates of recruitment or survival:
• No mortalities of pinnipeds are proposed for authorization or anticipated to occur.
• As described above, any PTS that may occur is expected to be of a relatively smaller degree because of the unlikelihood that animals would be close enough for a long enough amount of time to incur more severe PTS (for sonar) and the anticipated effectiveness of mitigation in preventing very close exposures for explosives.
• While the majority of takes are caused by exposure during ASW activities, the impacts from these exposures are not expected to have either significant or long-term effects because (and as discussed above):
○ ASW activities typically involve fast-moving assets (relative to marine mammals swim speeds) and individuals are not expected to be exposed either for long periods within a day or over many sequential days.
○ As discussed, the majority of the harassment takes result from hull-mounted sonar during MTEs. When distance cut offs are applied for pinnipeds, this means that all of the takes from hull-mounted sonar (MF1) result from above exposure 166 dB. However, the majority (
• For the total instances of all of the different types of takes of pinnipeds, the numbers indicating the instances of total take as a percentage of abundance are between 34 and 225 (Table 77). When spread over the entire year and a very large range, the scale of the effects are such that individuals are taken an average of 0 to 1–2 times per year (based on the percentages above, respectively, but with some taken more or less). These averages allow that perhaps a smaller subset is taken with a slightly higher average and larger variability of highs and lows, but still with no reason to think that any individuals would be taken for more than several days out of the year, much less on sequential days. These behavioral takes are not all expected to be of particularly high intensity and nor are they likely to occur over sequential days, which suggests that the overall scale of impacts for any individual would be relatively low.
• The AFTT activities are not expected to occur in an area/time of specific importance for reproductive, feeding, or other known critical behaviors for pinnipeds. Pinnipeds found in the AFTT Study Area are not depleted under the MMPA, nor are they listed under the ESA.
Consequently, the activities are not expected to adversely impact rates of recruitment or survival of any of the analyzed stocks of pinnipeds (Table 77 above in this section).
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has preliminarily determined that the total taking affecting species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
There are five marine mammal species under NMFS jurisdiction that are listed As endangered or threatened under the ESA with confirmed or possible occurrence in the AFTT Study Area: Blue whale, fin whale, sei whale, sperm whale, and NARW. The Navy will consult with NMFS pursuant to section 7 of the ESA, and NMFS will also consult internally on the issuance of these regulations and LOAs under section 101(a)(5)(A) of the MMPA for AFTT activities. Consultation will be concluded prior to a determination on the issuance of the final rule and LOAs.
Some Navy activities may potentially affect resources within NMS. Pursuant to Section 304(d) of the National Marine Sanctuaries Act (NMSA), the Navy is consulting on activities as documented in the AFTT DEIS/OEIS on potential impacts to sanctuary resources, including marine mammals. The Navy will initiate consultation with NOAA's Office of National Marine Sanctuaries pursuant to the requirements of the NMSA as warranted by ongoing analysis of the activities and their effects on sanctuary resources.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS plans to adopt the Navy's EIS/OEIS for AFTT Study Area provided our independent evaluation of the document finds that it includes adequate information analyzing the effects on the human environment of issuing regulations and LOAs. NMFS is a cooperating agency on the Navy's DEIS.
The Navy's DEIS/OEIS was made available for public comment at
We will review all comments submitted in response to this document prior to concluding our NEPA process or making a final decision on the final rule and LOA requests.
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The RFA requires Federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 605 (b), that the action will not have a significant economic impact on a substantial number of small entities. The Navy is the sole entity that would be affected by this rulemaking, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by an LOA issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, would be applicable only to the Navy. NMFS does not expect the issuance of these regulations or the associated LOA to result in any impacts to small entities pursuant to the RFA. Because this action, if adopted, would directly affect the Navy and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities.
Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements, Seafood, Sonar, Transportation.
For reasons set forth in the preamble, 50 CFR part 218 is proposed to be amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the U.S. Navy for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy may be authorized in Letters of Authorization (LOAs) only if it occurs within the Atlantic Fleet Training and Testing (AFTT) Study Area, which includes areas of the western Atlantic Ocean along the east coast of North America, portions of the Caribbean Sea, and the Gulf of Mexico. The AFTT Study Area begins at the mean high tide line along the U.S. coast and extends east to the 45-degree west longitude line, north to the 65 degree north latitude line, and south to approximately the 20-degree north latitude line. The AFTT Study Area also includes Navy pierside locations, bays, harbors, and inland waterways, and civilian ports where training and testing occurs.
(c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the Navy's conducting training and testing activities. The Navy's use of sonar and other transducers, in-water detonations, air guns, pile driving/extraction, and vessel movements incidental to training and testing exercises may cause take by harassment, serious injury or mortality as defined by the MMPA through the various warfare mission areas in which the Navy would conduct including amphibious warfare, anti-submarine warfare, expeditionary warfare, surface warfare, mine warfare, and other activities (sonar and other transducers ship shock trials, pile driving and removal activities, airguns, vessel strike).
Regulations in this subpart are effective [
Under LOAs issued pursuant to § 216.106 of this chapter and § 218.87, the Holder of the LOAs (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 218.80(b) by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives as well as serious injury or mortality associated with ship shock trials and vessel strikes provided the activity is in compliance with all terms, conditions, and requirements of these regulations in this subpart and the applicable LOAs.
Notwithstanding takings contemplated in § 218.82 and authorized by LOAs issued under § 216.106 of this chapter and § 218.86, no person in connection with the activities described in § 218.82 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under § 216.106 of this chapter and § 218.86;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
When conducting the activities identified in § 218.80(c), the mitigation measures contained in any LOAs issued under § 216.106 of this chapter and § 218.86 must be implemented. These mitigation measures shall include the following requirements, but are not limited to:
(a)
(1)
(2)
(i) Number of Lookouts and Observation Platform—(A) Hull-mounted sources: Two lookouts at the forward part of the ship for platforms without space or manning restrictions while underway; One lookout at the forward part of a small boat or ship for platforms with space or manning restrictions while underway; One lookout for platforms using active sonar while moored or at anchor (including pierside); and Four lookouts for pierside sonar testing activities at Port Canaveral, Florida and Kings Bay, Georgia.
(B) Non-hull mounted sources: One lookout on the ship or aircraft conducting the activity.
(ii) Mitigation Zone and Requirements—(A) Prior to the start of the activity the Navy shall observe for floating vegetation and marine mammals; if resource is observed, the Navy shall not commence use of active sonar.
(B) During low-frequency active sonar at or above 200 decibel (dB) and hull-mounted mid-frequency active sonar the Navy shall observe for marine mammals and power down active sonar transmission by 6 dB if resource is observed within 1,000 yards (yd) of the sonar source; power down by an additional 4 dB (10 dB total) if resource is observed within 500 yd of the sonar source; and cease transmission if resource is observed within 200 yd of the sonar source.
(C) During low-frequency active sonar below 200 dB, mid-frequency active sonar sources that are not hull mounted, and high-frequency active sonar the Navy shall observe for marine mammals and cease active sonar transmission if resource is observed within 200 yd of the sonar source.
(D) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence active sonar transmission until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonar source; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-deployed sonar sources or 30 min for vessel-deployed sonar sources; for mobile activities, the active sonar source has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting; or for activities using hull-mounted sonar, the ship concludes that dolphins are deliberately closing in on the ship to ride the ship's bow wave, and are therefore out of the main transmission axis of the sonar (and there are no other marine mammal sightings within the mitigation zone).
(E) The Navy shall notify the Port Authority prior to the commencement of pierside sonar testing activities at Port Canaveral, Florida and Kings Bay, Georgia. At these locations, the Navy shall conduct active sonar activities during daylight hours to ensure adequate sightability of manatees, and shall equip Lookouts with polarized sunglasses. After completion of pierside sonar testing activities at Port Canaveral and Kings Bay, the Navy shall continue to observe for marine mammals for 30 min within the mitigation zone. The Navy shall implement a reduction of at least 36 dB from full power for mid-frequency active sonar transmissions at Kings Bay. The Navy shall communicate sightings of manatees made during or after pierside sonar testing activities at Kings Bay to the Georgia Department of Natural Resources sightings hotline, Base Natural Resources Manager, and Port Operations. Communications shall include information on the time and location of a sighting, the number and size of animals sighted, a description of any research tags (if present), and the animal's direction of travel. Port Operations shall disseminate the sightings information to other vessels operating near the sighting and shall keep logs of all manatee sightings.
(3)
(ii) Mitigation Zone and Requirements—150 yd around the air gun.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease use of air guns.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence the use of air guns until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the air gun; the mitigation zone has been clear from any additional sightings for 30 min; or for mo108bile activities, the air gun has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(4)
(i) Number of Lookouts and Observation Platform—One lookout positioned on the shore, the elevated causeway, or a small boat.
(ii) Mitigation Zone and Requirements—100 yd around the pile driver.
(A) Thirty minutes prior to the start of the activity, the Navy shall observe for floating vegetation and marine mammals; if resource is observed, the Navy shall not commence impact pile driving or vibratory pile extraction.
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease impact pile driving or vibratory pile extraction.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence pile driving until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the pile driving location; or the mitigation zone has been clear from any additional sightings for 30 min.
(D) In the Navy Cherry Point Range Complex, the Navy shall maintain a log detailing any sightings and injuries to manatees during pile driving. If a manatee was sighted during the activity, upon completion of the activity, the Navy project manager or civilian equivalent shall prepare a report that summarizes all information on manatees encountered and submit the report to the USFWS, Raleigh Field Office. The Navy shall report any injury of a manatee to the USFWS, NMFS, and the North Carolina Wildlife Resources Commission.
(5)
(i) Number of Lookouts and Observation Platform—One lookout shall be positioned on the ship conducting the firing. Depending on the activity, the lookout could be the same as the one described in Explosive Medium-Caliber and Large-Caliber Projectiles or in Small-, Medium-and Large-Caliber Non-Explosive Practice Munitions.
(ii) Mitigation Zone and Requirements—Thirty degrees on either side of the firing line out to 70 yd from the muzzle of the weapon being fired.
(A) Prior to the start of the activity, the Navy shall observe for floating vegetation, and marine mammals; if resource is observed, the Navy shall not commence weapons firing.
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease weapons firing.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence weapons firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the firing ship; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile activities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(6)
(ii) Mitigation Zone and Requirements—600 yd around an explosive sonobuoy.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease sonobuoy or source/receiver pair detonations.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence the use of explosive sonobuoys until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonobuoy; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(7)
(ii) Mitigation Zone and Requirements—2,100 yd around the intended impact location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals and jellyfish aggregations; if resource is observed, the Navy shall cease firing.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. After completion of the activity, the Navy shall observe for marine mammals; if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(8)
(i) Number of Lookouts and Observation Platform—One Lookout on the vessel or aircraft conducting the activity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described in Weapons Firing Noise in paragraph (a)(5)(i) of this section.
(ii) Mitigation Zone and Requirements—(A) 200 yd around the intended impact location for air-to-surface activities using explosive medium-caliber projectiles,
(B) 600 yd around the intended impact location for surface-to-surface activities using explosive medium-caliber projectiles, or
(C) 1,000 yd around the intended impact location for surface-to-surface activities using explosive large-caliber projectiles:
(D) Prior to the start of the activity (
(E) During the activity, observe for marine mammals; if resource is observed, the Navy shall cease firing.
(F) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min. for aircraft-based firing or 30 min for vessel-based firing; or for activities using mobile targets, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(9)
(i) Number of Lookouts and Observation Platform—One lookout positioned in an aircraft.
(ii) Mitigation Zone and Requirements—(A) 900 yd around the intended impact location for missiles or rockets with 0.6–20 lb net explosive weight, or
(B) 2,000 yd around the intended impact location for missiles with 21–500 lb net explosive weight:
(C) Prior to the start of the activity (
(D) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease firing.
(E) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(10)
(ii) Mitigation Zone and Requirements—2,500 yd around the intended target.
(A) Prior to the start of the activity (
(B) During target approach, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease bomb deployment.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence bomb deployment until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target; the mitigation zone has been clear from any additional sightings for 10 min; or for activities using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(11)
(ii) Mitigation Zone and Requirements—2.5 nmi around the target ship hulk.
(A) 90 min prior to the first firing, the Navy shall conduct aerial observations for floating vegetation, jellyfish aggregations, and marine mammals; if resource is observed, the Navy shall not commence firing.
(B) During the activity, the Navy shall conduct passive acoustic monitoring and visually observe for marine mammals from the vessel; if resource is visually observed, the Navy shall cease firing. Immediately after any planned or unplanned breaks in weapons firing of longer than 2 hrs, the Navy shall observe for marine mammals from the aircraft and vessel; if resource is observed, the Navy shall not commence firing.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the target ship hulk; or the mitigation zone has been clear from any additional sightings for 30 min. For 2 hrs after sinking the vessel (or until sunset, whichever comes first), observe for marine mammals; if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(12)
(B) Two lookouts (one in an aircraft and one on a small boat) when using up to 6–650 lb net explosive weight charges.
(ii) Mitigation Zone and Requirements—(A) 600 yd around the detonation site for activities using 0.1–5 lb net explosive weight, or
(B) 2,100 yd around the detonation site for activities using 6–650 lb net explosive weight (including high explosive target mines):
(C) Prior to the start of the activity (
(D) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations.
(E) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence detonations until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to detonation site; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. After completion of the activity, the Navy shall observe for marine mammals and sea turtles (typically 10 min when the activity involves aircraft that have fuel constraints, or 30 min. when the activity involves aircraft that are not typically fuel constrained); if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(13)
(B) Four lookouts (two small boats with two Lookouts each), and a pilot or member of an aircrew shall serve as an additional Lookout if aircraft are used during the activity, when implementing the larger mitigation zone.
(ii) Mitigation Zone and Requirements—(A) The Navy shall not set time-delay firing devices (0.1–20 lb net explosive weight) to exceed 10 min.
(B) 500 yd around the detonation site during activities under positive control using 0.1–20 lb net explosive weight, or
(C) 1,000 yd around the detonation site during all activities using time-delay fuses (0.1–20 lb net explosive weight) and during activities under positive control using 21–60 lb net explosive weight charges:
(D) Prior to the start of the activity (
(E) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations or fuse initiation. All divers placing the charges on mines shall support the Lookouts while performing their regular duties and shall report all marine mammal sightings to their supporting small boat or Range Safety Officer. To the maximum extent practicable depending on mission requirements, safety, and environmental conditions, boats shall position themselves near the mid-point of the mitigation zone radius (but outside of the detonation plume and human safety zone), shall position themselves on opposite sides of the detonation location (when two boats are used), and shall travel in a circular pattern around the detonation location with one Lookout observing inward toward the detonation site and the other observing outward toward the perimeter of the mitigation zone. If used, aircraft shall travel in a circular pattern around the detonation location to the maximum extent practicable.
(F) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence detonations or fuse initiation until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its
(14)
(ii) Mitigation Zone and Requirements—200 yd around the intended detonation location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence detonations until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended detonation location; the mitigation zone has been clear from any additional sightings for 30 min; or the intended detonation location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(15)
(ii) Mitigation Zone and Requirements—900 yd around the intended detonation location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease detonations.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence detonations until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended detonation location; or the mitigation zone has been clear from any additional sightings for 30 min.
(16)
(B) If aircraft are used, Lookouts or trained marine species observers shall be in an aircraft and on multiple vessels.
(C) If aircraft are not used, a sufficient number of additional Lookouts or trained marine species observers shall be used to provide vessel-based visual observation comparable to that achieved by aerial surveys.
(ii) Mitigation Zone and Requirements—3.5 nmi around the ship hull.
(A) The Navy shall not conduct ship shock trials in the Jacksonville Operating Area during North Atlantic right whale calving season from November 15 through April 15.
(B) The Navy develops detailed ship shock trial monitoring and mitigation plans approximately one-year prior to an event and shall continue to provide these to NMFS for review and approval.
(C) Pre-activity planning shall include selection of one primary and two secondary areas where marine mammal populations are expected to be the lowest during the event, with the primary and secondary locations located more than 2 nmi from the western boundary of the Gulf Stream for events in the Virginia Capes Range Complex or Jacksonville Range Complex.
(D) If it is determined during pre-activity surveys that the primary area is environmentally unsuitable (
(E) Prior to the detonation (at the primary shock trial location) in intervals of 5 hrs, 3 hrs, 40 min, and immediately before the detonation, the Navy shall observe for floating vegetation and marine mammals; if resource is observed, the Navy shall not trigger the detonation.
(F) During the activity, the Navy shall observe for marine mammals, large schools of fish, jellyfish aggregations, and flocks of seabirds; if resource is observed, the Navy shall cease triggering the detonation.
(G) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence the triggering of a detonation until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the ship hull; or the mitigation zone has been clear from any additional sightings for 30 min. After completion of each detonation, the Navy shall observe for marine mammals; if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures and halt any remaining detonations until the Navy can consult with NMFS and review or adapt the mitigation, if necessary. After completion of the ship shock trial, the Navy shall conduct additional observations during the following two days (at a minimum) and up to seven days (at a maximum); if any injured or dead resources are observed, the Navy shall follow established incident reporting procedures.
(17)
(i) Number of Lookouts and Observation Platform—One lookout on the vessel that is underway.
(ii) Mitigation Zone and Requirements—(A) 500 yd around whales—When underway, the Navy shall observe for marine mammals; if a whale is observed, the Navy shall maneuver to maintain distance.
(B) 200 yd around all other marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels)—When underway, the Navy shall observe for marine mammals; if a marine mammal other than a whale, bow-riding dolphin, or hauled-out pinniped is observed, the Navy shall maneuver to maintain distance.
(18)
(i) Number of Lookouts and Observation Platform—One lookout positioned on a manned towing platform.
(ii) Mitigation Zone and Requirements—250 yd around marine mammals. When towing an in-water device, the Navy shall observe for marine mammals; if resource is observed, the Navy shall maneuver to maintain distance.
(19)
(i) Number of Lookouts and Observation Platform—One Lookout positioned on the platform conducting the activity. Depending on the activity, the Lookout could be the same as the one described for Weapons Firing Noise in paragraph (a)(5)(i) of this section.
(ii) Mitigation Zone and Requirements—200 yd around the intended impact location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease firing.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using a mobile target, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(20)
(i) Number of Lookouts and Observation Platform—One Lookout positioned in an aircraft.
(ii) Mitigation Zone and Requirements—900 yd around the intended impact location.
(A) Prior to the start of the activity (
(B) During the activity, the Navy shall observe for marine mammals; if resource is observed, the Navy shall cease firing.
(C) To allow a sighted marine mammal to leave the mitigation zone, the Navy shall not recommence firing until one of the recommencement conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(21)
(i) Number of Lookouts and Observation Platform—One Lookout positioned in an aircraft.
(ii) Mitigation Zone and Requirements—1,000 yd around the intended target.
(A) Prior to the start of the activity (
(B) [Reserved]
(b)
(1)
(i) Mitigation Area Requirements—(A) Northeast North Atlantic Right Whale Mitigation Areas (year-round):
(
(
(
(
(B) Gulf of Maine Planning Awareness Mitigation Area (year-round):
(
(
(C) Northeast Planning Awareness Mitigation Areas (year-round):
(
(
(
(ii) [Reserved]
(2)
(i) Mitigation Area Requirements—(A) Southeast North Atlantic Right Whale Mitigation Area (November 15 through April 15):
(
(
(
(B) Mid-Atlantic Planning Awareness Mitigation Areas (year-round):
(
(
(
(3)
(
(
(
(B) [Reserved]
(a) The Navy must notify NMFS immediately (or as soon as operational security considerations allow) if the specified activity identified in § 218.80 is thought to have resulted in the mortality or injury of any marine mammals, or in any take of marine mammals not identified in this subpart.
(b) The Navy must conduct all monitoring and required reporting under the LOAs, including abiding by the AFTT Study Area monitoring program. Details on program goals, objectives, project selection process, and current projects available at
(c) Notification of injured, live stranded, or dead marine mammals. The Navy shall abide by the Notification and Reporting Plan, which sets out notification, reporting, and other requirements when dead, injured, or live stranded marine mammals are detected.
(d) Annual AFTT Study Area marine species monitoring report. The Navy shall submit an annual report of the AFTT Study Area monitoring describing the implementation and results from the previous calendar year. Data collection methods shall be standardized across range complexes and study areas to allow for comparison in different geographic locations. The report shall be submitted either 90 days after the calendar year, or 90 days after the conclusion of the monitoring year to be determined by the Adaptive Management process to the Director, Office of Protected Resources, NMFS. Such a report would describe progress of knowledge made with respect to monitoring plan study questions across all Navy ranges associated with the Integrated Comprehensive Monitoring Program. Similar study questions shall be treated together so that progress on each topic shall be summarized across all Navy ranges. The report need not include analyses and content that does not provide direct assessment of cumulative progress on the monitoring plan study questions.
(e) Annual AFTT Study Area training and testing reports. Each year, the Navy shall submit a preliminary report (Quick Look Report) detailing the status of authorized sound sources within 21 days after the anniversary of the date of issuance of each LOA to the Director, Office of Protected Resources, NMFS. Each year, the Navy shall submit a detailed report within 3 months after the anniversary of the date of issuance of each LOA the Director, Office of Protected Resources, NMFS. The annual reports shall contain information on
(1) MTEs—This section shall contain the following information for MTEs conducted in the AFTT Study Area:
(i) Exercise Information (for each MTE):
(A) Exercise designator.
(B) Date that exercise began and ended.
(C) Location.
(D) Number and types of active sonar sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, etc., participating in exercise.
(G) Total hours of observation by lookouts.
(H) Total hours of all active sonar source operation.
(I) Total hours of each active sonar source bin.
(J) Wave height (high, low, and average during exercise).
(ii) Individual marine mammal sighting information for each sighting in each exercise when mitigation occurred:
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indication of whale/dolphin/pinniped).
(C) Number of individuals.
(D) Initial Detection Sensor.
(E) Indication of specific type of platform observation made from (including, for example, what type of surface vessel or testing platform).
(F) Length of time observers maintained visual contact with marine mammal.
(G) Sea state.
(H) Visibility.
(I) Sound source in use at the time of sighting.
(J) Indication of whether animal is <200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or >2,000 yd from sonar source.
(K) Mitigation implementation. Whether operation of sonar sensor was delayed, or sonar was powered or shut down, and how long the delay was.
(L) If source in use is hull-mounted, true bearing of animal from ship, true direction of ship's travel, and estimation of animal's motion relative to ship (opening, closing, parallel).
(M) Observed behavior. Lookouts shall report, in plain language and without trying to categorize in any way, the observed behavior of the animals (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming, etc.) and if any calves present.
(iii) An evaluation (based on data gathered during all of the MTEs) of the effectiveness of mitigation measures designed to minimize the received level to which marine mammals may be exposed. This evaluation shall identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.
(2) SINKEXs. This section shall include the following information for each SINKEX completed that year:
(i) Exercise information (gathered for each SINKEX):
(A) Location.
(B) Date and time exercise began and ended.
(C) Total hours of observation by lookouts before, during, and after exercise.
(D) Total number and types of explosive source bins detonated.
(E) Number and types of passive acoustic sources used in exercise.
(F) Total hours of passive acoustic search time.
(G) Number and types of vessels, aircraft, etc., participating in exercise.
(H) Wave height in feet (high, low, and average during exercise).
(J) Narrative description of sensors and platforms utilized for marine mammal detection and timeline illustrating how marine mammal detection was conducted.
(ii) Individual marine mammal observation (by Navy lookouts) information (gathered for each marine mammal sighting) for each sighting where mitigation was implemented:
(A) Date/Time/Location of sighting.
(B) Species (if not possible, indicate whale, dolphin, or pinniped).
(C) Number of individuals.
(D) Initial detection sensor.
(E) Length of time observers maintained visual contact with marine mammal.
(F) Sea state.
(G) Visibility.
(H) Whether sighting was before, during, or after detonations/exercise, and how many minutes before or after.
(I) Distance of marine mammal from actual detonations—200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or >2,000 yd (or target spot if not yet detonated).
(J) Observed behavior. Lookouts shall report, in plain language and without trying to categorize in any way, the observed behavior of the animal(s) (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming etc.), including speed and direction and if any calves present.
(K) Resulting mitigation implementation. Indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long.
(L) If observation occurs while explosives are detonating in the water, indicate munition type in use at time of marine mammal detection.
(3) Summary of sources used. This section shall include the following information summarized from the authorized sound sources used in all training and testing events:
(i) Total annual hours or quantity (per the LOA) of each bin of sonar or other acoustic sources (pile driving and air gun activities);
(ii) Total annual expended/detonated rounds (missiles, bombs, sonobuoys, etc.) for each explosive bin.
(4) Geographic information presentation. The reports shall present an annual (and seasonal, where practical) depiction of training and testing events and bin usage (as well as pile driving activities) geographically across the AFTT Study Area.
(5) Sonar exercise notification. The Navy shall submit to NMFS (contact as specified in the LOA) an electronic report within fifteen calendar days after the completion of any MTE indicating:
(i) Location of the exercise;
(ii) Beginning and end dates of the exercise; and
(iii) Type of exercise.
(f) Five-year close-out comprehensive training and testing report. This report shall be included as part of the 2023 annual training and testing report. This report shall provide the annual totals for each sound source bin with a comparison to the annual allowance and the five-year total for each sound source bin with a comparison to the five-year allowance. Additionally, if there were any changes to the sound source allowance, this report shall include a discussion of why the change was made and include the analysis to support how the change did or did not result in a change in the EIS and final rule determinations. The report shall be submitted three months after the expiration of this subpart to the Director, Office of Protected Resources, NMFS. NMFS shall submit comments on the draft close-out report, if any, within three months of receipt. The report shall be considered final after the Navy has addressed NMFS' comments, or 3 months after the submittal of the
(a) To incidentally take marine mammals pursuant to these regulations in this subpart, the Navy must apply for and obtain Letters of Authorization (LOAs) in accordance with § 216.106 of this subpart, conducting the activity identified in § 218.80(c).
(b) LOAs, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations in this subpart.
(c) If an LOA(s) expires prior to the expiration date of these regulations in this subpart, the Navy may apply for and obtain a renewal of the LOA(s).
(d) In the event of projected changes to the activity or to mitigation, monitoring, reporting (excluding changes made pursuant to the adaptive management provision of § 218.87(c)(1)) required by an LOA, the Navy must apply for and obtain a modification of LOAs as described in § 218.87.
(e) Each LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact (
(4) Requirements for monitoring and reporting.
(f) Issuance of the LOA(s) shall be based on a determination that the level of taking shall be consistent with the findings made for the total taking allowable under these regulations in this subpart.
(g) Notice of issuance or denial of the LOA(s) shall be published in the
(a) An LOA issued under §§ 216.106 and 218.86 of this subchapter for the activity identified in § 218.80(c) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA(s) under these regulations in this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the
(c) An LOA issued under § 216.106 of this subchapter and § 218.86 for the activity identified in § 218.80(c) may be modified by NMFS under the following circumstances:
(1) Adaptive Management—After consulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in this subpart.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the Navy's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations in this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the
(2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 218.86, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
Pursuant to Section 19(b)(1)
The Exchange proposes the following rules and rule changes to support the re-launch of the Exchange on the Pillar trading platform: (1) Amendments to Article V, Sections 5.01 and 5.8 of the Fourth Amended and Restated Bylaws of NYSE National (“Bylaws”); (2) new rules based on the rules of the Exchange's affiliates relating to (a) trading securities on an unlisted trading privileges basis (Rules 5 and 8), (b) trading on the Pillar trading platform (Rules 1 and 7), (c) disciplinary rules (Rule 10), and (d) administration of the Exchange (Rules 3, 12, and 13); (3) rule changes that renumber current Exchange rules relating to (a) membership (Rule 2), (b) order audit trail requirements (Rule 6), and (c) business conduct, books and records, supervision, extensions of credit, and trading practices (Rule 11); and (4) deletion of Chapters I–XVI and the rules contained therein. The proposed rule change is available on the Exchange's website 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.
On February 1, 2017, the Exchange ceased trading operations.
In the Spring of 2016, NYSE Arca's cash equities market was the first trading system to migrate to Pillar.
With Pillar, the Exchange proposes to re-launch trading in all Tape A, Tape B,
However, unlike its affiliated exchanges, the Exchange would not be a listing venue. Because the Exchange would trade securities on a UTP basis only, the Exchange proposes to operate in the same manner that NYSE Arca operates with respect to securities that trade on a UTP basis on that exchange. For example, the Exchange would not operate any auctions and therefore would not propose rules to provide for auction functionality on the Exchange. However, the Exchange would make available order types that already exist on NYSE Arca and NYSE American for securities that trade on a UTP basis and that route directly to the primary listing market, including orders designated to participate in an auction on the primary listing market. In addition, because the Exchange would not be a listing venue, the Exchange would not provide for either “lead” or “designated” market makers, which are available on NYSE Arca and NYSE American, respectively, for securities listed on those exchanges only. As with NYSE Arca and NYSE American, proposed Exchange rules would provide that ETP Holders may register as a market maker in securities that trade on a UTP basis on the Exchange. And as with NYSE Arca and NYSE American, Exchange rules would not require a market maker for a security to trade on a UTP basis on the Exchange. Similar to NYSE American, the Exchange would not operate a retail liquidity program.
While the trading rules for the Exchange's re-launch would be based on the rules of its affiliated exchanges, the Exchange proposes to retain its existing rules relating to membership and ETP Holder conduct. As described in more detail below, the Exchange proposes to renumber such rules and make minor modifications to certain rules. However, the Exchange is not proposing any new rules; all such rules would be either existing Exchange rules that have been renumbered or updated rules based on an existing rule of another exchange.
Because the Exchange is not proposing new or different rules to qualify as a member of the Exchange, for the re-launch, the Exchange proposes to reinstate ETP Holder status
Because the Exchange proposes to use an established process to reinstate ETP Holder status, the Exchange is not proposing any substantive differences to this rule. The Exchange proposes to amend Interpretation and Policies .01 to Rule 2.5 to replace the date of May 30, 2014, with the date of February 1, 2017, which was when the Exchange last terminated ETP Holder status. This proposed rule change would therefore provide for the reinstatement of ETP Holders whose status was terminated on February 1, 2017 in the exact same manner that the Exchange reinstated ETP Holders whose status had previously been terminated on May 30, 2014.
In short, for the re-launch of Exchange operations, the trading experience for reinstated ETP Holders on the Exchange would be identical to how trading functions on NYSE Arca for securities trading on a UTP basis. The Exchange proposes to differentiate itself from its affiliated exchanges through a different pricing model, which the Exchange will establish in a separate proposed rule change.
In preparation for the re-launch, the Exchange adopted the rule numbering framework of the NYSE Arca rules, which are organized in 14 Rules.
With this filing, and as described in greater detail below, the Exchange proposes to expand on the Framework Filing by making the following changes to its rulebook:
• Adding new rules based on the rules of the Exchange's affiliates relating to:
• Moving and renumbering current rules set forth in Chapters II, III, IV, V, VI and XII to the new framework:
• Because Rules 4 and 9 would not include any rules, designating those rules as “Reserved”
In addition, the Exchange proposes to amend Article V, Section 5.01 and 5.8 of the Bylaws.
Because the current rulebook would be replaced with both new and renumbered rules under the new framework, the Exchange proposes to delete current Chapters I–XVI and the rules contained therein.
The following summarizes the proposed rule changes and Part 3, below, provides additional detail regarding the specific proposed rule changes.
The Exchange proposes to amend Article V, Sections 5.01 and 5.8 of the Bylaws to conform the Exchange's name for its existing “Appeals Committee” to “Committee for Review.” The proposed change would more closely align the Bylaws of the Exchange with the governing documents of its affiliates, NYSE, NYSE American, and NYSE Arca, which all have “committees for
Rule 1 would set forth definitions that would be used in Exchange rules. As described below, except for membership and conduct rules, the Exchange's proposed definitions are based on the rules for the NYSE Arca or NYSE American cash equities markets, or both. Accordingly, the definitions in proposed Rule 1.1 are based on definitions set forth in NYSE Arca Rule 1.1 and NYSE American Rule 1.1E, as applicable. The definitions set forth in proposed Rule 1.1 would also include current definitions set forth in Chapter I that relate to membership.
To facilitate the expedited process to reinstate ETP Holders for the re-launch of trading operations, the Exchange proposes to retain its existing rules relating to membership and the registration of associated persons, which are currently set forth in Chapter II of the Exchange's rulebook. Consistent with the Framework Filing, the Exchange proposes to move the membership rules to Rule 2, but would retain the current individual rule numbers. As described in greater detail below, the Exchange proposes amendments to certain of those membership rules.
Proposed Rules 5 and 8 would provide for rules to trade all Tape A, Tape B, and Tape C securities, including Exchange Traded Products, on a UTP basis.
Rule 6 would set forth rules relating to (i) compliance with the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan”),
Rule 7 would establish rules for trading on the Exchange. As noted above, the Exchange will re-launch on the same trading platform as NYSE Arca's cash equities trading platform, and proposes trading rules based on the rules of NYSE Arca. Rule 7 would include rules based on NYSE Arca Rule 7–E, including general provisions relating to trading, market makers, trading on the Exchange, operation of the routing broker, and the Plan to Implement a Tick Size Pilot Program. Rule 7 would therefore specify all aspects of trading on the Exchange, including the orders and modifiers that would be available and how orders would be ranked, displayed, and executed.
Because the Exchange will not be a listing venue, the Exchange does not propose to have either lead or designated market makers assigned to securities trading on the Exchange. The Exchange therefore does not propose a rule based on NYSE Arca Rule 7.24–E (Designated Market Maker Performance Standards). In addition, because the Exchange would not operate auctions, the Exchange does not propose a rule based on NYSE Arca Rule 7.35–E (Auctions).
Rule 10 would set forth the Exchange's rules relating to investigation, discipline, sanction, and other procedural rules that are modeled on the rules of the Exchange's affiliate NYSE American, which in turn, are modeled on the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
The Exchange proposes to retain its existing rules relating to rules of fair practice, books and records, supervision, extensions of credit, and trading practices, which are set forth in Chapters III, IV, V, VI, and XII, and move and renumber them to Rule 11. The Exchange believes that retaining existing rules relating to rules of fair practice, books and records, supervision, extensions of credit, and trading practices would facilitate the expedited process for ETP Holders and their associated persons to be reinstated as members because such ETP Holders would not be required to change their internal procedures to be reinstated as ETP Holders of the Exchange. However, because the Exchange has established a new numbering framework, the Exchange proposes to renumber these existing rules under Rule 11, but with sub-numbering that is the same as the existing Exchange rule numbers for such rules. Accordingly, these rules would all begin as “Rule 11”, but then would have
The Exchange proposes to rename Rule 11 as “Rules of Fair Practice; Books and Records; Supervision; Extensions of Credit; Trading Practice Rules.” Because Rules 4 and 9 will not include any rules, the Exchange proposes to delete the current titles associated with those rules and designate them as “Reserved.”
In addition to the above categories of rules, the Exchange proposes rules based on NYSE Arca Rules 3 (Organization and Administration), 12 (Arbitration), and 13 (Liability of Directors and the Exchange).
The Exchange has an Appeals Committee, which presides over appeals related to disciplinary and adverse action determinations in accordance with the Exchange rules.
The proposed change would conform the Exchange's name for the Appeals Committee to that of its affiliates, NYSE, NYSE American, and NYSE Arca, which all have committees for review, rather than appeals committees.
In addition, “Fourth” would be replaced with “Fifth” on the cover page heading, the table of contents, and first page of the Bylaws.
No other changes are proposed to the Bylaws.
As described in the Framework Filing, Rule 0 establishes the regulation of the Exchange and ETP Holders. As proposed, Rule 0 would provide that:
The Exchange and FINRA are parties to a Regulatory Services Agreement (“RSA”) pursuant to which FINRA has agreed to perform certain regulatory functions of the Exchange on behalf of the Exchange. Exchange Rules that refer to Exchange staff and Exchange departments should be understood as also referring to FINRA staff and FINRA departments acting on behalf of the Exchange pursuant to the RSA, as applicable. Notwithstanding the fact that the Exchange has entered into an RSA with FINRA to perform certain of the Exchange's functions, the Exchange shall retain ultimate legal responsibility for, and control of, such functions.
This proposed rule is based on NYSE Arca Rule 0 without any substantive differences. This Exchange does not currently have a rule that addresses the same topics as proposed Rule 0 and therefore this would be a new Exchange rule.
As described in the Framework Filing, Rule 1 would establish definitions applicable to trading on the Exchange's Pillar trading platform. Proposed Rule 1.1 includes definitions that are based on NYSE Arca Rule 1.1 definitions, NYSE American Rule 1.1E definitions, and definitions currently set forth in Rule 1.5 in Chapter I of the Exchange's rulebook. Because definitions would be specified in Rule 1.1, the Exchange proposes to delete Chapter I of the current rulebook.
Proposed Rule 1.1 would provide that as used in Exchange rules, unless the context requires otherwise, the terms in proposed Rule 1.1 would have the meanings indicated. This rule is based on NYSE American Rule 1.1E. Throughout proposed Rule 1.1, where applicable, the Exchange proposes non-substantive differences as compared to the NYSE Arca rules to use the term “Exchange” instead of the term “NYSE Arca Marketplace.” In addition, the Exchange proposes sub-paragraph numbering for Rule 1.1 that aligns to the alphabetical ordering of the proposed definitions. The Exchange proposes the following definitions:
• Proposed Rule 1.1(a) would define the terms “Authorized Trader” or “AT” to mean a person who may submit orders to the Exchange's Trading Facilities on behalf of his or her ETP Holder. This proposed rule is based on NYSE American Rule 1.1E(g) without any differences.
• Proposed Rule 1.1(b) would define the term “Away Market” to mean any exchange, alternative trading system (“ATS”) or other broker-dealer (1) with which the Exchange maintains an electronic linkage and (2) that provides instantaneous responses to orders routed from the Exchange. The Exchange will designate from time to time those ATSs or other broker-dealers that qualify as Away Markets. This proposed rule is based on NYSE Arca Rule 1.1(f) and NYSE American Rule 1.1E(ff) without any substantive differences.
• Proposed Rule 1.1(c) would define the term “BBO” to mean the best bid or offer that is a protected quotation on the Exchange and that the term “BB” means the best bid on the Exchange and the term “BO” means the best offer on the Exchange. This proposed rule is based on NYSE Arca Rule 1.1(g) and NYSE American Rule 1.1E(h).
• Proposed Rule 1.1(d) would define the term “Board and Board of Directors” to mean the Board of Directors of NYSE National, Inc. This proposed rule is based on NYSE Arca Rule 1.1(h).
• Proposed Rule 1.1(e) would define the term “Core Trading Hours” to mean the hours of 9:30 a.m. Eastern Time through 4:00 p.m. Eastern Time or such other hours as may be determined by the Exchange from time to time. This proposed rule is based on NYSE Arca Rule 1.1(j) and NYSE American Rule 1.1E(j).
• Proposed Rule 1.1(f) would define the terms “effective national market system plan” and “regular trading hours” to have the meanings set forth in Rule 600(b) of Regulation NMS under the Exchange Act. This proposed rule is based on NYSE Arca Rule 1.1(l) and NYSE American Rule 1.1E(hhh).
• Proposed Rule 1.1(g) would define the term “Eligible Security” to mean any equity security (i) traded on the Exchange pursuant to a grant of unlisted trading privileges under Section 12(f) of the Exchange Act and (ii) specified by the Exchange to be traded on the Exchange or other facility, as the case may be. This proposed rule is based on NYSE American Rule 1.1E(l) with a non-substantive difference not to reference securities listed on the Exchange.
• Proposed Rule 1.1(h) would define the term “ETP” to refer to an Equity Trading Permit issued by the Exchange for effecting approved securities transactions on the Exchange. This proposed rule is based on current NYSE
• Proposed Rule 1.1(i) would define the term “ETP Holder” to mean the Exchange-approved holder of an ETP. This proposed rule is based on current NYSE National Rule 1.5(E)(2), which has been renumbered as Rule 1.1(i).
• Proposed Rule 1.1(j) would define the term “Exchange” to mean NYSE National, Inc. This proposed rule is based on NYSE American Rule 1.1E(k).
• Proposed Rule 1.1(k) would define the term “Exchange Act” to mean the Securities Exchange Act of 1934, as amended. This proposed rule is based on NYSE Arca Rule 1.1(q).
• Proposed Rule 1.1(l) would define the term “Exchange Book” to mean the Exchange's electronic file of orders. This proposed rule is based on NYSE American Rule 1.1E(a).
• Proposed Rule 1.1(m) would define the term “Exchange Traded Product” to mean a security that meets the definition of “derivative securities product” in Rule 19b-4(e) under the Exchange Act and would define the term “UTP Exchange Traded Product” to mean an Exchange Traded Product that trades on the Exchange pursuant to unlisted trading privileges. This proposed rule is based on NYSE American Rule 1.1E(bbb).
• Proposed Rule 1.1(n) would define the term “FINRA” to mean the Financial Industry Regulatory Authority, Inc. This proposed rule is based on NYSE Arca Rule 1.1(r).
• Proposed Rule 1.1(o) would define the terms “General Authorized Trader” or “GAT” to mean an authorized trader who performs only non-market making activities on behalf of an ETP Holder. This proposed rule is based on NYSE Arca Rule 1.1(u) and NYSE American Rule 1.1E(p).
• Proposed Rule 1.1(p) would define the term “Good Standing” to mean an ETP Holder who is not in violation of any of its agreements with the Exchange or any of the provisions of the Rules or Bylaws of the Exchange, and who has maintained all of the conditions for approval of the ETP. This proposed rule is based on NYSE Arca Rule 1.1(v) with one substantive difference to exclude references to OTP, OTP Holder or OTP Firm from the proposed rule as NYSE National would not trade any options and therefore would not have OTPs, OTP Holders or OTP Firms on the Exchange.
• Proposed Rule 1.1(q) would define the term “Marketable” to mean, for a Limit Order, an order that can be immediately executed or routed and that Market Orders are always considered marketable. This proposed rule is based on NYSE Arca Rule 1.1(y) and NYSE American Rule 1.1E(u).
• Proposed Rule 1.1(r) would define the term “Market Maker” to mean an ETP Holder that acts as a Market Maker pursuant to Rule 7. This proposed rule is based on NYSE Arca Rule 1.1(z) and NYSE American Rule 1.1E(v).
• Proposed Rule 1.1(s) would define the terms “Market Maker Authorized Trader” or “MMAT” to mean an Authorized Trader who performs market making activities pursuant to Rule 7 on behalf of a Market Maker. This proposed rule is based on NYSE Arca Rule 1.1(aa) and NYSE American Rule 1.1E(w).
• Proposed Rule 1.1(t) would define the term “Market Participant” to include electronic communications networks (“ECN”), dealer-specialists registered with a national securities exchange, and market makers registered with a national securities association. This proposed rule is based on NYSE Arca Rule 1.1(bb).
• Proposed Rule 1.1(u) would define the term “Nasdaq” to mean The Nasdaq Stock Market LLC. This proposed rule is based on NYSE Arca Rule 1.1(cc).
• Proposed Rule 1.1(v) would define the terms “NBBO, Best Protected Bid, Best Protected Offer, and Protected Best Bid and Offer (PBBO)”. The term “NBBO” would mean the national best bid or offer. The terms “NBB” would mean the national best bid and “NBO” would mean the national best offer. The terms “Best Protected Bid” or “PBB” would mean the highest Protected Bid, and “Best Protected Offer” or “PBO” would mean the lowest Protected Offer, and the term “Protected Best Bid and Offer” (“PBBO”) would mean the Best Protected Bid and the Best Protected Offer. This proposed rule is based on NYSE Arca Rule 1.1(dd) and NYSE American Rule 1.1E(dd).
• Proposed Rule 1.1(w) would define the term “NMS Stock” to mean any security, other than an option, for which transaction reports are collected, processed, and made available pursuant to an effective transaction reporting plan. This proposed rule is based on NYSE Arca Rule 1.1(ee) and NYSE American Rule 1.1E(ddd).
• Proposed Rule 1.1(x) would define the term “NYSE National” to have the same meaning as the term “Exchange” as that term is defined in proposed Rule 1.1. This proposed rule is based on NYSE Arca Rule 1.1(i) [sic], but with reference to “NYSE National” instead of “NYSE Arca.”
• Proposed Rule 1.1(y) would define the term “NYSE National Marketplace” to mean the electronic securities communications and trading facility of the Exchange through which orders are processed or are consolidated for execution and/or display. This proposed rule is based on NYSE American Rule 1.1E(e).
• Proposed Rule 1.1(z) would define the term “Person” to mean a natural person, corporation, partnership, limited liability company, association, joint stock company, trustee of a trust fund, or any organized group of persons whether incorporated or not. This proposed rule is based on current NYSE National Rule 1.5(P)(1), which has been renumbered as Rule 1.1(z) without any changes.
• Proposed Rule 1.1(aa) would define the terms “Person Associated with an ETP Holder,” [sic] Associated Person of an ETP Holder” or “Associated Person” to mean any partner, officer, director, or branch manager of an ETP Holder (or any Person occupying a similar status or performing similar functions), any Person directly or indirectly controlling, controlled by, or under common control with an ETP Holder, or any employee of such ETP Holder, except that any Person Associated with an ETP Holder whose functions are solely clerical or ministerial shall not be included in the meaning of such terms. This proposed rule is based on current NYSE National Rule 1.5(P)(2), which has been renumbered as Rule 1.1(aa) with a non-substantive difference to add the short-hand definition of “Associated Person” to mean the same thing as “Person Associated with an ETP Holder.”
• Proposed Rule 1.1(bb) would define the term “Principal” to mean any Person Associated with an ETP Holder actively engaged in the management of the ETP Holder's securities business, including supervision, solicitation, conduct of the ETP Holder's business, or the training of Authorized Traders and Persons Associated with an ETP Holder for any of these functions and that such Persons include Sole Proprietors, Officers, Partners, and Directors of Corporations. This proposed rule is based on current NYSE National Rule 1.5(P)(3), which has been renumbered as Rule 1.1(bb) with a non-substantive difference to change “shall include” to “include.”
• Proposed Rule 1.1(cc) would define the term “Principal—Financial and Operations” to mean a Person Associated with an ETP Holder whose duties include: Final approval and responsibility for the accuracy of financial reports submitted to any duly established securities industry regulatory body; final preparation of such reports; supervision of individuals who assist in the preparation of such reports; supervision of and responsibility for individuals who are
• Proposed Rule 1.1(dd) would define the term “Protected Bid” or “Protected Offer” to mean a quotation in an NMS stock that is (i) displayed by an Automated Trading Center; (ii) disseminated pursuant to an effective national market system plan; and (iii) an Automated Quotation that is the best bid or best offer of a national securities exchange or the best bid or best offer of a national securities association. The term “Protected Quotation” would mean a quotation that is a Protected Bid or Protected Offer. For purposes of the foregoing definitions, the terms “Automated Trading Center,” “Automated Quotation,” “Manual Quotation,” “Best Bid,” and “Best Offer,” would have the meanings ascribed to them in Rule 600(b) of Regulation NMS under the Securities Exchange Act. This proposed rule is based on NYSE Arca Rule 1.1(ss) and NYSE American Rule 1.1E(eee) without any substantive differences.
• Proposed Rule 1.1(ee) would define the term “Security” and “Securities” to mean any security as defined in Rule 3(a)(10) under the Exchange Act, provided, that for purposes of Rule 7, such term would mean any NMS stock. This proposed rule is based on NYSE Arca Rule 1.1(vv) and NYSE American Rule 1.1E(rr).
• Proposed Rule 1.1(ff) would define the term “Securities Trader” to mean any Person engaged in the purchase or sale of securities or other similar instruments for the account of an ETP Holder with which such Person is associated, as an employee or otherwise, and who does not transact any business with the public. This proposed rule is based on current NYSE National Rule 1.5(S)(1), which has been renumbered as Rule 1.1(ff) without any changes.
• Proposed Rule 1.1(gg) would define the term “Securities Trader Principal” to mean a Person who has become qualified and registered as a Securities Trader and passes the General Securities Principal qualification examination. Each Principal with responsibility over securities trading activities on the Exchange shall become qualified and registered as a Securities Trader Principal. This proposed rule is based on current NYSE National Rule 1.5(S)(2), which has been renumbered as Rule 1.1(gg) without any changes.
• Proposed Rule 1.1(hh) would define the term “Self-Regulatory Organization” and “SRO” to have the same meaning as set forth in the provisions of the Exchange Act relating to national securities exchanges. This proposed rule is based on NYSE Arca Rule 1.1(ww) and NYSE American Rule 1.1E(ss) without any substantive differences.
• Proposed Rule 1.1(ii) would define the term “Trade-Through” to mean the purchase or sale of an NMS stock during regular trading hours, either as principal or agent, at a price that is lower than a Protected Bid or higher than a Protected Offer. This proposed rule is based on NYSE Arca Rule 1.1(bbb) and NYSE American Rule 1.1E(fff) without any substantive differences.
• Proposed Rule 1.1(jj) would define the term “Trading Center” to mean, for purposes of Rule 7, a national securities exchange or a national securities association that operates an SRO trading facility, an alternative trading system, an exchange market maker, an OTC market maker or any other broker or dealer that executes orders internally by trading as principal or crossing orders as agent. For purposes of this definition, the terms “SRO trading facility,” “alternative trading system,” “exchange market maker” and “OTC market maker” would have the meanings ascribed to them in Rule 600(b) of Regulation NMS under the Exchange Act. This proposed rule is based on NYSE Arca Rule 1.1(ccc) without any substantive differences.
• Proposed Rule 1.1(kk) would define the term “Trading Facilities” to mean any and all electronic or automatic trading systems provided by the Exchange to ETP Holders. This proposed rule is based on NYSE American Rule 1.1E(xx) without any differences.
• Proposed Rule 1.1(ll) would define the term “UTP Security” to mean a security that is listed on a national securities exchange other than the Exchange and that trades on the Exchange pursuant to unlisted trading privileges. This proposed rule is based on NYSE Arca Rule 1.1(iii) and NYSE American Rule 1.1E(ii) without any substantive differences.
• Proposed Rule 1.1(mm) would define the term “UTP Listing Market” to mean the primary listing market for a UTP Security. This proposed rule is based on NYSE Arca Rule 1.1(ggg) and NYSE American Rule 1.1E(jj) without any substantive differences.
• Proposed Rule 1.1(nn) would define the term “UTP Regulatory Halt” to mean a trade suspension, halt, or pause called by the UTP Listing Market in a UTP Security that requires all market centers to halt trading in that security. This proposed rule is based on NYSE Arca Rule 1.1(hhh) and NYSE American Rule 1.1E(kk) without any substantive differences.
The Exchange proposes to retain its existing rules relating to membership, which are currently set forth in Chapter II. Consistent with the Framework Filing, the Exchange proposes to move those rules, as amended, to new Rule 2. For consistency and clarity, the Exchange proposes to retain the same individual rule numbers. When moving the rules, the Exchange proposes non-substantive differences to (i) use a different sub-paragraph numbering format;
Subject to these non-substantive differences, the Exchange proposes to move Rules 2.1 (Rights, Privileges and Duties of ETP Holders), 2.2 (Obligations of ETP Holders and the Exchange), 2.3 (ETP Holder Eligibility), 2.4 (Restrictions), 2.5 (Application Procedures for an ETP Holder), 2.6 (Revocation of an ETP or an Association with an ETP Holder), 2.7 (Voluntary Termination of Rights as an ETP Holder), 2.8 (Transfer or Sale of an ETP), and 2.9 (Dues, Assessments and Other Charges) to Rule 2 without any additional differences.
In addition to the non-substantive differences described above, the Exchange proposes to amend Commentary .01 to Rule 2.5 to facilitate the efficient reinstatement of ETP Holders by replacing the date “May 30, 2014” with the date “February 1, 2017,” which was when the Exchange ceased operations and terminated ETP Holder status. This amendment will allow the use of the existing expedited process—without any substantive changes—to facilitate the reinstatement, subject to
The Exchange proposes to delete the following rules currently set forth in Chapter II and not move them to Rule 2:
• Rule 2.10 (No Affiliation between Exchange and any ETP Holder). Proposed Rule 3.9, described in greater detail below, would establish the permitted relationships between ETP Holders and Exchange affiliates. Accordingly, current Rule 2.10 is not necessary. The Exchange proposes to designate Rule 2.10 as “Reserved.”
• Rule 2.11 (NSX Securities LLC). The Exchange will no longer use NSX Securities LLC as a routing broker and is now affiliated with Archipelago Securities LLC. Proposed Rule 7.45, described in greater detail below and which is based on NYSE Arca Rule 7.45–E, would establish rules for both the inbound and outbound routing of orders. The Exchange proposes to designate Rule 2.11 as “Reserved.”
• Rule 2.12 (Back-Up Order Routing Services). By its terms, current Rule 2.12 expired on September 30, 2008. Moreover, proposed Rule 7.45 would address all routing services on behalf of the Exchange. The Exchange proposes to designate Rule 2.12 as “Reserved.”
The Exchange proposes that Rule 2.13 (Exchange Backup Systems and Mandatory Testing) would address mandatory participation in the testing of backup systems. To maintain consistency across all exchanges operated by NYSE Group, the Exchange proposes that Rule 2.13 would be based on NYSE Arca Rule 2.27 instead of current Rule 2.13 (Mandatory Participation in Testing of Backup Systems), with the following minor substantive differences to reflect the differences between the Exchange and NYSE Arca. First, because the Exchange does not have any OTP Holders, proposed Rule 2.13 would not reference OTP Holders. Second, because the Exchange would not have lead market makers, proposed Rule 2.13 would not include text based on Rule 2.27(c). The Exchange would delete current Rule 2.13 in its entirety.
The Exchange also proposes new Rule 2.18 (Activity Assessment Fees) to be included in Rule 2, which is based on NYSE Arca Rule 2.18 and NYSE American Rule 2.17E. Proposed Rule 2.18 would provide authority for the Exchange to impose fees, assessments, and other charges, for example, in connection with securities transaction fees required under Section 31 of the Act.
To maintain rule numbering consistency, the Exchange proposes to add Rules 2.14 through and including Rule 2.17 and designate each rule “Reserved.”
Because Rule 2 would set forth rules on membership, the Exchange proposes to delete the rules in Chapter II in their entirety. In addition, because Rule 2 would include rules authorizing the Exchange to prescribe dues, fees, assessments, and other charges, the Exchange proposes to delete the rules in Chapter XVI in their entirety.
The Exchange proposes new Rule 3 titled “Organization and Administration,” which would include specified rules set forth in NYSE Arca Rule 3 and NYSE Arca Rule 13.1.
To maintain the same rule numbers as NYSE Arca, proposed Rules 3.1 through 3.7 would be designated as “Reserved”.
Proposed Rule 3.8 (Liability for Payment) provides that an ETP Holder failing to pay any assessments, dues or other charges to the Exchange for thirty days after the same shall become payable, may be suspended by the Exchange in accordance with Rule 10.9555, except that failure to pay any fine levied in connection with a disciplinary action would be governed by Rule 10.8320. The proposed Rule is based on NYSE Arca Rule 3.8 (Liability for Payment) with non-substantive differences to reference the applicable disciplinary rules on the Exchange, described in greater detail below.
Proposed Rule 3.9 (Certain Relationships) would preclude an ETP Holder from being affiliated with NYSE Group, Inc., unless the Commission otherwise approves. The proposed Rule further provides that any failure by an ETP Holder to comply with Rule 3.9 would subject it to the disciplinary actions prescribed by Rule 10.9555, which provides for non-summary suspensions and other actions. The proposed Rule is based on NYSE Arca Rule 3.10 (Certain Relationships), with non-substantive differences to reference the applicable disciplinary rule on the Exchange, described in greater detail below. As discussed above, proposed Rule 3.9 obviates the need for current Rule 2.10 to be maintained.
Proposed Rule 3.10 (Notice of Expulsion or Suspension) would require an ETP Holder to provide prompt written notification to the Exchange whenever such ETP Holder is expelled or suspended from any SRO, encounters financial difficulty or operating inadequacies, or [sic] fails to perform contracts or becomes insolvent. The proposed Rule would further require an ETP Holder to give prompt written notification to the Exchange with respect to the expulsion or suspension of any ETP Holder or any other Associated Person of such ETP Holder by any SRO. The proposed Rule is based on NYSE Arca Rule 13.1 without any differences.
Proposed Rule 3.11 (Fingerprint-Based Background Checks of Exchange Employees and Others) would establish the Exchange's requirements for fingerprint-based background checks of Exchange employees and others. The proposed rule is based on NYSE Arca Rule 3.11 with non-substantive differences to use the term “will” instead of “shall” and number the Commentary as “.01” instead of “.10.”
Rules 5 and 8 would set forth the Exchange's rules to: (1) Allow the Exchange to trade, pursuant to UTP, any NMS Stock listed on another national
As noted above, because the Exchange will not be a listing venue, the Exchange proposes to include introductory language to both Rules 5 and 8 that would provide that these rules would apply only to the trading pursuant to UTP of Exchange Traded Products, and would not apply to the listing of Exchange Traded Products on the Exchange. The Exchange is proposing this language to clarify that the rules incorporated in Rules 5 and 8 should not be interpreted to be either initial or continued listing requirements of the Exchange, but rather, requirements that pertain solely to the trading of Exchange Traded Products pursuant to UTP on the Pillar platform. Accordingly, references to securities listed on the Exchange in proposed Rule 5 and 8 are not designed to be listing standards. Rather, similar to NYSE American Rules 5 and 8 and NYSE Rules 5P and 8P, proposed Rules 5 and 8 are intended only to address trading of securities on a UTP basis. The Exchange therefore proposes rules that are virtually identical to established and approved rules of NYSE American and NYSE that are for the same purpose.
To further clarify this point, proposed Rule 5.1(a)(1) would provide that the Exchange would not list any Exchange Traded Products unless it filed a proposed rule change under Section 19(b)(2)
In addition, the Exchange proposes the following non-substantive differences in its proposed rules as compared to the NYSE American Rules 5E and 8E that would be applied throughout Rules 5 and 8 (collectively, the “General Definitional Term Changes”):
• Because the Exchange uses the term “Commentary” to refer to commentaries to its Rules, the Exchange proposes to substitute this term where “Supplementary Material” is used in the rules of NYSE American.
• Because the Exchange uses the defined term “Exchange Act” to refer to the Securities Exchange Act of 1934, as amended, the Exchange proposes to substitute this defined term where “Securities Exchange Act of 1934,” “Securities Act of 1934,” “Securities Exchange Act,” or “1934 Act” is used in the rules of NYSE American.
• Because the Exchange does not need to distinguish these proposed rules from other rules with the same numbering on the Exchange, the Exchange will not denote these proposed rules with the letter “E” at the end of each rule.
• Because the Exchange's rules regarding the production of books and records would be described in proposed Rule 11.4.1
• Because the Exchange proposes to define the term “Exchange Traded Product” in Rule 1.1, described above, to use this term instead of “Derivative Securities Product.”
Because Rules 5 and 8 would address all rules relating to trading securities on a UTP basis, the Exchange proposes to delete the rules in Chapter XV in their entirety.
The Exchange proposes that Rule 5 would include rules based on NYSE American Rule 5E. Rule 5 would establish the Exchange's authority to extend UTP to all Tape A, B, and C securities. These proposed rules would also permit the Exchange to trade pursuant to UTP the following: ELNs, Investment Company Units, Index-Linked Exchangeable Notes, Equity Gold Shares, Equity Index Linked Securities, Commodity-Linked Securities, Currency-Linked Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities, Multifactor Index-Linked Securities, and Trust Certificates.
Proposed Rule 5.1(a)(1) would provide that the Exchange may extend UTP to any security that is an NMS Stock (as defined in Rule 600 to Regulation NMS under the Exchange Act) that is listed on another national securities exchange or with respect to which UTP may otherwise be extended in accordance with Section 12(f) of the Exchange Act.
Proposed Rule 5.1(a)(2) would establish rules for trading of UTP Exchange Traded Products, which are defined in Rule 1.1 (described above). Specifically, the requirements in subparagraphs (A)–(F) of proposed Rule 5.1(a)(2) would apply to UTP Exchange Traded Products traded on the Exchange. Proposed Rule 5.1(a)(2) and its sub-paragraphs are based on NYSE American Rule 5.1E(a)(2) and its sub-paragraphs and NYSE Rule 5.1(a)(2) and its subparagraphs with a non-substantive difference to use the defined term of “UTP Exchange Traded Product,” which is defined in Rule 1.1.
Under proposed Rule 5.1(a)(2)(A), the Exchange would file a Form 19b–4(e) with the Commission with respect to each Exchange Traded Product
Proposed Rule 5.1(a)(2)(B) would provide that the Exchange would distribute an information circular prior to the commencement of trading in an Exchange Traded Product that generally would include the same information as the information circular provided by the listing exchange, including (a) the special risks of trading the Exchange Traded Product, (b) the Exchange's rules that will apply to the Exchange Traded Product, including Rules 8.4 and 8.5,
Under proposed Rule 5.1(a)(2)(D), the Exchange would halt trading in a UTP Exchange Traded Product as provided for in proposed Rule 7.18. The Exchange proposes different rule text from NYSE American Rule 5.1(a)(2)(D) to streamline its rules and eliminate duplication in requirements relating to the halting of trading of UTP Exchange Traded Products, which are addressed in proposed Rule 7.18, described below.
Proposed Rule 5.1(a)(2)(F) provides that the Exchange's surveillance procedures for Exchange Traded Products traded on the Exchange pursuant to UTP would be similar to the procedures used for equity securities traded on the Exchange and would incorporate and rely upon existing Exchange surveillance systems.
Proposed Rules 5.1(a)(2)(C) and (E) would establish the following requirements for ETP Holders that have customers that trade UTP Exchange Traded Products:
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•
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As noted above, the terms “Exchange Traded Product” and “UTP Exchange Traded Product” would be defined in Rule 1.1. The Exchange proposes to set forth additional definitions that would be relevant to the rules for the trading pursuant to UTP of the Exchange Traded Products in proposed Rule 5.1(b). Proposed Rule 5.1(b) is based on NYSE American Rule 5.1E(b). To maintain consistency in rule references between the Exchange's proposed rules and NYSE American's rules, the Exchange proposes to Reserve the same subparagraphs in the definitions of proposed Rule 5.1(b) as those that are Reserved in the subparagraphs of NYSE American Rule 5.1E(b).
The Exchange proposes to add Rules 5.2(j)(2)–(j)(7), which would be substantially identical to NYSE American Rules 5.2E(j)(2)–(j)(7) and substantially similar to NYSE Rules 5.2(j)(2)–(j)(7) and NYSE Arca Rules 5.2–E(j)(2)–(j)(7). These proposed rules would permit the Exchange to trade pursuant to UTP the following:
• ELNs that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2(j)(2);
• Investment Company Units that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2(j)(3);
• Index-Linked Exchangeable Notes that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2(j)(4);
• Equity Gold Shares that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2(j)(5);
• Equity Index Linked Securities, Commodity-Linked Securities, Currency-Linked Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities, and Multifactor Index-Linked Securities that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2(j)(6); and
• Trust Certificates that meet the rules for the trading pursuant to UTP that are contained in proposed Rule 5.2(j)(7).
The text of these proposed rules is identical to NYSE American Rules 5.2E(j)(2)–5.2(j)(7), other than certain non-substantive and technical differences explained below.
The Exchange proposes to Reserve paragraphs 5.2(a)–(i)
NYSE Arca Rule 5.2–E(a) pertains to applications for admitting securities to list on NYSE Arca and NYSE Arca Rule 5.2–E(b) pertains to NYSE Arca's unique two-tier listing structure.
NYSE Arca Rules 5.2–E(c)–(g) relate to listing standards for securities that are not ETPs, and NYSE American did not propose rule changes related to such securities.
NYSE Arca Rule 5.2–E(h) pertains to Unit Investment Trusts (“UITs”). NYSE American trades UITs pursuant to UTP under proposed Rule 5.2(j)(3) (Investment Company Units) or proposed Rule 8.100 (Portfolio Depository Receipts), and the Exchange is proposing the same.
The Exchange is proposing Rule 5.2(j)(2) to provide rules for the trading pursuant to UTP of ELNs, so that they may be traded on the Exchange pursuant to UTP. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 5.2E(j)(2).
The Exchange proposes Rule 5.2(j)(3) to establish rules for the trading pursuant to UTP of investment company units, so that they may be traded on the Exchange pursuant to UTP. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 5.2E(j)(3).
The Exchange proposes Rule 5.2(j)(4) to establish rules for the trading pursuant to UTP of index-linked exchangeable notes, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the Exchange is proposing the following non-substantive differences between this proposed rule and NYSE American Rule 5.2E(j)(4):
• To qualify for listing and trading under NYSE American Rule 5.2E(j)(4), an index-linked exchangeable note and its issuer must meet the criteria in NYSE Arca Rule 5.2–E(j)(1) (Other Securities), except that the minimum public distribution will be 150,000 notes with a minimum of 400 public note-holders, except, if traded in thousand dollar denominations then there is no minimum public distribution and number of holders.
Because neither NYSE American nor the Exchange have and are not proposing a rule for “Other Securities” comparable to NYSE Arca Rule 5.2–E(j)(1), the Exchange, like NYSE American, proposes to reference NYSE Arca Rule 5.2–E(j)(1) in subparagraphs (a) and (c) of proposed Rule 5.2(j)(4) in establishing the criteria that an issuer and issue must satisfy.
• To qualify for listing and trading under NYSE American Rule 5.2E(j)(4), an index to which an exchangeable note is linked and its underlying securities must meet (i) the procedures and criteria set forth in Supplementary Material .03 to NYSE American Rule 901C;
The Exchange proposes to reference NYSE Arca Rule 5.13–O because the Exchange does not have options trading rules. In referencing such rules, the Exchange proposes to follow the established and approved rules of NYSE Rule 5.2(j)(4), which also references NYSE Arca Rule 5.13–O.
The Exchange is proposing Rule 5.2(j)(5) to provide rules for the trading pursuant to UTP of equity gold shares, so that they may be traded on the Exchange pursuant to UTP. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 5.2E(j)(5).
The Exchange is proposing Rule 5.2(j)(6) to provide rules for the trading pursuant to UTP of equity index-linked securities, so that they may be traded on the Exchange pursuant to UTP.
In addition to the General Definitional Term Changes described above, the
• To qualify for listing and trading under NYSE American Rule 5.2E(j)(6), both the issue and issuer of an index-linked security must meet the criteria in NYSE Arca Rule 5.2–E(j)(1) (Other Securities), with certain specified exceptions. Because neither NYSE American nor the Exchange have and are not proposing a rule for “Other Securities” comparable to NYSE Arca Rule 5.2–E(j)(1), the Exchange, like NYSE American, proposes to reference NYSE Arca Rule 5.1–E(j)(1) in proposed Rule 5.2(j)(6)(A)(a) establishing the criteria that an issue and issuer must satisfy.
• The listing standards for Equity Index-Linked Securities in NYSE American Rule 5.2E(j)(6) reference NYSE American Rule 915 in describing the criteria for securities that compose 90% of an index's numerical value and at least 80% of the total number of components.
Because the Exchange does not plan to trade options at this time and is not proposing rules for establishing the criteria for underlying securities of put and call options contracts described in NYSE American Rule 915,
The Exchange proposes to reference NYSE Arca Rule 5.3–O because the Exchange does not have options trading rules. In referencing such rules, the Exchange proposes to follow the established and approved rules of NYSE Rule 5.2(j)(6), which also references NYSE Arca Rule 5.3–O.
The Exchange is proposing Rule 5.2(j)(7) to provide rules for the trading pursuant to UTP of trust certificates, so that they may be traded on the Exchange pursuant to UTP. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 5.2E(j)(7).
The Exchange proposes that the rules set forth in Rule 8 would be based on Sections 1 and 2 of NYSE American Rule 8E, NYSE Rule 8P, and NYSE Arca Rule 8–E. These proposed rules would permit the Exchange to trade pursuant to UTP the following: Currency and Index Warrants, Portfolio Depositary Receipts, Trust Issued Receipts, Commodity-Based Trust Shares, Currency Trust Shares, Commodity Index Trust Shares, Commodity Futures Trust Shares, Partnership Units, Paired Trust Shares, Trust Units, Managed Fund Shares, and Managed Trust Securities.
The Exchange proposes to designate Rule 8.100(g) as Reserved to maintain the same rule numbers as the NYSE American rules with which it conforms.
The text of proposed Rule 8 is based on Sections 1 and 2 of NYSE American Rule 8E, with only specified non-substantive and technical differences explained below and the General Definitional Term Changes described above. In addition, as described above, proposed Rule 8 would apply only to the trading pursuant to UTP of Exchange Traded Products on the Exchange would not apply to the listing of Exchange Traded Products on the Exchange.
The Exchange is proposing Rules 8.1–8.13 to provide rules for the trading pursuant to UTP (including sales-practice rules such as those relating to suitability and supervision of accounts) of currency and index warrants.
Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.1E.
Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.2E.
Other than with respect to the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.3E.
The account approval rules of NYSE American Rule 8.4E reference NYSE American Rule 921
The Exchange proposes to reference NYSE Arca Rule 9.18–E(b) because the Exchange does not have options trading
The account suitability rules of NYSE American Rule 8.5E reference NYSE American Rule 923
The Exchange proposes to reference NYSE Arca Rule 9.18–E(c) because the Exchange does not have options trading rules. In referencing such rule, the Exchange proposes to follow the established and approved rules of NYSE Rule 8.5 and NYSE Arca Rule 8.5–E, which also reference NYSE Arca Rule 9.18–E(c).
The rules of NYSE American Rule 8.6E state that NYSE American Rule 408-Equities
The Exchange proposes to reference NYSE Arca Rule 9.18–E(e) because the Exchange does not have options trading rules. In referencing such rule, the Exchange proposes to follow the established and approved rules of NYSE Rule 8.6 and NYSE Arca Rule 8.6–E, which also reference NYSE Arca Rule 9.18–E(e).
The account supervision rules of NYSE American Rule 8.7E reference NYSE American Rule 922
The Exchange proposes to reference NYSE Arca Rule 9.18–E(d) because the Exchange does not have options trading rules. In referencing such rule, the Exchange proposes to follow the established and approved rules of NYSE Rule 8.7 and NYSE Arca Rule 8.7–E, which also reference NYSE Arca Rule 9.18–E(d).
The customer complaint rules of NYSE American Rule 8.8E reference NYSE American Rule 932
The Exchange proposes to reference NYSE Arca Rule 9.18–E(l) because the Exchange does not have options trading rules. In referencing such rule, the Exchange proposes to follow the established and approved rules of NYSE Rule 8.8 and NYSE Arca Rule 8.8–E, which also reference NYSE Arca Rule 9.18–E(l).
The rules pertaining to communications to customers regarding stock index, currency index and currency warrants described in NYSE American 8.9E reference NYSE American Rule 991.
The Exchange proposes to reference to the Commentaries to NYSE Arca Rule 9.28–E because the Exchange does not have options trading rules. In referencing such rules, the Exchange proposes to follow the established and approved rules of NYSE Rule 8.9 and NYSE Arca Rule 8.9–E, which also reference Commentaries to NYSE Arca Rule 9.28–E.
Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.10E.
Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.11E.
Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.12E.
Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.13E.
The Exchange is proposing:
• Rule 8.100 to provide rules for the trading pursuant to UTP of portfolio depositary receipts. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.100E.
• Rule 8.200 to provide rules for the trading pursuant to UTP of trust issued receipts. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.200E.
• Rule 8.201 to provide rules for the trading pursuant to UTP of commodity-based trust shares. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.201E.
• Rule 8.202 to provide rules for the trading pursuant to UTP of currency trust shares. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.202E.
• Rule 8.203 to provide rules for the trading pursuant to UTP of commodity index trust shares. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.203E.
• Rule 8.204 to provide rules for the trading pursuant to UTP of commodity futures trust shares, so that they may be traded on the Exchange pursuant to UTP. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.204E.
• Rule 8.300 to provide rules for the trading pursuant to UTP of partnership units. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.300E-Equities.
• Rule 8.400 to provide rules for the trading pursuant to UTP of paired trust shares. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.400E.
• Rule 8.500 to provide rules for the trading pursuant to UTP of trust units. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.500E.
• Rule 8.600 to provide rules for the trading pursuant to UTP of managed fund shares. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.600E.
• Rule 8.700 to provide rules for the trading pursuant to UTP of managed trust securities. Other than the General Definitional Term Changes described above, there are no differences between this proposed rule and NYSE American Rule 8.700E.
As noted above, the Exchange proposes to renumber its existing
In moving the Compliance Rules to Rule 6, the Exchange proposes to renumber Rules 14.1 through 14.12 as proposed Rules 6.6800 through 6.6895, which is based in part on the NYSE Arca rule numbering for its Compliance Rules, but not make any substantive changes to those rules. The Exchange proposes non-substantive differences to the Compliance Rules to use a different sub-paragraph numbering format.
The Exchange proposes Rule 6.6900 to establish the procedures for resolving potential disputes related to CAT Fees charged to Industry Members. Section 11.5 of the CAT NMS Plan requires participants to that plan to adopt rules requiring that disputes with respect to fees charged to Industry Members pursuant to the CAT NMS Plan be determined by the Operating Committee or Subcommittee. Section 11.5 of the CAT NMS Plan also states that decisions by the Operating Committee or Subcommittee on such matters will be binding on Industry Members, without prejudice to the right of any Industry Member to seek redress from the SEC pursuant to SEC Rule 608 or in any other appropriate forum. The Commission has approved industry-wide rules that set forth such fee dispute procedures.
Proposed Rule 6.6900 would set forth the Exchange's proposed procedures to resolve disputes initiated by an Industry Member with respect to CAT fees and is based on NYSE Arca Rule 11.6900 specifically, and the rules of other exchanges generally, without any substantive differences.
The Exchange proposes OATS rules based on NYSE Arca Rules 6.7400–E Series, which in turn are based on the FINRA Rules 7400 Series. The proposed NYSE National Rule 6.7400 Series would consist of proposed Rules 6.7410 through 6.7470, which are based on NYSE Arca Rules 6.7410–E through 6.7470–E without any substantive differences. The Exchange proposes non-substantive differences throughout the Rule 6.7400 Series to refer to the Exchange instead of NYSE Arca and to use the defined term “Associated Person.”
• Proposed Rule 6.7140 (Definitions) would set forth definitions used for purposes of the Rule 6.7400 Series and is based on NYSE Arca Rule 6.7410–E without any substantive differences.
• Proposed Rule 6.7420 (Applicability) would specify that the requirements of the Rule 6.7400 Series are applicable to all ETP Holders and their associated persons and to all NMS Stocks that trade on the Exchange, and is based on NYSE Arca Rule 6.720–E without any differences.
• Proposed Rule 6.7430 (Synchronization of ETP Holder Business Clocks) would require ETP Holders to synchronize business clocks used for purposes of recording the date and time of specified events, and is based on NYSE Arca Rule 6.7430 without any differences.
• Proposed Rule 6.7440 (Recording of Order Information) would require ETP Holders to comply with FINRA Rule 7440 as if such rule were part of the Exchange's rules and is based on NYSE Arca Rule 6.7440–E without any substantive differences.
• Proposed Rule 6.7450 (Order Data Transmission Requirements) would require ETP Holders to comply with FINRA Rule 7450 as if such rule were part of the Exchange's rules and is based on NYSE Arca Rule 6.7450–E without any substantive differences.
• Proposed Rule 6.7460 (Violation of Order Audit Trail System Rules) would provide that failure of an ETP Holder or associated person to comply with the requirements of proposed Rules 6.7410 through 6.7460 may be considered conduct that is inconsistent with high standards of commercial honor and just and equitable principles of trade. This proposed rule is based on NYSE Arca Rule 6.7460–E with a non-substantive difference to cross reference proposed Rule 11.3.1 instead of NYSE Arca Rule 9.2010.
• Proposed Rule 6.7470 (Exemption to the Order Recording and Data Transmission Requirements) would provide for how an ETP Holder may apply for an exemption from the Rule 6.7400 Series and is based on NYSE Arca Rule 6.7470–E without any differences.
At the time the Exchange ceased operations, it did not require its ETP Holders to maintain order information pursuant to an order tracking system and therefore, did not have the OATS rules or similar rules in its rulebook. The Exchange does not believe that requiring Exchange ETP Holders to comply with the OATS requirements in connection with the re-launch of trading will impose an undue burden on such ETP Holders or its associated persons. Once the Exchange restarts operation, ETP Holders that are also FINRA members (“Dual Members”) would already be subject to FINRA's OATS requirements. Similarly, because NYSE Arca, NYSE, and NYSE American each also have rules based on the FINRA OATS requirements, Exchange ETP Holders that are not members of FINRA, but are members of NYSE Arca, NYSE, or NYSE American, will already be
The Exchange believes that requiring its members to comply with the OATS rules will further promote cross-market surveillance and enhance FINRA's ability to conduct surveillance and investigations for the Exchange under a Regulatory Services Agreement. The proposed sub-numbering of the OATS Rules (
Because Rule 6 would include the Compliance Rules, the Fee Dispute Rule, and the OATS rules, the Exchange proposes to delete the word “System” from the title of Rule 6. The Exchange further proposes to delete the rules in Chapter XIV in their entirety.
As noted above, the Exchange proposes trading rules based on the cash equities rules of NYSE Arca and, in some cases specified below, NYSE American. Accordingly, Proposed Rule 7 would include rules based on NYSE Arca Rule 7–E or NYSE American 7E, or both, including general provisions relating to trading, market makers, trading on the Exchange, operation of the routing broker, and the Plan to Implement a Tick Size Pilot Program. Proposed Rule 7 would therefore specify all aspects of trading on the Exchange, including the orders and modifiers that would be available and how orders would be ranked, displayed, and executed. Similar to NYSE American, the Exchange proposes the following non-substantive differences throughout Rule 7:
• To use the term “Exchange” instead of “NYSE Arca Marketplace;”
• to use the term “Exchange Act,” which is a proposed defined term;
• to use the term “Exchange Book” instead of “NYSE Arca Book;”
• to use the term “will” instead of “shall;”
• to use the term “ETP Holders” instead of “Users;” and
• to use the capitalized term “Associated Person.”
In addition, because the Exchange will be using Pillar phase II protocols, the Exchange will not include rule text based on NYSE Arca's order behavior using Pillar phase I protocols, as described in NYSE Arca Rules 7.11–E, 7.31–E, and 7.34–E.
Section 1 of Rule 7 would specify the General Provisions relating to trading on the Pillar trading platform. The Exchange proposes the following rules:
• Proposed Rule 7.1 (Hours of Business) would specify that the Exchange would be open for the transaction of business on every business day. The proposed rule also sets forth when the President may take specified actions, such as halting or suspending trading in some or all securities on the Exchange. The proposed rule is based on NYSE Arca Rule 7.1–E and NYSE American Rule 7.1E without any differences.
• Proposed Rule 7.2 (Holidays) would establish the holidays when the Exchange would not be open for business. The proposed rule is based on NYSE American Rule 7.2E (which has updated rule text as compared to NYSE Arca Rule 7.2–E regarding when that exchange would be open for business if a holiday falls on a Sunday) without any differences.
• Proposed Rule 7.3 (Commissions) would establish that ETP Holders may not charge fixed commissions and must indicate whether acting as a broker or as principal. The proposed rule is based on NYSE Arca Rule 7.3–E and NYSE American Rule 7.3E with a non-substantive difference to reference “Associated Persons,” which is a defined term on the Exchange, instead of the phrase “Allied Persons, partners, approved persons or stockholder associates” in paragraph (c) of proposed Rule 7.3.
• Proposed Rule 7.4 (Ex-Dividend or Ex-Right Dates) would establish the ex-dividend and ex-rights dates for stocks traded regular way. The proposed rule is based on NYSE Arca Rule 7.4–E and NYSE American Rule 7.4E without any differences.
• Proposed Rule 7.5 (Trading Units) would establish the unit of trading in stocks, including “round lot,” “odd lot,” and “mixed lot.” The proposed rule is based on NYSE Arca Rule 7.5–E and NYSE American Rule 7.5E without any differences.
• Proposed Rule 7.6 (Trading Differentials) would establish the minimum price variation for quoting and entry of orders for securities priced at $1.00 or more and for securities priced at less than $1.00. The proposed rule is based on NYSE Arca Rule 7.6–E and NYSE American Rule 7.6E without any substantive differences.
• Proposed Rule 7.7 (Transmission of Bids or Offers) would establish that all bids and offers on the Exchange would be anonymous unless otherwise specified by the ETP Holder. The proposed rule is based on NYSE Arca Rule 7.7–E and NYSE American Rule 7.7E without any differences.
• Proposed Rule 7.8 (Bid or Offer Deemed Regular Way) would establish that all bids and offers would be considered to be “regular way.” This proposed rule text is based on NYSE Arca Rule 7.8–E and NYSE American Rule 7.8E.
• Proposed Rule 7.9 (Execution Price Binding) would establish that, notwithstanding Exchange rules on clearly erroneous executions, the price at which an order is executed is binding notwithstanding that an erroneous report is rendered. This proposed rule text is based on NYSE Arca Rule 7.9–E and NYSE American Rule 7.9E without any differences.
• Proposed Rule 7.10 (Clearly Erroneous Executions) would set forth the Exchange's rules on clearly erroneous executions. The proposed rule is based on NYSE Arca Rule 7.10–E and NYSE American Rule 7.10E with one substantive difference: because the Exchange would not be conducting any auctions, the Exchange does not propose text based on NYSE Arca Rule 7.10–E(a) and NYSE American Rule 7.10E(a) that provides that executions as a result of a Trading Halt Auction are not eligible for a request to review as clearly erroneous under paragraph (b) of such rule.
• Proposed Rule 7.11 (Limit Up—Limit Down Plan and Trading Pauses in Individual Securities Due to Extraordinary Market Volatility) would specify how the Exchange would comply with the Regulation NMS Plan to Address Extraordinary Market Volatility (“LULD Plan”).
• Proposed Rule 7.12 (Trading Halts Due to Extraordinary Market Volatility) would establish rules on halts in trading due to extraordinary market volatility and related reopening of trading. The proposed rule is based on NYSE Arca Rule 7.12–E and NYSE American Rule 7.12E without any substantive differences.
• Proposed Rule 7.13 (Trading Suspensions) would establish authority for the Chair or the President of the Exchange to suspend trading in any and all securities that trade on the Exchange if such suspension would be in the public interest. This proposed rule is based on NYSE Arca Rule 7.13–E and NYSE American Rule 7.13E without any substantive differences. Because this proposed rule covers the same subject matter as current Rule 12.11, as discussed below, the Exchange does not propose to move Rule 12.11 to Rule 11 and would delete Rule 12.11.
• Proposed Rule 7.14 (Clearance and Settlement) would establish the requirements regarding an ETP Holder's arrangements for clearing. Because all post-trade functions on the Exchange's Pillar trading platform would follow the NYSE Arca procedures for post-trade processing, the Exchange proposes rules that are based on NYSE Arca rules [sic] clearing rules. Accordingly, the proposed rule is based on NYSE Arca Rule 7.14–E and NYSE American Rule 7.14E without any substantive differences.
• Proposed Rule 7.15 (Stock Option Transactions) would establish requirements for Market Makers relating to pool dealing and having an interest in an option that is not issued by the Options Clearing Corporation. The proposed rule is based on NYSE Arca Rule 7.15–E and NYSE American Rule 7.15E without any substantive differences.
• Proposed Rule 7.16 (Short Sales) would establish requirements relating to short sales. The proposed rule is based on NYSE Arca Rule 7.16–E with the following substantive differences. Because the Exchange would not be a listing venue, the Exchange would not be evaluating whether the short sale price test restrictions of Rule 201 of Regulation SHO have been triggered. Accordingly, the Exchange does not propose rule text based on NYSE Arca Rule 7.16–E(f)(3) or NYSE American Rule 7.16E(f)(3) and would designate that sub-paragraph as “Reserved.” For similar reasons, the Exchange proposes not to include rule text based on NYSE Arca Rule 7.16–E(f)(4)(A) and (B) or NYSE American Rule 7.16E(f)(4)(A) and (B).
• Proposed Rule 7.17 (Firm Orders and Quotes) would establish requirements that all orders and quotes must be firm. This proposed rule is based on NYSE Arca Rule 7.17–E without any differences.
• Proposed Rule 7.18 (Halts) would establish rules relating to trading halts of securities traded pursuant to UTP on the Exchange's Pillar platform. This proposed rule is based on NYSE Arca Rule 7.18–E(a), (b), and (d) and NYSE American Rule 7.18E(a), (b), and (d). Proposed Rule 7.18(c) would be based on NYSE American Rule 7.18E(d) and would use the Exchange-defined terms of “Exchange Traded Product” and “UTP Exchange Traded Product.” Because the Exchange will not be a listing venue, the Exchange does not proposed rule text based on NYSE Arca Rule 7.18–E(c) or NYSE American Rule 7.18E(c). In addition, the Exchange proposes to use the term “reopening auction” instead of “Trading Halt Auction” in proposed Rule 7.18(b).
Section 2 of proposed Rule 7 proposes rules for market makers on the Exchange. Specifically, for all securities that would trade on the Exchange, an ETP Holder could register as a Market Maker and be subject to obligations similar to the obligations of a Market Maker on NYSE Arca. The Exchange proposes the following rules, based on cash equities NYSE Arca and NYSE American rules of the same number with non-substantive differences:
• Proposed Rule 7.20 (Registration of Market Makers) would establish the registration requirements for market makers on the Exchange. This proposed rule is based on NYSE American Rule 7.20E without any substantive differences. The Exchange proposes non-substantive differences to cross reference the Rule 10.9500 and 10.9200 Series in proposed Rule 7.20(c) and (e), respectively.
• Proposed Rule 7.21 (Obligations of Market Maker Authorized Traders) would set forth the requirements that MMATs are permitted to enter orders only for the account of the Market Maker for which they are registered. The proposed rule would also specify the registration requirements for MMAT and the procedures for suspension and withdrawal of registration. This proposed rule is based on NYSE Arca Rule 7.21–E and NYSE American Rule 7.21E without any substantive differences.
• Proposed Rule 7.22 (Registration of Market Makers in a Security) would set forth the process for Market Makers to become registered in a security and the factors the Exchange may consider in approving the registration of a Market Maker in a security. The proposed rule would also describe both the termination of a Market Maker's registration in a security by the Exchange and voluntary termination by a Market Maker. This proposed rule is based on NYSE Arca Rule 7.22–E and NYSE American Rule 7.22E without any substantive differences. The Exchange proposes non-substantive differences to cross reference proposed Rule 10.9200 and 10.9500 Series in proposed Rule 7.22(e) and (g), respectively.
• Proposed Rule 7.23 (Obligations of Market Makers) would set forth the obligation of all Market Makers to engage in a course of dealings for their own account to assist in the maintenance, insofar as reasonably practicable, of fair and orderly markets on the Exchange and would delineate the specific responsibilities and duties of Market Makers, including the obligation to maintain continuous, two-sided trading in registered securities and certain pricing obligations Market Makers are required to adhere to. This proposed rule is based on NYSE Arca Rule 7.23–E and NYSE American Rule 7.23E without any substantive differences. The Exchange proposes a non-substantive difference to cross reference proposed Rule 10.9200 Series in proposed Rule 7.23(c).
• Proposed Rule 7.28 (NMS Market Access) would implement the Exchange's obligations under Rule 610 of Regulation NMS and is based on NYSE Arca Rule 7.28–E without any differences.
Section 3 of proposed Rule 7 would establish the Exchange's trading rules. Among other things, these rules would establish the orders and modifiers that would be available on the Exchange (proposed Rule 7.31), would describe
As noted above, the Exchange will not conduct any auctions, and therefore does not propose a rule based on NYSE Arca Rule 7.35–E or NYSE American Rule 7.35E. In addition, because the Exchange would not offer a retail liquidity program, the Exchange does not propose a rule based on NYSE Arca Rule 7.44–E and proposed Rules 7.36, 7.37, and 7.38 would not include cross references to Rule 7.44.
• Proposed Rule 7.29 (Access) would provide that the Exchange would be available for entry and cancellation of orders by ETP Holders with authorized access. To obtain authorized access to the Exchange, each ETP Holder would be required to enter into a User Agreement. Proposed Rule 7.29 is based on NYSE Arca Rule 7.29–E(a) and NYSE American Rule 7.29E, without any substantive differences. The Exchange does not propose to include rule text based on NYSE Arca Rule 7.29–E(b) because the Exchange would not offer sponsored access.
• Proposed Rule 7.30 (Authorized Traders) would provide for requirements relating to Authorized Traders and is based on NYSE Arca Rule 7.30–E and NYSE American Rule 7.30E without any differences.
• Proposed Rule 7.31 (Orders and Modifiers) would specify the orders and modifiers that would be available on the Exchange. The Exchange proposes to offer the same types of orders and modifiers that are available on NYSE Arca, with specified substantive differences. Accordingly, proposed Rule 7.31 is based on NYSE Arca Rule 7.31–E with the following substantive differences.
First, in proposed Rule 7.31(a)(2)(B), in describing the Limit Order Price Protection, the Exchange proposes to provide that a Limit Order entered before the Core Trading Session that is designated for the Core Trading Session only will become subject to Limit Order Price Protection once it becomes eligible to trade. The Exchange proposes this difference because the Exchange would not be conducting any auctions on the Exchange.
Second, the Exchange proposes that, similar to NYSE Arca, it would accept Auction-Only Orders (
Third, because the Exchange would not be a listing venue, the Exchange does not propose to include rule text that provides that “[a] Primary Only Order instruction on a security listed on the Exchange will be ignored” in proposed Rule 7.31(f)(1). Fourth, at this time, the Exchange is not proposing to offer a Discretionary Pegged Order and, therefore, proposes to designate Rule 7.31(h)(3) as “Reserved” and will not include a reference to Discretionary Pegged Orders in proposed Rule 7.34.
Finally, similar to NYSE American Rule 7.31E(e)(1), the Exchange proposes to refer to the order described in this rule text as a “Limit Non-Routable Order.”
• Proposed Rule 7.32 (Order Entry) would establish requirements for order entry size. The proposed rule is based on NYSE Arca Rule 7.32–E and NYSE American Rule 7.32E without any substantive differences.
• Proposed Rule 7.33 (Capacity Codes) would establish requirements for capacity code information that ETP Holders must include with every order. The proposed rule is based on NYSE Arca Rule 7.33–E and NYSE American Rule 7.33E without any substantive differences.
• Proposed Rule 7.34 (Trading Sessions) would specify trading sessions on the Exchange. Similar to NYSE Arca, the Exchange proposes that on the Pillar trading platform, it would have Early, Core, and Late Trading Sessions. However, the Exchange proposes that the Early Trading Session would begin at 7:00 a.m. Eastern Time, which is when the NYSE American Early Trading Session begins.
• To designate Rule 7.34–E(c)(1)(B) as “Reserved;”
• In proposed Rule 7.34(c)(1)(C), to refer to orders being rejected “if entered before the Core Trading Session” instead of orders being rejected “if entered before the Auction Processing Period for the Core Open Auction;”
• In proposed Rules 7.34(c)(1)(D), (c)(2)(A), and (c)(2)(B), to not include phrases referring to “securities that are not eligible for an auction on the Exchange” or “securities that are not eligible to [sic] the Core Open Auction” from NYSE Arca Rules 7.34–E(c)(1)(D), (c)(2)(A), and (c)(2)(B); and
• In proposed Rule 7.34(c)(2)(C), to refer to orders being rejected “if entered before the Late Trading Session” instead of being rejected “if entered before the Auction Processing Period for the Closing Auction.”
• Proposed Rule 7.36 (Order Ranking and Display) would establish requirements for how orders would be ranked and displayed at the Exchange. The proposed rule is based on NYSE Arca Rule 7.36–E and NYSE American Rule 7.36E without any substantive differences.
• Proposed Rule 7.37 (Order Execution and Routing) would establish requirements for how orders would execute and route at the Exchange, the data feeds that the Exchange would use, and Exchange requirements under the Order Protection Rule and the prohibition on locking and crossing quotations in NMS Stocks. This proposed rule is based on NYSE Arca Rule 7.37–E without any substantive differences. The Exchange proposes a non-substantive difference to proposed Rule 7.37(e) to reflect the amended names of exchanges in the chart listing market centers.
• Proposed Rule 7.38 (Odd and Mixed Lot) would establish requirements relating to odd lot and mixed lot trading on the Exchange. The proposed rule is based on NYSE Arca Rule 7.38–E without any substantive differences.
• Proposed Rule 7.40 (Trade Execution and Reporting) would establish the Exchange's obligation to report trades to an appropriate consolidated transaction reporting system. The proposed rule is based on NYSE Arca Rule 7.40–E and NYSE American Rule 7.40E without any substantive differences.
• Proposed Rule 7.41 (Clearance and Settlement) would establish requirements that all trades be processed for clearance and settlement on a locked-in and anonymous basis. The proposed rule is based on NYSE American Rule 7.41E without any differences.
Section 4 of proposed Rule 7 would establish the Operation of a Routing Broker. Specifically, proposed Rule 7.45 (Operation of a Routing Broker) would establish the outbound and inbound function of the Exchange's routing broker and the cancellation of orders and the Exchange's error account. The proposed rule is based on NYSE Arca Rule 7.45–E and NYSE American Rule 7.45E without any substantive differences. As noted above, the Exchange's affiliation with Archipelago Securities LLC would be addressed in proposed Rule 7.45. The Exchange therefore proposes to delete current Rule 2.10 [sic].
Section 5 of proposed Rule 7 would establish requirements relating to the Plan to Implement a Tick Size Pilot Program. Proposed Rule 7.46 (Tick Size Pilot Plan) would specify such requirements. The proposed rule is based on NYSE Arca Rule 7.46–E with a proposed substantive difference not to include cross references to a Retail Liquidity Program as the Exchange would not adopt the Retail Liquidity Program on Pillar. The Exchange also proposes to designate proposed Rules 7.46(f)(4) as “Reserved” because the Exchange would not support Retail Price Improvement Orders on Pillar.
Section 6 of proposed Rule 7 would establish requirements for contracts in securities.
• Proposed Rule 7.60 (Definitions and General Provisions) would establish definitions used for purposes of Section 6 of Rule 7 and is based on NYSE Arca Rule 7.60–E without any differences.
• Proposed Rule 7.61 would provide for requirements relating to ETP contracts of the Exchange and that such contracts are binding. This proposed rule is based on NYSE Arca Rule 7.61–E without any differences.
• Proposed Rule 7.62 (Delivery of Securities) would establish requirements relating to the book entry settlement of transactions. This proposed rule text is based on NYSE Arca Rule 7.62–E(b). Because the Exchange is not a listing venue, the Exchange does not propose rule text based on NYSE Arca Rule 7.62–E(a) or (c) as these rules relate to requirements for securities listing on an exchange.
Because Rule 7 would set forth all rules relating to trading on the Exchange, the Exchange proposes to delete the rules in Chapter XI in their entirety. In addition, because Rule 7 would set forth rules relating to comparison and settlement, the Exchange proposes to delete the rules in Chapter XIII (Miscellaneous Provisions) in their entirety. Finally, because the Exchange would use its affiliate, Archipelago Securities LLC, as its routing broker, the Exchange also proposes to delete Rule 2.11 (NSX Securities, LLC).
To facilitate the re-launch of trading on the Exchange and further facilitate rule harmonization among SROs, the Exchange proposes Rule 10.8000 and Rule 10.9000 Series based on NYSE American Rule 8000 and Rule 9000 Series of the Office Rules, with certain modifications, as described below.
Unless otherwise specified below, the individual rules in the proposed Rule 10.8000 and 10.9000 Series are based on the individual rules of the counterpart NYSE American Rule 8000 and 9000 Series without any differences, except that the Exchange:
• Would use the term “ETP Holder” rather than “member and member organization” or “member organization or ATP Holder” as is used by NYSE American, consistent with the Exchange's other proposed rules;
• would use the term “Associated Person” or “Person Associated with an ETP Holder,” which are defined terms on the Exchange, rather than the term “covered person;”
• would not utilize Floor-Based Panelists referenced in NYSE American Rules 9120(q), 9212(a)(2)(B), 9221(a)(3), 9231(b)(2) and (c)(2), and 9232(c) because the Exchange will not have a trading floor;
• would not adopt NYSE American Rules 8001 and 9001, which describe the effective date of the NYSE American rules;
• would not retain the text of NYSE American's legacy minor rules; and
• proposes non-substantive grammatical differences in specified rules, described below, which do not change the meaning of the proposed rule text as compared to the NYSE American version of the same rule.
The Proposed Rule 10.8000 Series would address Investigations and Sanctions. Proposed Rule 10.8100 (General Provisions) would include the following:
• Proposed Rule 10.8120 (Definitions) would provide that unless otherwise provided, terms used in the Rule 10.8000 Series would have the meaning as defined in applicable Exchange rules and that the terms “Adjudicator” and “Exchange” [sic] would have the meaning in proposed Rule 10.9120. The Exchange proposes non-substantive grammatical differences for paragraphs (a) and (b) as compared to NYSE American Rule 8120(a) and (b).
• Proposed Rule 10.8130 (Retention of Jurisdiction) would set forth retention of jurisdiction provisions that are the same as NYSE American Rule 8130, except for a non-substantive grammatical difference in paragraph (b) to add the word “who” and the cross-reference in paragraph (b)(1) that would be conformed to the Exchange's rules. Under the proposed rule change, the Exchange would retain jurisdiction to file a complaint against an ETP Holder or Associated Person for two years after such ETP Holder's or Associated Person's status is terminated.
Proposed Rule 10.8200 (Investigations) would set forth the following rules:
• Proposed Rule 10.8210 (Provisions of Information and Testimony and
• Proposed Rule 10.8211 (Automated Submission of Trading Data Requested by the Exchange) would set forth the procedures for electronic blue sheets [sic].
Proposed Rule 10.8300 (Sanctions) would set forth the following rules:
• Proposed Rule 10.8310 (Sanctions for Violations of the Rules) would set forth the range of sanctions that could be imposed in connection with disciplinary actions under the proposed rule change.
• Proposed Rule 10.8311 (Effect of a Suspension, Revocation, Cancellation, Bar or Other Disqualification) would provide that if the Commission or the Exchange imposed a suspension, revocation, cancellation or bar on an Associated Person, an ETP Holder may not permit such person to remain associated, and, in the case of a suspension, may not make any remuneration that results from any securities transaction.
• Proposed Rule 10.8313 (Release of Disciplinary Complaints, Decisions and Other Information) would provide that the Exchange would publish all final disciplinary decisions issued under the proposed Rule 9000 [sic] Series, other than minor rule violations, on its website.
• Proposed Rule 10.8320 (Payment of Fines, Other Monetary Sanctions, or Costs; Summary Action for Failure to Pay) would govern payment of fines and other monetary sanctions or costs and provide for a summary action for an ETP Holder's failure to pay.
• Proposed Rule 10.8330 (Costs of Proceedings) would provide that a disciplined ETP Holder or Associated Person may be assessed the costs of a proceeding, which are determined by the Adjudicator.
Proposed Rule 10.9000 Series sets forth the Exchange's proposed Code of Procedure.
Proposed Rule 10.9100 Series (Application and Purpose) would set forth the following rules:
• Proposed Rule 10.9110 (Application) would state the types of proceedings to which the proposed Rule 10.9000 Series would apply (each of which is described below) and the rights, duties, and obligations of ETP Holders and Associated Persons, and would set forth the defined terms and cross-references. The Exchange proposes a non-substantive grammatical difference from NYSE American Rule 9110 in paragraph (c).
• Proposed Rule 10.9120 (Definitions) would set forth definitions that would be applicable to the Rule 10.9000 Series. The definitions are based on definitions set forth in NYSE American Rule 9120, except that the Exchange would not define the terms “Board of Directors,” “covered person,” “Exchange, and “Floor-Based Panelist” in proposed Rule 10.9120 and would designate paragraphs (b), (g), (n), and (q) as “Reserved.” The terms “Board of Directors” and “Exchange” would already be defined in proposed Rule 1.1, and therefore the Exchange does not need to separately define these terms in proposed Rule 10.9120. The Exchange does not believe that it needs to define the term “covered person” because the Exchange already has a defined term of “Person Associated with an ETP Holder” or “Associated Person,” and use of that term would address all persons subject to Exchange jurisdiction under proposed Rule 10 Series. The term “Interested Staff” in paragraph (t) contains a non-substantive grammatical difference from the NYSE American version and the definition of “Party” in paragraph (w)(2) includes “or Associated Person” after “ETP Holder.” Finally, the Exchange would not include the term “Floor-Based Panelist” because the Exchange would not have a trading floor.
Proposed Rule 10.9130, setting forth proposed Rules 10.9131 through 10.9138, would govern the service of a complaint or other procedural documents under the Rules.
Proposed Rule 10.9131 would set forth the requirements for serving a complaint or document initiating a proceeding. Proposed Rule 10.9132 would cover the service of orders, notices, and decisions by an Adjudicator. Proposed Rule 10.9133 would govern the service of papers other than complaints, orders, notices, or decisions. Proposed Rule 10.9134 would describe the methods of service and the procedures for service. Proposed Rule 10.9135 would set forth the procedure for filing papers with an Adjudicator. Proposed Rule 10.9136 would govern the form of papers filed in connection with any proceeding under the proposed Rule 10.9200 and 10.9300 Series. Proposed Rule 10.9137 would state the requirements for and the effect of a signature in connection with the filing of papers. Finally, proposed Rule 10.9138 would establish the computation of time.
Proposed Rules 10.9140, setting forth proposed Rules 10.9141 through 10.9148, would govern the conduct of disciplinary proceedings.
Proposed Rule 10.9141 would govern appearances in a proceeding, notice of appearances, and representation. Proposed Rule 10.9141 would permit a Respondent to represent himself or be represented by a bar-admitted U.S. attorney. The proposed rule also permits a partnership to be represented by a partner and a corporation, trust, or association to be represented by an officer of such entity. Proposed Rule 10.9141 requires an attorney or representative to file a notice of appearance. Proposed Rule 10.9142 would require an attorney or representative to file a motion to withdraw.
Proposed Rule 10.9143 would set forth requirements relating to ex parte communications with an Adjudicator or Exchange employee involved in a proceeding. The Exchange proposes non-substantive grammatical differences from NYSE American Rule 9143 in paragraphs (c) and (e)(3).
Proposed Rule 10.9144 would establish the separation of functions for Interested Staff and Adjudicators and provide for waivers.
Proposed Rule 10.9145 would provide that formal rules of evidence would not apply in any proceeding brought under the proposed Rule 10.9000 Series.
Proposed Rule 10.9146 would govern motions a Party may make and requirements for responses and formatting. The Exchange proposes non-substantive grammatical differences
Proposed Rule 10.9147 would provide that Adjudicators may rule on procedural matters.
Finally, proposed Rule 10.9148 would generally prohibit interlocutory review, except as provided in proposed Rule 10.9280 for contemptuous conduct.
Proposed Rule 10.9150 would provide that a representative can be excluded by an Adjudicator for improper or unethical conduct. The Exchange proposes a non-substantive difference to refer to “improper conduct” in paragraph (a) rather than limiting term of “improper professional conduct,” which is in NYSE American Rule 9150.
Proposed Rule 10.9160 would provide that no person may act as an Adjudicator if he or she has a conflict of interest or bias, or circumstances exist where his or her fairness could reasonably be questioned. In such case, the person must recuse himself or may be disqualified. The proposed rule would cover the recusal or disqualification of an Adjudicator, the Board, or a Director. Proposed Rules 9160(b) [sic], (c), and (d) are designated as “Reserved” to maintain consistency with NYSE American's rule numbering.
Proposed Rule 10.9200 would cover disciplinary proceedings.
Proposed Rule 10.9210 (Complaint and Answer) would set forth the following rules:
• Proposed Rule 10.9211 (Authorization of Complaint) would permit Enforcement to request the authorization of the Chief Regulatory Officer (“CRO”) to issue a complaint against an ETP Holder or Associated Person, thereby commencing a disciplinary proceeding.
• Proposed Rule 10.9212 (Complaint Issuance—Requirements, Service, Amendment, Withdrawal, and Docketing) would set forth the requirements of the complaint, amendments to the complaint, withdrawal of the complaint, and service of the complaint. Unlike NYSE American Rule 9212, because the Exchange would not have a floor, the proposed rule would not provide for Enforcement to select one Floor-Based Panelist.
• Proposed Rule 10.9213 (Assignment of Hearing Officer and Appointment of Panelists to Hearing Panel or Extended Hearing Panel) would provide for the appointment of a Hearing Officer and Panelists by the Chief Hearing Officer.
• Proposed Rule 10.9214 (Consolidation or Severance of Disciplinary Proceedings) would permit the Chief Hearing Officer to sever or consolidate two or more disciplinary proceedings under certain circumstances and permit a Party to move for such action under certain circumstances. The Exchange proposes non-substantive grammatical differences from NYSE American Rule 9214 in paragraphs (b) and (e).
• Proposed Rule 10.9215 (Answer to Complaint) would set forth requirements for answering a complaint, including form, service, notice, content, defenses, amendments, default, and timing.
• Proposed Rule 10.9216 (Acceptance, Waiver, and Consent; Procedure for Imposition of Fines for Minor Violation(s) of Rules) would establish the acceptance, waiver, and consent (“AWC”) procedures by which a Respondent, prior to the issuance of a complaint, may execute a letter accepting a finding of violation, consenting to the imposition of sanction(s), and agreeing to waive such Respondent's right to a hearing, appeal, and certain other procedures.
Together with proposed Rule 10.9216(b), proposed Rule 10.9217 would be the Exchange's Minor Rule Violation Plan (“MRVP”) and would set forth the list of rules under which an ETP Holder or Associated Person may be subject to a fine under a MRVP as described in proposed Rule 10.9216(b).
The Exchange proposes to adopt the list of rules and associated fine levels for minor rule violations set forth in NYSE American Rule 9217, which sets forth NYSE American's MRVP. As noted above, the Exchange does not propose rule text based on the legacy trading rules contained in NYSE American Rule 9217(c), which are unique to NYSE American. The Exchange further would not include rule text based on NYSE American Rule 9217(e), which sets forth NYSE American's legacy MRVP and includes fines for options-related rules, which are not applicable on the Exchange. Finally, the Exchange does not propose rule text based on NYSE American's Rule 9217 “List of Reports Required to be Filed with the Exchange by ATP Holders and Filing Deadlines” as these relate to fines charged for failure to timely file financial reports by ETP Holders designated to the Exchange. Because the Exchange is not currently a designated examining authority (“DEA”) for any ETP Holders, these fines would be inapplicable to the Exchange.
Proposed Rule 10.9217(a) titled “Trading Rule Violations” would set forth the following eligible trading rule violations:
• Short Sale Rules (Rule 7.16).
• Failure to maintain continuous, two-sided Q Orders in those securities in which the Market Maker is registered to trade (Rule 7.23(a)(1)).
• Failure to comply with Authorized Trader requirements (Rule 7.30).
• Acting as a Market Maker in a security without being registered as such as required by Rule 7.20(a).
Proposed Rule 10.9217(b), titled “Record Keeping and Other Minor Rule Violations,” would set forth minor rule violations relating to recordkeeping. The proposed substantive rule violations are based on NYSE American Rule 9217(b) with non-substantive differences to cross-reference the applicable Exchange rule, as follows:
• Failure to comply with the employee registration or other requirements of Rule 2.2.
• Failure to comply with the books and records requirements of Rule 11.4.1.
• Failure to comply with the requirements for preventing the misuse of material nonpublic information as set forth in Rule 11.5.5 and its Commentaries.
Proposed Rule 10.9217(c) is based on NYSE American Rule 9217(d) without any substantive differences and would set forth the fine schedule that would be applicable to the Exchange's MRVP. Proposed Rule 10.9217(c)(1) would set
• Violations of Rule 7.16 would be eligible for a $500 first level fine, a $1,000 second level fine, and a $2,500 third level fine;
• Violations of Rule 7.23(a)(1) would be eligible for a $250 first level fine, a $500 second level fine, and a $1,000 third level fine;
• Violations of Rule 7.30 would be eligible for a $1,000 first level fine, a $2,500 second level fine, and a $3,500 third level fine; and
• Violations of Rule 7.20(a) would be eligible for a $250 first level fine, a $500 second level fine, and a $1,000 third level fine.
Proposed Rule 10.9217(c)(2) would set forth the fine levels for the record keeping and other minor rule violations as follows:
• Violations of Rule 11.5.5 would be eligible for a $2,000 first level fine, a $4,000 second level fine, and a $5,000 third level fine;
• Violations of Rule 11.4.1 would be eligible for a $2,000 first level fine, a $4,000 second level fine, and a $5,000 third level fine; and
• Violations of Rule 2 would be eligible for a $1,000 first level fine, a $2,500 second level fine, and a $3,500 third level fine.
Proposed Rules 10.9221 through 10.9222 would describe how a Respondent can request a hearing, the notice of a hearing, and timing considerations. Proposed Rule 10.9221 provides that a Hearing Officer generally must provide at least 28 days' notice of the hearing.
Proposed Rule 10.9230 would set forth proposed Rules 10.9231 through 10.9235, which would establish how Hearing Panels, Extended Hearing Panels, Replacement Hearing Officers, Panelists, and Replacement Panelists are appointed and their composition and criteria for selection.
• Proposed Rule 10.9231 would set forth the role of the Chief Hearing Officer to appoint a Hearing Panel or an Extended Hearing Panel.
• Proposed Rule 10.9232 would set forth the criteria for the selection of Panelists and Replacement Panelists. Because the Exchange would not have a Floor, the Exchange proposes a difference from NYSE American Rule 9232 by not referring to “Floor-based Panelists.” The proposed rule would also replace the term “hearing board” with the terms “Business Conduct Committee” or “BCC” to reflect the Exchange's terminology as compared to NYSE American regarding who may be a Panelist.
• Proposed Rules 10.9233 and 10.9234 would establish the processes for recusal and disqualification of Hearing Officers, Hearing Panels, or Extended Hearing Panels.
• Proposed Rule 10.9235 would set forth the Hearing Officer's duties and authority in detail.
Proposed Rules 10.9241 through 10.9242 would establish the substantive and procedural requirements for pre-hearing conferences and pre-hearing submissions.
Proposed Rule 10.9250 would set forth proposed Rules 10.9251 through 10.9253, which would address discovery, including the requirements and limitations relating to the inspection and copy of documents in the possession of Interested Staff, requests for information and limitations on such requests, and the production of witness statements and any harmless error relating to the production of such witness statements.
Proposed Rule 10.9251 would set forth requirements relating to inspection and copying of documents prepared or obtained by Interested Staff in connection with an investigation [sic].
Under proposed Rule 10.9252, a Respondent could request that the Exchange invoke proposed Rule 10.8210 to compel the production of Documents or testimony at the hearing if the Respondent can show that certain standards are met,
Under proposed Rule 10.9253, a Respondent could file a motion to obtain certain witness statements.
Proposed Rule 10.9260 would set forth proposed Rules 10.9261 through 10.9269, which would relate to hearings and decisions.
• Proposed Rule 10.9261 would generally require the Parties to submit a list [sic] of documentary evidence and witnesses no later than 10 days before the hearing.
• Proposed Rule 10.9262 would require persons subject to the Exchange's jurisdiction to testify under oath or affirmation at a hearing.
• Proposed Rule 10.9263 would authorize the Hearing Officer to exclude irrelevant, immaterial, or unduly repetitious or prejudicial evidence and permit a Party to object to the admission of evidence; excluded evidence would be part of the record.
• Proposed Rule 10.9264 would allow Parties to file a motion for summary disposition under certain circumstances and would describe the procedures for filing and ruling on such motion.
• Proposed Rule 10.9265 would require that the hearing be recorded by a court reporter, that a transcript be prepared and made available for purchase, and that a Party be permitted to seek a correction of the transcript from the Hearing Officer.
• Proposed Rule 10.9266 would authorize the Hearing Officer to require a post-hearing brief or proposed finding of facts and conclusions of law and would outline the form and timing for such submissions.
• Proposed Rule 10.9267 would detail the required contents of the hearing record and the treatment of any supplemental documents attached to the record.
• Proposed Rule 10.9268 would set forth the timing and the contents of a decision of the Hearing Panel or Extended Hearing Panel and the procedures for a dissenting opinion, service of the decision, and any requests for review.
• Finally, proposed Rule 10.9269 would establish the process for the issuance and review of default decisions by a Hearing Officer when a Respondent fails to timely answer a complaint or fails to appear at a pre-hearing conference or hearing where due notice has been provided. A Party may, for good cause shown, file a motion to set aside a default decision.
Proposed Rule 10.9270 would provide for a settlement procedure for a Respondent who has been notified that
Proposed Rule 10.9280 would set forth sanctions for contemptuous conduct by a Party or attorney or other representative, which may include exclusion from a hearing or conference, and sets forth a process for reviewing such exclusions.
Under proposed Rule 10.9290, for any disciplinary proceeding, the subject matter of which also is subject to a temporary cease and desist proceeding initiated pursuant to proposed Rule 10.9810 or a temporary cease and desist order, hearings would be required to be held and decisions rendered at the earliest possible time.
Proposed Rule 10.9291 would set forth the requirements for issuing a permanent cease and desist order under proposed Rules 10.9268, 10.9269, or 10.9270.
Proposed Rule 10.9300 includes proposed Rule 10.9310, which would set forth the Exchange's Board review process, including the process for a request for review of any determination or penalty and review by the Exchange's Board.
The proposed Rule 10.9500 Series would set forth all other proceedings under the Exchange Rules [sic].
Proposed Rule 10.9520 (Eligibility Proceedings) would set forth proposed Rules 10.9521 through 10.9527, which would govern eligibility proceedings for persons subject to statutory disqualifications that are not FINRA members.
Proposed Rule 10.9521 would add certain definitions relating to eligibility proceedings, including “Application,” “disqualified ETP Holder,” “disqualified person,” and “sponsoring ETP Holder.” Proposed Rule 10.9522 would govern the initiation of an eligibility proceeding by the Exchange and the obligation for an ETP Holder to file an application to initiate an eligibility proceeding if it has been subject to certain disqualifications. Proposed Rule 10.9523 would allow the Department of Member Regulation to recommend a supervisory plan to which the disqualified ETP Holder, sponsoring ETP Holder, and/or disqualified person, as the case may be, may consent and by doing so, waive the right to hearing or appeal if the plan is accepted and the right to claim bias or prejudgment, or prohibited ex parte communications. If such a supervisory plan were rejected, proposed Rule 10.9524 would allow a request for review by the applicant to the Board. Proposed Rule 10.9527 would provide that a filing of an application for review would not stay the effectiveness of final action by the Exchange unless the Commission otherwise ordered. To maintain consistency with NYSE American's rule numbering, proposed Rules 10.9525 and 10.9526 would be designated “Reserved.”
Proposed Rule 10.9550 would set forth proposed Rule 10.9552 through 10.9560 and would govern expedited proceedings.
• Proposed Rule 10.9551 would be marked “Reserved” because the Exchange has not adopted a rule analogous to NYSE American Rules 2210—Equities (Communications with the Public).
• Proposed Rule 10.9552 would establish procedures and consequences in the event that an ETP Holder or Associated Person failed to provide any information, report, material, data, or testimony requested or required to be filed under the Exchange's rules, or failed to keep its membership application or supporting documents current.
• Proposed Rule 10.9554
• Proposed Rule 10.9555 would govern the failure to meet the eligibility or qualification standards or prerequisites for access to services offered by the Exchange.
• Proposed Rule 10.9556 would provide procedures and consequences for a failure to comply with temporary and permanent cease and desist orders issued under proposed Rules 10.9200, 10.9300 or 10.9800 Series.
• Proposed Rule 10.9557 would allow the Exchange to issue a notice directing an ETP Holder to comply with the net capital provisions of Exchange Act Rule 15c3–1.
• Proposed Rule 10.9558 would allow the Exchange's CRO or such other senior officer as the CRO may designate to provide written authorization to the Exchange staff to issue a written notice for a summary proceeding for an action authorized by Section 6(d)(3) of the Exchange Act.
• Proposed Rule 10.9559 would set forth uniform hearing procedures for all expedited proceedings under the proposed Rule 10.9550 Series.
• Proposed Rule 10.9560 would set forth procedures for issuing suspension orders, immediately prohibiting a member organization or Associated Person from conducting continued disruptive quoting and trading activity on the Exchange in violation of proposed Rule 11.12.11 (discussed below).
Proposed Rule 10.9600, setting forth proposed Rules 10.9610 through 10.9630, would describe procedures by which an ETP Holder could seek exemptive relief from proposed Rule 10.8211 (Automated Submission of Trading Data [sic]).
Under proposed Rule 10.9610, an ETP Holder seeking exemptive relief would be required to file a written application with the appropriate department or staff of the Exchange and provide a copy of the application to the CRO. Under proposed Rule 10.9620, after considering the application, the Exchange staff would be required to issue a written decision setting forth its findings and conclusions. The decision would be served on the Applicant pursuant to proposed Rules 10.9132 and 10.9134. Proposed Rule 10.9630 would set forth the appeal process for a
Rule 10.9700 would be marked “Reserved” to maintain consistency with NYSE American's rule numbering conventions.
Proposed Rule 10.9800, setting forth proposed Rule 10.9810 through 10.9870, would describe procedures for issuing temporary cease and desist orders.
• Proposed Rule 10.9810 would set forth the process for initiating a temporary cease and desist proceeding with respect to alleged violations of Section 10(b) of the Act, SEC Rules 10b–5 and 15g–1 through 15g–9, Rule 11.5 (if the alleged violation is unauthorized trading, or misuse or conversion of customer assets, or is based on violations of Section 17(a) of the Securities Act of 1933) or Rule 11.3.1 (
• Proposed Rule 10.9820 would govern the appointment of a Hearing Officer and Panelists for a temporary cease and desist proceeding.
• Proposed Rule 10.9830 would set forth the procedures for a hearing relating to a temporary cease and desist proceeding.
• Proposed Rule 10.9840 would set forth the process for the Hearing Panel to issue a written decision stating whether a temporary cease and desist order would be imposed.
• Proposed Rule 10.9850 would set forth the process for a Respondent to apply to the Hearing Panel to have a temporary cease and desist order modified, set aside, limited, or suspended.
• Proposed Rule 10.9860 would authorize the initiation of a suspension or cancellation of a Respondent's association or membership under proposed Rule 10.9556 if the Respondent violated a temporary cease and desist order.
• Finally, proposed Rule 10.9870 would provide that temporary cease and desist orders issued under the proposed Rule 9800 [sic] Series would constitute final and immediately effective disciplinary sanctions imposed by the Exchange, and that the right to have any action under this rule series reviewed by the Commission would be governed by Section 19 of the Exchange Act.
Because Rule 10 would set forth all rules relating to discipline, suspension of an ETP Holder, and adverse actions, the Exchange proposes to delete the rules in Chapters VII, VIII and X in their entirety.
The Exchange proposes to maintain current NYSE National rules regarding rules of fair practice, books and records, supervision, extensions of credit, and trading practices. These rules are currently found in Chapters III, IV, V, VI, and XII, respectively, of the Exchange's rulebook. The Exchange proposes to relocate these rules to Rule 11 which under the Framework Filing is titled Business Conduct. To reflect the content of Rule 11, the Exchange proposes to rename Rule 11 as “Rules of Fair Practice; Books and Records; Supervision; Extensions of Credit; Trading Practices.” In moving the rules, the Exchange proposes non-substantive differences to change references from “Interpretations and Policies” to “Commentary,” to use a different sub-paragraph numbering format, and to capitalize the term “Associated Person.”
Because all such rules would be relocated to Rule 11 and to maintain consistency with the current rulebook, the Exchange proposes that the sub-numbering of each such rule would be the same as the existing rule number. For example, current Rule 3.1 would be renumbered as Rule 11.3.1. By maintaining sub-numbering that aligns with existing rule numbers, ETP Holders that reference such rules in policies and procedures would not need to revise such policies and procedures because the rule requirements would map to the same number. Because the purpose of such sub-numbering is to align with existing rule numbers, the Exchange does not propose to designate any rules as “Reserved.” Rather, the Exchange proposes to add sub-headings before each section of Rule 11 to describe which rules would be set forth in each set of sub-numbered rules.
The Exchange proposes to renumber the rules in Chapter III as follows and add a subheading before such rules that provides “Rules of Fair Practice”:
• Rule 3.1 (Business Conduct of ETP Holders) would be renumbered as Rule 11.3.1 without any changes.
• Rule 3.2 (Violations Prohibited) would be renumbered as Rule 11.3.2 without any substantive changes.
• Rule 3.3 (Use of Fraudulent Devices) would be renumbered as Rule 11.3.3 without any changes.
• Rule 3.4 (False Statements) would be renumbered as Rule 11.3.4 without any changes.
• Rule 3.5 (Advertising Practices) would be renumbered as Rule 11.3.5 without any substantive changes.
• Rule 3.6 (Fair Dealing with Customers) would be renumbered as Rule 11.3.6 without any substantive changes.
• Rule 3.7 (Recommendations to Customers) would be renumbered as Rule 11.3.7. The Exchange proposes one substantive amendment to delete the Interpretation and Policy .01 because it references a rule that would not be included in the Exchange's proposed rulebook.
• Rule 3.8 (The Prompt Receipt and Delivery of Securities) would be renumbered as Rule 11.3.8 without any substantive changes.
• Rule 3.9 (Charges for Services Performed) would be renumbered as Rule 11.3.9 without any changes.
• Rule 3.10 (Use of Information) would be renumbered as Rule 11.3.10 without any changes.
• Rule 3.11 (Publication of Transactions and Quotations) would be renumbered as Rule 11.3.11 without any changes.
• Rule 3.12 (Offers at Stated Prices) would be renumbered as Rule 11.3.12 without any changes.
• Rule 3.13 (Payment Designed to Influence Market Prices, Other than Paid Advertising) would be renumbered as Rule 11.3.13 without any changes.
• Rule 3.14 (Disclosure on Confirmations) would be renumbered as Rule 11.3.14 without any changes.
• Rule 3.15 (Disclosure of Control)—would be renumbered as Rule 11.3.15 without any changes.
• Rule 3.16 (Discretionary Accounts) would be renumbered as Rule 11.3.16 without any substantive changes.
• Rule 3.17 (Customer's Securities or Funds) would be renumbered as Rule 11.3.17 without any changes.
• Rule 3.18 (Prohibition Against Guarantees) would be renumbered as Rule 11.3.18 without any changes.
• Rule 3.19 (Sharing in Accounts; Extent Permissible) would be renumbered as Rule 11.3.19 without any changes.
• Rule 3.20 (Installment or Partial Payment Sales) would be renumbered as Rule 11.3.20 without any substantive changes.
• Rule 3.21 (Telephone Solicitation) would be renumbered as Rule 11.3.21 without any substantive changes.
The Exchange proposes to renumber the rules in Chapter IV as follows and
• Rule 4.1 (Requirements) would be renumbered as Rule 11.4.1 without any changes.
• Rule 4.2 (Furnishing of Records) would be renumbered as Rule 11.4.2 without any substantive changes.
• Rule 4.3 (Record of Written Complaints) would be renumbered as Rule 11.4.3 without any changes.
• Rule 4.4 (Disclosure of Financial Condition) would be renumbered as Rule 11.4.4 without any changes.
The Exchange proposes to replace current Rule 5.5, as described below, and renumber the rules in Chapter V as follows and add a subheading before such rules that provides “Supervision”:
• Rule 5.1 (Written Procedures) would be renumbered as Rule 11.5.1 without any changes.
• Rule 5.2 (Responsibility of ETP Holders) would be renumbered as Rule 11.5.2 without any changes.
• Rule 5.3 (Records) would be renumbered as Rule 11.5.3 without any changes.
• Rule 5.4 (Review of Activities and Annual Inspection) would be renumbered as Rule 11.5.4 without any changes.
• Rule 5.5 (Chinese Wall Procedures) would be replaced with proposed Rule 11.5.5 (Prevention of the Misuse of Material, Nonpublic Information), which is based on NYSE Arca Rule 11.3 and NYSE American Rule 6.3E. The proposed rule would provide for a principles-based approach to prevent the misuse of material non-public information. Because the Exchange would not trade options, the Exchange proposes that Commentary .01 to proposed Rule 11.5.5 would be based on Commentary .01 to NYSE American Rule 6.3E only. The Exchange's proposed Rule 5.5 would also include a non-substantive difference from the NYSE Arca and NYSE American rules on which it is based by not including rule text based on Commentary .02 to NYSE Arca Rule 11.3 or Commentary .02 to NYSE American Rule 6.3 because the Exchange already has a rule defining the term “associated person.” Finally, Commentary .04 to proposed Rule 11.5.5 would have a non-substantive differences compared to NYSE Arca Rule 11.3 and NYSE American Rule 6.3E because it would refer to ETP Holders acting as a registered market maker in UTP Exchange Traded Products, rather than refer to securities listed on the Exchange under Rules 5 and 8. Proposed Rule 11.5.5 would require every ETP Holder to establish, maintain, and enforce written policies and procedures reasonably designed to prevent the misuse of material, non-public information by such ETP Holders. For purposes of this requirement, the misuse of material, non-public information would include, without limitation, to [sic] the following:
(a) Trading in any securities issued by a corporation, or in any related securities or related options or other derivatives securities while in possession of material, non-public information concerning that issuer; or
(b) trading in a security or related options or other derivatives securities, while in possession of material, non-public information concerning imminent transactions in the security or related securities; or
(c) disclosing to another person or entity any material, non-public information involving a corporation whose shares are publicly traded or an imminent transaction in an underlying security or related securities for the purpose of facilitating the possible misuse of such material, non-public information.
• Rule 5.6 (Anti-Money Laundering Compliance Program) would be renumbered as Rule 11.5.6 without any substantive changes.
• Rule 5.7 (Annual Certification of Compliance and Supervisory Processes) would be renumbered as Rule 11.5.7 without any substantive changes.
The Exchange proposes renumber the rules in Chapter VI as follows and add a subheading before such rules that provides “Extensions of Credit”:
• Rule 6.1 (Extensions of Credit—Prohibitions and Exemptions) would be renumbered as Rule 11.6.1 without any substantive changes.
• Rule 6.2 (Day Trading Margin) would be renumbered as Rule 11.6.2 without any substantive changes. The Exchange proposes to update internal cross references in the rule to Rule 11.6.1(c) instead of Rule 4.2(c), which rule no longer exists.
The Exchange proposes to replace current Rule 12.6, as described below, and proposes to renumber the rules in Chapter XII as follows and add a subheading before such rules that provides “Trading Practices”:
• Rule 12.1 (Market Manipulation) would be renumbered as Rule 11.12.1 without any changes.
• Rule 12.2 (Fictitious Transactions) would be renumbered as Rule 11.12.2 without any substantive changes.
• Rule 12.3 (Excessive Sales by an ETP Holder) would be renumbered as Rule 11.12.3 without any changes.
• Rule 12.4 (Manipulative Transactions) would be renumbered as Rule 11.12.4 without any changes.
• Rule 12.5 (Dissemination of False Information) would be renumbered as Rule 11.12.5 without any changes.
• Current Rule 12.6 (Customer Priority) would be replaced with proposed Rule 11.12.6 (Prohibition of Trading Ahead of Customer Orders), which is based on NYSE Arca Rule 9.5320, NYSE American 5320- Equities, and NYSE Rule 5320. These rules are based on FINRA Rule 5320. The Exchange believes that replacing current Rule 12.6 with a rule based on the rules of FINRA, NYSE Arca, NYSE American, and NYSE would promote cross-market surveillance and enhance FINRA's ability to conduct surveillance and investigations on behalf of the Exchange under a regulatory services agreement.
• Rule 12.7 (Joint Activity) would be renumbered as Rule 11.12.7 without any changes.
• Rule 12.8 (Influencing the Consolidated Tape) would be renumbered as Rule 11.12.8 without any changes.
• Rule 12.9 (Options) would be renumbered as Rule 11.12.9 without any changes.
• Rule 12.10 (Best Execution) would be renumbered as Rule 11.12.10 without any substantive changes. The Exchange proposes to update the internal reference in the rule from Exchange Act Rule 11Ac1–4, which was the Order Display Rule, to Rule 604 of Regulation NMS, which is the current Order Display Rule.
• The Exchange does not propose to retain current Rules 12.11 or Rule 12.12. Rule 12.11, relating to trading suspensions, would be superseded by proposed Rule 7.13, which would provide authority for the Board or Exchange President to suspend trading in securities traded on the Exchange. Rule 12.12 relating to publication of transactions and changes, would be superseded by proposed Rule 7.40, as described above.
Because the current rules would be renumbered, the Exchange proposes to delete Chapters III, IV, V, VI, and XII of the current rulebook.
Finally, the Exchange proposes new Rule 11.12.11 based on NYSE American Rule 5220—Equities, NYSE Rule 5220, and NYSE Arca Rule 11.21, which in turn are modeled on Commentary .03 to FINRA Rule 5210, that defines and prohibits two types of disruptive quoting and trading activity on the Exchange. The Exchange proposes to include this rule under Rule 11.12 sub-numbering because it is a trading practices rule.
Proposed Rule 11.12.11(a) would prohibit ETP Holders and Persons Associated with an ETP Holder from
Proposed Rule 11.12.11(c) would provide that, unless otherwise indicated, the descriptions of disruptive quoting and trading activity do not require the facts to occur in a specific order in order for the Rule to apply. For instance, with respect to the pattern defined in proposed Rule 11.12.11(b)(1)(A)-(D), it is of no consequence whether a party first enters Displayed Orders and then Contra-side Orders or vice-versa. However, as proposed, it is required for supply and demand to change following the entry of the Displayed Orders.
The Exchange believes that the proposed descriptions of disruptive quoting and trading activity articulated in the rule are consistent with the activities that have been identified and described in the client access cases described in the NYSE American notice and with the rules of other SROs.
The Exchange proposes new Rule 12 (Arbitration) to replace rules set forth in Chapter IX relating to arbitration. Proposed Rule 12 is based on NYSE Rule 600A and those portions of NYSE Arca Rule 12 that are based on NYSE Rule 600A. Because any arbitrations involving ETP Holders and/or Associated Persons would be arbitrated pursuant to the FINRA Code of Arbitration Procedures and the Exchange would not separately run an arbitration program, the Exchange proposes to simplify its rules on arbitration and eliminate legacy, non-operative rules.
Proposed Rule 12(a) would set forth an ETP Holder's duty to arbitrate under the FINRA Code of Arbitration Procedure (i) any dispute, claim or controversy by or among ETP Holders and/or Associated Persons; and (ii) any dispute, claim or controversy between a customer or non-member and an ETP Holder and/or Associated Person arising in connection with the business of such ETP Holder and/or in connection with the activities of an Associated Person. Proposed Rule 12(b) would also provide that if any matter comes to the attention of an arbitrator during and in connection with the arbitrator's participation in a proceeding, either from the record of the proceeding or from material or communications related to the proceeding, that the arbitrator has reason to believe may constitute a violation of the Exchange's rules or the federal securities laws, the arbitrator may refer the matter to the Exchange for disciplinary investigation. Proposed Rule 12(c) would also provide that any ETP Holder or Associated Person who fails to honor an award of arbitrators appointed in accordance with proposed Rule 12 would be subject to disciplinary proceedings under the Rule 10.8000 or 10.9000 Series, as applicable. Proposed Rule 12(d) would provide that the submission of any matter to arbitration would in no way limit or preclude any right, action or determination by the Exchange that it would otherwise be authorized to adopt, administer or enforce.
Because Rule 12 would set forth the Exchange's rules relating to arbitration, the Exchange proposes to delete the rules in Chapter IX in their entirety.
Proposed Rule 13 titled “Liability of Directors and Exchange” would establish requirements governing liability of directors and of the Exchange, including the limits on liability for specified circumstances.
Proposed Rule 13.1 (Liability of Directors) is based on NYSE Arca Rule 14.1 without any substantive differences. Proposed Rule 13.2 (Liability of the Exchange) is based on NYSE Arca Rule 14.2 without any substantive differences.
Proposed Rule 13.3 (Legal Proceedings Against Directors, Officers, Employees, or Agents) would establish requirements relating to legal proceedings against directors, officers, employees, agents, or other officials of the Exchange. The proposed rule is based on NYSE Arca Rule 14.3 and NYSE American Rule 13.3E without any substantive differences.
Proposed Rule 13.4 (Exchange's Costs of Defending Legal Proceedings) would establish the circumstances regarding who is responsible for the Exchange's costs in defending a legal proceeding brought against the Exchange. The proposed rule is based on NYSE Arca Rule 14.4 and NYSE American Rule 13.4E without any substantive differences.
Section 11(a)(l) of the Act
With the proposed re-launch of the Exchange as a fully automated
The four conditions imposed by the “effect versus execute” rule are designed to put members and non-members of an exchange on the same footing, to the extent practicable, in light of the purpose of Section 11(a). For the reasons set forth below, the Exchange believes the structure and characteristics of its proposed Pillar trading system do not result in disparate treatment of members and non-members and places them on the “same footing” as intended by Rule 11a2–2(T).
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In conclusion, the Exchange believes that its Pillar trading system would
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
Generally, the Exchange believes that the proposed rules would support the re-launch of the Exchange as a fully automated cash equities trading market with a price-time priority model that is based on the rules of its affiliated exchanges, NYSE Arca and NYSE American. The Exchange is not proposing any new or novel rules. The proposed rule changes relating to trading would therefore remove impediments to and perfect the mechanism of a free and open market and a national market system because they are based on the approved rules of other exchanges.
In addition, the Exchange proposes to renumber its current rules relating to its ETP Holders, including the membership process described in Chapter II of the current rulebook, rules set forth in Chapters III, IV, V, VI, and XII of the current rulebook, and the CAT NMS Plan Compliance Rules, currently set forth in Chapter XIV of the rulebook. The Exchange believes that retaining such rules would remove impediments to and perfect the mechanism of a free and open market and a national market system because ETP Holders would not be required to change their internal procedures to be reinstated as ETP Holders of the Exchange, thus supporting the efficient re-launch of the Exchange. The Exchange further believes that renumbering such rules would remove impediments to and perfect the mechanism of a national market system because using the rule numbering framework that is based on the rules of NYSE Arca and NYSE American would promote transparency in Exchange rules by using consistent rule numbers with the rules of its affiliated exchanges that are also operating on the Pillar trading platform. The Exchange further believes that for proposed Rule 11, retaining sub-numbering for rules that are in the current rulebook would remove impediments to and perfect the mechanism of a free and open market for ETP Holders that have internal procedures that reference current Exchange rules; the proposed rule numbering would minimize the changes required by an ETP Holder to such policies and procedures.
The Exchange believes that amending the Bylaws to change the name of the Appeals Committee to the Committee for Review would remove impediments to and perfect the mechanism of a free and open market by aligning the name used for the Exchange's committee that presides over appeals with the name used by the Exchange's national securities exchanges for their committees that play a similar role, ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Bylaws and, specifically, the role of the Committee for Review.
In addition, the Exchange believes that the proposed changes to the Bylaws to change the name of the Appeals Committee to the Committee for Review would contribute to the orderly operation of the Exchange by aligning the name used for the Exchange's committee that presides over appeals with the name used by the Exchange's national securities exchanges for their committees that play a similar role, and therefore would be consistent with Section 6(b)(1) of the Act.
The Exchange believes that proposed Rule 0 would remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general, to protect investors and the public interest because it would specify the role of FINRA, pursuant to a Regulatory Services Agreement, to perform certain regulatory functions of the Exchange on behalf of the Exchange.
The Exchange further believes that proposed Rule 1 would remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general, to protect investors and the public interest because the proposed definitions are terms that would be used in the additional rules proposed by the Exchange. Proposed Rule 1 would therefore promote transparency in Exchange rules by providing for definitional terms that would be used throughout the rulebook.
The Exchange believes that proposed Rule 3 would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would establish rules relating to the organization and administration of the Exchange that are based on the approved rules of NYSE Arca, including rules relating to liability for non-payment of assessments, dues, or other charges (proposed Rule 3.8), Exchange relationships with ETP Holders (proposed Rule 3.9), requirements to notify the Exchange of expulsion or suspension (proposed Rule 3.10), and requirements for fingerprint-based background checks of Exchange employees (proposed Rule 3.11).
The Exchange believes that proposed Rules 5 and 8 would remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest by providing for the trading of securities, including UTP Exchange Traded Products, on the Exchange pursuant to UTP, subject to consistent and reasonable standards. Accordingly, the proposed rule change would contribute to the protection of investors and the public interest because it may provide a better trading environment for investors and, generally, encourage greater competition between markets.
The proposal is designed to remove impediments to and perfect the mechanism of a free and open market and a national market system by adopting rules that will lead ultimately to the trading pursuant to UTP of the proposed products on the Exchange, just
The proposed change is not designed to address any competitive issue, but rather to adopt new rules that are word-for-word identical to the rules of NYSE American, NYSE, and NYSE Arca (other than with respect to certain non-substantive and technical amendments described above), to support the Exchange's new Pillar trading platform. The Exchange believes that the proposed rule change would promote consistent use of terminology to support the Pillar trading platform on both the Exchange and its affiliates, NYSE American, NYSE, and NYSE Arca, thus making the Exchange's rules easier to navigate.
The Exchange believes the proposed rule change also supports the principals of Section 11A(a)(1)
The Exchange believes that the proposed rule change is consistent with these principles. By providing for the trading of securities on the Exchange on a UTP basis, the Exchange believes its proposal will lead to the addition of liquidity to the broader market for these securities and to increased competition among the existing group of liquidity providers. The Exchange also believes that, by so doing, the proposed rule change would encourage the additional utilization of, and interaction with, the exchange market, and provide market participants with improved price discovery, increased liquidity, more competitive quotes and greater price improvement for securities traded pursuant to UTP.
The Exchange further believes that enhancing liquidity by trading securities on a UTP basis would help raise investors' confidence in the fairness of the market, generally, and their transactions in particular. As such, the general UTP trading rule would foster cooperation and coordination with persons engaged in facilitating securities transactions, enhance the mechanism of a free and open market, and promote fair and orderly markets in securities on the Exchange.
The Exchange believes that moving the CAT NMS Plan Compliance Rules, currently set forth in Chapter XIV, to proposed Rule 6.6800 would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would consolidate all of the Exchange's order audit trail requirements in a single Rule, without any substantive differences to the Compliance Rules, and because it would follow the same rule-numbering convention as its affiliated exchanges and FINRA.
The Exchange believes that proposed Rule 6.6900 relating to Consolidated Audit Trail—Fee Dispute Resolution would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would harmonize the Exchange's rules with the approved rules of other exchanges relating to fee dispute resolution under the CAT NMS Plan.
Finally, the Exchange believes that the proposed Rule 6.7400 Series, relating to Order Audit Trail System, would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed rule series is based on the approved rules of NYSE Arca, which are based on FINRA's OATS rules. The Exchange further believes that the proposed OATS rules would promote just and equitable principles of trade as such rules would further promote cross-market surveillance and enhance FINRA's ability to conduct surveillance and investigations for the Exchange under a Regulatory Services Agreement. The Exchange does not believe that adding the OATS rules to the Exchange would impose a burden on Exchange ETP Holders because with the exception of one Exchange ETP Holder, all former Exchange ETP Holders were members of either FINRA, NYSE Arca, or Nasdaq, and thus are already subject to OATS requirements under the rules of those SROs. The one ETP Holder that is not currently a member of FINRA, one of the Exchange's affiliates, or Nasdaq would not be subject to ongoing reporting requirements under the proposed OATS rules, and therefore it would not be onerous for such ETP Holder to comply if OATS information were requested in the course of a regulatory inquiry.
The Exchange believes that proposed Rule 7 would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would establish rules relating to trading on the Exchange, including post-trade requirements, that would support the re-launch of Exchange trading as a fully automated trading market with a price-time priority trading model. The proposed rules are based on the rules of NYSE Arca and NYSE American, as applicable, and include rules governing orders and modifiers, ranking and display, execution and routing, trading sessions, and market makers. The Exchange believes that because it would not be a listing venue, it would be consistent with the protection of investors and the public interest not to include rules relating to auctions or lead or designated market makers. Other than substantive differences to the proposed rules relating to the difference that the Exchange would not operate auctions, the Exchange is not proposing any novel rules in proposed Rule 7.
The Exchange believes that the proposed Rule 10 Series would provide greater harmonization among SROs resulting in less burdensome and more efficient regulatory compliance for common members of the Exchange, the
The Exchange further believes that the proposed processes for settling disciplinary matters both before and after the issuance of a complaint are fair and reasonable and provides adequate procedural protections to all parties in addition to promoting efficiency.
The Exchange believes that adopting its affiliates' appellate procedures, which provide for one level of review rather than two levels of review, would be fair and efficient and create consistency with its affiliates' practices. The proposed rule change would offer the members of Board, other than the CEO, the opportunity to call a case for review. This will provide the Board with authority to exercise appropriate oversight over disciplinary action taken by the Exchange and FINRA on the Exchange's behalf.
The Exchange notes that adopting the list of minor rule violations and associated fine levels based on the rules of its affiliate would promote fairness and consistency in the marketplace by harmonizing minor rule plan fines across affiliated exchanges for the same conduct. The Exchange further believes that adoption of its affiliates' minor rule violations is consistent with Section 6(b)(6) of the Act,
The Exchange believes that proposed Rule 12 relating to arbitration would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would update the Exchange's rules governing arbitration to reflect that any such arbitrations would be processed by FINRA pursuant to the FINRA Code of Arbitration Procedures. The proposed rule is not novel as it is based on NYSE Rule 600A and NYSE Arca Rule 12. In addition, the proposed rule change would delete obsolete arbitration procedures that are not supported by the Exchange. The Exchange believes the proposed rule change fosters uniformity and consistency in arbitration proceedings and, as a result, would enhance the administration and operation of the arbitration process, thereby protecting investors and the public interest. The proposed rule change would therefore promote consistency among the Exchange and its affiliates and make its rules easier to navigate for the public, the Commission, and members.
The Exchange believes that proposed Rule 13 would remove impediments to and perfect the mechanism of a free and open market and a national market system by harmonizing the Exchange's rules governing liability of directors, liability of exchange, legal proceedings against Exchange directors, officers, employees, or agents, and Exchange's costs of defending legal proceedings with the approved rules of its affiliated exchanges NYSE Arca and NYSE American. The Exchange believes that the proposed rules would further promote just and equitable principles of trade by providing for consistent methodology relating to liability for trading on affiliated exchanges that would be using the same trading platform. The proposed rule change would therefore promote consistency among the Exchange and its affiliates and make its rules easier to navigate for the public, the Commission, and ETP Holders.
The Exchange believes that renumbering rules currently set forth in Chapters II to Rule 2 and rules currently set forth in Chapters III, IV, V, VI, and XII to Rule 11 would remove impediments to and perfect the mechanism of a free and open market because the proposed rule set would maintain existing rules relating to ETP Holders. The Exchange believes that relocating existing rules set forth in Chapters II, III, IV, V, VI, and XII to proposed Rules 2 and 11 would remove impediments to and perfect the mechanism of a free and open market and a national market system because using the rule numbering framework that is based on the rules of NYSE Arca would promote transparency in Exchange rules by using consistent rule numbers with the equities market of NYSE Arca, which is the first market that migrated to the Pillar trading platform. In addition, the Exchange believes that the proposed sub-numbers for rules set forth in Rule 11, which are identical to the current rule numbers for such rules, would remove impediments to and perfect the mechanism of a free and open market and a national market system by providing current ETP Holders, who are familiar with the current rulebook, with rule numbers that are consistent with the current rulebook for rules that are not changing.
The Exchange further believes that updating Exchange rules as follows would remove impediments to and perfect the mechanism of a free and open market and a national market system by harmonizing the Exchange's rules with those of other SROs:
• The Exchange believes that the proposed amendment to Rule 2.5 to update proposed Commentary .01 to add the date February 1, 2017 would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would facilitate the efficient reinstatement of Exchange ETP Holders that are in good standing pursuant to the Exchange's existing rules, which would support the re-launch of trading on the Exchange.
• The Exchange believes that proposed Rule 2.13 (Exchange Backup Systems and Mandatory Testing) would remove impediments to and perfect the mechanism of a free and open market because it would maintain consistency across all exchanges operated by NYSE Group regarding mandatory participation in the testing of backup systems. The proposed rule is based on NYSE Arca Rule 2.27 and is not novel.
• The Exchange believes that proposed Rule 2.18 (Activity Assessment Fee) furthers the objectives of Section 6(b)(4) of the Act,
• The Exchange believes that proposed Rule 11.5.5 (Prevention of the Misuse of Material, Nonpublic Information), which is based on NYSE Arca Rule 11.3 and NYSE American Rule 6.3E and would replace current Rule 5.5, would remove impediments to and perfect the mechanism of a free and open market and a national market system by providing for a principles-based approach to prevent the misuse of material non-public information. The proposed rule change would therefore harmonize the Exchange's rules with those of its affiliated exchanges.
• The Exchange believes that proposed Rule 11.12.6 (Prohibition of Trading Ahead of Customer Orders), which is based on NYSE Arca Rule 9.5320, NYSE American 5320—Equities, and NYSE Rule 5320, and would replace current Rule 12.6 would remove impediments to and perfect the mechanism of a free and open market and a national market system and is designed to prevent fraudulent and manipulative acts and practices because it would promote cross-market surveillance and enhance FINRA's ability to conduct surveillance and investigations on behalf of the Exchange under a regulatory services agreement.
• The Exchange believes that proposed Rule 11.12.11 (Disruptive Quoting and Trading Activity Prohibited), which is modeled on NYSE American Rule 5220—Equities, NYSE Rule 5220, and NYSE Arca Rule 11.21, which in turn are modeled on Commentary .03 to FINRA Rule 5210, would remove impediments to and perfect the mechanism of a free and open market and a national market system by harmonizing the Exchange's rules with those of other SROs, including its affiliated exchanges. In addition, the Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors and the public interest by providing the Exchange with authority to prohibit specified disruptive quoting and trading activity on the Exchange. More specifically, the Exchange believes that the proposed rule is consistent with the public interest and the protection of investors and otherwise furthers the purposes of the Act because the proposal strengthens the Exchange's ability to carry out its oversight and enforcement responsibilities as an SRO in cases where awaiting the conclusion of a full disciplinary proceeding is unsuitable in view of the potential harm to other member organization and their customers. The Exchange notes that if this type of conduct is allowed to continue on the Exchange, the Exchange's reputation could be harmed because it may appear to the public that the Exchange is not acting to address the behavior. The proposed expedited process would enable the Exchange to address the behavior with greater speed. For the same reasons, the Exchange believes that the proposal is consistent with Sections 6(b)(1) and 6(b)(6) of the Act,
For reasons described above, the Exchange believes that the proposal for the Exchange to operate on a fully automated trading market without a Floor is consistent with Section 11(a) of the Act and Rule 11a2–2(T) thereunder.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather to provide for rules to support the re-launch of trading on the Exchange on the Pillar trading platform and to renumber current rules relating to ETP Holders consistent with the Framework Filing, but also maintaining current rule numbers as part of a sub-numbering scheme for rules that are not changing. The Exchange operates in a highly competitive environment in which its unaffiliated exchanges competitors operate multiple affiliated exchanges that operate under common rules. By proposing rules based on the rules of its affiliated exchanges, the Exchange believes that it will be able to compete on a more level playing field with its exchange competitors that similarly trade NMS Stocks on fully automated trading models. In addition, by basing its rules on those of its affiliated exchanges, the Exchange will provide its ETP Holders with consistency across affiliated exchanges, thereby enabling the Exchange to compete with unaffiliated exchange competitors that similarly operate multiple exchanges on the same trading platforms.
In addition, the Exchange does not believe that the proposed rule change will impose any burden on competition on its ETP Holders that is not necessary or appropriate in furtherance of the purposes of the Act because the Exchange proposes to retain rules governing ETP Holder conduct and therefore such ETP Holders would not need to update internal procedures in connection with the re-launch of the Exchange. To the extent the Exchange has proposed non-trading rules based on those of its affiliates,
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and
• 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.