| Page Range | 52375-52603 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 52522 - Sunshine Act Meeting Notice | |
| 80 FR 52523 - Notice of Submission for Approval: Information Collection 3206-0182; Declaration for Federal Employment, Optional Form (OF) 306. | |
| 80 FR 52497 - Agency Information Collection Activities: Accounts Receivable Confirmations-OMB Control Number 1012-0001; Comment Request | |
| 80 FR 52534 - Culturally Significant Objects Imported for Exhibition Determinations: “Alberto Burri: The Trauma of Painting” Exhibition | |
| 80 FR 52534 - Culturally Significant Objects Imported for Exhibition Determinations: “The Power of Pictures: Early Soviet Photography, Early Soviet Film” Exhibition | |
| 80 FR 52535 - Additional Culturally Significant Objects Imported for Exhibition Determinations: “Joaquín Torres-García: The Arcadian Modern” Exhibition | |
| 80 FR 52525 - Notice of Submission for Approval: Information Collection 3206-0106; Interview Survey Form, INV 10 | |
| 80 FR 52523 - Sunshine Act Meeting Notice | |
| 80 FR 52537 - Sunshine Act Meetings; Unified Carrier Registration Plan Board of Directors | |
| 80 FR 52510 - Importer of Controlled Substances Application: Cambrex Charles City | |
| 80 FR 52510 - Importer of Controlled Substances Application: Noramco, Inc. | |
| 80 FR 52471 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Fuel Use Requirements for Great Lake Steamships (Renewal) | |
| 80 FR 52500 - United States v. Third Point Offshore Fund, Ltd., et al.; Proposed Final Judgment and Competitive Impact Statement | |
| 80 FR 52459 - Applications for New Awards; Juvenile Justice Reentry Education Program: Opening Doors to College and Careers Through Career and Technical Education | |
| 80 FR 52484 - National Maritime Security Advisory Committee; Vacancies | |
| 80 FR 52423 - Drawbridge Operation Regulation; Norwalk River, Norwalk CT | |
| 80 FR 52398 - Safety Zone; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Sister Bay Marinafest Fireworks | |
| 80 FR 52398 - Safety Zone; Annual Events Requiring Safety Zones in the Captain of the Port Lake Michigan Zone-Sister Bay Marinafest Ski Show | |
| 80 FR 52396 - Safety Zone; Incredoubleman Triathlon; Henderson Bay, Lake Ontario, Sackets Harbor, NY | |
| 80 FR 52511 - Manufacturer of Controlled Substances Registration: Johnson Matthey Pharmaceutical Materials, Inc. | |
| 80 FR 52510 - Importer of Controlled Substances Application: Catalent Pharma Solutions, LLC | |
| 80 FR 52513 - Membership of the Senior Executive Service Standing Performance Review Boards | |
| 80 FR 52475 - Pfizer Inc. and Hospira, Inc.; Analysis of Proposed Consent Orders To Aid Public Comment | |
| 80 FR 52455 - Madrid Protocol | |
| 80 FR 52375 - Eligibility of Lithuania To Export Meat and Meat Products to the United States | |
| 80 FR 52486 - Proposed Flood Hazard Determinations for Montgomery County, Kansas, and Incorporated Areas | |
| 80 FR 52436 - Proposed Flood Elevation Determinations for Jackson County, Arkansas, and Incorporated Areas | |
| 80 FR 52447 - Purified Carboxymethylcellulose From the Netherlands: Initiation and Preliminary Results of Changed Circumstances Review and Intent to Revoke the Antidumping Duty Order | |
| 80 FR 52446 - Solid Urea From the Russian Federation: Initiation of Antidumping Duty New Shipper Review | |
| 80 FR 52538 - Request for Comments of a Previously Approved Information Collection | |
| 80 FR 52494 - Notice of Intent To Repatriate Cultural Items: U.S. Department of Agriculture, Forest Service, Stanislaus National Forest, Sonora, CA | |
| 80 FR 52454 - Multistakeholder Process To Promote Collaboration on Vulnerability Research Disclosure | |
| 80 FR 52493 - Notice of Intent To Repatriate Cultural Items: New York State Museum, Albany, NY | |
| 80 FR 52490 - Notice of Inventory Completion: U.S. Department of the Interior, Fish and Wildlife Service, Alaska Region, Anchorage, AK, and the University of Alaska Museum of the North, Fairbanks, AK | |
| 80 FR 52440 - Recognizing European Union (EU) and EU Member State Regionalization Decisions for African Swine Fever (ASF) by Updating the APHIS List of Regions Affected with ASF | |
| 80 FR 52494 - Notice of Inventory Completion: Department of Anthropology at Indiana University, Bloomington, IN | |
| 80 FR 52491 - Notice of Inventory Completion for Native American Human Remains and Associated Funerary Objects in the Possession of the U.S. Department of Defense, Department of the Army, Fort Benning, GA; Correction | |
| 80 FR 52535 - Request for Comments and Notice of Public Hearing Concerning Russia's Implementation of Its WTO Obligations | |
| 80 FR 52488 - Notice of Inventory Completion: History Colorado, Formerly Colorado Historical Society, Denver, CO | |
| 80 FR 52492 - Notice of Inventory Completion: Anthropology Research Collections at Texas A&M University, College Station, TX | |
| 80 FR 52535 - Determination Under Section 610 of the Foreign Assistance Act of 1961, as Amended | |
| 80 FR 52496 - Notice of Inventory Completion: Dallas Water Utilities, Dallas, Texas | |
| 80 FR 52534 - Determination by the Secretary of State Relating to Iran Sanctions | |
| 80 FR 52495 - Notice of Inventory Completion: Center for Archaeological Studies, Texas State University, San Marcos, TX | |
| 80 FR 52472 - National Advisory Council for Environmental Policy and Technology | |
| 80 FR 52472 - Notification of a Public Teleconference of the Chartered Science Advisory Board | |
| 80 FR 52472 - Children's Health Protection Advisory Committee Notice of Charter Renewal | |
| 80 FR 52483 - National Institute On Aging; Notice of Closed Meeting | |
| 80 FR 52480 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 80 FR 52481 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 52483 - National Cancer Institute; Notice of Meeting | |
| 80 FR 52482 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meetings | |
| 80 FR 52458 - Procurement List; Addition and Deletions | |
| 80 FR 52478 - Emergency Clearance: Public Information Collection Requirements Submitted to the Office of Management and Budget (OMB) | |
| 80 FR 52511 - Bulk Manufacturer of Controlled Substances Application: Rhodes Technologies | |
| 80 FR 52509 - Importer of Controlled Substances Application: Alltech Associates, Inc. | |
| 80 FR 52525 - New Postal Product | |
| 80 FR 52483 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 52500 - Woven Electric Blankets From China; Termination of Five-year Review | |
| 80 FR 52509 - Importer of Controlled Substances Application: Catalent CTS, LLC | |
| 80 FR 52485 - Agency Information Collection Activities: Customs-Trade Partnership Against Terrorism (C-TPAT) and the Trusted Trader Program | |
| 80 FR 52444 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance | |
| 80 FR 52475 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 52444 - Notice of National Advisory Council on Innovation and Entrepreneurship Meeting | |
| 80 FR 52486 - Proposed Low-Effect Habitat Conservation Plan, Southern California Gas Company, Pipeline 1010-Purisima, Santa Barbara County, California | |
| 80 FR 52537 - CSX Transportation, Inc.-Abandonment Exemption-in Edgar County, Ill. | |
| 80 FR 52537 - Notice of Intent for Interstate 55 Interchange in Shelby County, Tennessee | |
| 80 FR 52448 - Proposed Information Collection; Comment Request; Online Customer Relationship Management (CRM)/Performance Databases, the Online Phoenix Database, and the Online Opportunity Database | |
| 80 FR 52445 - President's Export Council; Subcommittee on Export Administration; Notice of Open Meeting | |
| 80 FR 52499 - Notice of Proposed Information Collection; Request for Comments for 1029-0035 | |
| 80 FR 52451 - Gulf of Mexico Fishery Management Council; Public Meeting | |
| 80 FR 52449 - Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting | |
| 80 FR 52450 - New England Fishery Management Council; Public Meeting | |
| 80 FR 52450 - Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting | |
| 80 FR 52499 - Notice of Proposed Information Collection; Request for Comments for 1029-0043 | |
| 80 FR 52445 - Regulations and Procedures Technical Advisory Committee; Notice of Partially Closed Meeting | |
| 80 FR 52470 - Combined Notice of Filings #1 | |
| 80 FR 52540 - Submission for OMB Review; Comment Request | |
| 80 FR 52468 - Combined Notice of Filings #2 | |
| 80 FR 52482 - National Institute of Mental Health; Notice of Closed Meetings | |
| 80 FR 52469 - Commission Information Collection Activities (FERC-915); Comment Request | |
| 80 FR 52470 - Combined Notice of Filings | |
| 80 FR 52541 - Submission for OMB Review; Comment Request | |
| 80 FR 52526 - New Postal Product | |
| 80 FR 52419 - Airworthiness Directives; Airbus Airplanes | |
| 80 FR 52399 - Air Plan Approval; Michigan; Michigan State Board Requirements | |
| 80 FR 52540 - Proposed Collection; Comment Request for Form 14242 and Form 14242 (SP) | |
| 80 FR 52539 - Members of Senior Executive Service Performance Review Boards | |
| 80 FR 52442 - Request for Extension and Revision of a Currently Approved Information Collection | |
| 80 FR 52479 - Findings of Research Misconduct | |
| 80 FR 52426 - Notice of Final Approval for the Operation of Pressure-Assisted Multi-Point Ground Flares at The Dow Chemical Company and ExxonMobil Chemical Company and Notice of Receipt of Approval Request for the Operation of a Pressure-Assisted Multi-Point Ground Flare at Occidental Chemical Corporation | |
| 80 FR 52478 - Notice of Standard Terms and Conditions for Council Grants | |
| 80 FR 52392 - Amendment of Class E Airspace; Tracy, CA | |
| 80 FR 52473 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
| 80 FR 52474 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 80 FR 52530 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt FINRA Rule 3280 (Private Securities Transactions of an Associated Person) in the Consolidated FINRA Rulebook | |
| 80 FR 52526 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Qualified Contingent Cross (“QCC”) Orders | |
| 80 FR 52529 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Market Data Fees | |
| 80 FR 52532 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc. | |
| 80 FR 52512 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: Body Worn Camera Supplement (BWCS) to the Law Enforcement Management and Administrative Statistics (LEMAS) Survey | |
| 80 FR 52521 - NASA Advisory Council; Science Committee; Planetary Science Subcommittee; Meeting | |
| 80 FR 52522 - NASA Advisory Council; Ad Hoc Task Force on STEM Education; Meeting | |
| 80 FR 52482 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 52480 - Center for Scientific Review; Notice of Closed Meetings | |
| 80 FR 52484 - National Institute on Drug Abuse; Notice of Closed Meeting | |
| 80 FR 52415 - Pacific Island Fisheries; 2015 Annual Catch Limits and Accountability Measures | |
| 80 FR 52452 - Marine Mammals; File No. 18902 | |
| 80 FR 52451 - Marine Mammals; File Nos. 14122, 14585 | |
| 80 FR 52453 - Marine Mammals; File Nos. 18722, 18897, 19425, and 19497 | |
| 80 FR 52443 - Proposed Information Collection; Comment Request; Construction Progress Reporting Survey | |
| 80 FR 52447 - Multilayered Wood Flooring From the People's Republic of China: Correction to the Final Results of Antidumping Duty Administrative Review | |
| 80 FR 52441 - Submission for OMB Review; Comment Request | |
| 80 FR 52408 - Radio Experimentation and Market Trials | |
| 80 FR 52437 - Radio Experimentation and Market Trials | |
| 80 FR 52379 - Community Development Financial Institutions Program | |
| 80 FR 52403 - Dimethomorph; Pesticide Tolerances | |
| 80 FR 52544 - Amendments to Swap Data Recordkeeping and Reporting Requirements for Cleared Swaps | |
| 80 FR 52393 - Safety Zone-Oil Exploration Staging Area in Dutch Harbor, AK | |
| 80 FR 52401 - Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP) for Albuquerque-Bernalillo County; Prevention of Significant Deterioration (PSD) Permitting | |
| 80 FR 52588 - Guidelines for Permitting Archaeological Investigations and Other Activities Directed at Sunken Military Craft and Terrestrial Military Craft Under the Jurisdiction of the Department of the Navy |
Animal and Plant Health Inspection Service
Food and Nutrition Service
Food Safety and Inspection Service
Grain Inspection, Packers and Stockyards Administration
Census Bureau
Economic Development Administration
Industry and Security Bureau
International Trade Administration
Minority Business Development Agency
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Patent and Trademark Office
Navy Department
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
National Park Service
Office of Natural Resources Revenue
Surface Mining Reclamation and Enforcement Office
Antitrust Division
Drug Enforcement Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Surface Transportation Board
Community Development Financial Institutions Fund
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Food Safety and Inspection Service, USDA.
Final rule.
The Food Safety and Inspection Service (FSIS) is amending the Federal meat inspection regulations to add the Republic of Lithuania (Lithuania) to the list of countries eligible to export meat and meat products to the United States. FSIS has reviewed Lithuania's laws, regulations, and inspection system, as implemented, and has determined that they are equivalent to the Federal Meat Inspection Act (FMIA), the regulations implementing this statute, and the United States food safety system for meat and meat products.
Under this final rule, meat from cattle, sheep, swine, and goats slaughtered in Lithuania, or parts or other products thereof, processed in certified Lithuanian establishments, will be eligible for export to the United States. All such products will be subject to reinspection at United States ports of entry by FSIS inspectors.
Dr. Daniel L. Engeljohn, Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250-3700; Telephone: (202) 205-0495.
On December 17, 2014, FSIS published a proposed rule in the
As is explained in the proposed rule, under the FMIA and implementing regulations, meat and meat products imported into the United States must be produced under standards for safety, wholesomeness, and labeling that are equivalent to those of the United States (21 U.S.C. 620). The FMIA also requires that the livestock from which such imports are produced be slaughtered and handled in connection with slaughter in a manner that is consistent with the Humane Methods of Slaughter Act (7 U.S.C. 1901-1906).
Section 327.2 of Title 9 of the Code of Federal Regulations (CFR) sets out the procedures by which foreign countries may become eligible to export meat and meat products to the United States. Paragraph 327.2(a) requires that a foreign country's meat inspection system provide standards equivalent to those of the United States and to provide legal authority for the inspection system and its implementing regulations that is equivalent to that of the United States. Specifically, a country's laws and regulations must impose requirements equivalent to those of the United States with respect to: (1) Ante-mortem inspection, humane methods of slaughter and handling, and post-mortem inspection by, or under the direct supervision of, a veterinarian; (2) official controls by the national government over establishment construction, facilities, and equipment; (3) direct and continuous official supervision of slaughtering and preparation of product by inspectors to ensure that product is not adulterated or misbranded; (4) complete separation of establishments certified to export from those not certified; (5) maintenance of a single standard of inspection and sanitation throughout certified establishments; (6) requirements for sanitation and for sanitary handling of product at establishments certified to export; (7) official controls over condemned product; (8) a Hazard Analysis and Critical Control Point (HACCP) system; and (9) any other requirements found in the FMIA and its implementing regulations (9 CFR 327.2(a)(2)(ii)).
The country's inspection system must also impose requirements equivalent to those of the United States with respect to: (1) Organizational structure and staffing to ensure uniform enforcement of the requisite laws and regulations in all certified establishments; (2) national government control and supervision over the official activities of employees or licensees; (3) qualified inspectors; (4) enforcement and certification authority; (5) administrative and technical support; (6) inspection, sanitation, quality, species verification and residue standards; and (7) any other inspection requirements (9 CFR 327.2(a)(2)(i)).
In 2004, the government of Lithuania initially requested approval to export meat, poultry, and egg products to the United States. In January 2012, Lithuania amended its request to include only meat and meat products. FSIS then began to evaluate Lithuania's inspection system to determine whether it is equivalent to the United States' system.
FSIS conducted a document review of Lithuania's meat inspection system through information provided on FSIS's Self-Reporting Tool (SRT)
FSIS then proceeded with an initial on-site audit of Lithuania's meat inspection system in September 2012 and concluded that Lithuania's system met each equivalence component except sanitation. Lithuania's State Food and Veterinary Service (SFVS), which is Lithuania's central competent authority in charge of food inspection, took immediate corrective actions to address the audit team's findings and provided a corrective action plan, which included new regulations, procedures, implementation measures, and verification activities. FSIS reviewed the plan and concluded that it addressed all of the audit findings.
FSIS conducted a second on-site audit in September 2013 to verify that all outstanding issues identified during the previous audit had been resolved and that Lithuania had satisfactorily implemented all of the laws, regulations, and instructions to the field that FSIS found to be equivalent during the document review and previous audit. FSIS concluded, on the basis of this audit, that Lithuania had satisfactorily implemented the corrective action plan that it had submitted in response to the 2012 audit.
Consequently, on December 17, 2014, FSIS published a proposed rule to find that Lithuania's meat inspection system is equivalent to the United States' system and, therefore, to add Lithuania to the list of countries eligible to export meat and meat products to the United States. For more detailed information on FSIS's evaluation of the Lithuanian meat inspection system, see the proposed rule (79 FR 75073), and for the full audit reports, go to:
After considering the comments received on the proposed rule, discussed below, FSIS concludes that Lithuania's meat inspection system is equivalent to the United States' inspection system for meat and meat products. Therefore, FSIS is amending its meat inspection regulations to add Lithuania to the list of countries eligible to export meat and meat products to the United States (9 CFR 327.2(b)). Under FSIS's import regulations, the government of Lithuania must certify to FSIS that those establishments that wish to export meat and meat products to the United States are operating under requirements equivalent to those of the United States (9 CFR 327.2(a)).
Although a foreign country may be listed in FSIS's regulations as eligible to export meat and meat products to the United States, the exporting country's products must also comply with all other applicable requirements of the United States, including those of USDA's Animal and Plant Health Inspection Service (APHIS). These requirements include restrictions under 9 CFR part 94 of the APHIS regulations, which regulate the importation of meat and meat products from countries into the United States to control the spread of specific animal diseases.
Also, under this final rule, all meat and meat products exported to the United States from Lithuania will be subject to reinspection by FSIS at United States ports of entry for, but not limited to, transportation damage, product and container defects, labeling, proper certification, general condition, and accurate count.
FSIS will conduct other types of reinspection activities, such as incubation of canned products to ensure product safety and taking product samples for laboratory analysis to detect any drug or chemical residues or pathogens that may render the product unsafe or any species or product composition violations that would render the product economically adulterated. Products that pass reinspection will be stamped with the official mark of inspection and allowed to enter U.S. commerce. If they do not meet U.S. requirements, they will be refused entry and within 45 days will have to be returned to the country of origin, destroyed, or converted to animal food (subject to approval of the Food and Drug Administration (FDA)), depending on the violation. The import reinspection activities can be found on the FSIS Web site at:
In addition, Lithuanian meat and meat products will be eligible for importation into the United States only if they are from animals slaughtered on or after the effective date of this final rule.
FSIS received seven comments in response to the proposed rule. One individual supported the proposed rule. Two individuals, a consumer advocacy organization, and three trade associations representing the pork industry, opposed it. After review and consideration of these comments, FSIS is finalizing the regulation as proposed. The following is a brief summary of the relevant issues raised in the comments and FSIS's responses.
In addition to these monitoring and processing provisions, APHIS requires imported meat, poultry, and egg products to have accompanying documentation regarding their origin, animal disease status, degree of processing, and intended use. At the U.S. border, CBP officials verify that such documentation is accurate and that the products do not pose an animal disease transmission risk. These steps take place before FSIS reinspects imported product for food safety and other regulatory compliance. All meat and meat products that APHIS restricts from entering the United States because of animal disease concerns will be
In the case of BSE, APHIS takes into consideration the risk status recognition as determined by the World Organization for Animal Health (OIE), or conducts its own BSE risk determination upon request. OIE designates countries as having a negligible or controlled BSE risk. Countries that do not meet those designations are considered to have an undetermined risk. OIE and APHIS currently designate Lithuania as a country with controlled BSE risk. The review of Lithuania's food safety system for potential BSE contamination also indicated that SFVS employs effective measures to prevent Specified Risk Materials (SRM) (materials from cattle that scientific studies have demonstrated can contain the BSE agent in cattle infected with the disease) from contaminating the food supply. Removal of SRMs decreases the risk of introduction of BSE to a negligible level. Therefore, FSIS has determined that Lithuania's measures to remove SRMs from its food supply adequately address the potential risk that the BSE agent could contaminate products destined for the United States.
APHIS currently considers Lithuania to be free of SVD, rinderpest, and FMD. APHIS, however, has placed Lithuania in a “special category” because of its common land border with countries that have not been identified to be free of these diseases, and because Lithuania's trade practices are less restrictive than those of the United States. Lithuania's trade practices could, therefore, result in a Lithuanian meat supply that is supplemented with animal products from neighboring countries. Establishments in “special category” countries must certify compliance with specific APHIS regulations, which ensure that animals and animal products received by these establishments, and the products produced by them, are not contaminated through contact with regions where these diseases exist (see 9 CFR 94.11(c)(2) and 94.13(c)(2)).
APHIS recognizes that ASF outbreaks have occurred in wild boar and domestic swine in Lithuania. Lithuania has imposed controls, consistent with European Union legislation, to prevent the spread of this disease. These controls restrict the movement of pigs and pig products, including pork, from areas where the disease has occurred. Were APHIS to add any geographic area of Lithuania to the list of ASF-affected regions, Lithuania would be required to comply with 9 CFR 94.8(b)-(d), which mandates cooking, sealing, cleaning, processing, packing, certification, transportation, and handling requirements.
Under the final rule, Lithuania will be eligible to export meat and meat products to the United States, but will be required to meet APHIS's requirements. Because Lithuania's disease status may change with respect to any animal disease, FSIS will coordinate with APHIS and consider how any change may affect Lithuania's eligibility to export certain types of products to the United States.
The follow-up audit of Lithuania's meat inspection system confirmed that SFVS adequately and effectively addressed all the findings related to the previous FSIS initial equivalence on-site audit conducted from September 10-26, 2012. The FSIS auditor attested that all corrective actions were implemented in a manner consistent with FSIS's inspection requirements. Additionally,
In 2013, a variety of meat products in the European Union were found to contain meat which was not declared on the label, including horse meat and pork. In response, the European Commission and EU Member States, including Lithuania, have pursued efforts to ensure the proper labeling of meat products, including increased communication among food safety agencies regarding food fraud, DNA monitoring, revised registration and identification procedures for horses in the EU, increased penalties for fraudulent activity, and stricter origin labeling. Lithuania, as a Member of the EU, is bound by the EU Regulations under which these actions have been taken.
FSIS also verified that SFVS conducts species verification testing of meat and meat products intended for both domestic production and export, in accordance with the SFVS Director Order No B1-23. This testing will ensure that only eligible species will be exported to the United States. Furthermore, the FSIS auditor verified that Lithuanian establishments are required to ensure that food intended for human consumption is adequately labeled or identified to facilitate its traceability in accordance with Article 18 for Regulation (EC) No 178/2002. The identification and labeling requirements include, at least, the source of food, animal byproduct, or ingredients in a manner that supports effective investigation and traceability. FSIS is confident that the Lithuanian measures in place, along with its reinspection and verification activities at United States ports of entry, will ensure that fraudulently labeled Lithuanian meat products will not enter United States commerce.
Executive Orders (E.O.) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule was designated a “non-significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, this rule was not reviewed by OMB under E.O. 12866.
FSIS is adopting, in its entirety, the proposed regulatory impact analysis from the proposed rule.
Lithuania is a small beef producer with limited beef export capacity. Its maximum beef export to the world was achieved in 2011, when it exported $130 million, or 25,000 MT, worth of beef, mainly to the European Union and Russia. Based on analysis of Lithuania's exports to Russia, FSIS estimates that Lithuania has an excess beef export capacity of $26 million ($130 million − $104 million = $26 million) in value, or 3,000 MT (25,000 MT − 22,000 MT = 3,000 MT) in volume, that could be exported to the United States.
Accordingly, allowing Lithuanian beef exports to enter the 13,050,000-MT
Lithuanian data from CY2013
This cost analysis was based on Lithuania's full export capacity. Currently, however, only six Lithuanian establishments intend to export product to the United States. Four are meat processors only, one is a slaughter facility, and one conducts both meat slaughter and processing. Of the four processing facilities, three process beef and pork, and one processes pork only. The slaughter-only facility and the facility that conducts both slaughter and processing both handle beef and pork. The combined export capacity of these six establishments is much less than Lithuania's total export capacity. With no price change expected in U.S. meat markets, the final rule would not lead to any negative effects on U.S. consumers.
Lithuanian companies that export product to the United States and domestic companies that import products from Lithuania to the United States will incur standard costs such as export fees and freight and insurance costs. They will be willing to bear these costs because of the anticipated financial benefits associated with marketing their products in the United States.
The final rule will increase trade between the United States and Lithuania. The volume of trade stimulated by this rule is likely to be small and is expected to have little or no effect on U.S. meat supplies or meat prices. U.S. consumers, however, are expected to enjoy more choices when purchasing meat and meat products. Lithuanian establishments will export commercially sterile meat products, including canned meat products and ready-to-eat products like salamis and
The FSIS Administrator certifies that, for the purposes of the Regulatory Flexibility Act (5 U.S.C. 601-602), this final rule will not have a significant impact on a substantial number of small entities in the United States.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.
No new paperwork requirements are associated with this proposed rule. Foreign countries wanting to export meat and meat products to the United States are required to provide information to FSIS certifying that their inspection systems provide standards equivalent to those of the United States, and that the legal authority for the system and their implementing regulations are equivalent to those of the United States. FSIS provided Lithuania with questionnaires asking for detailed information about the country's inspection practices and procedures to assist that country in organizing its materials. This information collection was approved under OMB number 0583-0153. The proposed rule contains no other paperwork requirements.
FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601,
FSIS will officially notify the World Trade Organization's Committee on Sanitary and Phytosanitary Measures (WTO/SPS Committee) in Geneva, Switzerland, of this rule and will announce it online through the FSIS Web page located at:
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at:
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Imported products.
For the reasons set out in the preamble, FSIS amends 9 CFR part 327 as follows:
21 U.S.C. 601-695; 7 CFR 2.18, 2.53.
Community Development Financial Institutions Fund, Department of the Treasury.
Interim rule with request for comment.
The Department of the Treasury is issuing an interim rule implementing the Community Development Financial Institutions Program (CDFI Program), administered by the Community Development Financial Institutions Fund (CDFI Fund). This interim rule includes revisions necessary to implement the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards published by the Department of the Treasury on December 19, 2014, as well as to make technical corrections and other updates to the current rule.
You may submit comments concerning this interim rule via the Federal e-Rulemaking Portal at
Amber Kuchar, CDFI Program Manager, Community Development Financial Institutions Fund, at
The CDFI Fund, Department of the Treasury, was authorized by the Community Development Banking and Financial Institutions Act of 1994, as amended (12 U.S.C. 4701
Through the CDFI Program, the CDFI Fund uses Federal resources to invest in CDFIs and to build their capacity to serve low-income people and communities that lack access to affordable financial products and services. Through the CDFI Program, the CDFI Fund provides two types of monetary awards to CDFIs: financial assistance awards and technical assistance awards. Applicants participate in the CDFI Program through a competitive, merit-based quantitative and qualitative application and selection process in which the CDFI Fund makes funding decisions based on pre-established evaluation criteria. An entity may receive a CDFI Program award only after entering into an Assistance Agreement with the CDFI Fund that includes performance goals, matching funds requirements (if applicable), and reporting requirements.
On December 19, 2014, the Department of the Treasury published a final rule, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR part 1000), which adopted the government-wide framework for grants management codified by the Office of Management and Budget (OMB) at 2 CFR 200 (the Uniform Requirements). The Uniform Requirements combine grant-related OMB guidance circulars—reducing the administrative burden for award Recipients and reducing the risk of waste, fraud, and abuse of Federal financial assistance—and establish financial, administrative, procurement, and program management standards for Federal award-making agencies, including the CDFI Fund and its award Recipients.
On April 10, 2015, the CDFI Fund published in the
As of the close of the June 9, 2015 comment period, the CDFI Fund received no comments on the current rule.
Throughout the rule, the defined term “Awardee” has been replaced by “Recipient.” Further, award funds being transmitted from the CDFI Fund to Recipients are referred to as payments, rather than disbursements. These changes were made to align the terminology in the CDFI Program regulations with the terms used in the Uniform Requirements. Other changes to the rule are specified below:
This section has been revised to clarify that the restrictions on entities applying for, receiving, and using CDFI Program awards, as well as awards through other CDFI Fund programs during the same annual award application cycle, will be described in the corresponding funding notices for those programs.
As indicated above, the defined term “Awardee” has been removed and replaced with the defined term “Recipient”. The defined term “Fund” has been removed and replaced with the defined term “Community Development Financial Institutions Fund” so as to provide clear delineation between the CDFI Fund and the Capital Magnet Fund, another CDFI Fund program. The definition of “Comprehensive Business Plan” has been modified to better reflect the Act's requirements for Comprehensive Business Plans submitted with funding applications. The definition of Development Services has been modified for clarity. The definition of “Financial Product” has been modified to eliminate grants by CDFI Intermediaries to CDFIs and/or emerging CDFIs from the definition. The CDFI Fund believes that this change is necessary to ensure that Recipients apply their financial assistance award funding directly to eligible activities rather than passing their financial assistance awards on to other CDFIs. “Uniform Requirements” has been added as a defined term. In addition, the paragraph numbering has been removed to allow for future modifications to the Definitions section without the need for re-numbering the entire section.
Section 1805.105(a), Uniform Requirements, has been added to affirm that the Uniform Requirements will be applied to all awards made pursuant to this part, as applicable.
Section 1805.201(b)(3)(ii)(B), Geographic Units, has been revised to better conform the description of eligible Investment Areas to the
Section 1805.201(b)(4), Development Services, has been revised to permit Development Services to be offered in conjunction with Financial Services in order to meet the certification requirement that CDFIs must provide Development Services. Previously, only Development Services in conjunction with Financial Products met this requirement.
Section 1805.201(b)(5), Accountability, has been revised to require that a CDFI must demonstrate accountability to residents of its Target Market through representation on either its governing board or advisory board. Previously, other means of demonstrating accountability were permitted.
Section 1805.201(c), Records and Review, has been added to clarify that each certified CDFI is subject to periodic review by the CDFI Fund to ensure continued compliance with the CDFI certification requirements in this part, as well as to review the certified CDFI's organizational capacity, lending activity, community impacts, and such other information that the CDFI Fund deems appropriate. CDFIs will be required to provide, upon request, additional information and documentation to the CDFI Fund to facilitate this review.
Section 1805.502(c) has been revised to indicate that the terms of the severe constraints waiver will be set forth in the affected Recipient's Assistance Agreement.
Section 1805.504(a) has been revised to eliminate the restriction on Applicants submitting as matching funds those retained earnings that have been accumulated by the Applicant after the end of the Applicant's most recent fiscal year end prior to the application deadline. The CDFI Fund believes that this change will allow Applicants additional flexibility in attracting and obtaining matching funds.
Section 1805.504(c) has been revised to permit Insured Depository Institutions to use retained earnings that have been accumulated since the inception of the organization as matching funds for financial assistance awards. Previously, this option was only available to Insured Credit Unions and State-Insured Credit Unions.
Section 1805.504(c)(1)(iii)(D) has been revised to eliminate the July 31 date as a specified deadline for the measurement of required increases in member shares, non-member shares, outstanding loans, and other measurable activity. Under the current rule, Insured Credit Union and State-Insured Credit Union Applicants may use the increase in retained earnings since the inception of the organization as matching funds so long as they also demonstrate a required amount of increase in shares, loans, and other activity as described in the applicable Notice of Funds Availability. Due to fluctuations in the timing of the funding rounds, the July 31 date being fixed in the regulations made administration of this requirement challenging. With this revision, the CDFI Fund will have greater flexibility to schedule deadlines in the applicable Notice of Funds Availability relative to the application deadline therein.
Section 1805.701(b) has been revised to more accurately reflect the application and selection requirements of the Act as indicated at 12 U.S.C. 4704, 4705, and 4706.
This section was removed as the CDFI Fund no longer uses Notices of Award (NOAs) that are separate from the Assistance Agreements.
This section has been revised to accommodate the audit requirements of the Uniform Requirements.
Section 1805.803(e)(1)(i) has been revised to conform to the Uniform Requirements. Per the Uniform Requirements and the interim rule, all non-profit organizations that are required to have their financial statements audited pursuant to the Uniform Requirements, must submit their single-audits to the Federal Audit Clearinghouse no later than nine months after the end of the Recipient's fiscal year. Under this rule, as indicated in the applicable Notice of Funds Availability and Assistance Agreement, non-profit organizations that are not required to have their financial statements audited pursuant to the Uniform Requirements may still be subject to additional audit requirements.
Section 1805.803(e)(2)(A) has been revised and simplified to eliminate some outdated report form references in favor of a description of the report types to be collected from Recipients on an annual basis. Specific reporting requirements using OMB Paperwork Reduction Act (PRA) approved information collections will be described in the applicable Notices of Funds Availability and Assistance Agreements.
It has been determined that this regulation is not a significant regulatory action as defined in Executive Order 12866. Therefore, a Regulatory Assessment is not required.
Because no notice of proposed rulemaking is required under the Administrative Procedure Act (5 U.S.C. 553) or any other law, the Regulatory Flexibility Act does not apply.
The collections of information contained in this interim rule have been previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 and assigned the applicable, approved OMB Control Numbers associated with the CDFI Fund under 1559. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. This document restates the collections of information without substantive change.
This interim rule has been reviewed in accordance with the CDFI Fund's Environmental Quality regulations (12 CFR part 1815), promulgated pursuant to the National Environmental Protection Act of 1969 (NEPA), which requires that the CDFI Fund adequately consider the cumulative impact proposed activities have upon the human environment. It is the determination of the CDFI Fund that the interim rule does not constitute a major federal action significantly affecting the quality of the human environment and, in accordance with the NEPA and the CDFI Fund's Environmental Quality regulations (12 CFR 1815), neither an Environmental Assessment nor an Environmental Impact Statement is required.
Because the revisions to this interim rule relate to loans and grants, notice and public procedure and a delayed effective date are not required pursuant to the Administrative Procedure Act found at 5 U.S.C. 553(a)(2).
Public comment is solicited on all aspects of this interim rule. The CDFI Fund will consider all comments made on the substance of this interim rule, but it does not intend to hold hearings.
Community Development Financial Institutions Program—21.020.
Community development, Grant programs—housing and community development, Loan programs—housing and community development, Reporting and recordkeeping requirements, Small businesses.
For the reasons set forth in the preamble, 12 CFR part 1805 is revised to read as follows:
12 U.S.C. 4703, 4703 note, 4710, 4717; and 31 U.S.C. 321.
The purpose of the Community Development Financial Institutions (CDFI) Program is to promote economic revitalization and community development through investment in and assistance to Community Development Financial Institutions.
Through the Community Development Financial Institutions Program, the CDFI Fund provides financial and technical assistance to Recipients selected by the CDFI Fund in order to enhance their ability to provide Financial Products, Financial Services and Development Services to and in their Target Markets. Each Recipient must serve an Investment Area(s), a Targeted Population(s), or both. The CDFI Fund will select Recipients to receive financial or technical assistance through a merit-based, qualitative application process. Each Recipient must enter into an Assistance Agreement that requires it to achieve specific performance goals and abide by other terms and conditions pertinent to any assistance received under this part, as well as the Uniform Requirements, as applicable. All CDFI Program awards shall be made subject to funding availability.
Restrictions on applying for, receiving, and using CDFI Program awards in conjunction with awards under other programs administered by the CDFI Fund (including, but not limited to, the Bank Enterprise Award Program, the Capital Magnet Fund, the CDFI Bond Guarantee Program, the Native American CDFI Assistance (NACA) Program, and the New Markets Tax Credit Program) are as set forth in the applicable Notice of Funds Availability, Notice of Guarantee Availability, or Notice of Allocation Availability.
No Recipient (or its Community Partner) shall be deemed to be an agency, department, or instrumentality of the United States.
For the purpose of this part, the following terms shall have the following definitions:
(1) Ownership, control, or power to vote 25 percent or more of the outstanding shares of any class of Voting Securities of any company, directly or indirectly or acting through one or more other persons;
(2) Control in any manner over the election of a majority of the directors, trustees, or general partners (or individuals exercising similar functions) of any company; or
(3) Power to exercise, directly or indirectly, a controlling influence over the management, credit or investment decisions, or policies of any company.
(1) For Metropolitan Areas, 80 percent of the area median family income; and
(2) For non-Metropolitan Areas, the greater of:
(i) 80 percent of the area median family income; or
(ii) 80 percent of the statewide non-Metropolitan Area median family income;
(1) Any voting rights associated with the shares or interest are limited solely to the type customarily provided by statute with regard to matters that would significantly and adversely affect the rights or preferences of the security or other interest, such as the issuance of additional amounts or classes of senior securities, the modification of the terms of the security or interest, the dissolution of the issuing company, or the payment of dividends by the issuing
(2) The shares or interest represent an essentially passive investment or financing device and do not otherwise provide the holder with control over the issuing company; and
(3) The shares or interest do not entitle the holder, by statute, charter, or in any manner, to select or to vote for the selection of directors, trustees, or partners (or persons exercising similar functions) of the issuing company.
(1) To vote for or select directors, trustees, or partners (or persons exercising similar functions of the issuing company); or
(2) To vote on or to direct the conduct of the operations or other significant policies of the issuing company.
(a)
(b)
The collection of information requirements in this part have been approved by the Office of Management and Budget and assigned applicable, approved OMB Control Numbers associated with the CDFI Fund under 1559.
(a)
(2)(i) An entity that proposes to become a CDFI is eligible to apply for assistance under this part if the CDFI Fund:
(A) Receives a complete application for certification from the entity within the time period set forth in an applicable Notice of Funds Availability; and
(B) Determines that such entity's application materials provide a realistic course of action to ensure that it will meet the requirements described in § 1805.201(b) and paragraph (b) of this section within the period set forth in an applicable Notice of Funds Availability.
(ii) The CDFI Fund will not, however, make a payment of any financial assistance to such an entity before or unless it meets the requirements described in this section. Moreover, notwithstanding paragraphs (a)(1) and (a)(2)(i)(B) of this section, the CDFI Fund reserves the right to require an entity to have been certified as described in § 1805.201(a) prior to its submission of an application for assistance, as set forth in an applicable Notice of Funds Availability.
(3) The CDFI Fund shall require an entity to meet any additional eligibility requirements that the CDFI Fund deems appropriate.
(4) The CDFI Fund, in its sole discretion, shall determine whether an entity fulfills the requirements set forth in this section and § 1805.201(b).
(b)
(2) No Affiliate of a Depository Institution Holding Company may qualify as a CDFI unless the holding company and all of its Affiliates collectively meet the requirements described in this section.
(3) No Subsidiary of an Insured Depository Institution may qualify as a CDFI if the Insured Depository Institution and its Subsidiaries do not collectively meet the requirements described in this section.
(4) For the purposes of paragraphs (b)(1) through (3) of this section, an entity will be considered to be a Subsidiary of any Insured Depository Institution or Depository Institution Holding Company that controls 25 percent or more of any class of the entity's voting shares, or otherwise controls, in any manner, the election of a majority of directors of the entity.
(a)
(b)
(1)
(2)
(A) Depository Institution Holding Company;
(B) Insured Depository Institution, Insured Credit Union, or State-Insured Credit Union; or
(C) Organization that is deemed by the CDFI Fund to have such a predominant business activity as a result of analysis of its financial statements, organizing documents, and any other information required to be submitted as part of its certification application. In conducting such analysis, the CDFI Fund may take into consideration an entity's total assets and its use of personnel.
(ii) For the sole purpose of participating as an Eligible CDFI in the CDFI Bond Guarantee Program (see 12 CFR1808), an Affiliate of a Controlling CDFI may be deemed to meet the financing entity requirement of this section by relying on the CDFI Fund's determination that the Controlling CDFI has met said requirement; provided, however, that the CDFI Fund reserves the right, in its sole discretion, to set additional parameters and restrictions on such, which parameters and restrictions shall be set forth in the applicable Notice of Guarantee Availability for a CDFI Bond Guarantee Program application round.
(iii) Further, for the sole purpose of participating as an Eligible CDFI in the CDFI Bond Guarantee Program, the provision of Financial Products, Development Services, and/or other similar financing by an Affiliate of a Controlling CDFI need not be arms-length if such transaction is by and between the Affiliate and the Controlling CDFI, pursuant to an operating agreement that includes management and ownership provisions and is in form and substance acceptable to the CDFI Fund.
(3)
(ii)
(
(
(
(B)
(C)
(
(
(D)
(
(
(
(
(
(
(
(E)
(F)
(iii)
(B)
(4)
(5)
(6)
(c)
The CDFI Fund may provide financial assistance through investment instruments described under subpart D of this part. Such financial assistance is intended to increase available capital and enhance the ability of a Recipient to provide Financial Products, Financial Services, and Development Services.
Recipients may use financial assistance provided under this part to serve Investment Area(s) or Targeted Population(s) by developing or supporting, through lending, investing, enhancing liquidity, or other means of finance:
(a) Commercial facilities that promote revitalization, community stability or job creation or retention;
(b) Businesses that:
(1) Provide jobs for Low-Income persons;
(2) Are owned by Low-Income persons; or
(3) Increase the availability of products and services to Low-Income persons;
(c) Community Facilities;
(d) The provision of Financial Services;
(e) Housing that is principally affordable to Low-Income persons, except that assistance used to facilitate homeownership shall only be used for services and lending products that serve Low-Income persons and that:
(1) Are not provided by other lenders in the area; or
(2) Complement the services and lending products provided by other lenders that serve the Investment Area(s) or Targeted Population(s);
(f) The provision of consumer loans (a loan to one or more individuals for household, family, or other personal expenditures); or
(g) Other businesses or activities as requested by the Applicant and deemed appropriate by the CDFI Fund.
(a) A Recipient shall use assistance provided by the CDFI Fund and its corresponding matching funds only for the eligible activities approved by the CDFI Fund and described in the Assistance Agreement.
(b) A Recipient may not distribute assistance to an Affiliate without the CDFI Fund's consent.
(c) Assistance provided upon approval of an application involving a Community Partnership shall only be distributed to the Recipient and shall not be used to fund any activities carried out by a Community Partner or an Affiliate of a Community Partner.
(a)
(b) The CDFI Fund may provide technical assistance regardless of whether the Recipient also receives financial assistance under this part. Technical assistance provided pursuant to this part is subject to the assistance limits described in § 1805.402.
(c) An Applicant seeking technical assistance must meet the eligibility requirements described in § 1805.200 and submit an application as described in § 1805.600.
(d) Applicants for technical assistance pursuant to this part will be evaluated pursuant to the merit-based qualitative review criteria in subpart G of this part, except as otherwise may be provided in the applicable Notice of Funds Availability. In addition, the requirements for matching funds are not applicable to technical assistance requests.
The CDFI Fund will provide financial assistance to a Recipient through one or more of the investment instruments described in § 1805.401, and under such terms and conditions as described in this subpart D. The CDFI Fund, in its sole discretion, may provide financial assistance in amounts, through investment instruments, or under rates, terms and conditions that are different from those requested by an Applicant.
(a)
(b)
(c)
(d)
(a)
(b)
(1) Shall be used only to finance activities in the new or expanded Investment Area(s) or Targeted Population(s); and
(2) Must be distributed to a new Subsidiary or Affiliate that meets the eligibility requirements described in § 1805.200 and is selected for assistance pursuant to subpart G of this part.
(c) A Recipient may receive the assistance described in paragraph (b) of this section only if no other application to serve substantially the same Investment Area(s) or Targeted Population(s) that meets the requirements of § 1805.701(a) was submitted to the CDFI Fund prior to the receipt of the application of said Recipient and within the current funding round.
The CDFI Fund may, at any time, sell its equity investments and loans, provided the CDFI Fund shall retain the authority to enforce the provisions of the Assistance Agreement until the performance goals specified therein have been met.
All financial assistance awarded under this part shall be matched with funds from sources other than the Federal government. Except as provided in § 1805.502, such matching funds shall be provided on the basis of not less than one dollar for each dollar provided by the CDFI Fund. Funds that have been used to satisfy a legal requirement for obtaining funds under either the CDFI Program or another Federal grant or award program may not be used to satisfy the matching requirements described in this section. Community Development Block Grant Program and other funds provided pursuant to the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301
(a) Matching funds shall be at least comparable in form (
(b) In the case of a Recipient that raises matching funds from more than one source, through different investment instruments, or under varying terms and conditions, the CDFI Fund may provide financial assistance in a manner that represents the combined characteristics of such instruments.
(c) A Recipient may meet all or part of its matching requirements by committing available earnings retained from its operations.
(a) In the case of an Applicant with severe constraints on available sources of matching funds, the CDFI Fund, in its sole discretion, may permit such Applicant to comply with the matching requirements by:
(1) Reducing such requirements by up to 50 percent; or
(2) Permitting an Applicant to provide matching funds in a form to be determined at the discretion of the CDFI Fund, if such an Applicant:
(i) Has total assets of less than $100,000;
(ii) Serves an area that is not a Metropolitan Area; and
(iii) Is not requesting more than $25,000 in assistance.
(b) Not more than 25 percent of the total funds available for obligation under this part in any fiscal year may be matched as described in paragraph (a) of this section.
(c) The terms of the severe constraints waiver shall be provided in the applicable Notice of Funds Availability and Assistance Agreement.
Applicants and Recipients shall satisfy matching funds requirements within the period set forth in the applicable Notice of Funds Availability and/or the corresponding Assistance Agreement.
(a)
(b)
(1) The increase in retained earnings (meaning, for purposes of § 1805.504(b), revenue minus expenses less any dividend payments) that has occurred over the Applicant's or Recipient's fiscal year as set forth in the applicable Notice of Funds Availability; or
(2) The annual average of such increases that occurred over the Applicant's or Recipient's three consecutive fiscal years as set forth in
(c)
(i) The increase in retained earnings that has occurred over the Applicant's or Recipient's fiscal year as set forth in the applicable Notice of Funds Availability;
(ii) The annual average of such increases that has occurred over the Applicant's or Recipient's three consecutive fiscal years as set forth in the applicable Notice of Funds Availability; or
(iii) The entire retained earnings that have been accumulated since the inception of the Applicant or Recipient, provided that the Assistance Agreement shall require that:
(A) The Recipient shall increase its member shares, non-member shares, outstanding loans and/or other measurable activity as defined in and by an amount that is set forth in an applicable Notice of Funds Availability;
(B) Such increase must be achieved by a date certain set forth in the applicable Notice of Funds Availability;
(C) The level from which the achievement of said increases will be measured will be as of the date set forth in the applicable Notice of Funds Availability; and
(D) Financial assistance shall be paid by the CDFI Fund only as the amount of increases described in paragraph (c)(1)(iii)(A) of this section is achieved.
(2) The CDFI Fund will allow an Applicant or Recipient to utilize the option described in paragraph (c)(1)(iii) of this section for matching funds only if it determines, in its sole discretion, that the Applicant or Recipient will have a high probability of success in achieving said increases to the specified amounts.
Each Applicant shall submit an application for financial or technical assistance under this part in accordance with the applicable Notice of Funds Availability published in the
Applicants will be evaluated and selected, at the sole discretion of the CDFI Fund, to receive assistance based on a review process that may include an interview(s) and/or site visit(s) and that is intended to:
(a) Ensure that Applicants are evaluated on a merit basis and in a fair and consistent manner;
(b) Consider the unique characteristics of Applicants that vary by institution type, total asset size, stage of organizational development, markets served, products and services provided, and location;
(c) Ensure that each Recipient can successfully meet the goals of its Comprehensive Business Plan and achieve community development impact;
(d) Ensure that Recipients represent a geographically diverse group of Recipients serving Metropolitan Areas, non-Metropolitan Areas, and Indian Reservations from different regions of the United States; and
(e) Consider other factors as described in the applicable Notice of Funds Availability.
(a)
(b)
(1) Community development track record, including, in the case of an Applicant with a prior history of serving a Target Market, the extent of success in serving such Target Market and whether it will expand its operations into a new Investment Area or serve a new Targeted Population, offer more Development Services, Financial Products and/or Financial Services, or increase the volume of its current business;
(2) Operational capacity and risk mitigation strategies;
(3) Financial track record and strength;
(4) Capacity, skills, experience and background of the management team;
(5) Understanding of its market context, including an analysis of the needs of the Investment Area or Targeted Population and a strategy for how the Applicant will attempt to meet those needs; such analysis of current and prospective customers will include the extent of economic distress within the designated Investment Area(s) or the extent of need within the designated Targeted Population(s), as those factors are measured by objective criteria, the extent of need for Loans, Equity Investments, Financial Products, Financial Services and Development Services within the designated Target Market, and the extent of demand within the Target Market for the Applicant's products and services;
(6) Program design and implementation plan, including: A plan to coordinate use of a financial assistance award with existing Federal State, local and Tribal government assistance programs, and private sector financial services; A description of how the Applicant will coordinate with community organizations and financial institutions which will provide equity investments, loans, secondary markets, or other services to the Investment Area or Targeted Population; an assessment of its products and services, marketing and outreach efforts, delivery strategy, and coordination with other institutions and/or a Community Partner, or participation in a secondary market for purposes of increasing the Applicant's resources. In the case of an Applicant submitting an application with a Community Partner, the CDFI Fund will evaluate: the extent to which the Community Partner will participate in carrying out the activities of the Community Partnership; the extent to which the Community Partner will enhance the likelihood of success of the Comprehensive Business Plan; and the extent to which service to the designated Target Market will be better performed by a Community Partnership than by the Applicant alone;
(7) Projections for financial performance, capitalization and the raising of needed external resources, including a detailed description of the Applicant's plans and likely sources of funds to match the amount of financial assistance requested from the CDFI Fund, the amount of firm commitments and matching funds in hand to meet or exceed the matching funds requirements and, if applicable, the likely success of the plan for raising the balance of the matching funds in a timely manner, the extent to which the matching funds are, or will be, derived from private sources, and whether an Applicant is, or will become, an Insured CDFI or a State-Insured Credit Union;
(8) Projections for community development impact, including the extent to which an Applicant will concentrate its activities on serving its Target Market(s), the extent of support from the designated Target Market, the extent to which an Applicant is, or will be, Community-Owned or Community-Governed, and the extent to which the activities proposed in the Comprehensive Business Plan are consistent with existing economic, community, and housing development plans adopted by or applicable to the Investment Area or Targeted Population and will expand economic opportunities or promote community development within the designated Target Market;
(9) The extent of need for the CDFI Fund's assistance, as demonstrated by the extent of economic distress in the Applicant's Target Market and the extent to which the Applicant needs the CDFI Fund's assistance to carry out its Comprehensive Business Plan;
(10) In the case of an Applicant that has previously received assistance under the CDFI Program, the CDFI Fund also will consider the Applicant's level of success in meeting its performance goals, financial soundness covenants (if applicable), and other requirements contained in the previously negotiated and executed Assistance Agreement(s) with the CDFI Fund, the unexpended balance of assistance, and whether the Applicant will, with additional assistance from the CDFI Fund, expand its operations into a new Target Market, offer more products or services, and/or increase the volume of its activities; and
(11) The CDFI Fund may consider any other factors, as it deems appropriate, in reviewing an application as set forth in an applicable Notice of Funds Availability.
(c)
(1) An Insured CDFI;
(2) A CDFI that is examined by or subject to the reporting requirements of an Appropriate Federal Banking Agency; or
(3) A CDFI that has as its Community Partner an institution that is examined by, or subject to, the reporting requirements of an Appropriate Federal Banking Agency.
(d)
(e)
(a)
(b)
(a) Prior to providing any Financial or Technical Assistance, the CDFI Fund and a Recipient shall execute an Assistance Agreement that requires a Recipient to comply with performance goals and abide by other terms and conditions of assistance. Such performance goals may be modified at any time by mutual consent of the CDFI Fund and a Recipient or as provided in paragraph (c) of this section. If a Community Partner or an Affiliate is part of an application that is selected for assistance, such partner must be a party to the Assistance Agreement, if deemed appropriate by the CDFI Fund.
(b) A Recipient shall comply with performance goals that have been established or negotiated with the CDFI Fund and which are based upon the Comprehensive Business Plan submitted as part of the Recipient's application. Such performance goals may include measures that require a Recipient to:
(1) Be financially sound;
(2) Be managerially sound;
(3) Maintain appropriate internal controls; and/or
(4) Achieve specific lending, investment, and development service objectives.
(c) The Assistance Agreement shall provide that, in the event of fraud, mismanagement, noncompliance with the Act and the CDFI Fund's regulations, or noncompliance with the terms and conditions of the Assistance Agreement on the part of the Recipient (or the Community Partner, if applicable), the CDFI Fund, in its discretion, may:
(1) Require changes in the performance goals set forth in the Assistance Agreement;
(2) Require changes in the Recipient's Comprehensive Business Plan;
(3) Revoke approval of the Recipient's application;
(4) Reduce or terminate the Recipient's assistance;
(5) Require repayment of any assistance that has been distributed to the Recipient;
(6) Bar the Recipient from reapplying for any assistance from the CDFI Fund; or
(7) Take such other actions as the CDFI Fund deems appropriate.
(d) In the case of an Insured CDFI, the Assistance Agreement shall provide that the provisions of the Act, this part, and the Assistance Agreement shall be enforceable under 12 U.S.C. 1818 of the Federal Deposit Insurance Act by the Appropriate Federal Banking Agency, as applicable, and that any violation of such provisions shall be treated as a violation of the Federal Deposit Insurance Act. Nothing in this paragraph (d) precludes the CDFI Fund from directly enforcing the Assistance Agreement as provided for under the terms of the Act.
(e) The CDFI Fund shall notify the Appropriate Federal Banking Agency before imposing any sanctions on an Insured CDFI or other institution that is examined by or subject to the reporting requirements of that agency. The CDFI Fund shall not impose a sanction described in paragraph (c) of this
(1) Objects to the proposed sanction;
(2) Determines that the sanction would:
(i) Have a material adverse effect on the safety and soundness of the institution; or
(ii) Impede or interfere with an enforcement action against that institution by that agency;
(3) Proposes a comparable alternative action; and
(4) Specifically explains:
(i) The basis for the determination under paragraph (e)(2) of this section and, if appropriate, provides documentation to support the determination; and
(ii) How the alternative action suggested pursuant to paragraph (e)(3) of this section would be as effective as the sanction proposed by the CDFI Fund in securing compliance and deterring future noncompliance.
(f) In reviewing the performance of a Recipient in which its Investment Area(s) includes an Indian Reservation or Targeted Population(s) includes an Indian Tribe, the CDFI Fund shall consult with, and seek input from, the appropriate tribal government.
(g) Prior to imposing any sanctions pursuant to this section or an Assistance Agreement, the CDFI Fund shall, to the maximum extent practicable, provide the Recipient (or the Community Partner, if applicable) with written notice of the proposed sanction and an opportunity to comment. Nothing in this section, however, shall provide a Recipient or Community Partner with the right to any formal or informal hearing or comparable proceeding not otherwise required by law.
Assistance provided pursuant to this part may be provided in a lump sum or over a period of time, as determined appropriate by the CDFI Fund. The CDFI Fund shall not provide any assistance under this part until a Recipient has satisfied any required conditions set forth in its Assistance Agreement and, if the Recipient is to receive financial assistance, the Recipient has secured in-hand and/or firm commitments for the matching funds required for such assistance pursuant to the applicable Notice of Funds Availability.
(a)
(1) Disclose the manner in which CDFI Fund assistance is used;
(2) Demonstrate compliance with the requirements of this part and an Assistance Agreement; and
(3) Evaluate the impact of the CDFI Program.
(b)
(c)
(d)
(e)
(1)
(ii) For-profit organizations (excluding Insured CDFIs and State-Insured Credit Unions) must submit to the CDFI Fund financial statements audited in conformity with generally accepted auditing standards as promulgated by the American Institute of Certified Public Accountants, no later than six months after the end of the Recipient's fiscal year.
(iii) Insured CDFIs are not required to submit financial statements to the CDFI Fund. The CDFI Fund will obtain the necessary information from publicly available sources. State-Insured Credit Unions must submit to the CDFI Fund copies of the financial statements that they submit to the Appropriate State Agency.
(iv) If multiple for-profit organizations sign the Assistance Agreement: The Recipient may submit combined financial statements and footnotes for the Recipient and other entities that signed the Assistance Agreement as long as the financial statements of each signatory are shown separately (for example, in combining financial statements).
(2)
(ii) The CDFI Fund will use the Annual Report to collect data to assess the Recipient's compliance with its
(iii) Recipients are responsible for the timely and complete submission of the Annual Report, even if all or a portion of the documents actually are completed by another entity or signatory to the Assistance Agreement. If such other entities or signatories are required to provide Annual Reports, or other documentation that the CDFI Fund may require, the Recipient is responsible for ensuring that the information is submitted timely and complete. The CDFI Fund reserves the right to contact such additional signatories to the Assistance Agreement and require that additional information and documentation be provided.
(3) The CDFI Fund's review of the progress of an Insured CDFI, a Depository Institution Holding Company or a State-Insured Credit Union in implementing its Comprehensive Business Plan and satisfying the terms and conditions of its Assistance Agreement may also include information from the Appropriate Federal Banking Agency or Appropriate State Agency, as the case may be.
(4)
(f)
(2) If the information, reports, or records requested by the CDFI Fund pursuant to paragraph (f)(1) of this section are not provided by the Appropriate Federal Banking Agency within 15 calendar days after the date on which the material is requested, the CDFI Fund may request the information from or impose the record keeping or reporting requirements directly on such institutions with notice to the Appropriate Federal Banking Agency.
(3) The CDFI Fund shall use any information provided by an Appropriate Federal Banking Agency or Appropriate State Agency under this section to the extent practicable to eliminate duplicative requests for information and reports from, and record keeping by, an Insured CDFI, State-Insured Credit Union or other institution that is examined by or subject to the reporting requirements of an Appropriate Federal Banking Agency or Appropriate State Agency.
(4) Notwithstanding paragraphs (f)(1) and (2) of this section, the CDFI Fund may require an Insured CDFI, State-Insured Credit Union, or other institution that is examined by or subject to the reporting requirements of an Appropriate Federal Banking Agency or Appropriate State Agency to provide information with respect to the institution's implementation of its Comprehensive Business Plan or compliance with the terms of its Assistance Agreement, after providing notice to the Appropriate Federal Banking Agency or Appropriate State Agency, as the case may be.
(5) Nothing in this part shall be construed to permit the CDFI Fund to require an Insured CDFI, State-Insured Credit Union, or other institution that is examined by or subject to the reporting requirements of an Appropriate Federal Banking Agency or Appropriate State Agency to obtain, maintain, or furnish an examination report of any Appropriate Federal Banking Agency or Appropriate State Agency, or records contained in or related to such report.
(6) The CDFI Fund and the Appropriate Federal Banking Agency shall promptly notify each other of material concerns about a Recipient that is an Insured CDFI or that is examined by or subject to the reporting requirements of an Appropriate Federal Banking Agency, and share appropriate information relating to such concerns.
(7) Neither the CDFI Fund nor the Appropriate Federal Banking Agency (or Appropriate State Agency, as the case may be) shall disclose confidential information obtained pursuant to this section from any party without the written consent of that party.
(8) The CDFI Fund, the Appropriate Federal Banking Agency (or Appropriate State Agency, as the case may be), and any other party providing information under this paragraph (f) shall not be deemed to have waived any privilege applicable to the any information or data, or any portion thereof, by providing such information or data to the other party or by permitting such data or information, or any copies or portions thereof, to be used by the other party.
The CDFI Fund and each Appropriate Federal Banking Agency shall cooperate and respond to requests from each other and from other Appropriate Federal Banking Agencies in a manner that ensures the safety and soundness of Insured CDFIs or other institution that is examined by or subject to the reporting requirements of an Appropriate Federal Banking Agency.
In carrying out its responsibilities pursuant to an Assistance Agreement, the Recipient shall comply with all applicable Federal, State, and local laws, regulations, and ordinances, OMB Circulars, and Executive Orders. Furthermore, Recipients must comply with the CDFI Fund's Environmental Quality Regulations (12 CFR part 1815) as well as all other federal environmental requirements applicable to federal awards.
(a)
(i) The credit must be provided pursuant to standard underwriting procedures, terms and conditions;
(ii) The Insider receiving the credit, and any family member or business partner thereof, shall not participate in any way in the decision making regarding such credit;
(iii) The board of directors or other governing body of the Recipient shall approve the extension of the credit; and
(iv) The credit must be provided in accordance with a policy regarding credit to Insiders that has been approved in advance by the CDFI Fund.
(2) A Recipient that is an Insured CDFI, a Depository Institution Holding Company or a State-Insured Credit Union shall comply with the restrictions on Insider activities and any comparable restrictions established by its Appropriate Federal Banking Agency or Appropriate State Agency, as applicable.
(b)
No assistance made available under this part may be expended by a Recipient to pay any person to influence or attempt to influence any agency, elected official, officer or employee of a State or local government in connection with the making, award, extension, continuation, renewal, amendment, or modification of any State or local government contract, grant, loan or cooperative agreement as such terms are defined in 31 U.S.C. 1352.
The criminal provisions of 18 U.S.C. 657 regarding embezzlement or misappropriation of funds are applicable to all Recipients and Insiders.
The CDFI Fund shall not be deemed to Control a Recipient by reason of any assistance provided under the Act for the purpose of any applicable law.
The liability of the CDFI Fund and the United States Government arising out of any assistance to a CDFI in accordance with this part shall be limited to the amount of the investment in the CDFI. The CDFI Fund shall be exempt from any assessments and other liabilities that may be imposed on controlling or principal shareholders by any Federal law or the law of any State. Nothing in this section shall affect the application of any Federal tax law.
Any person who becomes aware of the existence or apparent existence of fraud, waste, or abuse of assistance provided under this part should report such incidences to the Office of Inspector General of the U.S. Department of the Treasury.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace extending upward from 700 feet above the surface at Tracy Municipal Airport, Tracy, CA. After a review, and the decommissioning of the Manteca VHF omnidirectional radio range and distance measuring equipment (VOR/DME), the FAA found it necessary to amend the airspace area for the safety and management of Standard Instrument Approach Procedures for Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, October 15, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Rob Riedl, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; Telephone: (425) 203-4534.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Tracy, CA.
On June 23, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace areas extending upward from 700 feet or more above the surface of the earth at Tracy Municipal Airport, Tracy, CA. Decommissioning of the Manteca VOR/DME and further review of the airspace has made this action necessary for the safety and management of standard instrument approach procedures for IFR operations at the airport. Class E airspace extending upward from 700 feet above the surface is modified to
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial, and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g): 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 3.9-mile radius of Tracy Municipal Airport, and within 2 miles each side of the 326° bearing from the airport extending from the 3.9-mile radius to 11 miles northwest of the airport, and that airspace 1.8 miles either side of the airport 132° bearing from the 3.9-mile radius to 9 miles southeast of the airport, and that airspace 2.2 miles either side of the airport 097° bearing from the 3.9-mile radius to 6 miles east of the airport.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing temporary safety zones in the Port of Dutch Harbor, Broad Bay or adjacent navigable waters in the Dutch Harbor area on July 15, 2015. The temporary safety zones will encompass the navigable waters within a 25-yard radius of moored or anchored offshore exploration or support vessels, and the navigable waters within a 100-yard radius of underway offshore exploration or support vessels. The purpose of the safety zones is to protect persons and vessels during an unusually high volume of vessel traffic in the Port of Dutch Harbor, and the adjacent territorial sea due to additional vessel traffic associated with exploratory drilling operations in the Chukchi and Beaufort seas during the summer of 2015.
This rule is effective without actual notice from August 28, 2015 until August 31, 2015. For the purposes of enforcement, actual notice will be used from July 15, 2015, until August 31, 2015.
Documents mentioned in this preamble are part of docket [USCG-2015-0246]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email LT Eugene Chung, Sector Anchorage Prevention, Coast Guard; telephone 907-428-4189, Email
On May 1, 2015, we published a notice of proposed rulemaking (NPRM) entitled Safety Zones: Oil Exploration Staging Area in Dutch Harbor, AK in the
The Coast Guard is issuing this temporary final 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.
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
Based on the expectation of increased maritime traffic primarily due to the anticipated arrival of approximately twenty eight (28) vessels affiliated with planned offshore drilling operations in the Chukchi and Beaufort Seas, temporary safety zones needed to ensure the safe transit of vessels within the navigable waters of the Port of Dutch Harbor and adjacent waters extending seaward to the limits of the territorial sea. The Coast Guard believes temporary safety zones are needed due to safety concerns for personnel aboard the support vessels, mariners operating other vessels in the vicinity of Dutch Harbor, and to protect the environment. The vessels and equipment anticipated to be staged within these safety zones, due to their size and technical complexity, pose a safety risk to vessels that attempt to navigate too closely to them. Limited rescue capabilities are available in the area. In an effort to mitigate the safety risks and any resulting environmental damage, the Coast Guard is establishing temporary safety zones within the Port of Dutch Harbor and the adjacent territorial sea.
In evaluating this request, the Coast Guard explored relevant safety factors and considered several criteria, including, but not limited to: (1) The amount of commercial activity in and around the Port of Dutch Harbor; (2) safety concerns for personnel aboard the vessels; (3) sensitivity of the environment in the region and potential adverse affects caused by a grounding, allision, or collision; (4) the types and volume of vessels navigating in the vicinity of the Port of Dutch Harbor; and (5) the need to allow for lawful demonstrations without endangering the safe operations of support vessels. Vessels transiting in the vicinity of the safety zones could consist of large commercial shipping vessels, fishing vessels, tugs and tows, and recreational vessels. Any group or individual intending to conduct lawful demonstrations in the vicinity of offshore exploration support vessels must do so outside of the temporary safety zones.
Results from a thorough and comprehensive examination of the five criteria identified above, in conjunction with International Maritime Organization guidelines and existing regulations, warrant establishment of the temporary safety zones. A safety zone would significantly reduce the threat of collisions, allisions, or other incidents which could endanger the safety of all vessels operating on the navigable waters of the Port of Dutch Harbor and the adjacent territorial sea.
For the reasons described above, the Coast Guard is establishing temporary safety zones that would surround the designated vessels while at anchor, moored or underway on the navigable waters of the Port of Dutch Harbor and the adjacent territorial sea in order to mitigate the potential safety risks associated with the increased vessel traffic. The temporary safety zones will encompass the waters within 25 yards of the support vessel if the support vessel is moored or at anchor, and 100 yards if the support vessel is in transit.
Enforcing temporary safety zones for each offshore exploration or support vessel while they are on the navigable waters in the Port of Dutch Harbor or the adjacent territorial sea will help ensure the safety of all vessels, including the diverse commercial fleets of Dutch Harbor.
We developed this temporary final rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The safety zone will have negligible economic impact, as there will be ample room for navigation around it.
This rule is not a significant regulatory action due to the minimal impact this will have on standard vessel operations within the port of Dutch Harbor because of the limited area affected and the limited duration of the rule. The safety zones are also designed to allow vessels transiting through the area to safely travel around the safety zones without incurring additional costs.
The Regulatory Flexibility Act of 1980 (RFA), (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.
This rule could affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit through or anchor in within a portion of the Port of Dutch Harbor or adjacent waters, from June 15, 2015 to July 15, 2015.
This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: These safety zone restrictions are only effective from July 15, 2015 to August 31, 2015, and are limited only to waters within 25 yards of the support vessel if the support vessel is moored or at anchor, and 100 yards if the support vessel is in transit. The Coast Guard will publish a local notice to mariners (LNM) and will issue broadcast notice to mariners (BNM) alerts via marine channel 16 VHF before the safety zone is enforced.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
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
This rule calls for no 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 determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.
This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. Specifically, the rule involves establishing a safety zone, which is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this temporary final rule. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under Supporting Documents.
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)
(1) All navigable waters within a 25-yard radius of a moored or anchored offshore exploration or support vessel, or within a 100-yard radius of any underway offshore exploration or support vessel, located within the Port of Dutch Harbor, Broad Bay or adjacent navigable waters encompassed within the area from Cape Cheerful at 54-12.000 N 166-38.000 W north to the limits of the U.S. territorial sea, and from Princess Head at 53-59.000 N 166-25.900 W to the limits of the U.S. territorial sea.
(b)
(c)
(1) If a non-exploration or support vessel is moored or anchored and an offshore exploration or support vessel transits near them such that it places the moored or anchored vessel within the 100-yard safety zone described in paragraph (a) of this section, the moored or anchored vessel must remain stationary until the offshore exploration or support vessel maneuvers to a distance exceeding the 100-yard safety zone.
(2) All persons and vessels shall comply with the instructions of the Captain of the Port (COTP) or
(3) Entry into the safety zone is prohibited unless authorized by the COTP or his designated on-scene representative. Any persons desiring to enter the safety zone must contact the designated on-scene representative on VHF channel 16 (156.800 MHz) and receive permission prior to entering.
(4) If permission is granted to transit within the safety zone, all persons and vessels must comply with the instructions of the designated on-scene representative.
(5) The COTP, Western Alaska, will notify the maritime and general public by marine information broadcast during the period of time that the safety zones are in force by providing notice in accordance with 33 CFR 165.7.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Henderson Bay, Lake Ontario, Sackets Harbor, NY for a triathlon event. This safety zone is intended to restrict vessels from a portion of Lake Ontario during the swimming portion of the Incredoubleman Triathlon event. This temporary safety zone is necessary to protect participants, spectators, mariners, and vessels from the navigational hazards associated with a large scale swimming event.
This rule is effective from 7 a.m. on September 12, 2015 until 10 a.m. on September 13, 2015.
Documents mentioned in this preamble are part of docket [USCG-2015-0509]. 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 LTJG Amanda Garcia, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, email
The Coast Guard is issuing this temporary final 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 doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a large scale swimming event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the
The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.
Between 7 a.m. until 10 a.m. on September 12 and 13, 2015, a triathlon/swimming race will be held offshore of Henderson Bay, Lake Ontario, Sackets Harbor, NY. The Captain of the Port Buffalo has determined that a large scale swimming event on a navigable waterway will pose a significant risk to participants and the boating public.
With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Incredboubleman Triathlon event. This zone will be enforced from 7 a.m. until 10 a.m. on September 12 and 13, 2015. This zone will encompass all areas on the waters of Henderson Bay, Lake Ontario, Sackets Harbor, NY within the following positions: 43°53′52.58″ N. and 076°7′40.19″ W., then Northwest to 43°54′4.44″ N. and 076°7′43.89″ W., then Southwest to 43°53′57.19″ N. and 076°8′19.19″ W., then Southeast to 43°53′52.58″ N. and 076°7′40.19″ W. (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this rule on small entities. 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. 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. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Outer Harbor between 7 a.m. to 10 a.m. on September 12 and 13, 2015.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this safety zone would be effective, and thus subject to enforcement, for only 3 hours early in the day. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the enforcement of the zone, we would issue local Broadcast Notice to Mariners.
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 determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to 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.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (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
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zone on Sister Bay near Sister Bay, Wisconsin for the Sister Bay Marinafest Ski Show. This zone will be enforced from 1:30 p.m. until 3:15 p.m. on September 5, 2015. This action is necessary and intended to ensure safety of life on navigable waters immediately prior to, during, and immediately after the ski show. During the aforementioned period, the Coast Guard will enforce restrictions upon, and control movement of, vessels in the safety zone. No person or vessel may enter the safety zone while it is being enforced without permission of the Captain of the Port Lake Michigan or a designated representative.
The regulations in 33 CFR 165.929 will be enforced for safety zone (f)(14), Table 165.929, from 1:30 p.m. until 3:15 p.m. on September 5, 2015.
If you have questions on this document, call or email MST1 Joseph McCollum, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7148, email
The Coast Guard will enforce the Sister Bay Marinafest Ski Show safety zone listed as item (f)(14) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone will encompass waters of Sister Bay within an 800-foot radius of position 45°11.585′ N., 087°07.392′ W. (NAD 83). This zone will be enforced from 1:30 p.m. until 3:15 p.m. on September 5, 2015.
All vessels must obtain permission from the Captain of the Port Lake Michigan, or the on-scene representative to enter, move within, or exit the safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated representative.
This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zone on the waters of Sister Bay in Sister Bay, WI for the Sister Bay Marinafest Fireworks. This zone will be enforced from 8:15 p.m. until 10 p.m. on each day of September 5 and 6, 2015. This action is necessary and intended to ensure safety of life on navigable waters immediately prior to, during, and immediately after the fireworks display. During the aforementioned period, the Coast Guard will enforce restrictions upon, and control movement of, vessels in the safety zone. No person or vessel may enter the safety zone while it is being enforced without permission of the Captain of the Port Lake Michigan or a designated representative.
The regulations in 33 CFR 165.929 will be enforced for safety zone (f)(15), Table 165.929, from 8:15 p.m. until 10 p.m. on each day of September 5 and 6, 2015.
If you have questions on this document, call or email MST1 Joseph McCollum, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7148, email
The Coast Guard will enforce the Sister Bay Marinafest Fireworks safety zone listed as item (f)(15) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone will encompass all waters of Sister Bay within an 800-foot radius of the launch vessel in approximate position 45°11.585′ N., 087°07.392′ W. (NAD 83). This zone will be enforced from 8:15 p.m. until 10 p.m. on each day of September 5 and 6, 2015.
All vessels must obtain permission from the Captain of the Port Lake Michigan or the on-scene representative to enter, move within, or exit the safety zone. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated representative.
This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the
Environmental Protection Agency (EPA).
Final rule.
Pursuant to its authority under the Clean Air Act (CAA), EPA is taking final action to approve a state implementation plan (SIP) submission made by the Michigan Department of Environmental Quality (MDEQ) intended to meet the state board requirements under section 128 of the CAA. The proposed rule associated with this final action was published on June 24, 2015.
This final rule is effective on September 30, 2015.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2014-0657. All documents in the docket are listed in the
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
Under section 128 of the CAA, each SIP must contain provisions that address two requirements: (i) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. To comply with this statutory provision, MDEQ submitted rules from the Civil Service Rule at 2-8.3(a)(1) for incorporation into the SIP, pursuant to section 128 of the CAA. EPA's June 24, 2015, proposed rulemaking (
For the reasons discussed in our June 24, 2015, proposed rulemaking, EPA is taking final action to approve MDEQ's submissions addressing the state board requirements under section 128 of the CAA. The specific rule that we are approving as satisfying these requirements is Civil Service Rule at 2-8.3(a)(1). It should be noted that our June 24, 2015, rulemaking contained proposed actions for various additional MDEQ submissions. This final rulemaking, however, is limited only to the state board requirements under section 128 of the CAA.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In
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);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible 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 October 30, 2015. 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, Reporting and recordkeeping requirements.
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 two revisions to the New Mexico State Implementation Plan (SIP) to update the Albuquerque-Bernalillo County Prevention of Significant Deterioration (PSD) SIP permitting program consistent with federal requirements. New Mexico submitted the Albuquerque-Bernalillo County PSD SIP permitting revisions on July 26, 2013, and June 11, 2015, which includes a request for parallel processing of the submitted 2015 revisions. These submittals contain revisions to address the requirements of the EPA's May 2008, July 2010, and October 2012 PM
This final rule is effective on September 30, 2015.
The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2013-0616. All documents in the docket are listed on the
Ashley Mohr, 214-665-7289,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
The background for today's action is discussed in detail in our May 20, 2015 proposal (80 FR 28901). In that notice, we proposed to approve portions of SIP submittals for the State of New Mexico submitted on July 26, 2013, and March 4, 2015, that contained revisions to the Albuquerque-Bernalillo County PSD program. The March 4, 2015 submittal included a request for parallel processing of the submitted 2015 revisions, meaning that the EPA proposed approval of a rule that was not yet finalized at the local level. Our May 20, 2015 proposed approval and accompanying Technical Support Document (TSD) provided the EPA's evaluation of the March 4, 2015 revisions to the New Mexico SIP. We preliminarily determined that the revisions were consistent with the CAA and the EPA's regulations and guidance. As such, we proposed approval of the SIP revisions contained in the March 4, 2015 submittal.
Under the EPA's “parallel processing” procedure, the EPA proposes a rulemaking action on proposed SIP revisions concurrently with the State or Local Agency's public review process. If the proposed SIP revision is not significantly or substantively changed, the EPA will finalize the rulemaking on the SIP revision as proposed after responding to any submitted comments. Final rulemaking action by the EPA will occur only after the final SIP revision has been fully adopted by the State or Local Agency and submitted formally to the EPA for approval as a SIP revision. See 40 CFR part 51, Appendix V.
The City of Albuquerque-Bernalillo County completed their rulemaking process, and the Albuquerque-Bernalillo County Air Quality Control Board adopted revisions to the PSD program on April 30, 2015. These adopted changes were submitted as a revision to the New Mexico SIP on June 11, 2015. The EPA has evaluated the final SIP revision submittal for any changes made from the time of proposal. See “Addendum to the TSD” for EPA-R06-OAR-2013-0616, available in the rulemaking docket. Our evaluation indicates that adopted changes to the Albuquerque-Bernalillo County PSD program are the same as the revisions that we proposed to approve; and therefore, do not alter our rationale presented in the May 20, 2015 proposed approval. As such, the EPA is proceeding with our final approval of the revisions to the New Mexico SIP, consistent with the parallel processing provisions in 40 CFR part 51, Appendix V.
This action to approve the aforementioned revisions to the New Mexico SIP is being taken under section 110 of the Act. We did not receive any comments regarding our proposal.
The EPA is approving revisions to the Albuquerque-Bernalillo County PSD program that were submitted by New Mexico as a SIP revision on July 26, 2013, and June 11, 2015. We are approving the portions of the July 26, 2013, and June 11, 2015 submittals that revised the following sections under 20.11.61:
• 20.11.61.2 NMAC—Scope,
• 20.11.61.5 NMAC—Effective Date,
• 20.11.61.6 NMAC—Objective,
• 20.11.61.7 NMAC—Definitions,
• 20.11.61.10 NMAC—Documents,
• 20.11.61.11 NMAC—Applicability,
• 20.11.61.12 NMAC—Obligations of Owners or Operators of Sources,
• 20.11.61.14 NMAC—Control Technology Review and Innovative Control Technology,
• 20.11.61.15 NMAC—Ambient Impact Requirements,
• 20.11.61.18 NMAC—Air Quality Analysis and Monitoring Requirements,
• 20.11.61.20 NMAC—Actuals Plantwide Applicability Limits (PALs),
• 20.11.61.23 NMAC—Exclusions from Increment Consumption,
• 20.11.61.24 NMAC—Sources Impacting Federal Class I Areas—Additional Requirements,
• 20.11.61.27 NMAC—Table 2—Significant Emission Rates,
• 20.11.61.29 NMAC—Table 4—Allowable PSD Increments, and
• 20.11.61.30 NMAC—Table 5—Maximum Allowable Increases for Class I Variances.
The EPA has determined that these revisions to the New Mexico SIP's Albuquerque-Bernalillo County PSD program are approvable because the submitted rules are adopted and submitted in accordance with the CAA
The EPA is severing from our final approval action the revisions to 20.11.60 NMAC submitted on July 26, 2013, which are revisions to the Albuquerque-Bernalillo County NNSR Program and will be addressed in a separate action.
In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the New Mexico regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 30, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, 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
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes, and removes tolerances for residues of dimethomorph in or on multiple commodities which are identified and discussed later in this document. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). EPA is correcting the CAS name of dimethomorph in 40 CFR 180.493(a), 40 CFR 180.493(c), and 40 CFR 180.493(d).
This regulation is effective August 31, 2015. Objections and requests for hearings must be received on or before October 30, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0531, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0531 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 30, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0531, by one of the following methods:
•
•
•
In the
Based upon review of the data supporting the petition, EPA has revised the tolerance for residues of dimethomorph in or strawberry to 0.90 ppm and is correcting the CAS name of dimethomorph in 40 CFR 180.493(a), 40 CFR 180.493(c), and 40 CFR 180.493(d) to the following introductory tolerance expression text: 40 CFR 180.493(a): Tolerances are established for residues of the fungicide dimethomorph, 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-1-yl]morpholine, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only dimethomorph in or on the commodity. 40 CFR 180.493(c): Tolerances with regional registrations are established for residues of the fungicide dimethomorph, 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-1-yl]morpholine, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only dimethomorph in or on the commodity. 40 CFR 180.493(d): Tolerances are established for the indirect or inadvertent residues of the fungicide dimethomorph, 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-1-yl]morpholine, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only dimethomorph in or on the commodity.
The reason for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for dimethomorph including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with dimethomorph follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The target organ for dimethomorph is the liver in rats and dogs. No biologically significant effect was observed in the rat subchronic oral toxicity study while decreased body weight and increased incidence of arteritis in male rats and decreased body weights and increased incidence of “ground-glass” foci in livers of female rats were observed in the rat chronic toxicity study. In the dog subchronic oral toxicity study, decreased absolute and relative prostate weights, and slight liver effects were observed. No toxicity was observed at the limit dose in the rat 28-day dermal toxicity study. The developmental toxicity studies showed no increased sensitivity to offspring of either rats or rabbits as demonstrated by the no-observed-adverse-effect-levels (NOAELs) equal to or higher than those producing toxicity in the maternal animals. Likewise, in the 2-generation reproduction study, there was no toxicity to the offspring at any dose lower than that causing parental toxicity. There is no evidence that dimethomorph is a developmental, or reproductive toxicant, and it is not neurotoxic or immunotoxic.
The Agency classified dimethomorph as “not likely to be carcinogenic to humans” based upon lack of evidence of carcinogenicity in rats and mice and no evidence of mutagenicity. A quantitative cancer risk assessment is not necessary. Dimethomorph has low acute toxicity by the oral, dermal, or inhalation route of exposure (Toxicity Category III or IV). It is not an eye or skin irritant, and is not a skin sensitizer.
Specific information on the studies received and the nature of the adverse effects caused by dimethomorph as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for dimethomorph used for human risk assessment is shown in Table 1 of this unit.
1.
i.
ii.
iii.
iv.
2.
Based on FIRST model for surface water and Pesticide Root Zone Model Ground Water (PRZM GW) for ground water, the estimated drinking water concentrations (EDWCs) of dimethomorph for acute exposures for non-cancer assessments are estimated to be 81.1 parts per billion (ppb) for surface water and 20.1 ppb for ground water; and for chronic exposures for non-cancer assessments are estimated to be 24.7 ppb for surface water and 18.8 ppb (post breakthrough avg. ppb) and 14.6 ppb (simulation avg. ppb) for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
For acute dietary risk assessment, the water concentration of 81.1 ppb was used to assess the contribution to drinking water.
For chronic dietary risk assessment, the water concentration of 24.7 ppb was used to assess the contribution to drinking water.
3.
4.
EPA has not found dimethomorph to share a common mechanism of toxicity with any other substances, and dimethomorph does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that dimethomorph does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
The above decision is based on the following findings:
i. Although the toxicity database of dimethomorph is incomplete because a subchronic inhalation study is not available, the available toxicity database of dimethomorph, including developmental toxicity studies in rats and rabbits, a 2-generation reproduction study in rats, acute and subchronic neurotoxicity study in rats, is adequate to characterize developmental and reproductive effects and to assess the qualitative or quantitative susceptibility in the young.
ii. In an acute neurotoxicity study, functional observational battery (FOB) findings and reduced motor activity were observed at ≥ 250 mg/kg on day 0 only. These findings were considered an impairment of the overall condition of the animals following a single gavage dose, rather than a direct neurotoxic effect of dimethomorph based on the absence of any neurohistopathological changes in the treated animals and the transient nature of the observed FOB and neurobehavioral assessments. In support of this conclusion, no neurotoxic effects were observed in rats fed dimethomorph up to the highest dose tested at 2,400 ppm (178/204 mg/kg/day for males/females, respectively) in a 90-day neurotoxicity study. Additionally, the toxicology database does not reveal evidence of neurotoxic clinical signs, changes in brain weight, or histopathology of the nervous system in any study with dimethomorph.
iii. There is no evidence that dimethomorph results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to dimethomorph in drinking water. These assessments will not underestimate the exposure and risks posed by dimethomorph.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
A short-term adverse effect was identified; however, dimethomorph is not registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for dimethomorph.
4.
5.
6.
Adequate enforcement methodology (high performance liquid chromatography with ultraviolet detection (HPLC/UV) method FAMS 002-04 and Method M 2577, a gas chromatographic (GC) method with nitrogen phosphorus detection (NPD)) are available to enforce the tolerance expression.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has established MRLs for dimethomorph in or on strawberry at 0.05 ppm. These MRLs are different than the tolerances established for dimethomorph in the United States. EPA is not proposing to harmonize the U.S. tolerance for residues in strawberry with the Codex due to different application rates (U.S. application rate, 219-237 gram active ingredient/hectare, and Codex countries' application rate, 150 gram active ingredient/hectare).
BASF proposed a tolerance of dimethomorph residues on strawberry at 1.0 ppm. BASF and EPA used the Organization for Economic Cooperation & Development (OECD) spreadsheet calculator and both determined from the data set that a tolerance of 0.90 ppm was the recommended OECD calculator spreadsheet output. However, BASF rounded that value to 1.0 ppm, while EPA's policy is to establish the tolerance at the OECD calculator output level without rounding; therefore, EPA is establishing a tolerance on strawberry at 0.90 ppm. EPA established the tolerance for leafy vegetables (except brassica) crop group 4 in the
EPA is correcting the CAS name of dimethomorph in 40 CFR 180.493(a), 40 CFR 180.493(c), and 40 CFR 180.493(d). The CAS name of dimethomorph is currently incorrect (currently is listed as the International Union of Pure and Applied Chemistry (IUPAC) name (E,Z)-4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl) acryloyl]morpholine, and is being revised to the correct CAS name 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-1-yl]morpholine)).
Therefore, EPA is establishing a tolerance for residues of the fungicide, dimethomorph in or on strawberry at 0.90 ppm and removing the established tolerances for lettuce, head and lettuce leaf at 10 ppm. EPA is correcting the CAS name of dimethomorph in 40 CFR 180.493(a), 40 CFR 180.493(c), and 40 CFR 180.493(d) to the following tolerance expressions:
40 CFR 180.493(a): Tolerances are established for residues of the fungicide dimethomorph, 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-1-yl]morpholine, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only dimethomorph in or on the commodity.
40 CFR 180.493(c): Tolerances with regional registrations are established for residues of the fungicide dimethomorph, 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-1-yl]morpholine, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only dimethomorph in or on the commodity.
40 CFR 180.493(d): Tolerances are established for the indirect or inadvertent residues of the fungicide dimethomorph, 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The additions and revisions read as follows:
(a) * * *
Tolerances are established for residues of the fungicide dimethomorph, 4-[3-(4-chlorophenyl)-3-(3,4-dimethoxyphenyl)-1-oxo-2-propen-1-yl]morpholine, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only dimethomorph in or on the commodities.
(c)
(d)
Federal Communications Commission.
Final rule.
This document responds to three petitions for reconsideration seeking to modify certain rules adopted
Effective September 30, 2015.
Rodney Small, Office of Engineering and Technology, (202) 418-2452, email:
This is a summary of the Commission's
1. In the
2. In this
3. In its petition, Marcus asks that the Commission reconsider a modified provision in § 5.85(a) of the Commission's rules that prohibits all experimental licensees from using bands exclusively allocated to the passive services. Marcus notes that, while the modified rule was proposed in the
4. As Marcus observes, § 5.85(a) of the rules is inconsistent with both the Commission's existing treatment of conventional ERS licenses and the text of the
5. In making these modifications to § 5.85(a), the Commission observes that a number of conventional experiments have operated in passive service bands without causing harmful interference to passive services, and the Commission concurs with Marcus, Boeing, and Battelle that such conventional experimental use should be permitted to continue under some circumstances. The Commission observes that in those instances in which an experimental applicant had requested use of a passive band, OET staff in coordination with NTIA undertook a case-by-case review of the application and imposed specific conditions on the applicant, as warranted, to minimize the potential that the experiment would cause harmful interference to passive service(s) that use that band. The Commission therefore finds generally appropriate Marcus's recommended new language for § 5.85(a) that would continue to permit conventional ERS use of the passive bands under limited circumstances, and further modifies the language to also permit compliance testing licensees to use those bands.
6. A medical testing experimental radio license (medical testing license) is issued to hospitals and health care institutions that demonstrate expertise in testing and operation of experimental medical devices that use wireless telecommunications technology or communications functions in clinical trials for diagnosis, treatment, or patient
7. Medtronic's petition raises two issues, which the Commission addresses in turn. First, Medtronic asks that the Commission expand the eligibility for the medical testing license. The second issue pertains to cost reimbursement for clinical trials, which is permitted under Food and Drug Administration (FDA) rules. Medtronic requests that the Commission clarify that such reimbursement does not constitute impermissible marketing under §§ 2.803 or 2.805 of its rules. Medtronic asserts that these changes could greatly facilitate clinical trials because the devices would not need to have first been approved by the Commission under its equipment authorization program. No party filed comments regarding any of the issues raised by Medtronic's petition.
8.
9. Medtronic observes that under these FDA classifications, a wide-range of entities, including device manufacturers, act as sponsors and sponsor-investigators of clinical trials and engage in real-world patient testing, but that these entities do not always meet the more limited definition of a “health care facility” under the Commission's rules. Thus, Medtronic argues, a “significant portion” of these entities are not eligible to apply for a medical testing license. These entities, it claims, will be subject to testing limitations and added costs and burdens by having to design their tests to comply with the Commission's other experimental authorization rules (or not be able to conduct them in a manner that provides the most utility for device evaluation purposes). Medtronic asserts that the Commission's licensing structure is inconsistent with FDA regulations that permit a wider variety of entities to sponsor or conduct clinical trial testing, and creates regulatory uncertainty, does not meet the development and testing needs of the medical community, and threatens to frustrate the very innovation that this proceeding is intended to promote. Medtronic also asserts that the new program experimental license (program license) is inappropriate for medical testing because that license does not unreservedly cover clinical trials. Medtronic therefore recommends that the Commission extend the eligibility for medical testing licenses to FDA sponsors and sponsor-investigators of clinical trials involving the testing and operation of new medical devices.
10. Medtronic argues that expanding the eligibility to device manufacturers would level the playing field under the rules since the line between device manufacturers and health care facilities is blurring as healthcare providers are among those who develop medical devices. More specifically, given this overlap between the two with respect to their involvement in developing such devices, Medtronic argues that the following two disparities in regulatory treatment unfairly skew the playing field: (1) Medical testing licensees can operate on frequency bands restricted under § 15.205(a) if the device being tested complies with rules in part 18, part 95, Subpart H (Wireless Medical Telemetry Service), or part 95, Subpart I (Medical Device Radiocommunication Service), but program and conventional experimental licensees cannot; and (2) medical testing licensees can conduct clinical trials outside the physical facilities under their control, but program licensees cannot.
11. The Commission addresses separately in a
12. After careful consideration, the Commission finds good reason to deny Medtronic's request. In the
13. The Commission concludes that if it were to expand eligibility for a medical testing licensee to align with the FDA's regulations, it would undermine the Commission's ability to meet its own objectives. Each agency's rules are designed to satisfy different purposes. The Commission's primary concern in authorizing experimentation with RF devices is to ensure that the devices do not cause harmful interference to authorized users of the spectrum and that the devices do not enter into commerce prior to Commission certification. A part 5 licensee is the party that the Commission holds responsible for the proper operation of the experimental RF devices to avoid harmful interference to authorized spectrum users and to take corrective action as necessary. A part 5 license also specifies the locations for experimentation,
14. The Commission finds it better serves the public interest to maintain the structure that it adopted, wherein a medical testing license is available only to a qualified health care facility that is solely responsible for clinical trials within its institution. The key element here is that the licensee controls the facility—and hence the interference environment—where multiple clinical trials are being conducted. The medical testing license is designed to address the particular needs of health care institutions in conducting multiple clinical trials within its institution under real use conditions, whether the RF-based medical devices being tested are manufactured by themselves or other manufacturers. To expand eligibility for this license to any manufacturer of medical devices, the Commission would have to identify the real-property facilities that they control and where clinical trials would be conducted. It seems unlikely that a manufacturer would conduct clinical trials at its manufacturing facility if this does not provide real use conditions. Moreover, Medtronic does not ask to conduct clinical trials at its own facilities but rather to conduct such trials at multiple other locations as approved under FDA rules on a trial-by-trial basis. This is fundamentally different than how the medical testing license is intended to operate.
15. In declining to modify the rules as requested by Medtronic, the Commission notes that the part 5 rules provide other options for conducting clinical trials that other entities, such as sponsors, investigators and medical device manufacturers, can use. First, entities may evaluate product performance of an experimental wireless medical device under a market trial by obtaining a conventional experimental license. Typically, market trials are conducted prior to the production stage to evaluate product performance and customer acceptability under expected use conditions. As with medical testing licenses, market trials are authorized for devices that are designed to comply with existing Commission rules. However, unlike a regular conventional experimental license, a market trial license can be used to conduct clinical trials in locations not under the licensee's direct control, such as at a patient's home. Second, for instances where a party is developing a device that would not be able to be operated in compliance with existing rules, the Commission envisioned that such devices can be tested under a conventional experimental license. In summary, manufacturers of medical devices, whether associated with a health care facility or not, would have similar opportunities for experimenting with such devices even though they may do so under different types of authorizations. Both health care institutions that qualify for a medical testing license and device manufacturers that do not must obtain either a program or conventional experimental license to conduct basic research and experimentation. Device manufacturers that do not qualify for a medical testing license would need to obtain a market trial license to conduct clinical trials, which provides more flexibility than a medical testing license for specifying the area(s) within which the trial will be conducted. Health care facilities that qualify for a medical testing license could conduct clinical trials under either a medical testing license or a market trial license. Under the medical testing license, the licensee is limited to areas close to the licensee's own facility, and if it wants to conduct a clinical trial in a location not specified in its license, it would do so under a market trial license.
16. Also, as acknowledged by Medtronic, the Commission may declare a specific geographic area an innovation zone for the purpose of conducting a clinical trial. Such a declaration, which could be made on the Commission's own motion or in response to a public request—such as from a health care facility lacking the RF expertise necessary for obtaining a medical testing licensee—would permit the Commission to designate a defined geographic area and frequency range(s) for specific types of experiments by program licensees within guidelines that the Commission may establish on a case-by-case basis. These innovation zones can include geographic areas beyond a program licensee's authorized area without the licensee having to apply for a new license to cover a new location. Thus, they can serve to effectively extend a program license
17. As the Commission concluded in the
18.
19. The Commission's rules generally prohibit the operation and marketing of RF products prior to equipment authorization except under certain specified conditions. § 2.805 (“Operation of radio frequency devices prior to equipment authorization”) lists conditions under which RF devices may be operated prior to equipment authorization, including operation under an experimental radio license issued under part 5 of the rules, and states that an RF device that may be operated prior to equipment authorization “may not be marketed (as defined in § 2.803(a)) except as provided elsewhere in this chapter.” § 2.803 (“Marketing of radio frequency products prior to equipment authorization”) defines marketing as “sale or lease, or offering for sale or lease, including advertising for sale or lease, or importation, shipment, or distribution for the purpose of selling or leasing or offering for sale or lease.” These restrictions on marketing are intended to prevent the unchecked dissemination of experimental devices into the stream of commerce, where they may not always be easily recalled. The Commission concludes here that accepting reimbursement payments under the FDA's rules for the use of an unauthorized RF device in a clinical trial falls within this definition of “marketing.” However, § 2.803 includes a number of exceptions to the general prohibition against marketing unauthorized equipment. One of those exceptions is for market trials conducted under a part 5 experimental license. Accordingly, and, as explained below, the Commission clarifies that the marketing advocated by Medtronic is permitted on a limited basis under the § 2.803 exception for market trials conducted by part 5 experimental licensees.
20. In the
21. The Commission finds that, for devices that necessitate an experimental license for the conduct of a clinical trial, the market trial rule allows for some cost recovery for investigational devices used in those trials consistent with the Commission's purpose to prevent the unchecked dissemination of experimental devices into the stream of commerce. While the Commission's market trial rules differ from the FDA rules, they do provide manufacturers of experimental medical devices a mechanism for offsetting costs associated with the development of those devices. For example, FDA rules allow sponsors to charge investigators for medical devices and these costs may be passed on to the clinical trial participants, and a part 5 market trial licensee may sell devices to another licensee (
22. The Commission also observes that not all clinical trials occur under part 5 experimental rules. The Commission's experience has been that clinical trials, especially those involving implanted devices which cannot be easily returned to the licensee as the rules require, occur after the FCC has issued an equipment authorization grant for the device. In those cases, there is no FCC marketing restriction that conflicts with FDA rules.
23. The Commission also clarifies that a medical testing licensee conducting clinical trials that wants to seek reimbursement under the FDA's rules should follow the requirements for market trials in § 5.602. In establishing the medical testing license, the Commission observed that the license will allow for “clinical trials of medical devices that have already passed through the early developmental stage and are ready to be assessed for patient compatibility and use, as well as operational, interference, and RF immunity issues in real world situations.” This is conceptually analogous to a market trial, which “com[es] later in the development process” and is a “program designed to evaluate product performance and customer acceptability prior to the production stage.” Also, both medical testing licenses and market trials licenses are used for devices that will be operated under the current rules; could be authorized under waivers of such rules that are in effect at the time of marketing; or could be authorized under rules that have been adopted by the Commission, but that have not yet become effective. In the
24. The Commission also clarifies that, under a conventional license issued for a product development trial, a licensee conducting a clinical trial could not be reimbursed for its costs, and the Commission takes this opportunity to correct a contradiction in its current rules regarding product development trials. Although § 2.803 exempts product development trials from the marketing rule for equipment operated prior to certification, the product development trial rule (§ 5.601) expressly prohibits marketing of devices as defined in § 2.803 or the provision of services for hire. This prohibition in the rule is consistent with the Commission's statement in the
25. Thus, the Commission concludes that Medtronic's requests are best accommodated under the existing rules. To the extent that cost recovery for medical devices used in clinical trials is done under the market trial rules set forth in § 5.602, the Commission grants Medtronic's request and clarifies that such cost recovery does not constitute impermissible marketing under §§ 2.803 and 2.805 of its rules.
26. In their petition, Sirius XM and EchoStar request that the Commission add a definition of “emergency notifications” to its rules to clarify that all participants in the Emergency Alert System are emergency notification providers, and are therefore entitled to notification of program experiments that might affect them, as well as protection from harmful interference that such experiments might cause to them. The
27. Sirius XM and EchoStar observe that the
28. The Commission's goal throughout this proceeding has been to foster new experimental uses of the RF spectrum, while protecting authorized radio services from any harmful interference that these new uses might cause. Moreover, the Commission has recognized that an additional measure of protection must be afforded to bands used by services that are crucial to the public safety and well-being. The Commission's clear intent in this proceeding has been to include all EAS participants as emergency notification providers. For example, the Commission included this discussion in the
29.
30.
31.
32. Pursuant to section 4(i), 301, 303 and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 303, and 405 and § 1.1, 1.2, and 1.429 of the Commission's rules, 47 CFR 1.1, 1.2, and 1.429, this
33. The petitions for reconsideration filed by Marcus Spectrum Solutions LLC; Medtronic, Inc.; and Sirius XM Radio Inc. and EchoStar Technologies Inc.
34. Parts 2 and 5 of the Commission's rules
Radio, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 5 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
(c) * * *
(1) Activities under market trials conducted pursuant to subpart H of part 5.
Secs. 4, 302, 303, 307, 336 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 302, 303, 307, 336. Interpret or apply sec. 301, 48 Stat. 1081, as amended; 47 U.S.C. 301.
(a)(1) Stations operating in the Experimental Radio Service may be authorized to use any Federal or non-Federal frequency designated in the Table of Frequency Allocations set forth in part 2 of this chapter, provided that the need for the frequency requested is fully justified by the applicant. Stations authorized under Subparts E and F are subject to additional restrictions.
(2) Applications to use any frequency or frequency band exclusively allocated to the passive services (including the radio astronomy service) must include an explicit justification of why nearby bands that have non-passive allocations are not adequate for the experiment. Such applications must also state that the applicant acknowledges that long term or multiple location use of passive bands is not possible and that the applicant intends to transition any long-term use to a band with appropriate allocations.
(c) Marketing of devices (as defined in § 2.803(a) of this chapter) is permitted under this license as provided in § 5.602.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final specifications.
In this final rule, NMFS specifies the 2015 annual catch limits (ACLs) for Pacific Island bottomfish, crustacean, precious coral, and coral reef ecosystem fisheries, and accountability measures (AMs) to correct or mitigate any overages of catch limits. The ACLs and AMs support the long-term sustainability of fishery resources of the U.S. Pacific Islands.
The final specifications are effective September 30, 2015, through December 31, 2015.
Copies of the fishery ecosystem plans are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or
Jarad Makaiau, NMFS PIRO Sustainable Fisheries, 808-725-5176.
NMFS is specifying the 2015 ACLs and AMs for bottomfish, crustacean, precious coral, and coral reef ecosystem fishery management unit species (MUS) in American Samoa, Guam, the CNMI, and Hawaii. NMFS proposed these specifications on July 21, 2015 (80 FR 43046), and the final specifications do not differ from those proposed. The 2015 fishing year began on January 1 and ends on December 31, except for precious coral fisheries, for which the fishing year began on July 1, 2015, and ends on June 30, 2016.
NMFS is not specifying ACLs for MUS that are currently subject to Federal fishing moratoria or prohibitions. These MUS include all species of gold coral, the three Hawaii seamount groundfish (pelagic armorhead, alfonsin, and raftfish), and deepwater precious corals at the Westpac Bed Refugia. The current prohibitions on fishing for these MUS serve as the functional equivalent of an ACL of zero.
Additionally, NMFS is not specifying ACLs for bottomfish, crustacean, precious coral, or coral reef ecosystem MUS identified in the Pacific Remote Islands Area (PRIA) FEP. This is because fishing is prohibited in the EEZ within 12 nm of emergent land of the PRIA, unless authorized by the U.S. Fish and Wildlife Service (USFWS), in consultation with NMFS and the Council. Additionally, there is no suitable habitat for these stocks beyond the 12-nm no-fishing zone, except at Kingman Reef, where fishing for these resources does not occur. To date, the USFWS has not consulted with NMFS for any fishing that the USFWS may authorize within 12 nm of the PRIA. NMFS will continue to monitor authorized fishing within 12 nm of the PRIA in consultation with the USFWS, and may develop additional fishing requirements, including catch limits for species that may require them.
NMFS is also not specifying ACLs for pelagic MUS at this time, because NMFS previously determined that pelagic species are subject to international fishery agreements or have a life cycle of approximately 1 year and are, therefore, statutorily excepted from the ACL requirements.
Tables 1-4 list the ACL specifications for 2015.
Federal logbook and reporting from fisheries in Federal waters is not sufficient to monitor and track catches towards the proposed ACL specifications accurately. This is because most fishing for bottomfish, crustacean, precious coral, and coral reef ecosystem MUS occurs in state waters, generally 0-3 nm from shore. For these reasons, NMFS will apply a moving 3-yr average catch to evaluate fishery performance against the proposed ACLs. Specifically, NMFS and the Council will use the average catch during fishing year 2013, 2014, and 2015 to evaluate fishery performance against the appropriate 2015 ACL. At the end of each fishing year, the Council will review catches relative to each ACL. If NMFS and the Council determine the three-year average catch for the fishery exceeds the specified ACL, NMFS and the Council will reduce the ACL for that fishery by the amount of the overage in the subsequent year.
You may find additional background information on this action in the preamble to the proposed specifications published on July 21, 2015 (80 FR 43046).
The comment period for the proposed specifications ended on August 5, 2015. NMFS received comments from a commercial bottomfish fisherman on the proposed specifications for non-Deep 7 bottomfish in the main Hawaiian Islands (MHI), and from the U.S. Air
The Regional Administrator, NMFS PIR, determined that this action is necessary for the conservation and management of Pacific Island fishery resources, and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
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. NMFS published the factual basis for the certification in the proposed rule and does not repeat it here. NMFS received no comments on this certification; as a result, a regulatory flexibility analysis is not required, and none has been prepared.
This action is exempt from review under E.O. 12866 because it contains no implementing regulations.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and all Airbus Model A340-200, -300, -500, and -600 series airplanes. This proposed AD was prompted by reports of premature aging of certain chemical oxygen generators in the passenger compartment that resulted in failure of the generators to activate. This proposed AD would require inspecting to determine if certain passenger chemical oxygen generators are installed, and replacement of affected generators. We are proposing this AD to prevent failure of the chemical oxygen generator to activate during an emergency situation, which could result in unavailability of oxygen and possible incapacitation of the occupants.
We must receive comments on this proposed AD by October 15, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For Airbus service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
For B/E Aerospace service information identified in this proposed AD, contact B/E Aerospace Inc., 10800 Pflumm Road, Lenexa, KS 66215; telephone 913-338-9800; fax 913-469-8419; Internet
You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0119, dated June 24, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:
Reports have been received indicating premature ageing of certain passenger chemical oxygen generators, Part Number (P/N) 1170242-XX, manufactured by B/E Aerospace. Some operators reported that when they tried to activate generators, some older units failed to activate. Given the number of failed units reported, all the generators manufactured in 1999, 2000, and 2001 must be considered unreliable.
This condition, if not corrected, could lead to failure of the generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to aeroplane occupants.
To address this potential unsafe condition, Airbus issued Alert Operators Transmission (AOT) A35L007-14, making reference to B/E Aerospace Service Information Letter (SIL) D1019-01 (currently at Revision 1) and B/E Aerospace Service Bulletin (SB) 117042-35-001. Consequently, EASA issued AD 2014-0277 to require identification and replacement of the affected oxygen generators.
Since EASA AD 2014-0277 was issued, and following new investigation results, EASA has decided to introduce a life limitation concerning all P/N 117042-XX chemical oxygen generators, manufactured by B/E Aerospace.
For the reason described above, this EASA AD retains the requirements of EASA AD 2014-0277, which is superseded, expands the scope of the AD to include chemical
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Alert Operators Transmission (AOT) A35L007-14, Revision 01, June 17, 2015; including Appendix A. B/E Aerospace has issued Service Bulletin 117042-35-001, dated December 10, 2014. The service information describes procedures for inspecting to determine if certain passenger chemical oxygen generators are installed, and replacing affected generators. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 91 airplanes of U.S. registry.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by October 15, 2015.
None.
This AD applies to the airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD, all manufacturer serial numbers.
(1) Airbus Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(2) Airbus Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes; except those on which a gaseous system for all oxygen generators is installed.
Air Transport Association (ATA) of America Code 35, Oxygen.
This AD was prompted by reports of premature aging of certain chemical oxygen generators in the passenger compartment that resulted in failure of the generators to activate. We are issuing this AD to prevent failure of the chemical oxygen generator to activate during an emergency situation, which could result in unavailability of oxygen and possible incapacitation of the occupants.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD: Inspect each passenger chemical oxygen generator to identify the date of manufacture (refer to Figures 1 and 2 of paragraph (g) of this AD for the location of the date) of each passenger chemical oxygen generator having any part number (P/N) listed in paragraphs (g)(1) through (g)(6) of this AD, in accordance with the Instructions
(1) 117042-02 (15minutes (min)—2 masks).
(2) 117042-03 (15 min—3 masks).
(3) 117042-04 (15 min—4 masks).
(4) 117042-22 (22 min—2 masks).
(5) 117042-23 (22 min—3 masks).
(6) 117042-24 (22 min—4 masks).
If, during any inspection required by paragraph (g) of this AD, any passenger chemical oxygen generator having a date of manufacture of 1999, 2000, or 2001 is found: At the time specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD, as applicable, replace the affected passenger chemical oxygen generator, in accordance with the Instructions of Airbus AOT A35L007-14, Revision 01, June 17, 2015; including Appendix A (for 15 and 22-minute passenger chemical oxygen generators); or in accordance with the Accomplishment Instructions of B/E Aerospace Service Bulletin 117042-35-001, dated December 10, 2014 (for 15-minute passenger chemical oxygen generators).
(1) For units manufactured in 1999: Within 30 days after the effective date of this AD.
(2) For units manufactured in 2000: Within 6 months after the effective date of this AD.
(3) For units manufactured in 2001: Within 12 months after the effective date of this AD.
If, during any inspection required by paragraph (g) of this AD, any passenger chemical oxygen generator having a date of manufacture of 2002 through 2008 is found: At the time specified in paragraph (i)(1), (i)(2), (i)(3), (i)(4), (i)(5), (i)(6), (i)(7), or (i)(8) of this AD, as applicable, replace the affected passenger chemical oxygen generator with a serviceable unit, in accordance with the Instructions of Airbus AOT A35L007-14, Revision 01, June 17, 2015; including Appendix A (for 15 and 22-minute passenger chemical oxygen generators); or in accordance with the Accomplishment Instructions of B/E Aerospace Service Bulletin 117042-35-001, dated December 10, 2014 (for 15-minute passenger chemical oxygen generators).
(1) For units manufactured in 2002: Within 12 months after the effective date of this AD.
(2) For units manufactured in 2003: Within 16 months after the effective date of this AD.
(3) For units manufactured in 2004: Within 20 months after the effective date of this AD.
(4) For units manufactured in 2005: Within 24 months after the effective date of this AD.
(5) For units manufactured in 2006: Within 28 months after the effective date of this AD.
(6) For units manufactured in 2007: Within 32 months after the effective date of this AD.
(7) For units manufactured in 2008: Within 36 months after the effective date of this AD.
(8) For units manufactured in 2009 or later: Before the accumulation of 10 years since date of manufacture.
A serviceable unit is an oxygen generator having P/N 117042-XX, with a manufacturing date not older than 10 years, or any other FAA-approved P/N, provided that the generator has not exceeded the life limit established by the manufacturer for that generator.
This paragraph provides credit for the applicable actions required by paragraphs (g),
As of the effective date of this AD, no person may install a passenger chemical oxygen generator on any airplane, unless the passenger chemical oxygen generator is determined to be a serviceable unit, as defined in paragraph (j) of this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0119, dated June 24, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For Airbus service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(3) For B/E Aerospace service information identified in this proposed AD, contact B/E Aerospace Inc., 10800 Pflumm Road, Lenexa, KS 66215; telephone 913-338-9800; fax 913-469-8419; Internet
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to modify the operating schedule that governs the Metro-North WALK Bridge across the Norwalk River, mile 0.1, at Norwalk, Connecticut. The bridge owner submitted a request to require a greater advance notice for bridge openings and to increase the time periods the bridge remains in the closed position during the weekday morning and evening commuter rush hours. It is expected that this change to the regulations will create efficiency in drawbridge operations while continuing to meet the reasonable needs of navigation.
Comments and related material must be received by the Coast Guard on or before October 30, 2015.
You may submit comments identified by docket number USCG-2014-1057 using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Chris Bisignano, Project Officer, First Coast Guard District, telephone 212-514-4331,
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2014-1057), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the three methods specified under
The Coast Guard published a test deviation with request for comment; Norwalk River, Connecticut, (80 FR 1334), under docket number (USCG-2014-1057), in effect from January 1, 2015, through June 28, 2015, to test the proposed changes to the drawbridge operation regulations. Six comments were received on the docket. Four of these comments argued the test deviation did not offer sufficient time during daylight hours for vessels to pass through both the Metro-North WALK Bridge and the downstream State Route 136 Bridge. In addition, tidal impacts further diminished opportunities for passage. Two comments noted negative economic impacts to upstream businesses should the test deviation be implemented as a rule change because the restrictive daytime hours combined with the need for high tide moves along the river would inhibit the ability to utilize marine borne deliveries. As a result of the comments and discussions with the bridge owner, the Coast Guard proposes the new schedule as discussed below.
The Metro-North WALK Bridge, mile 0.1, across the Norwalk River at Norwalk, Connecticut, has a vertical clearance in the closed position of 16 feet at mean high water and 23 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.217(b). The waterway users are seasonal recreational vessels and commercial vessels of various sizes.
The existing Drawbridge Operation Regulations require the draw of the Metro-North Walk Bridge to open on signal as follows:
From 5 a.m. to 9 p.m., except that, from Monday through Friday excluding holidays, the draw need not be opened from 7 a.m. to 8:45 a.m. and 4 p.m. to 6 p.m., unless an emergency exists.
Only once in any 60-minute period from 5:45 a.m. to 7 a.m. and 6 p.m. to 7:45 p.m.
From 9 p.m. to 5 a.m., if at least four hours notice is given.
A delay of up to 20 minutes may be expected if a train is approaching so closely that it may not be safely stopped.
This regulation has been in effect since April 24, 1984.
The owner of the bridge, Connecticut Department of Transportation, requested a change to the Drawbridge Operation Regulations because the volume of train traffic across the bridge during the peak commuting hours makes bridge openings impractical under the current schedule. As a result, bridge openings that occur during peak commuter train hours cause significant delays to commuter rail traffic.
As a result of comments received from the test deviation, 80 FR 1334, and discussions with the bridge owner, the Coast Guard proposes to permanently change the drawbridge operation regulations at 33 CFR 117.217(b), that would allow the Metro-North WALK Bridge at mile 0.1, across the Norwalk River, at Norwalk, Connecticut, to operate as follows:
The draw shall open on signal between 4:30 a.m. and 9 p.m. after at least a two hour advance notice is given; except that, from 4:30 a.m. through 9:30 a.m. and from 4 p.m. through 9 p.m., Monday through Friday excluding holidays, the draw need not open for the passage of vessel traffic unless an emergency exists.
From 9 p.m. through 4:30 a.m. the draw shall open on signal after at least a four hour advance notice is given.
A delay in opening the draw not to exceed 10 minutes may occur when a train scheduled to cross the bridge without stopping has entered the drawbridge lock.
Requests for bridge openings may be made by calling the bridge via marine radio VHF FM Channel 13 or the telephone number posted at the bridge.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866, or under section1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard believes that this rule is not a significant regulatory action because the bridge will still open for all vessel traffic after an advance notice is given, except during the morning and afternoon closed periods. The vertical clearance under the bridge in the closed position is relatively high enough to accommodate most vessel traffic during the time periods the draw is closed during the morning and evening commuter rush hours.
The Regulatory Flexibility Act of 1980 (RFA), 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.
This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels needing to transit the bridge from 4:30 a.m. and 9:30 a.m. and 4 p.m. and 9 p.m. on weekdays.
This action will not have a significant economic impact on a substantial number of small entities for the following reasons: The Metro-North WALK Bridge will continue to open on signal provided the required advance notice is given, except during the morning and afternoon closed periods. The vertical clearance under the bridge in the closed position is high enough to accommodate most vessel traffic during the time period the draw is closed, except for emergencies, during the morning and evening commuter rush hours closures.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
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 proposed 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
This proposed rule would call for no 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 proposed rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to 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 proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.`
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
However, the United States Coast Guard is providing the State of Connecticut's coastal management program with a Consistency Determination under CZMA § 307(c)(1)(C) and 15 CFR part 930, subpart C. Pursuant to 15 CFR part 930.35(b), the Coast Guard is providing the State of Connecticut Coastal Management Program with a Negative Determination under 15 CFR part 930.35(a)(1) regarding the change to the operating schedule for the Metro-North “WALK” Bridge at mile 0.1 across the Norwalk River in Norwalk, Connecticut. The State's concurrence will be presumed if the State's response is not received by the USCG, Bridge Program Office, at Commander (dpb), One South Street, New York, NY 10004-1466, on the 60th day from receipt of this Determination.
We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
1. The authority citation for part 117 continues to read as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
2. In § 117.217, revise paragraph (b) to read as follows:
(b) The Metro-North WALK Bridge at mile 0.1, across the Norwalk River, at Norwalk, Connecticut shall operate as follows:
(1) The draw shall open on signal between 4:30 a.m. and 9 p.m. after at least a two hour advance notice is given; except that, from 4:30 a.m. through 9:30 a.m. and from 4 p.m. through 9 p.m., Monday through Friday excluding holidays, the draw need not open for the passage of vessel traffic unless an emergency exists.
(2) From 9 p.m. through 4:30 a.m. the draw shall open on signal after at least a four hour advance notice is given.
(3) A delay in opening the draw not to exceed 10 minutes may occur when a train scheduled to cross the bridge without stopping has entered the drawbridge lock.
(4) Requests for bridge openings may be made by calling the bridge via marine radio VHF FM Channel 13 or the telephone number posted at the bridge.
Environmental Protection Agency (EPA).
Notice; approval and request for comments.
This notice announces our approval of the Alternative Means of Emission Limitation (AMEL) requests for the operation of multi-point ground flares (MPGF) at The Dow Chemical Company's (Dow) Propane Dehydrogenation Plant and Light Hydrocarbons Plant located at its Texas Operations site in Freeport, Texas, and the ExxonMobil Chemical Company (ExxonMobil) Olefins Plant in Baytown, Texas, and its Plastics Plant in Mont Belvieu, Texas. This approval notice also specifies the operating conditions and monitoring, recordkeeping, and reporting requirements for demonstrating compliance with the AMEL that these facilities must follow.
In addition, this notice solicits comments on an all aspects of an AMEL request from Occidental Chemical Corporation (OCC) in which long-term MPGF burner stability and destruction efficiency have been demonstrated on different pressure-assisted MPGF burners that OCC has proposed for use in controlling emissions at its Ingleside, Texas, ethylene plant.
Lastly, this notice presents and solicits comments on all aspects of a framework of both MPGF burner testing and rule-specific emissions control equivalency demonstrations that we anticipate, when followed, would afford us the ability to approve future AMEL requests for MPGF in a more efficient and streamlined manner.
The AMEL for the MPGF at Dow's Propane Dehydrogenation Plant and Light Hydrocarbons Plant located at its Texas Operations site in Freeport, Texas, and ExxonMobil's Olefins Plant in Baytown, Texas, and Plastics Plant in Mont Belvieu, Texas are approved and effective August 31, 2015.
Submit your comments, identified by Docket ID Number EPA-HQ-OAR-2014-0738, to the Federal eRulemaking Portal:
For questions about this action, contact Mr. Andrew Bouchard, Sector Policies and Programs Division (E143-01), Office of Air Quality Planning and Standards (OAQPS), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-4036; fax number: (919) 541-0246; and email address:
We use multiple acronyms and terms in this notice. While this list may not be exhaustive, to ease the reading of this notice and for reference purposes, the EPA defines the following terms and acronyms here:
On February 13, 2015, the EPA published an initial notice in the
This action also solicits comments on all aspects of an AMEL request from OCC in which MPGF burner stability
Lastly, because we are aware that facilities plan to build or are considering use of MPGF as an emissions control technology, this action presents and solicits comments on all aspects of a framework for streamlining future MPGF AMEL requests that we anticipate, when followed, would afford the agency the ability to review and approve future AMEL requests for MPGF in a more efficient and expeditious manner. We note here though that all aspects of future AMEL requests would still be subject to a notice and comment proceeding.
In their requests, Dow and ExxonMobil cited various regulatory requirements in 40 CFR parts 60, 61 and 63 that will apply to the different flare vent gas streams that will be collected and routed to their pressure-assisted MPGF at each plant. These requirements were tabulated in the initial notice for this action (80 FR 8023, February 13, 2015). The applicable rules require that control devices achieve destruction efficiencies of either 95 percent or 98 percent either directly, or by reference, or allow control by flares meeting the flare operating requirements in 40 CFR 60.18 or 40 CFR 63.11. The flare operating requirements in 40 CFR 60.18 and 40 CFR 63.11 specify that flares shall be: (1) Steam-assisted, air-assisted or non-assisted;
The MPGF proposed by both Dow and ExxonMobil are different in both flare head design and operation than the more traditional steam-assisted, air-assisted and non-assisted flare types currently able to comply with the flare operating requirements in 40 CFR 60.18 or 63.11. The MPGF technology operates by using the pressure upstream of each individual flare tip burner to enhance mixing with air at the flare tip due to high exit velocity, which in turn allows the MPGF to operate in a smokeless capacity. The MPGF are constructed differently than normal elevated flares in that they consist of many rows of individual flare tips which are approximately eight feet above ground level. The ground flare staging system opens and closes staging valves according to gas pressure such that stages containing multiple burners are activated as the flow and pressure increase or decrease in the header. While information supplied by Dow, and relied on by both Dow and ExxonMobil, indicates that the flare tips operate in a smokeless capacity and achieve high destruction efficiencies, the MPGF cannot meet the exit velocity requirements in 40 CFR 60.18 and 40 CFR 63.11, which limit the exit velocity at the flare tip to a maximum of 400 feet per second. The exit velocities from MPGF typically range from 600 feet per second up to sonic velocity (which ranges from 700 to 1,400 feet per second for common hydrocarbon gases), or Mach = 1 conditions. As a result, Dow and ExxonMobil are seeking an alternative means of complying with the flare operating requirements in 40 CFR 60.18 and 63.11; specifically, the exit velocity requirements in 40 CFR 60.18(c)(3), (c)(4) and (c)(5) and in 40 CFR 63.11(b)(6), (b)(7) and (b)(8).
As noted above, the specific rules in 40 CFR parts 60, 61 and 63, or the General Provisions for parts 60, 61 and 63 of the Clean Air Act (CAA)
This section contains a summary of the major comments and responses, and rationale for the approved MPGF operating conditions and monitoring, recordkeeping and reporting requirements necessary to ensure the MPGF will achieve a reduction in emissions of HAP and VOC at least equivalent to the reduction in emissions of other traditional flare systems complying with the requirements in 40 CFR 60.18(b) and 40 CFR 63.11(b).
Commenters also suggested that the language in the initial AMEL notice related to pilot flame presence at Section III, #2 (see 80 FR 8030, February 13, 2015) had slightly different wording elements compared to the flare General Provisions requirements. We agree with the commenters that some of the language is different, but note that requiring at least two pilot flames on each stage of burners to be continuously lit and monitored as opposed to only a single pilot flame as prescribed in the General Provisions is a necessary change. However, we have incorporated language in this final action to be more consistent with the requirements in the General Provisions to allow pilot flames to be monitored by thermocouples “or any other equivalent device used to detect the presence of a flame.”
Lastly, we agree with the commenters that the language in the initial AMEL notice related to visible emissions at Section III, #3 is somewhat redundant with the requirements in the General Provisions, but given that we are requiring facilities to use a video camera to conduct visible emissions observations we must address the visible emissions requirements specifically.
An assessment of the data we used to evaluate these AMEL requests suggests that at least an equivalent reduction in emissions control for MPGF has been demonstrated and can be maintained provided there is a stable, lit flame. In reviewing the supporting data, long-term stability was demonstrated by 20-minute test runs with fairly consistent flow and composition; however, there were also five test runs which showed instability in as little as 1 to 2 minutes. Considering that Dow and ExxonMobil will be producing and using olefins in their process, the Dow test is more appropriate and representative of the types of waste gas compositions and flows their MPGF will expect to handle compared to the natural gas and nitrogen mixtures burned in the Marathon test. Thus, the operating requirements of an
Finally, the available data we are using to assess what the appropriate averaging time should be for these unique MPGF installations indicate that there could exist a gap between the MPGF system response (
(1) Identify the sources of the gas routed to a flare;
(2) Assess whether the gas routed to a flare can be minimized;
(3) Describe each flare covered by the flare management plan;
(4) Quantify the baseline flow rate to the flare after minimization techniques are implemented;
(5) Establish procedures to minimize or eliminate discharges to the flare during startup and shutdown operations; and
(6) If the flare is equipped with flare gas recovery, establish procedures to minimize downtime of the equipment.
Based on information the EPA received from Dow and ExxonMobil and the comments received through the public comment period, operating requirements for the pressure-assisted MPGF at both of Dow's plants and both of ExxonMobil's plants that will achieve a reduction in emissions at least equivalent to the reduction in emissions being controlled by a steam-assisted, air-assisted or non-assisted flare complying with the requirements of either 40 CFR 63.11(b) or 40 CFR 60.18(b) are as follows:
(1) The MPGF system must be designed and operated such that the combustion zone gas net heating value (
(a) Calculation of
(i) The owner or operator shall determine
(ii) FOR MPGF,
(b) Calculation of
(i) The owner or operator shall determine
(ii) FOR MPGF,
(c) The operator of a MPGF system shall install, operate, calibrate and maintain a monitoring system capable of continuously measuring flare vent gas flow rate.
(d) The operator shall install, operate, calibrate and maintain a monitoring system capable of continuously measuring (
(e) For each measurement produced by the monitoring system, the operator shall determine the 15-minute block average as the arithmetic average of all measurements made by the monitoring system within the 15-minute period.
(f) The operator must follow the calibration and maintenance procedures according to Table 2. Maintenance periods, instrument adjustments or checks to maintain precision and accuracy and zero and span adjustments may not exceed 5 percent of the time the flare is receiving regulated material.
(2) The MPGF system shall be operated with a flame present at all times when in use. Each stage of MPGF burners must have at least two pilots with a continuously lit pilot flame. The pilot flame(s) must be continuously monitored by a thermocouple or any other equivalent device used to detect the presence of a flame. The time, date and duration of any complete loss of pilot flame on any stage of MPGF burners must be recorded. Each monitoring device must be maintained or replaced at a frequency in accordance with the manufacturer's specifications.
(3) The MPGF system shall be operated with no visible emissions except for periods not to exceed a total of 5 minutes during any 2 consecutive hours. A video camera that is capable of continuously recording (
(4) The operator of a MPGF system shall install and operate pressure monitor(s) on the main flare header, as well as a valve position indicator monitoring system for each staging valve to ensure that the MPGF operates within the range of tested conditions or within the range of the manufacturer's specifications. The pressure monitor shall meet the requirements in Table 2. Maintenance periods, instrument adjustments or checks to maintain precision and accuracy, and zero and span adjustments may not exceed 5 percent of the time the flare is receiving regulated material.
(5) Recordkeeping Requirements
(a) All data must be recorded and maintained for a minimum of three years or for as long as applicable rule subpart(s) specify flare records should be kept, whichever is more stringent.
(6) Reporting Requirements
(a) The information specified in (b) and (c) below should be reported in the timeline specified by the applicable rule subpart(s) for which the MPGF will control emissions.
(b) Owners or operators should include the following information in their initial Notification of Compliance status report:
(i) Specify flare design as a pressure-assisted MPGF.
(ii) All visible emission readings,
(iii) All periods during the compliance determination when a complete loss of pilot flame on any stage of MPGF burners occurs.
(iv) All periods during the compliance determination when the pressure monitor(s) on the main flare header show the MPGF burners operating outside the range of tested conditions or outside the range of the manufacturer's specifications.
(v) All periods during the compliance determination when the staging valve position indicator monitoring system indicates a stage of the MPGF should not be in operation and is or when a stage of the MPGF should be in operation and is not.
(c) The owner or operator shall notify the Administrator of periods of excess emissions in their Periodic Reports. These periods of excess emissions shall include:
(i) Records of each 15-minute block during which there was at least one minute when regulated material was routed to the MPGF and a complete loss of pilot flame on a stage of burners occurred.
(ii) Records of visible emissions events that are time and date stamped and exceed more than 5 minutes in any 2 hour consecutive period.
(iii) Records of each 15-minute block period for which an applicable combustion zone operating limit (
(iv) Records of when the pressure monitor(s) on the main flare header show the MPGF burners are operating outside the range of tested conditions or outside the range of the manufacturer's specifications. Indicate the date and time for each period, the pressure measurement, the stage(s) and number of MPGF burners affected and the range of tested conditions or manufacturer's specifications.
(v) Records of when the staging valve position indicator monitoring system indicates a stage of the MPGF should not be in operation and is or when a stage of the MPGF should be in operation and is not. Indicate the date and time for each period, whether the stage was supposed to be open but was closed or vice versa and the stage(s) and number of MPGF burners affected.
On December 16, 2014, OCC submitted an AMEL request indicating plans to construct an ethylene production unit that will be comprised of five ethane cracking furnaces and associated recovery equipment at its plant located in Ingleside, Texas. As part of this request, OCC described plans to control emissions from the ethylene production unit using two thermal oxidizers as both a primary and backup control device for periods of normal operation and low-pressure maintenance, startup, and shutdown events, and that it is seeking an AMEL for a MPGF installation for use during limited high-pressure maintenance, startup, and shutdown events as well emergency situations. As part of its AMEL request, as well as in its comments submitted to Docket ID Number EPA-HQ-OAR-2014-0738-0030 on March 30, 2015, during the Dow and ExxonMobil initial AMEL notice comment period, OCC requested an AMEL for use of different MPGF burners at its plant located in Ingleside, Texas, than the burners Dow and ExxonMobil plan to use at their plants. Specifically, OCC provided both destruction efficiency/combustion efficiency testing and long-term MPGF flame stability testing for ethylene and ethylene-inert waste gas mixtures on its proposed MPGF burners. These test data show good performance below an
We are seeking comments on a framework sources may use to submit an AMEL request to the EPA to use MPGF as control devices to comply with NSPS and NESHAP under 40 CFR parts 60, 61, and 63. At a minimum, sources considering use of MPGF as an emissions control technology should provide the EPA with the following information in its AMEL request when demonstrating MPGF equivalency:
(1) Project Scope and Background
(a) Size and scope of plant, products produced, location of facility and the MPGF proximity, if less than 2 miles, to the local community and schools.
(b) Details of overall emissions control scheme (
(c) Details of typical and/or anticipated flare waste gas compositions and profiles for which the MPGF will control.
(d) MPGF burner design including type, geometry, and size.
(e) Anticipated date of startup.
(2) Regulatory Applicability
(a) Detailed list or table of applicable regulatory subparts, applicable standards that allow use of flares, and authority that allows for use of an AMEL.
(3) Destruction Efficiency/Combustion Efficiency Performance Demonstration
(a) Sources must provide a performance demonstration to the agency that the MPGF pressure-assisted burner being proposed for use will achieve a level of control at least equivalent to the most stringent level of control required by the underlying standards (
(i) If a performance test is done, a test report must be submitted to the agency which includes at a minimum: A description of the testing, a protocol describing the test methodology used, associated test method quality assurance/quality control (QA/QC) parameters, raw field and laboratory data sheets, summary data report sheets,
(ii) If an engineering assessment is done, sources must provide to the agency a demonstration that a proper level of destruction/combustion efficiency was obtained, through prior performance testing or the like for a similar equivalent burner type design. To support an equivalent burner assessment of destruction/combustion efficiency, sources must discuss and provide information related to design principles of burner type, burner size, burner geometry, air-fuel mixing, and the combustion principles associated with this burner that will assure smokeless operation under a variety of operating conditions. Similarly, sources must also provide details outlining why all of these factors, in concert with the waste gas that was tested in the supporting reference materials, support the conclusion that the MPGF burners being proposed for use by the source will achieve at least an equivalent level of destruction efficiency as required by the underlying applicable regulations.
(4) Long-Term MPGF Stability Testing
(a) The operation of a MPGF with a stable, lit flame is of paramount importance to continuously ensuring good flare performance; therefore, any source wishing to demonstrate equivalency for purposes of using these types of installations must conduct a long-term stability performance test. Since flare tip design and waste gas composition have significant impact on the range of stable operation, sources should use a representative waste gas the MPGF will typically burn or a waste gas, such as an olefin or olefinic mixture, that will challenge the MPGF to perform at a high level with a stable flame as well as challenge its smokeless capacity.
(b) Sources should first design and carry out a performance test to determine the point of flare flame instability and flameout for the MPGF burner and waste gas composition chosen to be tested. Successful, initial demonstration of stability is achieved when there is a stable, lit flame for a minimum of five minutes at consistent flow and waste gas composition. It is recommended, although not required, that sources determine the point of instability at sonic flow conditions or at the highest operating pressure anticipated. Any data which demonstrates instability and complete loss of flame prior to the five minute period must be reported along the initial stable flame demonstration. Along with destruction efficiency and combustion efficiency, the data elements laid out in 3(a)(i) should also be reported.
(c) Using the results from (b) above as a starting point, sources must perform a minimum of three replicate tests at both the minimum and maximum operating conditions on at least one MPGF burner at or above the
(5) MPGF Cross-light Testing
(a) Sources must design and carryout a performance test to successfully demonstrate that cross-lighting of the MPGF burners will occur over the range of operating conditions (
(6) Flaring Reduction Considerations
(a) Sources must make a demonstration, considering MPGF utilization, on whether additional flare reduction measures, including flare gas recovery, should be utilized and implemented.
(7) MPGF Monitoring and Operating Conditions
(a) Based on the results of the criteria mentioned above in this section, sources must make recommendations to the agency on the type of monitoring and operating conditions necessary for the MPGF to demonstrate equivalent reductions in emissions as compared to flares complying with the requirements at 40 CFR 60.18 and 40 CFR 63.11, taking into consideration a control scheme designed to handle highly variable flows and waste gas compositions.
We solicit comment on all aspects of this framework. We anticipate this framework would enable the agency to review and approve future AMEL requests for MPGF installations in a more expeditious timeframe because we anticipate that the information required by the framework would provide us with sufficient information to evaluate future AMEL requests. We note that all aspects of future AMEL requests would still be subject to a notice and comment proceeding.
Federal Emergency Management Agency, DHS.
Proposed rule; withdrawal.
The Federal Emergency Management Agency (FEMA) is withdrawing its proposed rule concerning proposed flood elevation
This withdrawal is effective on August 31, 2015.
You may submit comments, identified by Docket No. FEMA-B-1149 to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
On November 2, 2010, FEMA published a proposed rulemaking at 75 FR 67319, proposing flood elevation determinations along one or more flooding sources in Jackson County, Arkansas, and Incorporated Areas. FEMA is withdrawing the proposed rulemaking.
42 U.S.C. 4104; 44 CFR 67.4.
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes to modify the rules for program experimental licenses to permit experimentation for radio frequency (RF)-based medical devices, if the device being tested is designed to comply with all applicable service rules in Part 18, Industrial, Scientific, and Medical Equipment; Part 95, Personal Radio Services Subpart H—Wireless Medical Telemetry Service; or Part 95, Subpart I—Medical Device Radiocommunication Service. This proposal is designed to establish parity between all qualified medical device manufacturers for conducting basic research and clinical trials with RF-based medical devices as to permissible frequencies of operation.
Comments must be filed on or before September 30, 2015 and reply comments must be filed on or before October 15, 2015.
You may submit comments, identified by ET Docket Nos. 10-236 and 06-155, by any of the following methods:
Federal Communications Commission's Web site:
People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email:
Rodney Small, Office of Engineering and Technology, (202) 418-2452, email:
This is a summary of the Commission's
1. In two April 2015 filings, Medtronic, Inc. (Medtronic) observes that program licenses “may not be issued for operation on frequencies listed in § 15.205 of the rules, which includes the 401-406 MHz Medical Device Radiocommunications Service (`MedRadio') band often employed by makers of implanted and body-worn medical devices.” Medical testing licensees, on the other hand, may use those frequencies, if they comply with applicable service rules. Medtronic therefore argues that this disparity in frequencies contributes to program licensees being less flexible than medical testing licensees.
2. As discussed in the companion
3. Medtronic rightly points out that the 401-406 MHz band is a restricted band under § 15.205(a) and is not available for basic research under the program license rules. However, the 401-406 MHz band is used for implanted and body worn medical devices under the part 95 MedRadio rules. Consequently, manufacturers of certain RF-based medical devices cannot take advantage of the benefits provided by a program license to advance innovation in this area, even though the devices they ultimately develop could be authorized for use under the Commission's rules. Because clinical trials conducted under the medical testing license or as a market trial may be tested in these bands, the Commission sees no reason to impose greater frequency restrictions on program licensees conducting basic research on the same devices.
4. Accordingly, the Commission proposes to modify the rules for program licenses to permit experimentation on frequencies listed in § 15.205(a) of the Commission's rules, provided that—comparable to the rules for medical testing licenses—the device being tested is designed to comply with all applicable service rules in part 18,
5. This proceeding shall continue to be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
6. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “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).
7. This
8. The Commission therefore certifies, pursuant to the RFA, that the proposal in this
9.
10.
Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
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
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
11. Pursuant to section 4(i), 301, 303 and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 303, and 405 and § 1.1, 1.2, and 1.429 of the Commission's rules, 47 CFR 1.1, 1.2, and 1.429, this
12. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Radio, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 5 as follows:
Secs. 4, 302, 303, 307, 336 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 302, 303, 307, 336. Interpret or apply sec. 301, 48 Stat. 1081, as amended; 47 U.S.C. 301.
(a) Licensees may operate in any frequency band, including those above 38.6 GHz, except for frequency bands exclusively allocated to the passive services (including the radio astronomy service). In addition, licensees may not use any frequency or frequency band below 38.6 GHz that is listed in § 15.205(a) of this chapter.
(b) Exception: Licensees may use frequencies listed in § 15.205(a) of this chapter for testing medical devices (as defined in § 5.402(b) of this chapter), if the device is designed to comply with all applicable service rules in part 18, Industrial, Scientific, and Medical Equipment; part 95, Personal Radio Services Subpart H—Wireless Medical Telemetry Service; or part 95, Subpart I—Medical Device Radiocommunication Service.
Animal and Plant Health Inspection Service, USDA.
Notice and request for comments.
We are advising the public that we are adding European Union (EU) and EU Member State-defined regions of the EU to the Animal and Plant Health Inspection Service (APHIS) list of regions affected with African swine fever (ASF). We will recognize as affected with ASF any region of the EU that the EU or any EU Member State has placed under restriction because of detection of ASF. These regions currently include portions of Estonia, Latvia, Lithuania, and Poland, and all of Sardinia. APHIS will list the EU- and EU Member State-defined regions as a single entity. We are therefore removing Sardinia as an individually listed region from the APHIS list of ASF affected regions. We are taking this action because of the detection of ASF in Estonia, Latvia, Lithuania, and Poland.
You may submit comments by either of the following methods:
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Any comments we receive may be viewed at
Mr. Donald Link, Import Risk Analyst, Regionalization Evaluation Services, National Import Export Services, Veterinary Services, APHIS, 920 Main Campus Drive, Suite 200, Raleigh, NC 27606; (919) 855-7731;
The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease (FMD), bovine spongiform encephalopathy, swine vesicular disease (SVD), classical swine fever (CSF), and African swine fever (ASF). The regulations prohibit or restrict the importation of live ruminants and swine, and products from these animals, from regions where these diseases are considered to exist.
Sections 94.8 and 94.17 of part 94 of the regulations contain requirements governing the importation into the United States of pork and pork products from regions of the world where ASF exists or is reasonably believed to exist. A list of regions where ASF exists or is reasonably believed to exist is maintained on the Animal and Plant Health Inspection Service (APHIS) Web site at
Currently, the Islands of Sardinia and Malta are the only regions of the European Union (EU) that APHIS lists as affected with ASF. However, ASF outbreaks have recently occurred in domestic and feral swine in portions of Estonia, Latvia, Lithuania, and Poland. The EU has determined that the ASF virus was introduced into these regions from neighboring countries where ASF is present in both the feral and domestic swine populations. The EU has imposed restrictions on the movement of swine and swine products from the regions in which ASF was detected and surrounding regions in the EU. The restrictions and the regions subject to restriction by the EU are listed in the European Commission's Implementing Decision 2014/709/EU.
In response to the outbreaks of ASF in Estonia, Latvia, Lithuania, and Poland, APHIS is modifying its list of ASF-affected regions. First, we are adding a new entry that would read “Any restricted zone in the European Union (EU) established by the EU or any EU Member State because of detection of African swine fever in domestic or feral swine.” Second, we are removing Sardinia as an individually listed region. With the addition of this entry to the APHIS list of ASF-affected regions, the APHIS-recognized ASF status of almost any region of the EU would follow the EU and EU Member State restrictions based on ASF detections. Going forward, we would not list each affected region of the EU. We will continue to list Malta individually, which we currently recognize as affected with ASF, but which is not under ASF restrictions by the EU. We are currently evaluating the ASF status of Malta at the request of the EU. If we determine based on our evaluation that the ASF status of Malta should be changed, we will publish our findings and the evaluation for public comment. Adding this entry to the list would subject swine and swine products from EU-restricted regions to APHIS import restrictions designed to mitigate risk of ASF introduction into the United States.
APHIS has previously evaluated the animal health infrastructure, veterinary oversight and legislation, and disease control programs of the EU and individual EU Member States for multiple livestock and poultry species and diseases. Previous APHIS evaluations assessed EU-wide animal health measures and the ability of a
Overall, APHIS has consistently concluded that the animal health infrastructure, veterinary oversight and legislation, and corresponding disease control programs are adequate at the EU level. While APHIS evaluations did find unique strengths and weaknesses in individual Member States, overall the findings of these evaluations have been favorable for the Member States. After assessing Member State animal health infrastructure, veterinary oversight and legislation, and disease control programs, and the Member States' ability to transpose and implement EU-level animal health controls, APHIS has taken liberalizing trade action for the EU and certain Member States. APHIS has recognized some Member States as free from FMD, rinderpest, SVD, and/or ASF; evaluated the EU and individual Member States for Newcastle disease and highly pathogenic avian influenza, resulting in APHIS establishing the APHIS-defined EU Poultry Trade Region; and evaluated the EU and individual Member States and other European countries for CSF, resulting in APHIS establishing the APHIS-defined European CSF region.
APHIS recognizing EU and EU Member State regionalization decisions for ASF in the EU is similar to APHIS recognition of EU and Member State regionalization decisions for Newcastle disease and highly pathogenic avian influenza in the EU, and for CSF in the EU and other European countries, and is supported by previous APHIS evaluations of EU Member States for these and other livestock and poultry diseases as described above. In the event that the EU or an EU Member State significantly changes or entirely removes its ASF restrictions or otherwise significantly alters its regulatory framework for ASF, APHIS will conduct an evaluation to assess the impact of the changes on the risk of ASF introduction into the United States. APHIS will present for public comment the findings of any such evaluation.
Because the EU- and EU Member State-defined ASF-affected regions includes areas not currently on the APHIS list of ASF-affected regions, we are adding the new entry to our list immediately to prevent the introduction of ASF into the United States. We will consider comments we receive during the comment period for this notice (see
7 U.S.C. 450, 7701-7772, 7781-7786, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.
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 regarding (a) 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; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on 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 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 State agencies report to FNS. FNS uses the information to monitor State agency and SFA compliance, determine the amount of funds to be reimbursed, evaluate and adjust program operations, and to monitor program funding and program trends.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (PRA), this notice announces the Grain Inspection, Packers and Stockyards Administration's (GIPSA) intention to request that the Office of Management and Budget (OMB) approve a 3-year extension of and revision to a currently approved information collection, a voluntary customer survey concerning the delivery of official inspection, grading, and weighing services authorized under the United States Grain Standards Act and the Agricultural Marketing Act of 1946. This voluntary survey gives customers that are primarily in the grain, oilseed, rice, lentil, dry pea, edible bean, and related agricultural commodity markets an opportunity to provide feedback on the quality of services they receive and provides GIPSA with information on new services that customers wish to receive. Customer feedback assists GIPSA's Federal Grain Inspection Service (FGIS) with enhancing the value of services and service delivery provided by the official inspection, grading, and weighing system.
Written comments must be submitted on or before October 30, 2015.
We invite you to submit comments on this notice. You may submit comments by any of the following methods:
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Jennifer S. Hill, Grain Marketing Specialist, Departmental Initiatives and International Affairs, email address:
Congress enacted the United States Grain Standards Act (USGSA) (7 U.S.C. 71-87k) and the Agricultural Marketing Act of 1946 (AMA) (7 U.S.C. 1621-1627) to facilitate the marketing of grain, oilseeds, pulses, rice, and related commodities. These statutes provide for the establishment of standards and terms which accurately and consistently measure the quality of grain and related products, provide for uniform official inspection and weighing, provide regulatory and service responsibilities, and furnish the framework for commodity quality improvement incentives to both domestic and foreign buyers. The GIPSA's Federal Grain Inspection Service (FGIS) establishes policies, guidelines, and regulations to carry out the objectives of the USGSA and the AMA. Regulations appear at 7 CFR 800, 801, and 802 for the USGSA and 7 CFR 868 for the AMA.
The USGSA, with few exceptions, requires official inspection of export grain sold by grade. Official services are provided, upon request, for grain in domestic commerce. The AMA authorizes similar inspection and weighing services, upon request, for rice, pulses, flour, corn meal, and certain other agricultural products. There are approximately 9,000 current users of the official inspection, grading, and weighing programs. These customers are located nationwide and represent a diverse mixture of small, medium, and large producers, merchandisers, processors, exporters, and other financially interested parties. These customers request official services from an FGIS Field Office; delegated, designated, or cooperating State office; or designated private agency office.
The goal of FGIS and the official inspection, grading, and weighing system is to provide timely, high quality, accurate, consistent, and professional service that facilitates the orderly marketing of grain and related commodities. To accomplish this goal and in accordance with E.O. 12862, FGIS is seeking feedback from customers to evaluate the services provided by the official inspection, grading, and weighing programs.
FGIS needs to maintain a formal means of determining customers' expectations and the quality of official services that are delivered. To collect this information, FGIS would continue to conduct, over a 3-year period, an annual voluntary customer service survey of current and potential customers of the official inspection, grading, and weighing system. FGIS would make the survey available to any interested party who visits our Web site or is provided the link. The survey instrument would consist of twelve (12) questions only; subsequent survey instruments would be tailored to earlier responses. The information collected from the survey would permit FGIS to gauge customers' satisfaction with existing services, compare results from
By obtaining information from customers through a voluntary customer service survey, FGIS believes that it will continue to improve services and service delivery of its official inspection, grading, and weighing programs that meets or exceeds customer expectations.
FY 2017: Estimated Number of Respondents: 616. (
As required by the PRA (44 U.S.C. 3506(c)(2)(A)) and its implementing regulations (5 CFR 1320.8(d)(1)(i)), GIPSA specifically requests comments on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of GIPSA's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before October 30, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Erica M. Filipek, U.S. Census Bureau, EID, CENHQ Room 7K057, 4600 Silver Hill Road, Washington, DC 20233-6900, telephone (301) 763-5161 (or via email at
The Census Bureau plans to request a revision of a currently approved collection for forms C-700, C-700(R), C-700(SL), and C-700(F). These forms are used to conduct the Construction Progress Reporting Surveys (CPRS) and collect information on the dollar value of construction put in place. Form C-700, Private Construction Projects, collects construction put in place data for nonresidential projects owned by private companies or individuals. Form C-700(R), Multi-family Residential Projects, collects construction put in place data for private multi-family residential buildings. Form C-700(SL), State and Local Government Projects, collects construction put in place data for state and local government projects. Form C-700(F), Federal Government Projects collects construction put in place for federal government projects.
The Census Bureau uses the information from these surveys to publish the value of construction put in place for the `Construction Spending' monthly principal economic indicator. Published estimates are used by a variety of private business and trade associations to estimate the demand for building materials and to schedule production, distribution, and sales efforts. They also provide various government agencies with a tool to evaluate economic policy and to measure progress towards established goals. For example, Bureau of Economic Analysis staff use data to develop the construction components of gross private domestic investment in the gross domestic product. The Federal Reserve Board and the Department of the Treasury use the value in place data to predict the gross domestic product, which is presented to the Board of Governors and has an impact on monetary policy.
There are two changes planned to the content of these questionnaires. The first is the elimination of the data item
An independent systematic sample of construction projects is selected each month according to predetermined sample rates. Once a project is selected, it remains in the sample until completion of the project. Preprinted forms are mailed monthly to respondents to fill in current month data and any revisions to previous months. Respondents also have the option to report online using a password protected site. Nonrespondents are later called by a Census interviewer and are asked to report data over the phone. Having the information available from a database at the time of the interview greatly helps reduce the time respondents spend on the phone. Interviews are scheduled at the convenience of the respondent, which further reduces their burden.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Economic Development Administration, Commerce.
Notice of an open meeting.
The National Advisory Council on Innovation and Entrepreneurship (NACIE) will hold a public meeting on Thursday, September 17, 2015, 2:00-3:30 p.m. Eastern Daylight Time (EDT) and Friday, September 18, 2015, 8:45 a.m.-12:00 p.m. EDT. During this time, members will continue to work on various Council initiatives which include: Innovation, entrepreneurship and workforce talent. Additionally, the Council will discuss and identify next steps.
Department of Commerce, Commerce Research Library, 1401 Constitution Ave. NW., Washington, DC 20230. September 17-18, 2015, Teleconference: Dial-In: 1-888-469-3146, Passcode: 1371820.
Julie Lenzer Kirk, Director, Office of Innovation and Entrepreneurship, Room 78018, 1401 Constitution Avenue NW., Washington, DC 20230; email:
The Council was chartered on November 10, 2009 to advise the Secretary of Commerce on matters related to innovation and entrepreneurship in the United States. NACIE's overarching focus is recommending transformational policies to the Secretary that will help U.S. communities, businesses, and the workforce become more globally competitive. The Council operates as an independent entity within the Office of Innovation and Entrepreneurship (OIE), which is housed within the U.S. Commerce Department's Economic Development Administration. NACIE members are a diverse and dynamic group of successful entrepreneurs, innovators, and investors, as well as leaders from nonprofit organizations and academia.
The purpose of this meeting is to discuss the Council's planned work initiatives in three focus areas: Workforce/talent, entrepreneurship, and innovation. The final agenda will be posted on the NACIE Web site at
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
The Regulations and Procedures Technical Advisory Committee (RPTAC) will meet September 15, 2015, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed.
The open session will be accessible via teleconference to 25 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on February 24, 2015, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 section (10)(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 sections 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
The President's Export Council Subcommittee on Export Administration (PECSEA) will meet on September 14, 2015, 1:30 p.m., at the U.S. Department of Commerce, Herbert C. Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC The PECSEA provides advice on matters pertinent to those portions of the Export Administration Act, as amended, that deal with United States policies of encouraging trade with all countries with which the United States has diplomatic or trading relations and
The open session will be accessible via teleconference to 20 participants on a first come, first served basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the PECSEA. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to PECSEA members, the PECSEA suggests that public presentation materials or comments be forwarded before the meeting to Ms. Yvette Springer.
For more information, contact Yvette Springer on 202-482-2813.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is initiating a new shipper review of the antidumping duty order on solid urea from the Russian Federation (Russia) with respect to Joint Stock Company PhosAgro-Cherepovets.
Andre Gziryan or Minoo Hatten, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; Telephone: (202) 482-2201 and (202) 482-1690, respectively.
On July 14, 1987, the Department issued an antidumping duty order on solid urea from the Soviet Union.
Pursuant to section 751(a)(2)(B)(i)(I) of the Act and 19 CFR 351.214(b)(2)(i), PhosAgro certified that it did not export subject merchandise to the United States during the period of investigation (POI).
In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2), PhosAgro submitted documentation establishing the following: (1) The date on which it first shipped subject merchandise for export to the United States; (2) the volume of its first shipment; and (3) the date of its first sale to an unaffiliated customer in the United States.
In accordance with 19 CFR 351.214(g)(1)(i)(A), the period of review (POR) for new shipper reviews initiated in the month immediately following the anniversary month will be the 12-month period immediately preceding the anniversary month. Therefore, under this order, the POR is July 1, 2014, through June 30, 2015.
Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(b)(1), the Department finds that the request from PhosAgro meets the threshold requirements for initiation of a new shipper review for a shipment of solid urea from Russia produced and exported by PhosAgro.
We will instruct U.S. Customs and Border Protection to allow, at the option of the importer, the posting, until the completion of the review, of a bond or security in lieu of a cash deposit for each entry of the subject merchandise from PhosAgro, in accordance with section 751(a)(2)(B)(iii) of the Act and 19 CFR 351.214(e). Because PhosAgro certified that it produced and exported subject merchandise, the sale of which is the basis for the request for a new shipper review, we will apply the bonding privilege to PhosAgro only for subject merchandise which was produced and exported by PhosAgro.
To assist in its analysis of the
Interested parties requiring access to proprietary information in the new shipper review should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306.
This initiation and notice are published in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Lilit Astvatsatrian or William Horn, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6412 or (202) 482-2615, respectively.
On July 15, 2015, the Department of Commerce (“Department”) published the final results of the 2012-2013 administrative review of the antidumping duty order on multilayered wood flooring from the People's Republic of China.
This correction to the final results of administrative review is issued and published in accordance with sections 751(h) and 777(i) of the Tariff Act of 1930, as amended.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to a request by Ashland Specialty Ingredients, G.P. (Ashland), the Department of Commerce (the Department) is initiating a changed circumstances review (CCR) of the antidumping duty (AD) order on purified carboxymethylcellulose (CMC) from the Netherlands. Based on the information received, we preliminarily intend to revoke the
John Drury, or Angelica Townsend, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0195 or (202) 482-3019, respectively.
On July 11, 2005, the Department published in the
The merchandise covered by this order is all purified CMC, sometimes also referred to as purified sodium CMC, polyanionic cellulose, or cellulose gum, which is a white to off-white, non-toxic, odorless, biodegradable powder, comprising sodium CMC that has been refined and purified to a minimum assay of 90 percent. Purified CMC does not include unpurified or crude CMC, CMC Fluidized Polymer Suspensions, and CMC that is cross-linked through heat treatment. Purified CMC is CMC that has undergone one or more purification operations which, at a minimum, reduce the remaining salt and other by-product portion of the product to less than ten percent.
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States at subheading 3912.31.00. This tariff classification is provided for convenience and customs purposes; however, the written description of the scope of the order is dispositive.
Section 782(h)(2) of the Act and 19 CFR 351.222(g)(1)(i) provide that the Department may revoke an order (in whole or in part) if it determines that producers accounting for substantially all of the production of the domestic like product have no further interest in the order, in whole or in part. In addition, in the event the Department determines that expedited action is warranted, 19 CFR 351.221(c)(3)(ii) permits the Department to combine the notices of initiation and preliminary results.
On July 8, 2015, Ashland requested that the Department conduct the CCR on an expedited basis. Ashland stated that, as the sole U.S. producer of CMC, it accounts for all of the production of the domestic like product. Ashland also stated that it has no interest in the continuation of the
Therefore, at the request of Ashland and in accordance with sections 751(b)(1) and 751(d)(1) of the Act, 19 CFR 351.216, 19 CFR 351.222(g)(1), and 19 CFR 351.221(c)(3)(ii), we are initiating this CCR on CMC from the Netherlands to determine whether revocation of the order is warranted with respect to this product. In addition, we determine that expedited action is warranted. In accordance with 19 CFR
Interested parties may submit case briefs and/or written comments in response to these preliminary results not later than 14 days after the publication of this notice.
Any interested party may request a hearing within 14 days of publication of this notice.
If final revocation occurs, we will instruct U.S. Customs and Border Protection to end the suspension of liquidation for the merchandise covered by the revocation on the effective date of the notice of revocation and to release any cash deposit or bond.
This initiation and preliminary results of review notice is published in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216, 19 CFR 351.221(b)(1), (4), and 19 CFR 351.222(g).
Minority Business Development Agency (MBDA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before October 30, 2015.
Direct all written comments to Sheleen Dumas, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Nakita Chambers, Program Manager, Minority Business Development Agency, U.S. Department of Commerce, Office of Business Development, 1401 Constitution Avenue NW., Washington, DC 20230, (202) 482-0065, and email:
As part of its national service delivery system, MBDA awards cooperative agreements each year to fund the provision of business development services to eligible minority business enterprises (MBEs). The recipient of each cooperative agreement is competitively selected to operate one of the MBDA's Business Center programs. In accordance with the Government Performance Results Act (GPRA), MBDA requires all center operators to report basic client information, service activities and progress on attainment of program goals via the Online CRM/Performance database. The data inputs into the CRM/Performance database originate from the client intake forms used by each center to collect information from each minority business enterprise that receives technical business assistance from the center. This data provides the baseline from which the CRM/Performance database is populated. The Online CRM/Performance Database is used to regularly monitor and evaluate the progress of the MBDA funded centers, to provide the Department and OMB with a summary of the quantitative information required to be submitted about government supported programs, and to implement the GPRA. This information is also summarized and included in the MBDA Annual Performance Report, which is made available to the public.
In addition to the information collected from MBEs to provide service and performance reports, the MBDA Center award recipients are required to list MBEs to conduct business in the United States in the Online Phoenix Database. This listing is used to match those registered MBEs with opportunities entered in the Online Opportunity Database by public and private sector entities. The MBEs may also self-register via the Online Phoenix Database for notification of potential business opportunities.
In 2012, the overall estimate of burden hours decreased for users under the newly adopted program structure as a result of the streamlining of certain administrative and reporting requirements. The MBDA Business Center programs will continue to use the Customer Relationship Management/Performance, Phoenix and Business Opportunity databases until the new program is redesigned during Fiscal Year 2016.
The following new information will be provided on the MBDA Client Engagement Form:
The following new information will be provided on the Client Transaction Form:
Information will be collected manually and electronically.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public scoping meetings.
The Mid-Atlantic Fishery Management Council will hold eight scoping hearings in September and October 2015 to solicit public input on a management action to prohibit the development of new, or expansion of existing directed fisheries on unmanaged forage species until adequate scientific information is available to promote ecosystem sustainability. The Council is also soliciting written comments through 11:59 p.m. on Friday October 2, 2015. The Council has not yet determined which type of action it will develop. The action could take the form of a new fishery management plan, an amendment to an existing fishery management plan, or another action.
The meetings will be held over several weeks between September 15, 2015 and October 1, 2015 as described below in
The Council will hold eight scoping meetings. See
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255. More information, including background materials and information on meeting locations will be posted at
The dates, times and locations of the scoping meetings are as follows:
1. Tuesday, September 15, 2015, 6:30 p.m.-8:30 p.m., North Carolina Department of Marine Fisheries, Washington Regional Office Hearing Room, 943 Washington Square Mall, Highway 17, Washington, NC 27889; telephone: (252) 946-6481.
2. Wednesday, September 16, 2015, 6 p.m.-8 p.m., Virginia Marine Resources Commission, 4th Floor Meeting Room, 2600 Washington Avenue, Newport News, VA 23607; telephone: (757) 247-2200.
3. Thursday, September 17, 2015, 6:30 p.m.-8:30 p.m., Congress Hall Hotel, 200 Congress Place, Cape May, NJ 08294; telephone: (844) 264-5030.
4. Monday September 21, 2015. 6:30 p.m.-8:30 p.m., Kingsborough Community College, Building T-3, 2001 Oriental Boulevard, Brooklyn, NY 11235; telephone: (718) 368-5000.
5. Monday, September 28, 2015, 6:30 p.m.-8:30 p.m., University of Rhode Island, Bay Campus, Corless Auditorium, 215 South Ferry Road, Narragansett, RI 02882; telephone: (401) 874-6222.
6. Tuesday, September 29, 2015, 6:30 p.m.-8:30 p.m., New York Department of Environmental Conservation, Bureau of Marine Resources, Hearing Room, 205 North Bell Mead Road, Suite 1, East Setauket, NY 11733; telephone: (631) 444-0430.
7. Wednesday, September 30, 2015, 6:30 p.m.-8:30 p.m., Worcester County Library, Ocean Pines Branch, Meeting Room, 11107 Cathell Road, Berlin, MD 21811; telephone: (410) 208-4014.
8. Thursday, October 1, 2015, 6:30 p.m.-8:30 p.m., Webinar. Information on how to connect to the webinar will be available on the events page of the Council Web site:
The goal of this action is to proactively protect the ecosystem role of unmanaged forage species. In this context, “unmanaged” refers to species not currently managed by the Mid-Atlantic, New England, or South Atlantic Fishery Management Councils, or the Atlantic States Marine Fisheries Commission. The Council has not yet determined which type of action it will develop. The action could take the form of a new fishery management plan, an amendment to an existing fishery management plan, or another action.
Scoping is the process of identifying issues, potential impacts, and a reasonable range of alternatives associated with a management action. Scoping provides the first and best opportunity for the public to make suggestions and raise concerns about new Council actions. Public comments early in the development of this action will help the Council identify effective management alternatives and issues of concern.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, September 16, 2015 at 10 a.m.
The meeting will be held at the Hilton Garden Inn, 100 Boardman Street, Boston, MA 02128; telephone: (617) 567-6789; fax: (617) 561-0798.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisors will review preliminary 2015 scallop survey results and discuss initial recommendations from the Scallop Plan Development Team (PDT) for FY 2016 and FY 2017 (default) fishery specifications (Framework 27). The Advisors will also provide input on potential Council work priorities for 2016 related to the scallop fishery management plan, and potentially identify recommendations for prioritizing the various potential work items. Staff will review from [draft analyses prepared for Amendment 19,] an action to address timing issues for fishery specifications, and advisors will identify preferred alternative recommendations. Staff will review progress on planning of a future workshop to discuss issues about potential inshore depletion. Finally, staff will review preliminary input from the PDT based on a Council motion to evaluate how to potentially improve information collected by observers on discard mortality and highgrading. Other business may be discussed.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (MAFMC) Scientific and Statistical Committee (SSC) will hold a public meeting.
The meeting will be held on Wednesday and Thursday, September 16-17, 2015, from 9 a.m. on September 16 and conclude by 2 p.m. on September 17. For agenda details, see
The meeting will be held at the Double Tree by Hilton Annapolis, 210 Holiday Court, Annapolis, MD 21401; telephone: (410) 224-3150.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
Agenda items to be discussed at the SSC meeting include: Review fishery performance reports and recommend multi-year ABC specifications for spiny dogfish; receive report of peer review of data limited methods applied to
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council will hold a two-day meeting of its Reef Fish Advisory Panel.
The meeting will be held on Wednesday and Thursday, September 16-17, 2015, starting at 8:30 a.m. each day and will adjourn at 12 noon on Thursday.
The meeting will be held in the conference room at the Gulf of Mexico Fishery Management Council's office; see below for address.
Dr. Carrie Simmons, Executive Deputy Director, Gulf of Mexico Fishery Management Council;
The meeting will begin with introductions, and will hold elections for a new chair and vice-chair. The Advisory Panel (AP) will then adopt the agenda, review and approve minutes from the July 29, 2014 Reef Fish AP meeting and July 30, 2014 Red Snapper AP meeting. Council staff will review the scope of work commissioned for this advisory panel. The AP will review and provide recommendations on Public Hearing Draft Amendment 39—Regional Management of Recreational Red Snapper, and recent stock assessments on red grouper and gray triggerfish. The AP will also review and discuss Public Hearing Draft—Joint Amendment to Require Electronic Reporting for Charter Vessels and Headboats; an Options Paper on a Framework Action setting the gag recreational season and gag and black grouper minimum size limits; review of a Draft Framework Action to modify gear restrictions for yellowtail snapper; a Draft Options Paper on an amendment defining west Florida's shelf hogfish stock, and setting the annual catch limits (ACL) and status determination criteria; a Draft Options Paper to modify mutton snapper ACLs and establish commercial and recreational management measures. Lastly, the Advisory Panel will review Coral Habitat Areas of Particular Concern (HAPC), a document on South Florida Management Issues, and SEDAR schedule; and will discuss Other Business, if any.
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is
The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site,
Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendments.
Notice is hereby given that Janice Straley, University of Alaska Southeast Sitka Campus, 1332 Seward Ave., Sitka, Alaska 99835, and Adam A. Pack, Ph.D., Departments of Psychology and Biology, University of Hawaii at Hilo, 200 West Kawili Street, Hilo,
The amendments and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Carrie Hubard or Amy Sloan, (301) 427-8401.
The requested amendments have been granted under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Permit No. 14122, issued on July 14, 2010 (75 FR 43150), authorizes research in Alaskan waters through July 31, 2015. The research is focused on humpback (
Permit No. 14585, issued on July 14, 2010 (75 FR 43150), authorizes research in the Eastern, Western and Central North Pacific Ocean, primarily Hawaii and Alaska, through July 31, 2015. The research is focused on humpback whales and includes photo-identification, underwater videogrammetry, underwater videography, passive acoustic recordings, Crittercam studies, and biopsy sampling. The minor amendment (No. 14585-01) extends the duration of the permit through July 31, 2016, but does not change any other terms or conditions of the permit.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Colleen Reichmuth, Ph.D., Long Marine Laboratory, University of California at Santa Cruz, 100 Shaffer Road, Santa Cruz, CA 95060, has applied in due form for a permit to conduct research on pinnipeds in captivity.
Written, telefaxed, or email comments must be received on or before September 30, 2015.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Amy Sloan or Courtney Smith, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to conduct comparative psychological and physiological studies with captive California sea lions (
The pinnipeds will also participate in physiological assessments to study their general biology including growth and development, nutritional requirements, health status, and environmental tolerance. Open-flow respirometry methods will be used to gather metabolic data from animals trained to rest and breathe under a plastic dome. Daily to weekly, animals may participate in voluntary physiological procedures including weighing, measuring, ultrasound, thermographic imaging, and sampling of hair, skin, feces, urine, and naturally shed vibrissae. Each month (up to 12 times per year), animals may be fed benign fecal markers and blood samples may be obtained. The applicant requests a 5-year permit.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permits.
Notice is hereby given that permits have been issued to the following entities to receive, import, and export specimens of marine mammals for scientific research:
Permit No. 18722: Cornell University, 157 Biotechnology Building, Ithaca, NY 14850 [Responsible Party: Sharron Mitchell, Ph.D.];
Permit No. 18897: Kathleen Colegrove, Ph.D., University of Illinois, College of Veterinary Medicine, Zoological Pathology Program, LUMC Room 0745, Building 101, 2160 South First Street, Maywood, IL 60153;
Permit No. 19425: Melissa McKinney, Ph.D., University of Connecticut, Center for Environmental Sciences and Engineering, 3107 Horsebarn Hill Road, U-4210, Storrs, CT 06269; and
Permit No. 19497: University of Florida, College of Veterinary Medicine, Department of Infectious Diseases and Pathology V3-100, VAB, PO BOX 110880, Gainesville, FL, 32611-0880 [Responsible Party: Thomas B. Waltzek, D.V.M., Ph.D.].
The permits and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
The following Analysts at (301) 427-8401: Rosa L. González (Permit No. 19497), Carrie Hubard (Permit No. 19425), Brendan Hurley (Permit Nos. 18722 and 18897) and Jennifer Skidmore (Permit Nos. 18722, 18897, 19425, and 19497).
On June 26, 2015, notice was published in the
Permit No. 18722 authorizes Cornell University to receive, import, or export unlimited samples from up to 2000 pinnipeds (excluding walrus) and 2000 cetaceans world-wide. These samples will be used for genotyping on marine mammals including trait mapping, population/ecological studies, and germplasm characterization. No live animals would be harassed or taken, lethally or otherwise, under the authorized permit. The permit is valid through August 10, 2020.
Permit No. 18897 authorizes Dr. Colegrove to import unlimited biological samples from up to 100 individual cetaceans and up to 100 individual pinnipeds (except walrus) world-wide. All samples (bones and organ tissue samples) are being imported for diagnostic testing to determine the causes of outbreaks or unusual natural mortalities, the ecology of diseases in free-ranging animals, or unexpected mortalities in captive populations. Samples will be from animals found deceased or euthanized in nature, collected opportunistically during the animals' capture by other researchers possessing permits for such activities, or legally held in captivity (including those held for rehabilitation) outside the U.S. No live animals would be harassed or taken, lethally or otherwise, under the authorized permit. The permit is valid through August 10, 2020.
Permit No. 19425 authorizes Dr. McKinney to study marine mammal contaminant levels, specifically using fatty acid and stable isotopes to examine diets and contaminant loads and how they are affected by climate change. Tissue samples from cetaceans and pinnipeds may come from remote biopsy sampling, captured animals, and animals collected during subsistence harvests and may originate in the United States, Canada, and Greenland/Denmark. Samples (up to 50 of each species group per year, except for those species specified below) will be analyzed, with a focus on the following Arctic species: Ringed seal (30 per year), bearded seal (10 per year), and narwhal (10 per year). No live animals would be harassed or taken, lethally or otherwise, under the authorized permit. The permit is valid through August 1, 2020.
File No. 19497 authorizes the University of Florida to receive, import, and export marine mammal tissue and other specimen materials (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of these permits was based on a finding that such permits: (1) Were applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA.
National Telecommunications and Information Administration, Commerce.
Notice of open meeting.
The National Telecommunications and Information Administration (NTIA) will convene meetings of a multistakeholder process concerning the collaboration between security researchers and software and system developers and owners to address security vulnerability disclosure. This Notice announces the first meeting, which is scheduled for September 29, 2015.
The meeting will be held on September 29, 2015, from 9:00 a.m. to 3:00 p.m., Pacific Time. See
The meeting will be held in the Booth Auditorium at the University of California, Berkeley, School of Law, Boalt Hall, Bancroft Way and Piedmont Avenue, Berkeley, CA 94720-7200.
Allan Friedman, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4725, Washington, DC 20230; telephone (202) 482-4281; email;
The IPTF asked for suggestions of security challenges that an NTIA-convened multistakeholder group could address, and offered a dozen potential topics for explicit feedback.
Of the topics suggested, the challenge of collaboration between security researchers and system and software vendors stands out as a critical issue where reaching some consensus on shared goals, principles, and practices is both feasible and necessary. On July 9, 2015, after reviewing the comments, NTIA announced that the first issue to be addressed would be “collaboration on vulnerability research disclosure.”
This issue is commonly referred to as the question of “vulnerability disclosure.” For as long as humans have created software there have been software “bugs.”
The goal of this process is neither to replicate past discussions nor duplicate existing initiatives. As information security is gaining more attention in the collective consciousness due to a series of high profile cybersecurity incidents and disclosed vulnerabilities, more firms and organizations are considering how to engage with third party researchers, just as they are exploring other security tools and processes. The security community itself has worked to promote better collaboration. More software vendors and system owners are offering “bug bounty” programs that reward researchers for sharing vulnerability information. In addition to enterprises that buy vulnerabilities and sell them to vendors, new business models have emerged to help organizations develop and manage bug bounty programs. Leading experts at the International Standards Organization have developed, and are continuing to revise, a formal standard for vendors on how to manage incoming vulnerability
The goal of this process will be to develop a broad, shared understanding of the overlapping interests between security researchers and the vendors and owners of products discovered to be vulnerable, and establish a consensus about voluntary principles to promote better collaboration. The question of how vulnerabilities can and should be disclosed will be a critical part of the discussion, as will how vendors receive and respond to this information. However, disclosure is only one aspect of successful collaboration. One goal of the overall NTIA process is to promote a digital economy that more strongly emphasizes security and develops community-driven or market-based forces to better and more rapidly secure the digital ecosystem.
Stakeholders will determine the exact nature of the outcome of this process. Since it is unlikely that a one-size-fits all solution will be feasible in this dynamic space, stakeholders will need to determine how to scope and organize the work through sub-groups or other means. Success of the process will be evaluated by the extent to which stakeholders embrace and implement the consensus findings within their individual practices or organizations. Although the stakeholders determine the outcome of the process, it is important to note that the process will not result in a regulatory policy or new law, nor focus on law enforcement or other non-commercial government use of vulnerability data.
The September 29, 2015, meeting is intended to bring stakeholders together to begin to share the range of views on how vulnerability information is shared by researchers, how it is received and used by vendors, and to establish more concrete goals and structure of the process. The objectives of this first meeting are to: (1) Briefly share different perspectives on how vulnerability information is shared, received, and resolved; (2) briefly review perceived challenges in successful collaborations; (3) engage stakeholders in a discussion of high-priority substantive issues stakeholders believe should be addressed; (4) engage stakeholders in a discussion of logistical issues, including internal structures such as a small drafting committee or various working groups, and the location and frequency of future meetings; and (5) identify concrete goals and stakeholder work following the first meeting.
The main objective of further meetings will be to encourage and facilitate continued discussion among stakeholders to build consensus around the principles guiding successful collaboration. This discussion may include circulation of stakeholder-developed straw-man drafts and discussion of the appropriate scope of the initiative. Stakeholders may also agree on procedural work plans for the group, including additional meetings or modified logistics for future meetings. NTIA suggests that stakeholders consider setting clear deadlines for a working draft, and consider a phase for external review of this draft, before reconvening to take account of external feedback.
More information about stakeholders' work will be available at:
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Allan Friedman at (202) 482-4281 or
Please refer to NTIA's Web site,
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the
Written comments must be submitted on or before October 30, 2015.
Written comments may be submitted by any of the following methods:
•
•
•
Requests for additional information should be directed to Catherine Cain, Attorney Advisor, Office of the Commissioner for Trademarks, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at 571-272-8946; or by email at
This collection of information is required by the Trademark Act of 1946, 15 U.S.C. 1051
The Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (“Madrid Protocol”) is an international treaty that allows a trademark owner to seek registration in any of the participating countries by filing a single international application. The International Bureau (IB) of the World Intellectual Property Organization (WIPO) in Geneva, Switzerland, administers the international registration system. The Madrid Protocol Implementation Act of 2002 amended the Trademark Act to provide that: (1) The owner of a U.S. application or registration may seek protection of its mark in any of the participating countries by submitting a single international application to the IB through the USPTO and (2) the holder of an international registration may request an extension of protection of the international registration to the United States. The Madrid Protocol became effective in the United States on November 2, 2003, and is implemented under 15 U.S.C. 1141
An international application submitted through the USPTO must be based on an active U.S. application or registration and must be filed by the owner of the application or registration. The USPTO reviews the international application to certify that it corresponds to the data contained in the existing U.S. application or registration before forwarding the international application to the IB. The IB then reviews the international application to determine whether the Madrid filing requirements have been met and the required fees have been paid. If the international application is unacceptable, the IB will send a notice of irregularity to the USPTO and the applicant. The applicant must respond to the irregularities to avoid abandonment, unless a response from the USPTO is required. After any irregularities are corrected and the application is accepted, the IB registers the mark, publishes the registration in the WIPO Gazette of International Marks, and sends a certificate to the holder.
When the mark is registered, the IB notifies each country designated in the application of the request for extension of protection. Each designated country then examines the request under its own laws. Once an international registration has been issued, the holder may also file subsequent designations to request an extension of protection to additional countries.
Under Section 71 of the Trademark Act, 15 U.S.C. 1141(k), a registered extension of protection to the United States will be cancelled unless the holder of the international registration periodically files affidavits of continued use in commerce or excusable nonuse. The first affidavit must be filed on or between the fifth- and sixth-year anniversaries of the date on which the USPTO registers an extension of protection.
This collection includes the information necessary for the USPTO to process applications for international registration and related requests under the Madrid Protocol. The USPTO provides electronic forms for filing the items in this information collection online (except for the Request to Record an Assignment or Restriction of a Holder's Right to Dispose of an International Registration) using the Trademark Electronic Application System (TEAS), which is available through the USPTO Web site.
Applicants may also submit the items in this collection on paper or by using the forms provided by the IB, which are available on the WIPO Web site. The IB requires Applications for International Registration and Applications for Subsequent Designation that are filed on paper to be submitted on the official IB forms.
Electronically if applicants submit the information using the TEAS forms. By mail or hand delivery if applicants choose to submit the information in paper form.
The time per response, estimated annual responses, and estimated annual hour burden associated with each instrument in this information collection is shown in the table below.
Customers may incur postage costs when submitting some of the items covered by this collection to the USPTO by mail. The USPTO expects that approximately 99 percent of the responses in this collection will be submitted electronically. Of the remaining 1 percent, the vast majority—98 percent—will be submitted by mail, for a total of 82 mailed submissions. The average first-class USPS postage cost for a mailed submission will be 98 cents. Therefore, the USPTO estimates that the postage costs for the mailed submissions in this collection will total $80.36.
The USPTO charges fees for processing international applications and related requests under the Madrid Protocol as set forth in 37 CFR 2.6 and 37 CFR 7.6. Most of these fees are charged per class of goods or services; therefore, the total fees can vary depending on the number of classes. Based on the minimum fee of one class per relevant document, the USPTO estimates that the total filing fees in the form of USPTO processing fees associated with this collection will be approximately $2,175,400 per year, as calculated in the accompanying table.
Therefore, the USPTO estimates that the annual (non-hour) cost burden for this collection, in the form of postage costs ($80.36) and filing fees ($2,175,400), will total $2,175,480.36.
Comments are invited on:
(a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information, 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 technology,
Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to and deletions from the Procurement List.
This action adds a service to the Procurement List that will be provided by the nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.
Effective 09/29/2015.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 7/10/2015 (80 FR 39759-39760), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed addition to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the service to the Government.
2. The action will result in authorizing small entities to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service proposed for addition to the Procurement List.
Accordingly, the following service is added to the Procurement List:
Office of Career, Technical, and Adult Education (OCTAE), Department of Education.
Notice.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.051A.
Applications Available: August 31, 2015.
Date of Pre-Application Meeting: September 9, 2015.
Deadline for Transmittal of Applications: October 30, 2015.
Deadline for Intergovernmental Review: December 29, 2015.
Many justice-involved youths come from families and neighborhoods considered high risk for involvement not only in the juvenile justice system, but also in the child welfare system. Commonly referred to as cross-over youths (defined as youth who often alternate between the child welfare and juvenile justice systems), these youths often have suffered abuse and neglect. Many also have the additional barriers of mental health and substance abuse problems. These issues not only put them at a greater risk for offending, but complicate service delivery once they enter the juvenile justice system.
Youths involved in the juvenile justice system are often “hidden” from the public educational systems because they may not be enrolled in local district schools. As a result, the responsibility for these students' education becomes diffused or ignored and the students' academic outcomes are no longer a priority. Also, agencies sometimes duplicate or fragment services due to various inefficiencies, conflicting program implementation requirements, and other issues.
The most recent Census of Juveniles in Residential Treatment found that approximately 1,470,000 youths were arrested and slightly more than 61,000 were confined in 2011. The majority of these youths were males between the ages of 15 and 17. Blacks comprised more than half of the confined population, followed in descending order by Whites, Hispanics, American Indians, Asians, and Pacific Islanders.
Once released, many justice-involved youths do not return to school. Their juvenile justice placements often create severe disruptions in their education, for the following reasons:
• Educational credits from juvenile justice facilities may not be accepted at the student's public school when they return.
• Juvenile justice facility schools often do a poor job of administering education.
• Records may not transfer promptly from school to facility or between facilities.
• Students returning from the juvenile justice system are often rerouted into alternative-education programs or treated as “troublemakers.”
• Youths returning to school after placement often face a host of social challenges and stigmas.
Many youths in the juvenile justice population have had little employment experience before confinement. Their employment challenges often intensify postrelease, with many struggling to find and keep jobs.
The lack of transition planning for juveniles makes successful reentry and integration into the community extremely difficult. Service providers often receive inadequate professional development and specialized transition training. Due to a lack of interdisciplinary collaboration, service providers often are unprepared to provide appropriate transition services.
Information on recidivism rates is not collected at the national level because States use different definitions of recidivism. However, we know that justice-involved youths are at high risk for recidivism. The Annie Casey Foundation found that studies of youths released from residential corrections programs indicate that 70 to 80 percent of those youths are rearrested within 3 years. Studies also find that 38 to 58 percent of youths released from juvenile corrections facilities are found guilty of new offenses (as a juvenile or an adult) within 2 years and 45 to 72 percent within 3 years.
It has become clear that no single agency can address the myriad needs of justice-involved youth. Justice-involved youths often are involved with multiple systems of care and their needs transcend professional boundaries and agency mandates. Historically, the juvenile justice system has worked in isolation, with inadequate communication and collaboration among agencies serving youths both within facilities and between facilities and the community. The lack of coordination and collaboration among key stakeholders has been a major barrier to addressing the poor education, employment, and well-being outcomes for justice-involved youths.
The past decade has seen increased funding to improve programs, services, and outcomes for justice-involved youths. Multiple Federal agencies, including the Departments of Justice (Office of Juvenile Justice and Delinquency Prevention), Health and Human Services (Substance Abuse and Mental Health Services Administration, National Institutes of Health), Labor (Employment and Training Administration), and Education (Office for Civil Rights, Office of Elementary and Secondary Education), have taken on the issue of juvenile justice reform. Significant Federal funding has been dedicated to this issue, such as funding under the Second Chance Act and the Workforce Investment Act (WIA) (recently reauthorized as the Workforce Innovation and Opportunity Act of 2014 (WIOA), 29 U.S.C. 3101
Just as juvenile justice reform efforts have intensified in the past decade, so too have efforts to improve the effectiveness of workforce education and training programs. The career pathways approach to workforce development is the most recent expression of efforts to meet workforce and industry demands through focused education and training.
In this spirit of cross-system collaboration, in recent years, Federal agencies and a variety of national, State, and local stakeholders have worked together to encourage the development of career pathways. At the Federal level, three Federal agencies, the U.S. Departments of Education (ED or the Department), Health and Human Services, and Labor, have led an interagency effort to advance career pathway systems,
OCTAE has led the career pathways interagency effort for ED because CTE and career pathways are clearly interrelated. Both CTE and career pathways are informed by local labor market trends and designed to meet employer needs. For many, secondary CTE programs are the first point of entry into a career pathway.
CTE will be the primary education focus of projects funded under this grant competition. Studies of incarcerated adults have suggested that participating in CTE may reduce parole violations and recidivism rates and increase the likelihood of employment after release, in addition to promoting the acquisition of knowledge and skills. While similar research for justice-involved youths is limited, CTE potentially may offer these benefits to confined juveniles as well as adults.
CTE programs, commonly referred to as “vocational education” in the juvenile justice setting, help students acquire the skills and knowledge they need for success in further education and careers. Generally, the Carl D. Perkins Career and Technical Education Act of 2006 (Pub. L. 109-270), 20 U.S.C. 2301
In 2014, the U.S. Departments of Education and Justice identified evidence-based principles and promising practices to assist juvenile justice providers in addressing the systemic challenges described at the beginning of this Background section. The recently released “Guiding Principles for Improving Education Programs in Juvenile Justice Secure Care Settings” (Guiding Principles)
Principle I. A safe, healthy facility-wide climate that prioritizes education, provides the conditions for learning, and encourages the necessary behavioral and social support services that address the individual needs of all youths, including those with disabilities and English learners.
Juvenile justice facilities should prioritize education, create the appropriate conditions for learning, and address individual needs through support services. Support services should be comprehensive and should align with the educational program. Facilities should: Use evidence-based assessments to identify appropriate activities; promote active youth engagement; include well-monitored prerelease planning that addresses the youths' diverse needs (
Principle II. Necessary funding to support educational opportunities for all youths within long-term secure care facilities, including those with disabilities and English learners, comparable to opportunities for peers who are not system-involved.
Juvenile justice facilities should receive sufficient funding to ensure all justice-involved youths receive a quality education compared to peers who are not system-involved. Sufficient resources are needed to ensure a strong sustainable program infrastructure that supports a process for collecting, analyzing, and using data to improve program quality.
Principle III. Recruitment, employment, and retention of qualified education staff with skills relevant in juvenile justice settings who can positively impact long-term student outcomes through demonstrated abilities to create and sustain effective teaching and learning environments.
Juvenile justice facilities should recruit, employ, and retain qualified education staff. Staff should be trained on cultural competency in working with individuals of different socioeconomic status, race, and age. Staff also should learn how to create cooperative, supportive learning environments in a juvenile justice setting; build positive relationships with students; and help students meet program requirements and transition to the larger community.
Principle IV. Rigorous and relevant curricula aligned with State academic and career and technical education standards that utilize instructional methods, tools, materials, and practices that promote college- and career-readiness.
Juvenile justice facilities should provide rigorous, relevant curricula that is standards-driven and uses appropriate instructional practices that prepare students for college and the workforce. Education services should: Be tailored to the youths' age, prior experiences, and specific developmental needs (
Principle V. Formal processes and procedures—through statutes, memoranda of understanding, and practices—that ensure successful navigation across child-serving systems and smooth reentry into communities.
Juvenile justice facilities should implement processes and procedures to support the youths' transition from confinement to the community. This requires collaborative, well-defined partnerships that bridge facility- and community-based providers and systems that serve justice-involved youths, as well as other youth-serving systems, such as education, child welfare, employment, housing, behavioral health, and physical health services. These partnerships should have policies and procedures that support communication, youth transitions, data sharing, and accountability.
Projects funded under this grant competition must be implemented in partnership with a variety of providers and systems, to garner the resources and expertise needed to implement specific practices from the Guiding Principles that will address the specific, identified needs of youths to be served under the proposed JJ Reentry CTE program, and to support their successful transition from confinement to the community. We would expect funded projects to use partner resources to provide programming and wraparound services that address participating youths' broader education and well-being needs and support successful reentry. We would expect funded projects to use JJ Reentry CTE Program funds for CTE-related programs and services, such as youth-centered career development services, effective CTE programs (including work-based learning where feasible), and career pathways, that support successful transitions from confinement to the community and to further education and employment.
Nearly all youths leave juvenile justice facilities and return to their communities. For successful reentry to their communities, youths must be prepared to return to school, to access postsecondary education or employment training, or to enter employment. Through this competition, the Secretary will support the establishment and operation of projects that build on existing efforts to improve reentry outcomes for justice-involved youths, make CTE the education focus of their efforts, and build strong partnerships to implement a comprehensive, collaborative approach to improving education, employment, and other positive, well-being outcomes for justice-involved youths.
We are establishing the absolute and competitive preference priorities in a FY 2016 grant competition and any subsequent year in which we make awards from the list of unfunded applicants from this competition, in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1). The invitational priority is from the Secretary's final supplemental priorities and definitions for discretionary grant programs (Supplemental Priorities) published in the
These priorities are:
To meet this priority, an applicant must propose a project designed to improve the quality of CTE programs in juvenile justice facilities (such as detention facilities and secure and non-secure placements) and support reentry after release, by linking the youths to education, wraparound services and youth centered job training programs.
To meet this priority, an applicant must propose a project designed to build upon and enhance State or local efforts to improve reentry outcomes for justice-involved youth, such as those carried out under the Elementary and Secondary Education Act's Title I, Part D, Prevention and Intervention Programs for Children and Youth Who are Neglected, Delinquent, or At-Risk, the Second Chance Act, Perkins IV, WIA/WIOA Youth Workforce Investment Activities, the Department of Labor Employment Training Administration Reentry Employment Opportunities programs, career pathways initiatives, or other Federal, State, local, or philanthropy-funded initiatives.
To meet this priority, an applicant must propose to implement a project in partnership with a variety of providers and systems. An applicant must—
(a) Identify required partners which must include at least one of each of the following—
(1) Juvenile justice agency;
(2) Local educational agency (including representatives specializing, for instance, in CTE, special education, and other fields);
(3) Postsecondary institution (including representatives specializing, for instance, in postsecondary CTE, workforce development, and other fields); and
(4) Workforce development agency.
(b) In addition, the applicant may identify other potential partners, including—
(1) Child welfare agencies;
(2) Workforce investment boards;
(3) Employers;
(4) Labor organizations;
(5) Other social service agencies;
(6) Community-based organizations; and
(7) Other entities.
(c) Include a letter of commitment from each entity with which it will partner to implement the proposed project.
These priorities are:
Projects that are designed to coordinate juvenile justice reentry education programs and services to be provided with programs and services being provided through subgrants received under Title I, Part D, Prevention and Intervention Programs for Children and Youth Who are Neglected, Delinquent, or At-Risk of the Elementary and Secondary Education Act.
Projects that are designed to improve job-driven training and employment outcomes for participating justice-involved youths by integrating the education and training to be provided into a career pathways program or system that: (1) Aligns education and training programs offered by community colleges, other institutions of higher education, and other workforce training providers; (2) offers related stackable credentials (as defined in this notice); and (3) provides support services that enable high-need students (as defined in
Under this competition we are particularly interested in applications that address the following priority.
This priority is:
Projects that are designed to leverage technology through implementing high-quality accessible digital tools, assessments, and materials that are aligned with rigorous college- and career-ready standards.
The application requirements are:
(a) Applicants must propose to serve the residents of at least one residential juvenile justice facility.
(b) Applicants must—
(1) Identify specific practices from the “Guiding Principles for Improving Education Programs in Juvenile Justice Secure Care Settings” that are based on strong theory (as defined in this notice) and that they will implement and describe how those practices will address the specific, identified needs of youths to be served.
(2) Describe each partner's role in implementing the specific practices identified under Application Requirement (b)(1); and
(3) Describe each partner's relevant experience, including experience working with justice-involved youths.
(c) Applicants must describe how the CTE programs to be offered under the JJ Reentry CTE Program will—
(1) Be supported by current labor market information;
(2) Respond to employer needs;
(3) Integrate general employability skills with career and technical instruction;
(4) Provide career exploration, guidance, and planning; and
(5) Lead to industry-recognized credentials that align with secondary and postsecondary CTE programs and/or other workforce training and employment opportunities post-release.
(d) Applicants must describe how professional development needs will be identified and addressed in the project in order to address the needs of participating justice-involved youths and to deliver high-quality CTE services.
(e) Applicants must submit a detailed project plan, for the entire project period. The plan must include a timeline of specific activities to be carried out in each year of the project.
(f) Applicants must—
(1) Include a plan for annual project evaluations that will assess the project's progress in meeting its goals and objectives, provide feedback for the project partners on the effectiveness of key project components, and identify areas needing improvement; and
(2) Describe current capacity to share participant data collected by the different project partners and a plan to improve that capacity if necessary, for the purpose of meeting participant needs and reporting valid and reliable data on the required performance measures.
The definitions of “regular high school diploma” and “stackable credentials” are from the Supplemental Priorities. The definition of “high-need students” is based on the Supplemental Priorities. The definitions of “logic model” and “strong theory” are from the Education Department General Administrative Regulations (EDGAR) at 34 CFR 77.1(c).
20 U.S.C. 2324; 42 U.S.C. 3797.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
1.
(a) Eligible agencies defined in section 3(12) of the Act, 20 U.S.C. 2302(12), as a State board designated or created consistent with State law as the sole State agency responsible for the administration of CTE in the State or for the supervision of the administration of CTE in the State; and
(b) Eligible recipients defined in section 3(14) of the Act, 20 U.S.C. 2302(14), as—
(1) A local educational agency (including a public charter school that operates as a local educational agency), an area CTE school, an educational service agency, or a consortium, eligible to receive assistance under section 131 of the Act; or
(2) An eligible institution or consortium of eligible institutions eligible to receive assistance under section 132 of the Act.
Section 3(13) of the Act, 20 U.S.C. 2302(13), defines “eligible institution” as (a) a public or nonprofit private institution of higher education that offers CTE courses that lead to technical skill proficiency, an industry-recognized credential, a certificate, or a degree; (b) a local educational agency providing education at the postsecondary level; (c) an area CTE school providing education at the postsecondary level; (d) a postsecondary educational institution controlled by the Bureau of Indian Affairs or operated by or on behalf of any Indian tribe that is eligible to contract with the Secretary of the Interior for the administration of programs under the Indian Self-Determination and Education Assistance Act (925 U.S.C. 450
2.
3.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.051A.
To obtain a copy from the program office, contact the persons listed under
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2. a.
• A “page” is 8.5” x 11”, on one side only, with 1” margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; the one-page abstract, or the resumes, bibliography, letters of support, or other appendices.
Our reviewers will not read any pages of your application that exceed the page limit.
b.
Given the types of projects that may be proposed in applications for the JJ Reentry CTE Program, your application may include business information that the applicant considers proprietary. The Department's regulations define “business information” in 34 CFR 5.11.
Because we plan to make successful applications available to the public upon request, you may wish to request confidentiality of business information. Consistent with Executive Order 12600, please designate in your application any information that you feel is exempt from disclosure under Exemption 4 of the Freedom of Information Act. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
Applications Available: August 31, 2015.
Date of Pre-Application Meeting: September 9, 2015.
Deadline for Transmittal of Applications: October 30, 2015.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: December 29, 2015.
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)),the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the JJ Reentry CTE Program competition, CFDA number 84.051A, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the JJ Reentry CTE Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date.
Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Laura Messenger, U.S. Department of Education, 400 Maryland Avenue SW., PCP, Room 11028, Washington, DC 20202-7241. FAX: (202) 245-7170.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.051A) LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service. If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.051A) 550 12th Street SW., Room 7039 Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
a.
1. The magnitude of the need for the services to be provided or the activities to be carried out by the proposed project (up to 5 points); and
2. The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses (up to 10 points).
b.
1. The likelihood that the proposed project will result in system change or improvement (up to 5 points); and
2. The extent to which the proposed project is likely to build local capacity to provide, improve, or expand services that address the needs of the target population (up to 5 points).
c.
1. The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable (up to 5 points);
2. The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs (up to 5 points);
3. The extent to which the proposed project is designed to build capacity and yield results that will extend beyond the period of Federal financial assistance (up to 5 points);
4. The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition (up to 10 points); and
5. The extent to which the proposed project is supported by strong theory (as defined in 34 CFR 77.1(c)) (up to 5 points).
d.
1. The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (up to 10 points); and
2. The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project (up to 5 points).
e.
1. The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project (up to 5 points);
2. The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project (up to 5 points); and
3. The potential for continued support of the project after Federal funding ends, including, as appropriate, the demonstrated commitment of appropriate entities to such support (up to 5 points).
f.
1. The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project (up to 5 points);
2. The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible (up to 5 points); and
3. The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes (up to 5 points).
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
(a) The number and percentage of youths served by the JJ Reentry CTE Program that are enrolled in further education or training, post-release, such as:
(1) Secondary education or other State-approved equivalent;
(2) GED bridge program;
(3) Postsecondary education; or
(4) Workforce training program.
(b) The number and percentage of youths served by the JJ Reentry CTE Program that complete secondary education.
(c) The number and percentage of youths served by the JJ Reentry CTE Program that attain an industry-recognized credential, certificate, or degree.
(d) The number and percentage of youths served by the JJ Reentry CTE Program that seek and obtain employment after release.
(e) The number and percentage of youths served by the JJ Reentry CTE Program that are adjudicated within one year of release, as evidenced by rearrest, conviction for new offenses (as a juvenile or adult), and reincarceration.
In addition to these measures, applicants may establish interim or other measures that they think will be useful in measuring positive outcomes for participating youths, such as learning gains, continued enrollment in CTE courses that support the student's career goals, desired changes in behavior, and other measures of positive youth gains. Grantees will be responsible for collecting and reporting data annually on the required performance measures as well as any other performance measures they choose to establish for this JJ Reentry CTE Program.
5.
Laura Messenger, U.S. Department of Education, 400 Maryland Avenue SW., Room 11028, Washington, DC 20202. Telephone: (202)245-7840 or by email:
If you use a TDD or TTY, call the FRS, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing
Federal Energy Regulatory Commission, DOE.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(a)(1)(D), the Federal Energy Regulatory Commission (Commission or FERC) is submitting its information collection FERC-915 (Public Utility Market-Based Rate Authorization Holders—Records Retention Requirements) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission previously issued a Notice in the
Comments on the collection of information are due by September 30, 2015.
Comments filed with OMB, identified by the OMB Control No. 1902-0250 or collection number (FERC-915), should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Commission, in Docket No. IC15-7-000, by either of the following methods:
•
•
Ellen Brown may be reached by email at
The total estimated annual cost burden to respondents is: $416,293
• Labor costs: 1,955 hours * $30.66/hour = $59,940
• Record retention/storage cost for paper records (using an estimate of 48,891 cubic feet): $315,792
• Electronic record retention/storage cost: $40,561
○ staff-time cost: 1,955 hours ÷ 2
○ electronic record storage cost: 865 * $15.25/year
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
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.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Fuel Use Requirements for Great Lake Steamships (Renewal)” (EPA ICR No. 2458.02, OMB Control No. 2060-0679) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before September 30, 2015.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2011-0928, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Alan Stout, Office of Transportation and Air Quality, Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 48105; telephone number: 734-214-4805; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice of advisory committee meeting.
Under the Federal Advisory Committee Act, Public Law 92463, the Environmental Protection Agency (EPA) gives notice of a public meeting of the National Advisory Council for Environmental Policy and Technology (NACEPT). NACEPT provides advice to the EPA Administrator on a broad range of environmental policy, technology, and management issues. NACEPT members represent academia, industry, non-governmental organizations, and local, state, and tribal governments. The purpose of this meeting is for NACEPT to begin developing recommendations to the Administrator regarding actions that EPA can take in response to the agency's charge on citizen science. A copy of the meeting agenda will be posted at
NACEPT will hold a two-day public meeting on September 28, 2015, from 8:30 a.m. to 5:30 p.m. (EST) and September 29, 2015, from 8:30 a.m. to 4:00 p.m. (EST).
The meeting will be held at the EPA Headquarters, William Jefferson Clinton Federal Building South, Room 2138 1200 Pennsylvania Avenue NW., Washington, DC 20460.
Eugene Green, Designated Federal Officer,
Requests to make oral comments or to provide written comments to NACEPT should be sent to Eugene Green at
Environmental Protection Agency (EPA).
Notice of Charter Renewal.
The U.S. Environmental Protection Agency (EPA) has determined that, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App 2. The Children's Health Protection Advisory Committee (CHPAC) is a necessary committee which is in the public interest. Accordingly, CHPAC will be renewed for an additional two-year period. The purpose of CHPAC is to provide advice and recommendations to the Administrator of EPA on issues associated with the development of regulations, guidance and policies to address children's health risks. Inquiries may be directed to Martha Berger, Designated Federal Officer, CHPAC, U.S. EPA,MC 1107T, 1200 Pennsylvania Avenue NW., Washington, DC 20460 or 202-564-2191 or
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public teleconference of the Chartered SAB to discuss information provided in the agency's Spring 2015 regulatory agenda and to review the draft SAB report on the EPA's proposed Fourth Contaminant Candidate List (CCL 4).
The public teleconference for the Chartered SAB will be held on Thursday, September 24, 2015, from 11:00 a.m. to 1:30 p.m. (Eastern Time).
The public teleconference will be conducted by telephone only.
Any member of the public wishing to obtain information concerning the public teleconference may contact Mr. Thomas Carpenter, Designated Federal Officer (DFO), EPA Science Advisory Board Staff Office (1400R), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; by telephone/voice mail at (202) 564-4885 or at
The SAB was established pursuant to the Environmental Research, Development, and Demonstration Authorization Act (ERDDAA), codified at 42 U.S.C. 4365, to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a federal advisory committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Pursuant to FACA and EPA policy, notice is hereby given that the Chartered SAB will hold a public teleconference for two purposes.
(1) The first purpose is to discuss recommendations regarding the information provided in the agency's Spring 2015 regulatory agenda, specifically planned actions and their supporting science. Information about this advisory activity can be found on the Web at
(2) The second purpose of this public teleconference is to review a draft SAB report on the EPA's proposed Fourth Contaminant Candidate List (CCL 4). Quality review is a key function of the chartered SAB. Draft reports prepared by SAB committees, panels, or work groups must be reviewed and approved by the chartered SAB before transmittal to the EPA Administrator. Consistent with FACA, the chartered SAB makes a determination in a public meeting about each draft report and determines whether the report is ready to be transmitted to the EPA Administrator.
The Safe Drinking Water Act (SDWA) requires EPA to consult with the
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit comments for a federal advisory committee to consider as it develops advice for EPA. Input from the public to the SAB will have the most impact if it provides specific scientific or technical information or analysis for SAB panels to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the Designated Federal Officer as noted above.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before September 30, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before October 30, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
Also, respondents may request materials or information submitted to the Commission or to the Universal Service Administrative Company (USAC or Administrator) be withheld from public inspection under 47 CFR 0.459 of the FCC's rules. We note that USAC must preserve the confidentiality of all data obtained from respondents; must not use the data except for purposes of administering the universal service programs; and must not disclose data in company-specific form unless directed to do so by the Commission.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 25, 2015.
A. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
1.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent orders— embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before September 23, 2015.
Interested parties may file a comment at
Kari A. Wallace, Bureau of Competition, (202-326-3085), 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent orders to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, have been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for August 24, 2015), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before September 23, 2015. Write “Pfizer Hospira Consent, File No. 151 0074” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Pfizer Hospira Consent, File No. 151 0074” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from Pfizer Inc. (“Pfizer”) and Hospira, Inc. (“Hospira”) that is designed to remedy the anticompetitive effects resulting from Pfizer's acquisition of Hospira. Under the terms of the proposed Consent Agreement, the parties are required to divest all of Pfizer's rights and assets related to generic acetylcysteine inhalation solution and all Hospira's rights and assets related to clindamycin phosphate injection, voriconazole injection, and melphalan hydrochloride injection to Alvogen Group, Inc. (“Alvogen”).
The proposed Consent Agreement has been placed on the public record for thirty days for receipt of comments from interested persons. Comments received during this period will become part of the public record. After thirty days, the Commission will again evaluate the proposed Consent Agreement, along with the comments received, to make a final decision as to whether it should withdraw from the proposed Consent Agreement or make final the Decision and Order (“Order”).
Pursuant to an Agreement and Plan of Merger executed on February 5, 2015, Pfizer proposes to acquire Hospira for approximately $16 billion (the “Proposed Acquisition”). The Commission alleges in its Complaint that the Proposed Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by lessening current competition in the markets for generic acetylcysteine inhalation solution and clindamycin phosphate injection and future competition in the markets for voriconazole injection and melphalan hydrochloride injection in the United States. The proposed Consent Agreement will remedy the alleged violations by preserving the competition that otherwise would be eliminated by the Proposed Acquisition.
The Proposed Acquisition would reduce the number of current suppliers in the markets for generic acetylcysteine inhalation solution and clindamycin phosphate injection, and reduce the number of future suppliers in the markets for voriconazole injection and melphalan hydrochloride injection.
Generic acetylcysteine inhalation solution is a mucolytic therapy used to treat certain respiratory disorders. Acetylcysteine liquefies mucus in the lungs, which then can be coughed or suctioned out. Patients inhale the solution through a nebulizer mask, facemask, mouthpiece, tent, or intermittent positive pressure-breathing machine. Only three companies—Fresenius Kabi, partnered with Gland Pharma Ltd. and Pfizer; Hospira; and
Clindamycin phosphate injection is an antibiotic used to treat lung, skin, blood, bone, joint, and gynecological infections in hospitals. Currently, only four companies supply the product in the United States: Pfizer, Hospira, Sagent Pharmaceuticals, and Fresenius Kabi. While Pfizer's clindamycin phosphate product is a branded version, the price of Pfizer's product is competitive with the generic products. Customers, therefore, play the branded and the generic products against each other to negotiate prices. Pfizer and Hospira have a combined approximate market share of more than 80%.
Voriconazole injection is an antifungal medication used to treat significant fungal infections in hospitals. Pfizer currently sells its Vfend brand voriconazole injection product priced competitively with the only generic version in the United States, which is offered by Sandoz. Hospira is one of a limited number of suppliers capable of entering the voriconazole injection market in the near future.
Melphalan hydrochloride injection is a chemotherapy agent used to treat multiple myeloma and ovarian cancer. There are currently two melphalan hydrochloride injection products available in the United States: The branded version, which was originally developed and marketed by Glaxo Smith Kline and is now supplied by ApoPharma USA, Inc. (“ApoPharma”), and the generic version, sold by Mylan N.V. (“Mylan”). ApoPharma prices its branded version of the product competitively with the generic version offered by Mylan. Pfizer and Hospira are developing melphalan hydrochloride injection products, and are two of a limited number of suppliers capable of entering the market in the near future.
Entry into the four markets described earlier would not be timely, likely, or sufficient in magnitude, character, and scope to deter or counteract the anticompetitive effects of the Proposed Acquisition. The combination of drug development times and regulatory requirements, including approval by the United States Food and Drug Administration (“FDA”), is costly and lengthy.
In markets for pharmaceutical products used primarily in hospitals, like the products here, branded drug manufacturers are typically unable to command a premium price for their products because of the reimbursement structure for drugs administered in hospitals. Hospitals typically would not be reimbursed for using a premium-priced branded injectable product, when lower-priced therapeutically equivalent products are available. As a result, brand manufacturers of sterile injectable or inhalation products may lower their prices and compete directly with generic manufacturers' products. Customers tend to gravitate to the lowest-priced product, regardless of whether the drug was approved by the FDA as a brand or a generic product.
Like true generic pharmaceutical markets, these multi-source pharmaceutical products generally are commodities, and prices often are inversely correlated with the number of competitors in each market. As the number of suppliers offering a therapeutically equivalent drug increases, the price for that drug decreases due to the direct competition between the existing suppliers and each additional supplier. The Proposed Acquisition would eliminate the current competition between two of the three competitors in the market for generic acetylcysteine inhalation solution, resulting in a duopoly and likely price increases. Similarly, in the market for clindamycin phosphate solution, the Proposed Acquisition would eliminate competition between two of only four current competitors, leading to higher prices.
In addition, the Proposed Acquisition likely would cause significant anticompetitive harm to consumers by eliminating future competition that would otherwise have occurred if Pfizer and Hospira remained independent. The evidence shows that anticompetitive effects are likely to result from the Proposed Acquisition due to the elimination of an additional independent entrant in the currently concentrated markets for voriconazole injection and melphalan hydrochloride injection, which would have enabled customers to negotiate lower prices. Customers and competitors have observed—and pricing data confirms—that the price of these pharmaceutical products decreases with new entry even after several other suppliers have entered the market. Thus, absent a remedy, the Proposed Acquisition will likely cause U.S. consumers to pay significantly higher prices for voriconazole injection and melphalan hydrochloride injection.
The proposed Consent Agreement effectively remedies the competitive concerns raised by the acquisition in all four markets at issue by requiring Pfizer to divest all its rights to generic acetylcysteine inhalation solution and Hospira to divest all of its rights and assets related to clindamycin phosphate injection, voriconazole injection, and melphalan hydrochloride injection to Alvogen. Alvogen is a private, global pharmaceutical corporation that develops, manufacturers, sells, and distributes generic pharmaceuticals in the United States and in 33 other countries around the world. The parties must accomplish these divestitures and relinquish their rights no later than ten days after the Proposed Acquisition is consummated.
The Commission's goal in evaluating possible purchasers of divested assets is to maintain the competitive environment that existed prior to the Proposed Acquisition. If the Commission determines that Alvogen is not an acceptable acquirer, or that the manner of the divestitures is not acceptable, the proposed Order requires the parties to unwind the sale of rights to Alvogen and then divest the products to a Commission-approved acquirer within six months of the date the Order becomes final. The proposed Order further allows the Commission to appoint a trustee in the event the parties fail to divest the products as required.
The proposed Consent Agreement and Order contain several provisions to help ensure that the divestitures are successful. Alvogen will acquire Pfizer's acetylcysteine inhalation ANDA and stream of revenue associated with the product and will assume Pfizer's role in the contractual relationships with the third parties. Pfizer/Hospira will supply Alvogen with the clindamycin phosphate injection products for three years while the company transfers the manufacturing technology to Alvogen or its designee. Similarly, Pfizer/Hospira will transfer the third-party development and contract manufacturing agreements for voriconazole injection and melphalan hydrochloride injection to Alvogen. The proposed Order also requires Pfizer and Hospira to provide transitional services to Alvogen to assist it in establishing its manufacturing capabilities and securing all of the necessary FDA approvals. These transitional services include technical assistance to manufacture clindamycin in substantially the same manner and quality employed or
The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.
By direction of the Commission.
Gulf Coast Ecosystem Restoration Council.
Notice.
The Gulf Coast Ecosystem Restoration Council (Council) has established Financial Assistance Standard Terms and Conditions (STCs) that will apply to all grants awarded by the Council.
The STCs are effective on August 31, 2015.
Kristin Smith, Council staff, telephone number: 504-444-3558.
The Council is authorized to award grants pursuant to the Council-Selected Restoration and Spill Impact Components of the
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
We are, however, requesting an emergency review of the information collection referenced below. In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we have submitted to the Office of Management and Budget (OMB) the following requirements for emergency review. This is necessary to ensure compliance with an initiative of the Administration. We are requesting an emergency review under 5 CFR 1320.13(a)(2)(i) because public harm is reasonably likely to result if the normal clearance procedures are followed. We are seeking emergency approval for modifications to the information collection request (ICR) currently approved under Office of Management and Budget (OMB) control number 0938-1155. CMS seeks an emergency revision to the ICR approved under 0938-1155 to collect additional information from health insurance companies as part of the MLR and risk corridors programs. This ICR is necessary to validate data that issuers have previously submitted to CMS in more detail than CMS has previously anticipated. While conducting program integrity reviews of submitted data, CMS has identified a number of significant discrepancies in the 2014 benefit year submissions that issuers made for MLR and risk corridors on July 31, 2015. CMS also identified a number of common errors that may lead to submissions that do not comply with CMS regulations and guidance. In order to resolve these potential discrepancies, ensure all submissions comply with applicable guidance, and operate the MLR and risk corridors program accurately and effectively, CMS needs additional information to explain the data found in issuers' underlying MLR and risk corridors submissions. Without this additional information, CMS will be unable to verify the accuracy of the submission and validate the data needed to operate the MLR or risk corridors programs.
Comments must be received by September 3, 2015.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we have submitted to the Office of Management and Budget (OMB) the following requirements for emergency review. This is necessary to ensure compliance with an initiative of the Administration. We are requesting an emergency review under 5 CFR 1320.13(a)(2)(i) because public harm is reasonably likely to result if the normal clearance procedures are followed.
1.
The risk corridors plan-level reporting form, and instructions for completing the form were published as part of the information collection approved under OMB control number 0938-1164. In §§ 153.530 and 153.540 we set forth a data validation process for risk corridors data submissions. The information collection burden associated with the risk corridors data validation process is accounted for in the “Supporting Statement for Paperwork Reduction Act Submissions: Standards Related to Reinsurance, Risk Corridors, Risk Adjustment, and Appeals” approved under OMB control number 0938-1155.
Based on CMS's identification of more significant data discrepancies than previously anticipated, we are requesting an emergency revision to the risk corridors data validation information collection requirement. We are requiring all companies with QHP issuers to complete a checklist to attest that their submission complied with critical guidelines for risk corridors and MLR data submission. For companies with issuers whose reported claims or premium amounts for risk corridors and MLR differ from data collected for other premium stabilization programs by a greater magnitude than expected, CMS is requiring that issuers quantify these differences, and provide a written explanation of the magnitude of the discrepancy. We require these descriptions to be approved by an actuary. The MLR Risk Corridors Submission Checklist and the Risk Corridors Data Discrepancy Worksheet will be submitted via web form at the company level, such that a company will submit one checklist and one discrepancy worksheet that includes information for all of its applicable issuers. As a result of this new requirement, we are updating our annual burden hour estimates to reflect the actual numbers of risk corridors submissions received by QHP issuers and the increased annual burden hours associated with submitting additional data validation information to CMS.
We are requesting OMB review and approval of this collection by September 4, 2015, with a 180-day approval period. Written comments and recommendations will be considered from the public if received by the date and address noted above.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) has taken final action in the following case:
ORI found that the Respondent engaged in research misconduct by falsifying and/or fabricating data in the following two (2) publications:
ORI found that Respondent knowingly falsified and/or fabricated data and related text by altering the
1. ORI found falsified and/or fabricated data in Paper 1 in:
2. ORI found falsified and/or fabricated data in Paper 2 in:
Mr. Littlefield has entered into a Voluntary Settlement Agreement and has voluntarily agreed:
(1) To have his research supervised for period of three (3) years beginning on August 4, 2015; Respondent agreed that prior to the submission of an application for U.S. Public Health Service (PHS) support for a research project on which his participation is proposed and prior to his participation in any capacity on PHS-supported research, Respondent shall ensure that a plan for supervision of his duties is submitted to ORI for approval; the supervision plan must be designed to ensure the scientific integrity of his research contribution; Respondent agreed that he will not participate in any PHS-supported research until such a supervision plan is submitted to and approved by ORI; Respondent agreed to maintain responsibility for compliance with the agreed upon supervision plan;
(2) that for period of three (3) years beginning on August 4, 2015, any institution employing him shall submit in conjunction with each application for PHS funds, or report, manuscript, or abstract involving PHS-supported research in which Respondent is involved, a certification to ORI that the data provided by Respondent are based on actual experiments or are otherwise legitimately derived, and that the data, procedures, and methodology are accurately reported in the application, report, manuscript, or abstract;
(3) to exclude himself voluntarily from serving in any advisory capacity to PHS including, but not limited to, service on any PHS advisory committee, board, and/or peer review committee, or as a consultant for period of three (3) years beginning on August 4, 2015; and
(4) to retraction or correction of the following papers:
Acting Director, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453-8200.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Institute Council of Research Advocates.
The meeting will be open to the public, 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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
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 (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 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
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the National Maritime Security Advisory Committee. The National Maritime Security Advisory Committee provides advice and makes recommendations on national maritime security matters to the Secretary of Homeland Security via the Commandant of the United States Coast Guard.
Completed applications should reach the Coast Guard on or before October 30, 2015.
Applicants should send a cover letter expressing interest in an appointment to the National Maritime Security Advisory Committee that identify which membership category the applicant is applying under, along with a resume detailing the applicant's experience via one of the following methods:
• By Email:
• By Fax: 202-372-8353, ATTN: Mr. Ryan Owens, National Maritime Security Advisory Committee, Alternate Designated Federal Officer; or
• By Mail: Send your completed application packets to: Mr. Ryan Owens, National Maritime Security Advisory Committee, Alternate Designated Federal Officer, CG-FAC, U.S. Coast Guard Headquarters, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593, Stop 7501, Washington, DC 20593-7501.
Mr. Ryan Owens, Commandant (CG-FAC-1), National Maritime Security Advisory Committee Alternate Designated Federal Officer, U.S. Coast Guard Headquarters, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593, Stop 7501, Washington, DC 20593-7501,
The National Maritime Security Advisory Committee is an advisory committee established in accordance with the provisions of the Federal Advisory Committee Act, (title 5 U.S.C. Appendix). The National Maritime Security Advisory Committee advises, consults with, and makes recommendations to the Secretary via the Commandant of the Coast Guard on matters relating to national maritime security.
The full Committee normally meets at least two times per fiscal year. Working group meetings and teleconferences are held more frequently, as needed. The Committee may also meet for extraordinary purposes.
Each member serves for a term of three years. Members may be considered to serve a maximum of two consecutive terms. While attending meetings or when otherwise engaged in committee business, members may be reimbursed for travel and per diem expenses as permitted under applicable Federal travel regulations. However, members will not receive any salary or other compensation for their service on the National Maritime Security Advisory Committee.
We will consider applications for positions listed below categories that will become vacant on December 31, 2015.
Applicants with experience in the following sectors of the marine transportation industry with at least five years of practical experience in their field are encouraged to apply:
• At least one individual who represents the interests of the port authorities;
• at least one individual who represents the interests of the facilities owners or operators;
• at least one individual who represents the interests of the terminal owners or operators;
• at least one individual who represents the interests of the vessel owners or operators;
• at least one individual who represents the interests of the maritime labor organizations;
• at least one individual who represents the interests of the academic community;
• at least one individual who represents the interests of State and local governments; and
• at least one individual who represents the interests of the maritime industry.
Due to the nature of National Maritime Security Advisory Committee business, National Maritime Security Advisory Committee members are required to apply for, obtain, and maintain a government national security clearance at the Secret level. The Coast Guard will sponsor and assist candidates with this process.
The Department of Homeland Security does not discriminate in selection of committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or any other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
If you are interested in applying to become a member of the committee, send your cover letter and resume to Mr. Ryan Owens, Alternate Designated Federal Officer of the National Maritime Security Advisory Committee by email or mail according to instructions in the
To visit our online docket, go to
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Customs-Trade Partnership against Terrorism (C-TPAT) and the Trusted Trader Program. CBP proposes to revise this information collection to include the information collection requirements for a new program known as the Trusted Trader Program. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before September 30, 2015 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
Respondents apply to participate in C-TPAT using an on-line application at:
CBP proposes to establish a collection of information for a new program known as the Trusted Trader Program. The Trusted Trader Program will involve a unification of supply chain security aspects of the current C-TPAT Program and the internal controls of the Importer Self-Assessment (ISA) Program to integrate supply chain security and trade compliance. The goals of the Trusted Trader Program are to strengthen security by leveraging the C-TPAT supply chain requirements and validation, identify low-risk trade entities for supply chain security and
Name and contact information for the applicant;
Business information including business type, CBP Bond information, and number of employees;
Information about the applicant's Supply Chain Security Profile; and
Trade Compliance Profile and Operating Procedures of the applicant.
CBP is developing an on-line application for the Trusted Trader Program which will be available through the C-TPAT portal. The draft Trusted Trader Program application may be viewed at:
After an importer obtains Trusted Trader Program membership, the importer will be required to submit an Annual Notification Letter to CBP confirming that they are continuing to meet the requirements of the Trusted Trader Program. This letter should include: Personnel changes that impact the Trusted Trader Program; organizational and procedural changes; a summary of risk assessment and self-testing results; a summary of post-entry amendments and/or disclosures made to CBP; and any importer activity changes within the last 12-month period.
Federal Emergency Management Agency, DHS.
Proposed notice; withdrawal.
The Federal Emergency Management Agency (FEMA) is withdrawing its proposed notice concerning proposed flood hazard determinations, which may include the addition or modification of any Base Flood Elevation, base flood depth, Special Flood Hazard Area boundary or zone designation, or regulatory floodway (herein after referred to as proposed flood hazard determinations) on the Flood Insurance Rate Maps and, where applicable, in the supporting Flood Insurance Study reports for Montgomery County, Kansas, and Incorporated Areas.
This withdrawal is effective August 31, 2015.
You may submit comments, identified by Docket No. FEMA-B-1520, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
On July 1, 2015, FEMA published a proposed notice at 80 FR 37647, proposing flood hazard determinations for Montgomery County, Kansas, and Incorporated Areas. FEMA is withdrawing the proposed notice.
42 U.S.C. 4104; 44 CFR 67.4.
Fish and Wildlife Service, Interior.
Notice of availability; request for comment.
We, the U.S. Fish and Wildlife Service, have received an application from Southern California Gas Company for a 5-year incidental take permit under the Endangered Species Act of 1973, as amended. The application addresses the potential for “take” of the federally endangered California tiger salamander and the federally threatened California red-legged frog, likely to occur incidental to excavation and maintenance of a gas pipeline between Buellton and Lompoc, in Santa Barbara County, California. We invite comments from the public on the application package, which includes the low-effect habitat conservation plan (HCP) for the endangered California tiger salamander and the threatened California red-legged frog. You may download a copy of the draft HCP at
We will accept comments received or postmarked by September 30, 2015.
To request further information or submit comments related to the permit application or HCP, please use one of these methods:
1.
2.
3.
David Simmons, Fish and Wildlife Biologist, by U.S. mail at the address above, or by telephone at (805) 644-1766. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
This notice advises the public that we received an application from Southern California Gas Company (applicant) for a 5-year incidental take permit (ITP) under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
The U.S. Fish and Wildlife Service (Service) listed the Santa Barbara County distinct population segment of the California tiger salamander as endangered on September 21, 2000 (65 FR 57242). The Service listed the California red-legged frog as threatened on May 23, 1996 (61 FR 25813). Section 9 of the Act and its implementing regulations prohibit the “take” of fish or wildlife species listed as endangered or threatened. “Take” is defined under the Act to include the following activities: “To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. 1532). Under limited circumstances consistent with section 10(a)(1)(B) of the Act, we may issue permits to authorize incidental take of listed species. “Incidental take” is take that is incidental to, and not the purpose of, carrying out of an otherwise lawful activity. Regulations governing incidental take permits for endangered and threatened species are provided at 50 CFR 17.22 and 17.32, respectively. In addition to meeting other criteria, activities covered by an incidental take permit must not jeopardize the continued existence of federally listed fish, wildlife, or plant species in the wild. Under the Service's “No Surprises” regulations (50 CFR 17.22(b)(5) and 17.32(b)(5)), permittees properly implementing an HCP are provided assurances for each species covered by the HCP.
Southern California Gas proposes to excavate, inspect, and, if necessary, repair a natural gas pipeline at four locations along the Highway 246 corridor between the cities of Buellton and Lompoc in Santa Barbara County. The project purpose is to inspect identified anomalies in the pipeline, ensure pipeline integrity, and comply with rules and regulations related to pipeline safety—specifically, the Pipeline Safety Improvement Act of 2002 and all State and Federal regulations promulgated since that time. Each of the four excavation sites would be 1,600 square feet or less, and the project would disturb a maximum of 1.04 acres. The Applicant would use existing roadways to access the dig areas to the extent possible to minimize habitat disturbance. Southern California Gas expects to complete the project in 16 weeks or less.
All four dig locations are in suitable upland habitat for the covered species and within dispersal distance of breeding habitat. The covered activities could cause take during equipment staging and excavating the dig sites, as well as through capture and relocation; however, the latter is intended to reduce the likelihood of injury or death of the covered species by moving individuals out of harm's way.
The conservation program described in the HCP includes measures to avoid and minimize impacts to the covered species, including but not limited to worker training sessions; surveys and monitoring of work areas; relocating individuals of the covered species observed in work areas; and daily, seasonal, and weather-specific work restrictions. The applicant will limit ground disturbance to a total of 1.04 acres of upland habitat. No work will be conducted in any streams, drainages, riparian areas, wetlands, or other aquatic features, and the project would not disturb aquatic breeding habitat for the covered species. The applicant will provide off-site mitigation for temporary impacts to upland habitat and any impacts of taking the covered species as a result of the project by purchasing credits in the La Purisima Conservation Bank.
In the HCP, the applicant considers two alternatives to the proposed taking of the covered species: “No Action” and “Redesigned Project.” Under the “No Action” alternative, Southern California Gas would not submit a permit application to the Service and would not receive an ITP for pipeline maintenance activities. This alternative would avoid impacts to the covered species; however, this alternative also would preclude maintenance of the pipeline and, for this reason, the applicant rejected the “No Action” alternative. Under the “Redesigned Project” alternative, the applicant would relocate the proposed staging area to reduce impacts to upland habitat for the covered species. However, realistic alternative locations for the staging area would be either closer to breeding habitat for the covered species or adjacent to Highway 246. The
We are requesting comments on our preliminary determination that the applicant's proposal will have a minor or negligible effect on the covered species and that the plan qualifies as a low-effect HCP as defined by our Habitat Conservation Planning Handbook (November 1996). We base our determinations on three criteria: (1) Implementation of the proposed project as described in the HCP would result in minor or negligible effects on federally listed, proposed, and/or candidate species and their habitats; (2) implementation of the HCP would result in minor or negligible effects on other environmental values or resources; and (3) impacts of the HCP, considered together with those of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to environmental values or resources that would be considered significant. Based on our analysis of these criteria, we made a preliminary determination that approval of the HCP and issuance of an ITP to Southern California Gas qualify for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321
We will evaluate the permit application, including the HCP and comments we receive, to determine whether the application meets the issuance criteria of section 10(a)(1)(B) of the Act and its implementing regulations (50 CFR 17.22 and 17.32). We also will evaluate whether issuance of the ITP would comply with section 7(a)(2) of the Act by conducting an intra-Service consultation consistent with section 7 of the Act. We will use the results of this consultation, in combination with the above findings, in our final analysis to determine whether or not to issue an ITP. If the requirements are met, we will issue the ITP to the Applicant for the incidental take of the California tiger salamander and California red-legged frog. We will make the final permit decision no sooner than 30 days after the date of this notice.
You may submit comments on the permit application, HCP, screening form, and associated documents by any one of the methods in
Before including your address, phone number, electronic mail 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 view, we cannot guarantee that we will be able to do so.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
National Park Service, Interior.
Notice.
History Colorado, formerly Colorado Historical Society, has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to History Colorado. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to History Colorado at the address in this notice by September 30, 2015.
Sheila Goff, NAGPRA Liaison, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866-4531, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of History Colorado, Denver, CO. Seven sets of remains were received from the Montezuma County Coroner. They were recovered from the vicinity of Cortez or Rangely, Colorado.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by History Colorado professional staff in consultation with representatives of the Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Kewa Pueblo, New Mexico (previously listed as the Pueblo of Santo Domingo); Kiowa Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes and the Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); Pueblo of Acoma, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Shoshone Tribe of the Wind River Reservation, Wyoming;
Sometime before 1977, human remains representing, at minimum, six individuals were removed from the vicinity of Cortez or Rangely, CO, by private citizens. Their son discovered the remains when settling his parents' estate and was put in touch with the Montezuma County Coroner, who ruled out a forensic interest in the human remains October 2014. The remains were then transferred to the Office of the State Archaeologist (OSAC), where they are identified as Office of Archaeology and Historic Preservation (OAHP) Case Number 307. Osteological analysis by Nicholas Zell of Metropolitan State University indicates that the human remains are likely of Native American ancestry. No known individuals were identified. No associated funerary objects are present.
Sometime in the 1950s, human remains representing, at minimum, one individual were removed from a farm near Cortez, CO, by a private citizen. His wife discovered them among her late husband's possessions. In September 2014, she turned them over to the Montezuma County Coroner, who ruled out forensic interest in the human remains. In January 2015, the remains were transferred to the Office of the State Archaeologist (OSAC), where they are identified as Office of Archaeology and Historic Preservation (OAHP) Case Number 308. Osteological analysis by Christiane Baigent of Metropolitan State University indicates that the human remains are likely of Native American ancestry. No known individuals were identified. No associated funerary objects are present.
History Colorado, in partnership with the Colorado Commission of Indian Affairs, Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, conducted tribal consultations among the tribes with ancestral ties to the State of Colorado to develop the process for disposition of culturally unidentifiable Native American human remains and associated funerary objects originating from inadvertent discoveries on Colorado State and private lands. As a result of the consultation, a process was developed,
The Native American Graves Protection and Repatriation Review Committee (Review Committee) is responsible for recommending specific actions for disposition of culturally unidentifiable human remains. On November 3-4, 2006, the
43 CFR 10.11 was promulgated on March 15, 2010, to provide a process for the disposition of culturally unidentifiable Native American human remains recovered from tribal or aboriginal lands as established by the final judgment of the Indian Claims Commission or U.S. Court of Claims, a treaty, Act of Congress, or Executive Order, or other authoritative governmental sources. As there is no evidence indicating that the human remains reported in this notice originated from tribal or aboriginal lands, they are eligible for disposition under the
Officials of History Colorado have determined that:
• Based on osteological analysis, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of seven individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 43 CFR 10.11(c)(2)(ii) and the
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Sheila Goff, NAGPRA Liaison, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866-4531, email
History Colorado is responsible for notifying The Consulted and Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Fish and Wildlife Service, Alaska Region (Alaska Region USFWS), and the University of Alaska Museum of the North have completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Alaska Native Tribes, and have determined that there is a cultural affiliation between the human remains and associated funerary objects and a present-day Alaska Native Tribe. Representatives of any Alaska Native Tribe not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Alaska Region USFWS. If no additional requestors come forward, transfer of control of the human remains to the Alaska Native Tribe stated in this notice may proceed.
Representatives of any Alaska Native Tribe not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Alaska Region USFWS at the address in this notice by September 30, 2015.
Edward J. DeCleva, Regional Historic Preservation Officer/Archaeologist, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, MS-235, Anchorage, AK 99503, telephone (907) 786-3399,
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Alaska Region USFWS and housed at the University of Alaska Museum of the North. The human remains and associated funerary objects were removed from the Turner River archaeological site (XDP-00037), in North Slope Borough, AK.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Alaska Region USFWS and the University of Alaska Museum of the North professional staff in consultation with representatives of the Native Village of Kaktovik.
The Turner River Overlook archeological site (XDP-00037), also referred to as Lorenz Overlook, is located on the North Slope of Alaska within the boundaries of the Arctic National Wildlife Refuge. Professional archeological excavations were carried out at the site between 1977 and 1980, led by Curtis J. Wilson who reported on these excavations in his 1991 Ph.D. dissertation. All of the human remains and associated funerary objects removed from this site by Wilson were placed in three different accessions at the University of Alaska Museum of the North: UA78-388, UA79-231, and UA80-203.
In 1978, human remains representing, at minimum, five individuals, were removed from site XDP-00037. The human remains in accession UA78-388 are the partial remains of one adult female, one adult male, two adults of indeterminate sex, and one perinatal individual of indeterminate sex. No known individuals were identified. The 864 associated funerary objects are 685 beads, 38 projectile points, 8 knives, 1 drill bearing, 1 wrist guard, 6 fishhook shanks, 1 harpoon head, 11 pieces of birch bark, 3 labrets, 2 quartz crystals, 1 axe head, 1 ground stone, 1 sled runner, 2 scrapers, 1 whetstone, 1 toy bow fragment, 3 net gauges, 1 line spreader, 1 ladle, 1 bird blunt, 1 piece of ochre, 30 faunal remains, 10 pieces of worked wood, 21 metal fragments, 3 pieces of worked ivory, 15 pieces of worked antler, 10 pieces of worked bone, 2 flakes, 2 pebbles, and 1 cobble.
In 1979, human remains representing, at minimum, 11 individuals were removed from site XDP-00037. The human remains in accession 79-231 are the partial remains of five adult females, one adult of indeterminate sex, one juvenile of indeterminate sex, and four adult males. No known individuals were identified. The 263 associated funerary objects are 8 beads, 15 burned stones, 1 cooking stone, 1 projectile point, 2 flakes, 2 pieces of wood, 4 metal fragments, 1 piece of worked ivory, 4 pieces of worked antler, 1 piece of worked wood, 17 pieces of worked bone, 131 faunal remains, 6 stones, and 70 pebbles.
In 1980, human remains representing, at minimum, five individuals were removed from site XDP-00037. The human remains in accession UA80-203 are the partial remains of one adult female, two adult males, one juvenile of indeterminate sex, and one sub-adult of indeterminate sex. No known individuals were identified. The 3,776 associated funerary objects are 1 awl, 1 piece of bark, 204 beads, 4 biface fragments, 2 bow fragments, 8 burned stones, 5 core fragments, 1 end scraper, 2,430 faunal remains, 9 fire spalls, 2 flagging stones, 135 flakes, 1 glass bottle fragment, 7 pieces of ground stone, 1 harpoon point, 2 knives, 1 knife handle, 3 labrets, 4 lamps, 7 lamp fragments, 1 piece of lead shot, 17 metal fragments, 2 nails, 659 pebbles, 19 projectile points, 2 quartz crystals, 2 rock spalls, 1 sandstone tool, 29 pieces of slate, 6 stones, 1 piece of tar, 1 ulu blade, 6 pieces of wood, 38 pieces of worked antler, 89 pieces of worked bone, 1 piece of worked ivory, 4 worked stones, and 70 pieces of worked wood.
Based the geographic location, the condition of the human remains, and morphology, all of the human remains described in this notice are determined to be Native American. The removal of these human remains and associated funerary objects from surface burials or shallow graves is consistent with a common pre-contact and contact era burial practice in the region to lay the deceased out either directly on the surface or enclosed in a box on the surface. Kaktovik is an Alaska Native village in the North Slope Borough and is located on the northern edge of the Arctic National Wildlife Refuge. Archeological studies and oral traditions show that there is at least 1,000 years of continuity between present-day and past peoples living on the North Slope of Alaska. Based on this information, the human remains and associated funerary objects described in this notice are determined to be culturally affiliated with Native American tribal members residing in Kaktovik, AK, today, represented by the Native Village of Kaktovik.
Officials of the Alaska Region USFWS and the University of Alaska Museum of the North have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 21 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 4,903 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Native Village of Kaktovik.
Lineal descendants or representatives of any Alaska Native Tribe not identified in this notice that wishes to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Edward DeCleva, Regional Historic Preservation Officer/Archaeologist, U.S. Fish and Wildlife Service, Alaska Region, 1011 E. Tudor Road, MS-235, Anchorage, AK 99013, telephone (907) 786-3399, email
The Alaska Region, USFWS and the University of Alaska Museum of the North are responsible for notifying the Native Village of Kaktovik that this notice has been published.
National Park Service, Interior.
Notice; correction.
The U.S. Department of Defense, Department of the Army, Fort Benning, GA, has corrected an inventory of human remains and associated funerary objects, published in a Notice of Inventory Completion in the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these associated funerary objects should submit a written request with information in support of the request to the U.S. Army, Fort Benning, GA at the address in this notice by September 30, 2015.
Dr. Christopher E. Hamilton, Coordinator for Native American Affairs, 6500 Meloy Drive, Room 309, Fort Benning, GA 31905, telephone (706) 545-4211, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains and associated funerary objects under the control of the U.S. Army, Fort Benning, GA. The human remains and associated funerary objects were removed from Russell County, AL.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice corrects the number of associated funerary objects published in a Notice of Inventory Completion in the
In the
In August 2014, associated funerary objects were found at the National Infantry Museum and are believed to be the items noted in the original field notes that were unavailable for review in 2002. The additional associated funerary objects are 2 brass bells, 1 iron buckle, 3 copper buttons, 1 ceramic pipe bowl fragment, 1 conch columella, and 1 ceramic bowl.
In the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these associated funerary objects should submit a written request with information in support of the request to Dr. Christopher E. Hamilton, Coordinator for Native American Affairs, 6500 Meloy Drive, Room 309, Fort Benning, GA 31905, telephone (706) 545-4211, email
The U.S. Army, Fort Benning, GA is responsible for notifying the Alabama-Coushatta Tribes of Texas; the Alabama-Quassarte Tribal Town, Oklahoma; the Chickasaw Nation; the Coushatta Tribe of Louisiana; the Kialegee Tribal Town, Oklahoma; the Miccosukee Tribe of Indians of Florida; the Muscogee (Creek) Nation, Oklahoma; the Poarch Band of Creek Indians of Alabama; the Seminole Nation of Oklahoma; the Seminole Tribe of Florida; and the Thlopthlocco Tribal Town, Oklahoma, that this notice has been published.
National Park Service, Interior.
Notice.
The Anthropology Research Collections at Texas A&M University has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Anthropology Research Collections at Texas A&M University. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Anthropology Research Collections at Texas A&M University at the address in this notice by September 30, 2015.
Dr. David Carlson, NAGPRA Coordinator, Attn: Timothy S. de Smet, Interim Curator, Department of Anthropology, TAMU MS 4352, College Station, TX 77843-4352, telephone (979) 845-5242, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Anthropology Research Collections at Texas A&M University, College Station, TX. The human remains were removed from Aycock Shelter, Bell County, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Anthropology Research Collections at Texas A&M University (ARC-TAMU) professional staff in 1995. In 2015, representatives of the Caddo Nation of Oklahoma; Comanche Nation, Oklahoma; Kickapoo Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma; Tonkawa Tribe of Indians of Oklahoma; Tunica-Biloxi Indian Tribe; and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma, were invited to consult with ARC-TAMU for the purpose of determining the place and manner of repatriation. The Caddo Nation of Oklahoma contacted ARC-TAMU, and the Comanche Nation, Oklahoma, visited the facility; no representatives from the other tribes contacted ARC-TAMU in response to this invitation.
In 1985, human remains representing, at minimum, one individual were removed from Aycock Shelter/Shelter 14 (41BL28) in Bell County, TX, by the Texas A&M University Anthropology Club. The human remains from the site were identified as being from Feature 14 a and b (TAMU-NAGPRA 76). The human remains were determined to be one adult of indeterminate sex. Dart points found nearby date the human remains to the Early Ceramic period (before A.D. 700). No known individuals were identified. No associated funerary objects are present.
Based on the geographic location of the site, ARC-TAMU staff found it reasonable to trace a shared identity between the human remains in this notice and the following historic groups: Ervipiame, Mayeye, Yojuane, Comanche, Kickapoo, Tonkawa, Tunica and Biloxi, Wichita, Caddo, Waco, Anadarko, and Kiowa. Archeological and linguistic evidence, historical records, and/or traditional beliefs indicate that there is a relationship of shared group identity between these historic groups and the present-day Caddo Nation of Oklahoma; Comanche Nation, Oklahoma; Kickapoo Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma; Tonkawa Tribe of Indians of Oklahoma; Tunica-Biloxi Indian Tribe; and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma.
Officials of the ARC-TAMU have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Caddo Nation of Oklahoma; Comanche Nation, Oklahoma; Kickapoo Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma; Tonkawa Tribe of Indians of Oklahoma; Tunica-Biloxi Indian Tribe; and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. David Carlson, NAGPRA Coordinator, Department of Anthropology, TAMU MS 4352, College Station, TX 77843-4352, telephone (979) 845-5242, email
The ARC-TAMU is responsible for notifying the Caddo Nation of Oklahoma; Comanche Nation, Oklahoma; Kickapoo Tribe of Oklahoma; Kiowa Indian Tribe of Oklahoma; Tonkawa Tribe of Indians of Oklahoma; Tunica-Biloxi Indian Tribe; and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma, that this notice has been published.
National Park Service, Interior.
Notice.
The New York State Museum, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects and objects of cultural patrimony. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the New York State Museum. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the New York State Museum at the address in this notice by September 30, 2015.
Lisa Anderson, New York State Museum, 3049 Cultural Education Center, Albany, NY 12230, telephone (518) 486-2020, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the New York State Museum, Albany, NY, that meet the definition of sacred objects and objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1898, Harriet Maxwell Converse of New York City, NY, donated 34 cultural items to the New York State Museum. The cultural items are 31 wooden medicine masks (E-36868, E-35, E-36919, E-37013, E-37014, E-37020, E-37021, E-37026, E-37028, E-37032, E-37035, E-37036, E-37040, E-37041, E-37044, E-37046, E-37058, E-37060, E-37060A, E-37597, E-37606, E-37607, E-37610, E-37611, E-37612, E-37617, E-37619, E-37620, E-37622, E-37625, E-42) and 3 cornhusk medicine masks (E-36747, E-36926, E-36927).
In the late 19th century, Adelbert G. Richmond of Canajoharie, NY, acquired two cultural items. The cultural items are two wooden medicine masks (E-37025, E-37055).
In 1956, three cultural items were purchased from the Logan Museum of Anthropology, Beloit College, WI. The cultural items were part of a larger collection made by Albert Green Heath. The three cultural items are one large wooden medicine mask (E-50317) and two miniature wooden medicine masks (E-50313, E-50314).
In 1961, one cultural item was acquired from Judith Drumm, a former museum educator. The cultural item is a cornhusk medicine mask (E-50465).
In the late 19th and early 20th centuries, 25 cultural items identified as Iroquois were acquired from unknown individuals. The 25 cultural items are 17 wooden medicine masks (E-36910, E-36913, E-37019, E-37034, E-37049, E-37051, E-37052, E-37599, E-37600, E-37602, E-37609, E-37615, E-37624, E-37627, E-39325, E-5, E-no#79), five cornhusk medicine masks (E-13A, E-13B, E-36748, E-36923, E-36926), and three miniature cornhusk masks (E-36632, E-51025A, E-51025B).
Museum records identify the affiliation of the 65 objects described in this notice as “Iroquois.” According to oral evidence presented during consultation with the Haudenosaunee Standing Committee on Burial Rules and Regulations, the Onondaga Nation is the keeper of the central fire of the Haudenosaunee Confederacy. As the keeper of the central fire, the Onondaga Nation has the responsibility to care for and return to the appropriate Nation Haudenosaunee cultural objects that are not specifically affiliated with any one Haudenosaunee Nation. Therefore, it is the understanding of all the Haudenosaunee Confederacy Nations that any medicine masks affiliated generally as “Iroquois” are affiliated with the Onondaga Nation.
Officials of the New York State Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the 65 cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents, and have an ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred objects and objects of cultural patrimony and the Onondaga Nation on behalf of Haudenosaunee Confederacy Nations.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Lisa Anderson, New York State Museum, 3049 Cultural Education Center, Albany, NY 12230, telephone (518) 486-2020, email
The New York State Museum is responsible for notifying the Cayuga Nation; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation; Saint Regis Mohawk Tribe (previously listed as the St. Regis Band of Mohawk Indians of New York);
National Park Service, Interior.
Notice.
The U.S. Department of Agriculture, Forest Service, Stanislaus National Forest, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Stanislaus National Forest. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Stanislaus National Forest at the address in this notice by September 30, 2015.
Jeanie Higgins, Forest Supervisor, Stanislaus National Forest, 19777 Greenley Road, Sonora, CA 95370, telephone (209) 536-3671, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Stanislaus National Forest, Sonora, CA, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1979 and 1981, 45 cultural items were removed from site CA-TUO-0979 in Calaveras County, CA. The site was used as a burial ground for certain groups of the Central Sierra Miwok as late as the early twentieth century. During monitoring between October 1979 and December 1981, evidence of site looting was documented by Stanislaus National Forest Heritage Program personnel. At that time, a number of cultural items were collected from the “backdirt” left over from looting activities. Human remains were noted in direct association with these cultural items, although no human remains were collected. The 45 unassociated funerary objects are 1 whole abalone shell, 6 abalone pendants, 14 whole
After consultation with the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California and Calaveras Band of Miwuk Indians, a non-federally recognized Indian group, a lineal descendant of the individual buried at the site, Dora Mata, was identified. Ms. Mata was no longer living and attempts to contact her son were unsuccessful. Rose Russell, a granddaughter of Dora Mata, contacted the Stanislaus National Forest and made a request for repatriation of the unassociated funerary objects. The Stanislaus National Forest determined Rose Russell is a lineal descendant of the individual buried at the site from which the unassociated funerary objects were removed.
Officials of the Stanislaus National Forest have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 45 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3005(a)(5)(A), Rose Russell is the direct lineal descendant of the individual associated with the cultural items.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Jeanie Higgins, Forest Supervisor, Stanislaus National Forest, 19777 Greenley Road, Sonora, CA 95370, telephone (209) 536-3671, email
The Stanislaus National Forest is responsible for notifying the California Valley Miwok Tribe, California; Chicken Ranch Rancheria of Me-Wuk Indians of California; and Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California that this notice has been published.
National Park Service, Interior.
Notice.
The Department of Anthropology at Indiana University has completed an inventory of human remains in consultation with the appropriate Indian tribes or Native Hawaiian organizations and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Indiana University at the address in this notice by September 30, 2015.
Dr. Jayne-Leigh Thomas, NAGPRA Director, Indiana University, NAGPRA Office, Student Building 318, 701 E. Kirkwood Avenue, Bloomington, IN 47405, telephone (812) 856-5315, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Department of Anthropology at Indiana University, Bloomington, IN.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Indiana University professional staff in consultation with representatives of The Osage Nation (previously listed as the Osage Tribe).
In 1956, human remains representing, at minimum, one individual were donated to the Department of Anthropology at Indiana University from the Cincinnati Society of Natural History. Notes indicate that these human remains may have been part of the Chicago Historical Society collections prior to 1950. The human remains are labeled as being from an Osage individual. No other information is available. No known individual is identified. No associated funerary objects are present.
Officials of the Department of Anthropology at Indiana University have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and The Osage Nation (previously listed as the Osage Tribe).
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Jayne-Leigh Thomas, NAGPRA Director, Indiana University, NAGPRA Office, Student Building 318, 701 E. Kirkwood Avenue, Bloomington, IN 47405, telephone (812) 856-5315, email
Indiana University is responsible for notifying The Osage Nation (previously listed as the Osage Tribe) that this notice has been published.
National Park Service, Interior.
Notice.
The Center for Archaeological Studies, Texas State University (Texas State), has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Texas State. If no additional requestors come forward, transfer of control of the human remains to the non-Federally recognized Indian group stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Texas State at the address in this notice by September 30, 2015.
Todd M. Ahlman, Center for Archaeological Studies, Texas State University, 601 University Drive, San Marcos, TX 78666, telephone (512) 245-2724, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Center for Archaeological Studies, Texas State University, San Marcos, TX. The human remains were removed from site 41HY160, San Marcos, Hays County, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Texas State professional staff in consultation with representatives of the Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas); Delaware Nation, Oklahoma; Kickapoo Tribe of Oklahoma; The Choctaw Nation of Oklahoma; United Keetoowah Band of Cherokee Indians in Oklahoma; and Ysleta del Sur Pueblo (previously listed as the Ysleta Del Sur Pueblo of Texas). The following tribes were also invited to participate in consultations, but there is no record of their having responded: Absentee-Shawnee Tribe of Indians of Oklahoma;
In December 2011, human remains representing, at minimum, one individual were removed from site 40HY160 in Hays County, TX, following their inadvertent discovery during a construction project on the campus grounds of Texas State. A prehistoric date for the site is based on the artifacts excavated and removed from the site. At the request of Texas State University's Center for Archaeological Studies, osteological analysis of the remains was performed by Drs. Kate Spradley and Michelle Hamilton of the Department of Anthropology. Additional osteological cleaning, sorting, and reconstruction assistance was provided by four graduate students (C. Figueroa-Soto, M. McClain, L. Springs, and C. Tegtmeyer). The human remains were determined to be those of a Native American adult male of prehistoric date. No known individuals were identified. No associated funerary objects are present.
Pursuant to 43 CFR 10.16, the Secretary of the Interior may make a recommendation for a transfer of control of culturally unidentifiable human remains. In January 2015, Texas State requested that the Secretary, through the Native American Graves Protection and Repatriation Review Committee, recommend the proposed transfer of control of the culturally unidentifiable Native American human remains in this notice to the Miakan-Garza Band of the Coahuiltecan people, a non-federally recognized Indian group. The Review Committee, acting pursuant to its responsibility under 25 U.S.C. 3006(c)(5), considered the request at its March 2015 meeting and recommended to the Secretary that the proposed transfer of control proceed. A June 10, 2015, letter on behalf of the Secretary of Interior from the National Park Service Associate Director, Cultural Resources, Partnerships, and Science transmitted the Secretary's independent review and concurrence with the Review Committee that:
• Texas State consulted with the appropriate Indian tribes or Native Hawaiian organizations;
• Texas State determined that a relationship of shared group identity cannot be reasonably traced between the human remains and any present-day Indian tribe, based on consultation;
• Texas State determined that the human remains did not originate from either the tribal land or the aboriginal land of any Indian tribe,
• none of the Indian tribes or Native Hawaiian organizations requested transfer of control of the human remains;
• none of the Indian tribes or Native Hawaiian organizations has identified any individual or Indian tribe affiliated with the human remains through lineal descent, culture, or geography; and
• Texas State may proceed with the agreed upon transfer of control of the culturally unidentifiable human remains to the Miakan-Garza Band of the Coahuiltecan people, a non-federally recognized Indian group.
Transfer of control is contingent on the publication of a Notice of Inventory Completion in the
Officials of the Center for Archaeological Studies, Texas State University, have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on an osteological analysis and prehistoric artifacts not associated with the human remains.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 43 CFR 10.16, the disposition of the human remains will be to the Miakan-Garza Band of the Coahuiltecan people, a non-federally recognized Indian group.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Todd M. Ahlman, Center for Archaeological Studies, Texas State University, 601 University Drive, San Marcos, TX 78666, telephone (512) 245-2724, email
The Center for Archaeological Studies is responsible for notifying The Consulted and Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Dallas Water Utilities has completed an inventory of human remains in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Dallas Water Utilities. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these
Terry Hodgins, 405 Long Creek Road, Sunnyvale, TX 75182, telephone (214) 670-8658, email
Notice is hereby given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Dallas Water Utilities. The human remains were removed from Lake Ray Hubbard, Rockwall County, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by AR Consultants, Inc. and Dallas Water Utilities professional staff in initial consultation with representatives of the Caddo Nation of Oklahoma and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakoni).
In November 2011 and in the fall of 2013, human remains representing, at minimum, six individuals were removed from site 41RW2 in Rockwall County, TX, near the Shores Golf Course. The human remains were found along the lakebed exposed by low reservoir water levels. The lake is property of the City of Dallas, but the area in which the remains were found is in Rockwall County. Human remains on the surface of the lakebed were collected and released to the Dallas County Medical Examiner's Office for identification. Once the remains were determined to be of no forensic significance, Dallas Water Utilities was notified of their presence. Dallas Water Utilities contacted Dr. Catrina Banks Whitley of AR Consultants, Inc. to conduct skeletal analysis and to assist in determining potential disposition options. No known individuals were identified. No associated funerary objects are present.
Site 41RW2, the Upper Rockwall Site, is a Wiley Focus Site dating from A.D. 1 to 1500. The site was excavated by the Dallas Archeological Society in 1963, and the subsequent report describes the site as being very extensive, 400 yards by 150 yards, and is in the west end of a terrace adjacent to the East Fork of the Trinity River. During those excavations, the Dallas Archeological Society encountered nine burials, shell pits, shell cooking pits, and numerous artifacts including pottery, lithic debris, points, beads, awls, bone needles, and bone pins. The burials included cremated and primary interments, some with funerary objects such as conch shell beads. The site was excavated again in 1966 by the Texas Archeological Salvage Project. Approximately nine trenches were placed across the site and excavation by hand occurred. Two primary interments were excavated that included a broken sherd, worked mussel shell, gar scales, and fish vertebrae in one grave and small shell beads and large conch shell beads, near the neck of the other burial. Additional non-funerary items included bifaces, knives, pottery, and beads among others.
Given the location and age of the site, a relationship of shared group identity can be reasonably traced between the human remains and the Caddo Nation of Oklahoma and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakoni).
Officials of the Dallas Water Utilities and AR Consultants, Inc. have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of a minimum number of six individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Caddo Nation of Oklahoma and Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakoni).
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Terry Hodgins, 405 Long Creek Road, Sunnyvale, TX, 75182, telephone (214) 670-8658, email
The Dallas Water Utilities is responsible for notifying the Caddo Nation of Oklahoma and Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakoni) that this notice has been published.
Office of Natural Resources Revenue (ONRR), Interior.
Notice of renewal of an existing Information Collection.
To comply with the Paperwork Reduction Act of 1995 (PRA), ONRR is inviting comments on an information collection request that we will submit to the Office of Management and Budget (OMB) for review and approval. This Information Collection Request (ICR) covers the paperwork requirements under the Chief Financial Officers Act of 1990 (CFO). This notice also provides the public a second opportunity to comment on the paperwork burden of the regulatory requirements.
Submit written comments on or before September 30, 2015.
You may submit your written comments directly to the Desk Officer for the Department of the Interior (OMB Control Number 1012-0001), Office of Information and Regulatory Affairs, OMB, by email to
For questions on technical issues, contact Mr. Hans Meingast, Financial Management, ONRR, telephone (303)
The Secretary of the U.S. Department of the Interior is responsible for mineral resource development on Federal and Indian lands and the Outer Continental Shelf (OCS). Under various laws, the Secretary's responsibility is to manage mineral resources production on Federal and Indian lands and the OCS, collect the royalties, and other mineral revenues due, and distribute the funds collected under those laws. Public laws pertaining to mineral leases on Federal and Indian lands and the OCS are posted at
The Secretary also has a trust responsibility to manage Indian lands and seek advice and information from Indian beneficiaries. Minerals produced from Federal and Indian leases vary greatly in the nature of occurrence, production, and processing methods. When a company or an individual enters into a lease to explore, develop, produce, and dispose of minerals from Federal or Indian lands, that company or individual agrees to pay the lessor a share in an amount or value of production from the leased lands. The lessee is required to report various kinds of information to the lessor relative to the disposition of the minerals. Such information is generally available within the records of the lessee or others involved in developing, transporting, processing, purchasing, or selling such minerals. The information collected includes data necessary to ensure that production is accurately valued and that royalties are appropriately paid.
Every year, under the CFO, the Department's Office of Inspector General, or its agent (agent), audits the Department's financial statements. The Department's goal is to receive an unqualified opinion. Accounts receivable confirmations are a common practice in the audit business. Due to continuously increasing scrutiny on financial audits, third-party confirmation on the validity of ONRR's financial records is necessary.
As part of CFO audits, the agent requests, by a specified date, third-party confirmation responses confirming that ONRR accounts receivable records agree with royalty payor records, for the following items: customer identification; royalty/invoice number; payor-assigned document number; date received; original amount reported; and remaining balance due ONRR as of a specified date. In order to meet this requirement, ONRR must mail letters on ONRR letterhead, signed by the Deputy Director for Office of Natural Resources Revenue, to royalty payors selected by the agent at random, asking them to respond to the agent, confirming the accuracy and/or validity of selected royalty receivable items and amounts. Verifying the amounts reported and the balances due requires time for research and analysis by payors.
This collection does not require proprietary, trade secret, or other confidential information not protected by agency procedures. No items of a sensitive nature are collected. The requirement to respond is voluntary.
We are requesting OMB's approval to continue to collect this information. Not collecting this information would limit the Secretary's ability to discharge the duties of the office and may also result in the loss of royalty payments. Proprietary information submitted is protected, and there are no questions of a sensitive nature included in this information collection.
Section 3506(c)(2)(A) of the PRA requires each agency to “. . . publish a 60-day notice in the
To comply with the public consultation process, we published a notice in the
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSMRE) is announcing that the information collection request for surface and underground mining permit applications—minimum requirements for information on environmental resources, has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost. This information collection activity was previously approved by OMB and assigned control number 1029-0035.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by September 30, 2015, in order to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of the Interior Desk Officer, by telefax at (202) 395-5806 or via email to
To receive a copy of the information collection request contact John Trelease at (202) 208-2783, or electronically at
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSMRE has submitted a request to OMB to renew its approval of the collections of information contained in 30 CFR parts 779 and 783—Surface and Underground Mining Permit Applications—Minimum Requirements for Information on Environmental Resources. OSMRE is requesting a 3-year term of approval for the information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029-0035. Responses are required to obtain a benefit for this collection.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burdens on respondents, such as use of automated means of collections of the information, to the addresses listed in
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.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSMRE) is announcing that the information collection request for bonding and insurance requirements for surface coal mining and reclamation operations under regulatory programs has been submitted to the Office of Management and Budget (OMB) for review and approval. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by September 30, 2015, in order to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of the Interior Desk Officer, by telefax at (202)
To receive a copy of the information collection request contact John Trelease at (202) 208-2783, or electronically at
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval for the collection of information contained in 30 CFR part 800—Bonding and insurance requirements for surface coal mining and reclamation operations under regulatory programs. OSM is requesting a 3-year term of approval for each information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029-0043 for 30 CFR 800.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burdens on respondents, such as use of automated means of collections of the information, to the addresses listed in
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.
United States International Trade Commission.
Notice.
The Commission instituted the subject five-year review in July 2015 to determine whether revocation of the antidumping duty order on woven electric blankets from China would be likely to lead to continuation or recurrence of material injury. On August 18, 2015, the Department of Commerce published notice that it was revoking the order effective August 18, 2015, because “no domestic interested party filed a notice of intent to participate in response to the
Effective August 25, 2015.
Michael Szustakowski (202-205-3169), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
This review is being terminated under authority of title VII of the Tariff Act of 1930 and pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)). This notice is published pursuant to section 207.69 of the Commission's rules (19 CFR 207.69).
By order of the Commission.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), on the Department of Justice's Web site at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the U.S. Department of Justice, Antitrust Division's internet Web site, filed with the Court and, under certain circumstances, published in the
The United States of America, Plaintiff, by its attorneys, acting under the direction of the Attorney General of the United States and at the request of the Federal Trade Commission, brings this civil antitrust action to obtain injunctive relief against Defendants Third Point Offshore Fund, Ltd. (“Third Point Offshore”), Third Point Ultra, Ltd. (“Third Point Ultra”), Third Point Partners Qualified L.P. (“Third Point Partners”) (collectively, “Defendant Funds”), and Third Point LLC (together with the Defendant Funds collectively, “Defendants”). Plaintiff alleges as follows:
1. Defendant Funds violated the notice and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 18a (“HSR Act” or “Act”), with respect to the acquisition of voting securities of Yahoo! Inc. (“Yahoo”) in August and September 2011.
2. This Court has jurisdiction over the subject matter of this action pursuant to Section 7A(g) of the Clayton Act, 15 U.S.C. 18a(g), and pursuant to 28 U.S.C. 1331, 1337(a), 1345, and 1355, and over the Defendants by virtue of Defendants' consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District.
3. Venue is properly based in this District by virtue of Defendants' consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District.
4. Defendant Third Point Offshore is an offshore fund organized under the laws of the Cayman Islands, with its principal office and place of businessc/o Walkers, 190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands.
5. Defendant Third Point Ultra is an offshore fund organized under the laws of the British Virgin Islands, with its principal office and place of businessc/o Walkers Chambers, 171 Main Street, Road Town, Tortola, British Virgin Islands.
6. Defendant Third Point Partners is a limited partnership organized under the laws of the State of Delaware, with its principal office and place of business at 390 Park Avenue, 19th Floor, New York, NY 10022.
7. Defendant Third Point LLC is a limited liability company organized under the laws of the State of Delaware, with its principal office and place of business at 390 Park Avenue, 19th Floor, New York, NY 10022. Third Point LLC makes all the investment decisions for each of the Defendant Funds, including decisions to nominate a candidate to the board of directors of a company in which Defendants have invested or to launch a proxy fight to obtain board representation on behalf of Defendants.
8. Defendants are engaged in commerce, or in activities affecting commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. 12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. 18a(a)(1). At all times relevant to this complaint, each Defendant Fund had total assets in excess of $13.2 million.
9. Yahoo is a corporation organized under the laws of Delaware with its principal place of business at 701 First Avenue, Sunnyvale, CA 94089. Yahoo is engaged in commerce, or in activities affecting commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. 12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. 18a(a)(1). At all times relevant to this complaint, Yahoo had annual net sales in excess of $131.9 million.
10. The HSR Act requires certain acquiring persons and certain persons whose voting securities or assets are acquired to file notifications with the federal antitrust agencies and to observe a waiting period before consummating certain acquisitions of voting securities or assets. 15 U.S.C. 18a(a) and (b). The HSR Act's notification and waiting period are intended to give the federal antitrust agencies prior notice of, and information about, proposed transactions. The waiting period is also intended to provide the federal antitrust agencies with an opportunity to investigate a proposed transaction and to determine whether to seek an injunction to prevent the consummation of a transaction that may violate the antitrust laws.
11. The HSR Act's notification and waiting period requirements apply to acquisitions that meet the HSR Act's thresholds, which are adjusted annually. During the period of 2011
12. Section (c)(9) of the HSR Act, 15 U.S.C. 18a(c)(9), exempts from the requirements of the HSR Act acquisitions of voting securities “solely for the purpose of investment” if, as a result of the acquisition, the securities held do not exceed 10 percent of the outstanding voting securities of the issuer.
13. Pursuant to Section (d)(2) of the HSR Act, 15 U.S.C. 18a(d)(2), the Federal Trade Commission promulgated rules to carry out the purpose of the HSR Act. 16 CFR 801-03 (“HSR Rules”). The HSR Rules, among other things, define terms contained in the HSR Act.
14. Section 801.2(a) of the HSR Rules, 16 CFR 801.2(a), provides that “[a]ny person which, as a result of an acquisition, will hold voting securities” is deemed an “acquiring person.”
15. Section 801.1(a)(1) of the HSR Rules, 16 CFR 801.1(a)(1), provides that the term “person” means “an ultimate parent entity and all entities which it controls directly or indirectly.”
16. Section 801.1(a)(3) of the HSR Rules, 16 CFR 801.1(a)(3), provides that the term “ultimate parent entity” means “an entity which is not controlled by any other entity.”
17. Each of the Defendant Funds is its own ultimate parent entity and Defendant Third Point LLC does not control any of the Defendant Funds within the meaning of the HSR Rules.
18. Pursuant to Section 801.13(a)(1) of the HSR Rules, 16 CFR 801.13(a)(1), “all voting securities of [an] issuer which will be held by the acquiring person after the consummation of an acquisition”—including any held before the acquisition—are deemed held “as a result of” the acquisition at issue.
19. Pursuant to Sections 801.13(a)(2) and 801.10(c)(1) of the HSR Rules, 16 CFR 801.13(a)(2) and 801.10(c)(1), the value of voting securities already held is the market price, defined to be the lowest closing price within 45 days prior to the subsequent acquisition.
20. Section 801.1(i)(1) of the HSR Rules, 16 CFR 801.1(i)(1), defines the term “solely for the purpose of investment” as follows:
Voting securities are held or acquired “solely for the purpose of investment” if the person holding or acquiring such voting securities has no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer.
21. Section 7A(g)(2) of the Clayton Act, 15 U.S.C. 18a(g)(2), provides that if any person fails substantially to comply with the notification requirement under the HSR Act, the district court may grant such equitable relief as the court in its discretion determines necessary or appropriate, upon application of the Federal Trade Commission or the Assistant Attorney General.
22. Plaintiff alleges and incorporates paragraphs 1 through 21 as if set forth fully herein.
23. On or about August 8, 2011, Third Point LLC began acquiring voting securities of Yahoo on behalf of the Defendant Funds. In general, the voting securities were allocated to each Defendant Fund, as well as to other investment funds managed by Third Point LLC, in proportion to such fund's total capital. These acquisitions were accomplished by open market purchases through the NASDAQ Stock Market. Defendant Funds continued to acquire voting securities of Yahoo after August 8, 2011. Other than the Defendant Funds, no fund managed by Third Point LLC held Yahoo voting securities in excess of the HSR threshold.
24. On or about August 10, 2011, Defendant Third Point Offshore's aggregate value of Yahoo voting securities exceeded $66 million.
25. On or about August 17, 2011, Defendant Third Point Ultra's aggregate value of Yahoo voting securities exceeded $66 million.
26. On or about August 30, 2011, Defendant Third Point Partners' aggregate value of Yahoo voting securities exceeded $66 million.
27. Third Point LLC continued to acquire voting securities of Yahoo on behalf of the Defendant Funds through September 8, 2011, when Third Point LLC filed a Schedule 13D with the Securities and Exchange Commission publicly disclosing the Defendant Funds' holdings in Yahoo.
28. The transactions described in Paragraphs 24 through 27 were subject to the notification and waiting periods of the HSR Act and the HSR Rules. The HSR Act and HSR Rules in effect during the time period pertinent to this proceeding required that each Defendant Fund file a notification and report form with the Department of Justice and the Federal Trade Commission and observe a waiting period before acquiring and holding an aggregate total amount of voting securities of Yahoo in excess of $66 million.
29. The Defendant Funds did not comply with the reporting and waiting period requirements of the HSR Act and HSR Rules in connection with the transactions described in Paragraphs 24 through 27.
30. Defendants cannot demonstrate that any of the HSR Act's exemptions applied to the transactions described in Paragraphs 24 through 27. In particular, Defendants' intent when making these acquisitions was inconsistent with the exemption for acquisitions made “solely for the purpose of investment.” Defendants' intent to acquire voting securities of Yahoo other than solely for the purpose of investment is evidenced by the following acts, among others, contemporaneous with the acquisitions. Defendants and/or their agents: contacted certain individuals to gauge their interest and willingness to become the CEO of Yahoo or a potential board candidate of Yahoo; took other steps to assemble an alternate slate of board of directors for Yahoo; drafted correspondence to Yahoo to announce that Third Point LLC was prepared to join the board of Yahoo; internally deliberated the possible launch of a proxy battle for directors of Yahoo; and made public statements that they were prepared to propose a slate of directors at Yahoo's next annual meeting.
31. On or about September 16, 2011, each of the Defendant Funds filed a notification and report form under the HSR Act with the Department of Justice and the Federal Trade Commission. The waiting period relating to these filings expired on or about October 17, 2011.
32. Defendant Third Point Offshore was in violation of the HSR Act each day during the period beginning on August 10, 2011, and ending on or about October 17, 2011.
33. Defendant Third Point Ultra was in violation of the HSR Act each day during the period beginning on August 17, 2011, and ending on or about October 17, 2011.
34. Defendant Third Point Partners was in violation of the HSR Act each day during the period beginning on August 30, 2011, and ending on or about October 17, 2011.
35. Section (g)(2) of the HSR Act, 15 U.S.C. 18a(g)(2), provides that if any person fails substantially to comply with the notification requirement under the HSR Act, the district court may grant such equitable relief as the court in its discretion determines necessary or appropriate.
Wherefore, Plaintiff requests:
a. That the Court adjudge and decree that Defendant Third Point Offshore's acquisition of Yahoo voting securities on August 10, 2011, without having
b. That the Court adjudge and decree that Defendant Third Point Ultra's acquisition of Yahoo voting securities on August 17, 2011, without having filed a notification and report form and observed a waiting period, violated the HSR Act; and that Defendant Third Point Ultra was in violation of the HSR Act each day from August 17, 2011, through October 17, 2011;
c. That the Court adjudge and decree that Defendant Third Point Partners' acquisition of Yahoo voting securities on August 30, 2011, without having filed a notification and report form and observed a waiting period, violated the HSR Act; and that Defendant Third Point Partners was in violation of the HSR Act each day from August 30, 2011, through October 17, 2011;
d. That the Court adjudge and decree that Defendant Third Point LLC had the power and authority to prevent the violations by the Defendant Funds, and that relief against Third Point LLC is necessary and appropriate to ensure future compliance with the HSR Act by the Defendant Funds.
e. That the Court issue an appropriate injunction preventing future violations by the Defendants as provided by the HSR Act, 15 U.S.C. 18a(g)(2);
f. That the Court order such other and further relief as the Court may deem just and proper; and
g. That the Court award the Plaintiff its costs of this suit.
The United States, pursuant to the Antitrust Procedures and Penalties Act (“APPA”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement to set forth the information necessary to enable the Court and the public to evaluate the proposed Final Judgment that would terminate this civil antitrust proceeding.
On August 24, 2015, the United States filed a Complaint against Third Point Offshore Fund, Ltd. (“Offshore”), Third Point Ultra, Ltd. (“Ultra”), Third Point Partners Qualified L.P. (“Qualified”) (collectively “the Defendant Funds”), and Third Point LLC (together with the Defendant Funds collectively, “Defendants”) related to the Defendant Funds' acquisition of voting securities of Yahoo! Inc. (“Yahoo”) in 2011.
The Complaint alleges that the Defendant Funds violated Section 7A of the Clayton Act, 15 U.S.C. 18a, commonly known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”). The HSR Act requires certain acquiring and acquired parties to file pre-acquisition Notification and Report Forms with the Department of Justice and the Federal Trade Commission (collectively, the “federal antitrust agencies” or “agencies”) and to observe a statutorily mandated waiting period before consummating their acquisition.
The Complaint further alleges that the Defendant Funds could not rely on the HSR Act's exemption for acquisitions made solely for the purpose of investment (“investment-only exemption”) because they could not show they had “no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer,” as the exemption is defined in the rules promulgated under the HSR Act.
At the same time the Complaint was filed, the United States also filed a Stipulation and Order and proposed Final Judgment, which are designed to prevent and restrain Defendants' HSR Act violations. Under the proposed Final Judgment, which is explained more fully below, Defendants are prohibited from acquiring voting securities without observing the HSR Act's notification and waiting period requirements in reliance on the investment-only exemption if they have engaged in certain specified acts during the four (4) months prior to an acquisition that is otherwise reportable under the Act, unless they have affirmatively stated that they are not pursuing board or management representation with respect to the issuer of those voting securities.
The United States and the Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA, unless the United States first withdraws its consent. Entry of the proposed Final Judgment would terminate this case, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and punish violations thereof. Entry of this judgment would not constitute evidence against, or an admission by, any party with respect to any issue of fact or law involved in the case and is conditioned upon the Court's finding that entry is in the public interest.
Offshore is an offshore fund organized under the laws of the Cayman Islands, with offices at c/o Walkers, 190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands. Offshore invests in securities and other investments on behalf of its investors.
Ultra is an offshore fund organized under the laws of the British Virgin Islands, with offices at c/o Walkers Chambers, 171 Main Street, Road Town, Tortola, British Virgin Islands. Ultra invests in securities and other investments on behalf of its investors.
Partners is a limited partnership organized under the laws of the State of Delaware, with offices at 390 Park Avenue, 19th Floor, New York, NY 10022. Partners invests in securities and other investments on behalf of its partners.
Third Point LLC is a limited liability company organized under the laws of the State of Delaware, with its principal place of business at 390 Park Avenue, 19th Floor, New York, NY 10022. Third Point LLC makes all the investment decisions for each of the Defendant Funds, including decisions to nominate a candidate to the board of directors of a company in which Defendants have invested, or to launch a proxy fight to obtain board representation on behalf of Defendants.
On August 8, 2011, Third Point LLC began acquiring voting securities of Yahoo on behalf of the Defendant Funds. In general, the voting securities were allocated to each Defendant Fund, as well as to other investment funds managed by Third Point LLC, in proportion to such fund's total capital. Other than the Defendant Funds, no fund managed by Third Point LLC held Yahoo voting securities in excess of the HSR threshold.
On August 10, 2011, the value of Offshore's holdings of Yahoo voting securities exceeded the HSR Act's $66 million size-of-transaction threshold then in effect. On August 17, 2011, the value of Ultra's holdings of Yahoo voting securities exceeded $66 million. On August 30, 2011, the value of Partners' holdings of Yahoo voting securities exceeded $66 million. Third Point LLC continued to acquire voting securities of Yahoo on behalf of the Defendant Funds through September 8, 2011, when Third Point LLC filed a Schedule 13D with the Securities and Exchange Commission publicly disclosing the Defendant Funds' holdings in Yahoo.
On September 16, 2011, the Defendant Funds each filed a Notification and Report Form under the HSR Act with the federal antitrust agencies to acquire voting securities of Yahoo. The waiting period on the Notification and Report Forms expired on October 17, 2011.
Compliance with the HSR Act is critical to the federal antitrust agencies' ability to investigate large acquisitions before they are consummated, prevent acquisitions determined to be unlawful under Section 7 of the Clayton Act (15 U.S.C. 18), and design effective divestiture relief when appropriate. Before Congress enacted the HSR Act, the federal antitrust agencies often were forced to investigate anticompetitive acquisitions that had already been consummated without public notice. In those situations, the agencies' only recourse was to sue to unwind the parties' merger. The combined entity usually had the incentive to delay litigation, and years often passed before the case was adjudicated and relief was pursued or obtained. During this extended time, consumers were harmed by the reduction in competition between the merging parties and, even after the court's adjudication, effective relief was often impossible to achieve. Congress enacted the HSR Act to address these problems and to strengthen and improve antitrust enforcement by giving the agencies an opportunity to investigate certain large acquisitions before they are consummated.
As alleged in the Complaint, the Defendant Funds each acquired in excess of $66 million in voting securities of Yahoo without complying with the pre-merger notification and waiting period requirements of the HSR Act. Defendants' failure to comply undermined the statutory scheme and the purpose of the HSR Act by precluding the agencies' timely review of the Defendants' acquisitions.
The Complaint further alleges that the Defendant Funds could not rely on the HSR Act's investment-only exemption because, at the time of the acquisitions, they were engaging in activities that evidenced an intent inconsistent with the exemption. Namely, the Defendants and/or their agents contacted certain individuals to gauge their interest and willingness to become the CEO of Yahoo or a potential board candidate of Yahoo; took other steps to assemble an alternate slate of board of directors for Yahoo; drafted correspondence to Yahoo to announce that Third Point LLC was prepared to join the board of Yahoo (
The proposed Final Judgment contains injunctive relief designed to prevent future violations of the HSR Act. The proposed Final Judgment sets forth specific prohibited conduct, requires that the Defendants maintain a compliance program, and provides access and inspection procedures to enable the United States to determine and ensure compliance with the Final Judgment. The acts that are prohibited by the proposed Final Judgment are not the only activities that might show an intention inconsistent with the investment-only exemption; they are, however, the actions in which the Defendants engaged in this particular case and are therefore appropriately prohibited by the resolution of this case.
Section IV of the proposed Final Judgment is designed to prevent future HSR Act violations of the sort alleged in the Complaint. Under this provision, Defendants may not consummate acquisitions of voting securities that would otherwise be subject to the HSR Act's Notification and Reporting requirements, and not otherwise exempt, in reliance on the investment-only exemption if, at the time of an acquisition of a particular issuer, or in the four (4) months prior to the acquisition, Defendants have engaged in certain specified activities. These activities are: Nominating a candidate for the board of directors of the issuer; proposing corporate action requiring shareholder approval; soliciting proxies with respect to such issuer; having a representative serve as an officer or director of the issuer; being a competitor of the issuer; doing any of the above activities with regard to an entity controlled by the issuer; inquiring of a third party as to his or her interest in being a candidate for the board or chief executive officer of the issuer, and not
Section V of the proposed Final Judgment sets forth required compliance procedures. Section V sets up an affirmative compliance program directed toward ensuring Defendants' compliance with the limitations imposed by the proposed Final Judgment. The compliance program includes the designation of a compliance officer, who is required to distribute a copy of the Final Judgment to each present and succeeding person who has responsibility for or authority over acquisitions of voting securities by Defendants, and to obtain a certification from each such person that he or she has received a copy of the Final Judgment and understands his or her obligations under the judgment. Additionally, the compliance officer is tasked with providing written instructions, on an annual basis, to all of Defendants' employees regarding the prohibitions contained in the Final Judgment. Lastly, Defendants must file an annual statement with the United States detailing the manner of their compliance with the Final Judgment, including a list of all acquisitions in which they have relied on the investment-only exemption.
To facilitate monitoring Defendants' compliance with the Final Judgment, Section VI grants duly authorized representatives of the United States Department of Justice (“DOJ”) access, upon reasonable notice, to Defendants' records and documents relating to matters contained in the Final Judgment. Defendants must also make its personnel available for interviews or depositions regarding such matters. In addition, Defendants must, upon written request from duly authorized representatives of the Assistant Attorney General in charge of the DOJ's Antitrust Division, submit written reports relating to matters contained in the Final Judgment.
These provisions are designed to prevent recurrence of the type of illegal conduct alleged in the Complaint and ensure that, in future transactions, Defendants do not improperly rely on the HSR Act's investment-only exemption.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal district court to recover three times the damages the person has suffered, as well as the costs of bringing a lawsuit and reasonable attorney's fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no effect as
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by this Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry of the decree upon this Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed injunction contained in the Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
The proposed Final Judgment provides that this Court retains jurisdiction over this action, and the parties may apply to this Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
As an alternative to the proposed Final Judgment, the United States considered a full trial on the merits against the Defendants, including an action for civil penalties. In determining not to seek civil penalties, the United States considered a variety of factors. Chief among them were the fact that the Defendants have no previous record of HSR violations, and that they made their HSR filings within just a few weeks after the date on which they should have filed under the appropriate interpretation of the exemption. In these circumstances, the United States is satisfied that the proposed injunctive relief is sufficient to address the violation alleged in the Complaint and has the added advantage that it gives guidance to similarly-situated entities in the future.
The APPA requires that injunctions of anticompetitive conduct contained in proposed consent judgments in antitrust cases brought by the United States be subject to a sixty (60) day comment period, after which the court shall determine whether entry of the proposed Final Judgment is “in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors, the court's inquiry is necessarily a limited
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.'”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2);
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
WHEREAS, Plaintiff United States of America filed its Complaint on August 24, 2015, alleging that Defendants Third Point Offshore Fund, Ltd., Third Point Ultra, Ltd., and Third Point Partners Qualified L.P. (collectively, “Third Point Funds”) violated Section 7A of the Clayton Act (15 U.S.C. 18a, commonly known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”)), and Plaintiff and Defendants Third Point Funds and Third Point LLC (collectively, “Defendants”), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against, or any admission by, any party regarding any such issue of fact or law;
AND WHEREAS Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;
NOW, THEREFORE, before any testimony is taken, and without trial or adjudication of any issue of fact or law, and upon the consent of the parties, it is ORDERED, ADJUDGED AND DECREED:
This Court has jurisdiction over the subject matter of this action. The Defendants consent solely for the purpose of this action and the entry of this Final Judgment that this Court has jurisdiction over each of the parties to this action and that the Complaint states a claim upon which relief can be granted.
As used in this Final Judgment:
(A) “Abandonment” means a statement that Defendants are not pursuing Board or Management Representation.
(B) “Board or Management Representation” means being a candidate for, or member of, the board of directors or chief executive officer of the relevant Issuer.
(C) “Board or Management Slate” means a Person or a group of Persons for possible Board or Management Representation.
(D) “Covered Acquisition” means an acquisition of Voting Securities of an Issuer that is subject to the reporting and waiting requirements of the HSR Act, 15 U.S.C. 18a, and that is not otherwise exempt from the requirements of the HSR Act, but for which Defendants have not reported under the HSR Act, in reliance on the exemption pursuant to Section (c)(9) of the HSR Act, 15 U.S.C. 18a(c)(9) (“Exemption”).
(E) “Flat Exemption” means a modification to the Exemption or the regulations that implement the Exemption to exempt from the reporting requirements of the HSR Act the acquisition of Voting Securities of an Issuer by any Acquiring Person, or by an Acquiring Person who is not a competitor of the Issuer, on the sole basis that the acquisition results in the Acquiring Person's holding less than a specified percentage of the outstanding Voting Securities of the Issuer.
(F) “Issuer” means a legal entity that issues Voting Securities.
(G) “Person” means any natural person.
(H) “Third Parties” means any Person, partnership, joint venture, firm, corporation, association, trust, unincorporated organizations, or other business, and any subsidiaries, divisions, groups or affiliates thereof, that are not Defendants or a relevant Issuer.
(I) “Third Point LLC” means Defendant Third Point LLC, a limited liability company organized under the laws of the State of Delaware, with its principal place of business at 390 Park Avenue, 19th Floor, New York, NY 10022.
(J) “Third Point Management” means the chief executive officer of Third Point LLC and/or a Person who has the authority to act for Third Point LLC with respect to Board or Management Representation.
(K) “Third Point Offshore Fund, Ltd.” means Defendant Third Point Offshore Fund, Ltd., an offshore fund organized under the laws of the Cayman Islands, with its registered office at Walkers, 190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands.
(L) “Third Point Partners Qualified L.P.” means Defendant Third Point Partners Qualified L.P., a limited partnership organized under the laws of the State of Delaware, with its principal place of business at 390 Park Avenue, 19th Floor, New York, NY 10022.
(M) “Third Point Ultra, Ltd.” means Defendant Third Point Ultra, Ltd., an offshore fund organized under the laws of the British Virgin Islands, with its registered office at Walkers Chambers, 171 Main Street, P.O. Box 92, Road Town, Tortola, British Virgin Islands.
(N) Other capitalized terms have the meanings as defined in the HSR Act and Regulations promulgated thereunder, 16 CFR 801-803.
This Final Judgment applies to all Defendants, including each of their directors, officers, managers, agents, employees, parents, subsidiaries, successors and assigns, all in their capacities as such, and to all other Persons and entities who are in active concert or participation with any of the foregoing with respect to conduct prohibited in Paragraph IV when the relevant Persons or entities have received actual notice of this Final Judgment by personal service or otherwise.
Defendants are enjoined from making, directly or indirectly, a Covered Acquisition, without filing and observing the waiting period as required by the HSR Act, 15 U.S.C. 18a, if: (1) at
(A) Nominated a candidate for the board of directors of such Issuer;
(B) Proposed corporate action requiring shareholder approval with respect to such Issuer;
(C) Solicited proxies with respect to such Issuer;
(D) Have, or are an Associate of an entity that has, a controlling shareholder, director, officer, or employee who is simultaneously serving as an officer or director of such Issuer;
(E) Are competitors of such Issuer;
(F) Have done any of the activities identified in Paragraphs IV.A.-IV.D. with respect to, or are a competitor of, any entity directly or indirectly controlling such Issuer;
(G) Inquired of a Third Party as to his or her interest in Board or Management Representation and did not later engage in Abandonment and communicate such Abandonment to the Third Party, unless Defendants can show that such activity occurred without the knowledge of Third Point Management;
(H) Sent a written communication to, or initiated an oral communication with, the relevant Issuer regarding Board or Management Representation by Persons employed by, affiliated with, or advanced by Defendants and did not later engage in Abandonment and communicate such Abandonment to the relevant Issuer, unless Defendants can show that such activity occurred without the knowledge of Third Point Management; or
(I) Assembled in writing a Board or Management Slate if Defendants were acting through, instructed by, or with the knowledge of Third Point Management and did not later engage in Abandonment.
(A) Defendants shall maintain a compliance program that shall include designating, within thirty (30) days of the entry of this Final Judgment, a Compliance Officer with responsibility for achieving compliance with this Final Judgment. The Compliance Officer shall, on a continuing basis, supervise the review of current and proposed activities to ensure compliance with this Final Judgment. The Compliance Officer shall be responsible for accomplishing the following activities:
(1) Distributing, within thirty (30) days of the entry of this Final Judgment, a copy of this Final Judgment to any Person who has responsibility for or authority over acquisitions by Defendants of Voting Securities;
(2) Distributing in a timely manner a copy of this Final Judgment to any Person who succeeds to a position described in Paragraph V.A.1.;
(3) Obtaining within sixty (60) days from the entry of this Final Judgment, and once within each calendar year after the year in which this Final Judgment is entered during the term of this Final Judgment, and retaining for the term of this Final Judgment, a written certification from each Person designated in Paragraphs V.A.1. and V.A.2. that he or she: (a) has received, read, understands, and agrees to abide by the terms of this Final Judgment; (b) understands that failure to comply with this Final Judgment may result in conviction for criminal contempt of court; and (c) is not aware of any violation of the Final Judgment; and
(4) Providing written instruction, within sixty (60) days from the entry of this Final Judgment, and once within each calendar year after the year in which this Final Judgment is entered during the term of this Final Judgment, to all employees of Third Point who are not Third Point Management: (a) not to make an inquiry of a Third Party, as described in Paragraph IV.G., or a communication with an Issuer, as described in Paragraph IV.H., without the authorization of Third Point Management; and (b) that if, without such authorization, such employee engages in an activity that may qualify as an inquiry or communication described in Paragraphs IV.G. or H., respectively, such employee shall report the event to the Compliance Officer.
(B) Within sixty (60) days of the entry of this Final Judgment, Defendants shall certify to Plaintiff that they have (1) designated a Compliance Officer, specifying his or her name, business address and telephone number; and (2) distributed the Final Judgment in accordance with Paragraph V.A.1.
(C) On or before November 30, 2016, and on or before November 30th (or, if November 30th is not a business day, the next business day) each year thereafter during the term of this Final Judgment, Defendants shall file with Plaintiff a statement (the “Compliance Report”) as to the fact and manner of their compliance with the provisions of Paragraphs IV and V during the year preceding September 30th of the year in which the Compliance Report is filed (the “Reporting Period”). This Compliance Report shall also contain (1) the Issuer and date of each Covered Acquisition during the Reporting Period where a Defendant held the relevant Voting Securities for more than seven (7) days; and (2) a written statement containing the following information regarding all instances, if any, of events during the Reporting Period where a non-Third Point Management employee made an inquiry of a Third Party, as described in Paragraph IV.G., or a communication with an Issuer, as described in Paragraph IV.H., without the authorization of Third Point Management, and as reported to the Compliance Officer: (i) the non-Third Point Management employee involved; (ii) the Issuer; and (iii) the date such inquiry or communication occurred.
(D) If any of Defendants' directors or officers or the Compliance Officer learns of any violation of this Final Judgment, Defendants shall within ten (10) business days make a corrective filing under the HSR Act with respect to the relevant Covered Acquisition.
(A) For the purpose of determining or securing compliance with this Final Judgment, and subject to any legally recognized privilege, duly authorized representatives of the United States Department of Justice shall, upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
(1) Access during Defendants' office hours to inspect and copy, or at Plaintiff's option, to require Defendants to provide copies of all records and documents in their possession or control relating to any matters contained in this Final Judgment; and
(2) To interview, either informally or on the record, Defendants' directors, officers, employees, agents or other Persons, who may have their individual counsel present, relating to any matters contained in this Final Judgment. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
(B) Upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
(C) No information or documents obtained by the means provided in this Final Judgment shall be divulged by the Plaintiff to any person other than an authorized representative of the executive branch of the United States or of the Federal Trade Commission, except in the course of legal proceedings
(D) If, at the time information or documents are furnished by Defendants to Plaintiff, Defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(1) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1) of the Federal Rules of Civil Procedure,” then the United States shall give ten (10) calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding) to which Defendants are not a party.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify or terminate any of its provisions, to enforce compliance, and to punish any violations of its provisions.
This Final Judgment shall expire five (5) years from the date of its entry, except that, if, during the term of this Final Judgment, the Exemption is replaced by a Flat Exemption, then the Final Judgment shall expire on the date that the Flat Exemption is effective.
Each party shall bear its own costs.
The entry of this Final Judgment is in the public interest.
DATED:
Notice of application.
Registered bulk manufacturers of the affected basic class, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before September 30, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before September 30, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152. Comments and requests for hearings on applications to import narcotic raw material are not appropriate. 72 FR 3417 (January 25, 2007).
The Attorney General has delegated her authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on May 7, 2015, Catalent CTS, LLC, 10245 Hickman Mills Drive, Kansas City, Missouri 64137 applied to be registered as an importer of Marihuana (7360), a basic class of controlled substance listed in schedule I.
The company plans to import finished pharmaceutical products containing cannabis extracts in dosage form for clinical trial studies.
This compound is listed under drug code 7360. No other activity for this drug code is authorized for this registration. Approval of permits applications will occur only when the registrant's business activity is consistent with what is authorized under to 21 U.S.C. 952(a)(2). Authorization will not extend to the import of FDA approved or non-approved finished dosage forms for commercial sale.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before September 30, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before September 30, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant
In accordance with 21 CFR 1301.34(a), this is notice that on April 24, 2015, Alltech Associates, Inc., 2051 Waukegan Road, Deerfield, Illinois 60015 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import these controlled substances for the manufacture of reference standards.
Notice of application.
Registered bulk manufacturers of the affected basic class, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before September 30, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before September 30, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated her authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on July 27, 2015, Catalent Pharma Solutions, LLC, 10381 Decatur Road, Philadelphia, Pennsylvania 19114 applied to be registered as an importer of hydromorphone (9150), a basic class of controlled substance listed in schedule II.
The company plans to import the above listed controlled substance for a clinical trial study. Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under to 21 U.S.C. 952(a)(2). Authorization will not extend to the import of FDA approved or non-approved finished dosage forms for commercial sale.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before September 30, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before September 30, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152. Comments and requests for hearings on applications to import narcotic raw material are not appropriate. 72 FR 3417 (January 25, 2007).
The Attorney General has delegated her authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers importers, and exporters of, controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on July 16, 2014, Noramco, Inc., 1440 Olympic Drive, Athens, Georgia 30601, applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import thebaine (9333) analytical reference standards for distribution to its customers. The company plans to import an intermediate form of tapentadol (9780) to bulk manufacture tapentadol for distribution to its customers. The company plans to import phenylacetone (8501) and poppy straw concentrate (9670) to manufacture other controlled substances.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before September 30, 2015. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before September 30, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODXL, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152. Comments and request for hearings on applications to import narcotic raw material are not appropriate. 72 FR 3417 (January 25, 2007).
The Attorney General has delegated her authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.34(a), this is notice that on June 3, 2015, Cambrex Charles City, 1205 11th Street, Charles City, Iowa 50616-3466 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import the listed controlled substances for internal use, and to manufacture bulk intermediates for sale to its customers.
Notice of registration.
Johnson Matthey Pharmaceutical Materials, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Johnson Matthey Pharmaceutical Materials, Inc. registration as a manufacturer of those controlled substances.
By notice dated April 14, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Johnson Matthey Pharmaceutical Materials, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances:
The company plans to utilize this facility to manufacture small quantities of the listed controlled substances in bulk and to conduct analytical testing in support of the company's primary manufacturing facility in West Deptford, New Jersey. The controlled substances manufactured in bulk at this facility will be distributed to its company's customers.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.33(a) on or before October 30, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA
The Attorney General has delegated her authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers, and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant
In accordance with 21 CFR 1301.33(a), this is notice that on July 8, 2015, Rhodes Technologies, 498 Washington Street, Coventry, Rhode Island 02816 applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture the listed controlled substances in bulk for conversion and sale to dosage form manufacturers.
In reference to drug code 7370 the company plans to bulk manufacture a synthetic tetrahydrocannabinol. No other activity for this drug code is authorized for this registration.
Bureau of Justice Statistics, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until October 30, 2015.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Alexia Cooper, Statistician, Law Enforcement Statistics, Bureau of Justice Statistics, 810 Seventh Street NW., Washington, DC 20531 (email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Department of Justice.
Notice of Department of Justice's standing members of the Senior Executive Service Performance Review Boards.
Pursuant to the requirements of 5 U.S.C. 4314(c)(4), the Department of Justice announces the membership of its 2015 Senior Executive Service (SES) Standing Performance Review Boards (PRBs). The purpose of a PRB is to provide fair and impartial review of SES performance appraisals, bonus recommendations and pay adjustments. The PRBs will make recommendations regarding the final performance ratings to be assigned, SES bonuses and/or pay adjustments to be awarded.
Terence L. Cook, Director, Human Resources, Justice Management Division, Department of Justice, Washington, DC 20530; (202) 514-4350.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Pub. L. 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Science Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Monday, October 5, 2015, 8:30 a.m.-5:00 p.m., and Tuesday, October 6, 2015, 8:30 a.m.-5:00 p.m., Local Time.
NASA Headquarters, Room 3H42, 300 E Street SW., Washington, DC 20546.
Ms. Ann Delo, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-0750, fax (202) 358-2779, or
The meeting will be open to the public up to the capacity of the room. The meeting will be available telephonically and by WebEx. Any interested person may call
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Due to the Real ID Act, Public Law 109-13, any attendees with drivers licenses issued from non-compliant states/territories must present a second form of ID. [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Arizona, Idaho, Louisiana, Maine, Minnesota, New Hampshire, and New York. 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 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Ann Delo via email at
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Pub. L. 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the Ad Hoc Task Force on Science, Technology, Engineering and Mathematics (STEM) of the NASA Advisory Council (NAC). This Task Force reports to the NAC.
Tuesday, September 22, 2015, 9:00 a.m. to 3:30 p.m., local time.
NASA Headquarters, Room 3H42-A (MIC 3A), 300 E Street SW., Washington DC 20546.
Dr. Beverly Girten, Executive Secretary for the NAC Ad Hoc Task Force on STEM Education, Room 4H23, NASA Headquarters, Washington, DC 20546, 202-358-0212, or
The meeting will be open to the public up to the seating capacity of the 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 free access number 844-467-6272 or toll access number 720-259-6462, and then the numeric participant passcode: 329152 followed by the # sign. To join via WebEx on September 22, the link is
Attendees will be requested to sign a register and to comply with NASA Headquarters security requirements, including the presentation of a valid picture ID before receiving access to NASA Headquarters. Due to the Real ID Act, Public Law 109-13, any attendees with drivers licenses issued from non-compliant states/territories must present a second form of ID. [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Arizona, Idaho, Louisiana, Maine, Minnesota, New Hampshire, and New York. 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 working 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 with U.S. citizenship and Permanent Residents (green card holders) can provide full name and citizenship status 3 working days in advance by contacting Dr. Beverly Girten, via email at
August 31, September 7, 14, 21, 28, October 5, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of August 31, 2015.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of September 14, 2015.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of October 5, 2015.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at 301-415-0442 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at: http://www.nrc.gov/public-involve/public-meetings/schedule.html.
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
Thursday, September 17, 2015, 2 p.m. (OPEN Portion).
2:15 p.m. (Closed Portion)
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue NW., Washington, DC.
Meeting OPEN to the Public from 2 p.m. to 2:15 p.m.
Closed portion will commence at 2:15 p.m. (approx.)
Information on the meeting may be obtained from Catherine F. I. Andrade at (202) 336-8768, or via email at
U.S. Office of Personnel Management.
30-Day Notice and request for comments.
The Federal Investigative Services (FIS), U.S. Office of Personnel Management (OPM) is notifying the general public and other federal agencies that OPM is seeking Office of Management and Budget (OMB) approval of a revised information collection, control number 3206-0182, Declaration for Federal Employment, Optional Form (OF) 306. 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 providing an additional 30 days for public comments. OPM previously solicited comments for this collection, with a 60-day public comment period, at 79 FR 47693 (August 14, 2014).
Comments are encouraged and will be accepted until September 30, 2015. This process is conducted in accordance with 5 CFR 1320.10.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC
A copy of this information collection, with applicable supporting documentation, may be obtained by contacting Federal Investigative Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Donna McLeod or by electronic mail at
This notice announces that OPM has submitted to OMB a request for review and clearance of a revised information collection, control number 3206-0182, Declaration for Federal Employment, Optional Form (OF) 306. The public has an additional 30-day opportunity to comment.
The Declaration for Federal Employment Optional Form (OF) 306 is completed by applicants who are under consideration for Federal or Federal contract employment. It collects information about an applicant's selective service registration, military service, and general background. The information collected on this form is mainly used to determine a person's acceptability for Federal and Federal contract employment, and his or her retirement status and life insurance enrollment. The information on this form may be used in conducting an investigation to determine a person's suitability or ability to hold a security clearance, and it may be disclosed to authorized officials making similar, subsequent determinations.
The OF 306 asks for personal identifying data and information about violations of the law past convictions, imprisonments, probations, parole, military court martial, delinquency on a Federal debt, Selective Service Registration, United States military service, Federal civilian or military retirement benefits received or applied for, and life insurance enrollment.
The 60-day
OPM accepted, with modifications, a commenter's recommendation to add `Males Only' verbiage to Item 7, Selective Service Registration instructions. OPM amended the verbiage from `Are you a male born after December 31, 1959?' to `Were you born a male after December 31, 1959?' OPM did not accept a commenter's recommendation to provide additional instructions regarding the use of the blank space provided with item 16. Instructions on the form already explain the use of this area.
OPM did not accept recommendations from NELP, William E. Morris Institute for Justice, Civil Rights Restoration Clinic/Rogers College of Law/University of Arizona, Sargent Shriver National Center on Poverty Law, and CCC, to remove Item 9, the criminal history question, or delay presentation of the question to the applicant. Recommendations to remove or delay presentation of the question indicated that the change would provide fairness to all applicants during the hiring process. OPM did not accept this recommendation because it is not consistent with governing policies or current regulation. In accordance with 5 CFR 731.103(d), agencies may begin to determine an applicant's suitability at any time during the hiring process. It is generally more practical and cost-effective to first ensure that the applicant is eligible for the position, deemed by OPM or the Delegated Examining unit to be among the best qualified, and/or within reach of selection. However, in certain circumstances, such as filling law enforcement positions, an agency may choose to initiate a preliminary suitability review at the time of the application. We note that feedback received from federal agencies in response to a recent survey conducted by OPM revealed that that most agencies request completion of the OF 306 after the tentative offer of employment. OPM is currently conducting a review of 5 CFR part 731 regarding application of the OF 306. If it is determined that future changes to the regulation support the recommendation to delay presentation of the OF 306 to applicants, the appropriate instructional changes to the form will be made at that time.
NAACP LDF recommends removal of Items 9 through 11 or to require completion of the OF 306 at the end of the hiring process, to ensure that qualified applicants with criminal records, particularly persons of color, have equal opportunities to compete for and obtain federal employment. In addition, NAACP LDF also questioned the timeframes required to report felonies, firearms or explosive violations, misdemeanors, and all other offenses in the past seven years; and the timeframe identified to collect military court-martial information. According to NAACP LDF, the types of prior convictions and the timeframes included in these questions are overbroad. In addition NAACP LDF indicated that the questions are duplicative of questions presented on forms required by applicants for public trust and national security positions.
OPM did not accept these recommendations. In accordance with 5 CFR 731.103(d) and as explained above, agencies are provided the flexibility to determine the appropriate timing to collect information required by the OF 306. It is important to reiterate that in most situations, agencies present the OF 306 only after the conditional offer of employment is made to the applicant.
In regard to the timeframe identified to collect information for items 9-11, questions as shown on the OF 306 have been carefully considered and deemed appropriate to inform assessment of suitability for Federal employment or fitness to perform work for the government under a contract. Questions 9-11 are carefully tailored for this purpose. They do not ask about arrests. Nor do they ask about charges without dispositions, except when the charges are current. They ask only about convictions, imprisonment, parole, and probation for criminal offenses within the past seven years. Seven years is a reasonable scope for questions about recent convictions, imprisonment, parole, and probation that may affect suitability or fitness to work for or on behalf of the Federal government.
OPM disagrees with the comment that questions 9-11 are cumulative of questions on the Questionnaire for Public Trust Positions and the Questionnaire for National Security Positions. The OF 306 may be used for preliminary suitability screening or for making an objection to a candidate or requesting to pass over a candidate. The Questionnaire for Public Trust Positions and the Questionnaire for National Security Positions are forms used to initiate background investigations that typically occur later in the hiring process.
A commenter recommended OPM add the following language to the introductory paragraph associated with questions 9, 10, and 11: “For Questions 9, 10, and 11, consideration will include assessing, at least, the nature of the crime, the time elapsed since the
A commenter also recommended that OPM direct agencies to afford screened-out applicants an opportunity to fully explain the circumstances of their conviction or charge in light of these factors. OPM did not accept this recommendation. OPM has already provided extensive guidance to agencies regarding suitability assessments and consideration of information collected during the hiring process; and the commenter's reference to screen-outs appears to misconstrue the individualized nature of Federal hiring and suitability decisions. As stated in the form instructions, “In most cases you can still be considered for Federal jobs” if you have a conviction record.
A commenter recommended OPM amend the instruction for question 11, “Are you currently under charges for any violation of the law?” from requiring an explanation of the violation to requiring an explanation of the charges. OPM accepted this recommendation. The wording change will help elicit truthful responses in cases where the respondent contests whether a “violation” actually occurred.
A commenter recommended OPM highlight the instructions in Item 16, Continuation Space/Agency Optional Questions. OPM did not accept this recommendation. Instructions are provided on the form regarding the purpose of the Continuation Space/Agency Optional Questions. OPM accepted a commenter's recommendation to amend instructional verbiage in Item 17 to clarify that the instruction applies to individuals who are applying for a position and have not yet been selected as well as individuals who have received a tentative or condition offer of employment.
This ICR requests categorizing this form as a common form. Once OMB approves the use of this common form, all Federal agencies using the form not in connection with OPM's own use investigation may request the use of this common form without additional 60 or 30 day notice and comment requirements. At that point, each such agency will account for its number of respondents and the burden associated with the agency's use.
Analysis:
U.S. Office of Personnel Management.
30-Day Notice and request for comments.
Federal Investigative Services (FIS), U.S. Office of Personnel Management (OPM) is notifying the general public and other Federal agencies that OPM is seeking Office of Management and Budget (OMB) approval of a revised information collection control number 3206-0106, Interview Survey Form, INV 10. As required by 44 U.S.C. 3507, OPM is providing an additional 30 days for public comments. OPM previously solicited comments for this collection, with a 60-day public comment period, at 80 FR 34936 (June 18, 2015).
Comments are encouraged and will be accepted until September 30, 2015. This process is conducted in accordance with 5 CFR 1320.10.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or by electronic mail to
A copy of this information collection, with applicable supporting documentation, may be obtained by contacting Federal Investigative Services, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, Attention: Donna McLeod or by electronic mail at
This notice announces that OPM has submitted to OMB a request for review and clearance of a revised information collection, control number 3206-0106, Interview Survey Form, INV 10. The public has an additional 30-day opportunity to comment. The Interview Survey Form, INV 10 is mailed by OPM, to a random sampling of record and personal sources contacted during background investigations when investigators have performed fieldwork. The INV 10 is used as a quality control instrument designed to ensure the accuracy and integrity of the investigative product. The form queries the recipient about the investigative procedure exhibited by the investigator, the investigator's professionalism, and the information discussed and reported. In addition to the preformatted response options, OPM invites the recipients to respond with any other relevant comments or suggestions.
The 60-day
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Priority Mail International Regional Rate Boxes Contract 1 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On August 25, 2015, the Postal Service filed notice that it has entered into a Priority Mail International Regional Rate Boxes Contract 1 negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2015-130 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than September 1, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Curtis E. Kidd to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2015-130 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Curtis E. Kidd is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than September 1, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an additional Global Expedited Package Services 3 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On August 24, 2015, the Postal Service filed notice that it has entered into an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2015-128 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than September 1, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
1. The Commission establishes Docket No. CP2015-128 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as the Public Representative in this proceeding.
3. Comments are due no later than September 1, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange seeks to amend its rules related to QCC Orders. The text of the proposed rule change is provided below.
(u) Qualified Contingent Cross Order: A qualified contingent cross order is an
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposal is to expand the availability of QCC Orders by permitting multiple contra-parties on a QCC Order. Under the proposal, multiple contra-parties would be allowed; provided however, that the initiating QCC Order be for at least 1,000 contracts (in addition to meeting the other requirements of a QCC Order). This is intended to accommodate multiple contra-parties, as explained further below.
Currently, a qualified contingent cross order must be comprised of an order to buy (sell) at least 1,000 standard option contracts or 10,000 mini-option contracts that is identified as being part of a qualified contingent trade
As noted above, the Exchange is now proposing to amend the definition of a QCC Order to allow multiple contra-parties; provided however, that the initiating QCC Order be for at least 1,000 contracts (in addition to meeting the other requirements of a QCC Order). The Exchange notes that with regard to order entry, the first order submitted into the system is marked as the initiating/agency side and the second order is marked as the contra-side. Additionally, the contra-side order to a QCC Order will always be entered as a single order, even if that order consists of multiple contra-parties who are allocated their portion of the trade in a post-trade allocation.
The Exchange notes that it will surveil QCC Orders to ensure the Trading Permit Holder (“TPH”) on the initiating side of the order is complying with the minimum 1,000 contract size requirement. The Exchange also checks to see if TPHs are aggregating multiple orders to meet the 1,000 contract minimum on the initiating side of the trade in violation of the requirements of the rule, enforcing compliance with this portion of the rule by checking to see if a TPH breaks up the initiating side of the order in a post trade allocation to different clearing firms, allocating less than 1,000 contracts to a party or multiple parties.
Accordingly, the Exchange is proposing to amend the definition of QCC Order to clarify that an originating order to buy or sell at least 1,000 contracts coupled with a contra-side order or orders totaling an equal number of contracts is permitted. This is a competitive filing that is based on International Securities Exchange, LLC (“ISE”) Rule 715.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes removing the size restriction placed on the contra-side to a QCC Order may increase liquidity and improve the prices at which QCC Orders get executed and, therefore, provide more opportunity to participate in QCC trades, consistent with the key principles behind the QCC Order. Also, consistent with Section 6(b)(8) of the Act, the Exchange seeks to compete with other options exchanges for QCC Orders involving multiple parties, including where there are multiple contra-parties. The Exchange believes that this will be beneficial to participants because allowing multiple contra-parties should foster competition for filling one side of a QCC Order and thereby result in potentially better prices, as opposed to only allowing one contra-party and, thereby requiring that contra-party to do a larger size order which could result in a worse price for the trade.
CBOE 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. As described above, the current rule change is being proposed as a competitive response to ISE Rule 715. Also, the proposal may relieve burden on competition, which results from ISE and CBOE having different rules regarding QCC Orders.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
The Commission notes that, given the differing requirements as between the originating side and contra-side for QCC Orders, it is essential that the Exchange be able to clearly identify and monitor—throughout the life of a QCC Order, beginning at the time of order entry on the Exchange through the post-trade allocation process—each side of the QCC Order and ensure that the requirements of the order type are being satisfied including, importantly, those relating to the originating side. The Commission believes this to be critical so that the Exchange can ensure that market participants are not able to circumvent the requirements of the QCC Order (as amended by this proposed rule change), each of which the Commission continues to believe are critical to ensuring that the QCC Order is narrowly drawn.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The purpose of this proposed rule change is to amend the Exchange's Schedule of Fees to eliminate ISE's Historical Options Tick Data (“HOT Data”) service. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Exchange's Schedule of Fees to eliminate ISE's HOT Data service because the ISE has determined to no longer offer this service to members or non-members.
ISE's HOT Data was generated from daily data received from the Options Price Reporting Authority (“OPRA”), which is the “securities information processor for market information generated by trading of securities options in the United States.”
The most recent fee charged to subscribers of HOT Data was $2,000 per month on an annual subscription basis. For ad-hoc requests, ISE charged $120 per day, with a minimum purchase of $1,000 plus a processing fee of $499 per order for up to 1.5 Terabytes (TB). An order that exceeded 1.5 TB was charged an additional $399 for up to an additional 1.5 TB.
The Exchange now proposes to eliminate the HOT Data service.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of section 6(b) of the Act.
The Exchange believes eliminating the service is consistent with the Exchange Act because it eliminates a service relating to market data that the Exchange has determined to no longer offer to members or non-members. The Exchange believes that the proposed rule change is consistent with the protection of investors and the public interest because the underlying data is available to market participants from other sources. Although ISE's HOT Data is separate from the core data feed available from OPRA, all the information that was available via the HOT Data feed is included in the OPRA core data feed, and this data is widely distributed. Additionally, the OPRA tick data collected and stored by ISE is neither exclusive nor proprietary to the Exchange. As such, the Exchange notes that there is nothing unique in ISE's HOT data that a third party vendor could not also provide.
This proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act because ISE is eliminating a service that provides data, which is available to market participants from other sources.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The Exchange believes that the foregoing proposed rule change may take effect upon filing with the Commission pursuant to sction 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt NASD Rule 3040 (Private Securities Transactions of an Associated Person) as FINRA Rule 3280 (Private Securities Transactions of an Associated Person) in the consolidated FINRA rulebook without any substantive changes. FINRA also proposes to update cross-references within other FINRA rules accordingly.
The text of the proposed rule change is available at the principal office of FINRA, on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
As part of the process of developing a new consolidated rulebook (“Consolidated FINRA Rulebook”),
Proposed FINRA Rule 3280 closely tracks the language of NASD Rule 3040 and makes only non-substantive, technical changes to the text of the NASD rule by, for instance, replacing the reference to a legacy NASD rule with the applicable FINRA rule.
The proposed rule change would also replace all references to NASD Rule 3040 in FINRA Rules 0150 (Application of Rules to Exempted Securities Except Municipal Securities), 2150.04 (Applicability of Other Rules to Sharing Arrangements), 3270 (Outside Business Activities of Registered Persons), and 6630 (Applicability of FINRA Rules to Securities Previously Designated as PORTAL Securities) with references to proposed FINRA Rule 3280 accordingly.
FINRA has filed the proposed rule change for immediate effectiveness.
FINRA believes that the proposed rule change is consistent with the provisions of section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. As noted above, the proposed rule change will not substantively change either the text or application of the rule. FINRA would like to proceed with the rulebook consolidation process expeditiously, which it believes will provide additional clarity and regulatory efficiency to members.
Written comments were neither solicited nor received with respect to the proposed rule change to transfer NASD Rule 3040 into the Consolidated FINRA Rulebook without any substantive changes.
The Exchange has designated the proposed rule change as non-controversial under section 19(b)(3)(A) of the Act
In accordance with Rule 19b-4(f)(6),
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to modify the “Options Pricing” section of its fee schedule, effective immediately, in order to modify pricing charged by the Exchange's options platform (“BATS Options”) including: (i) To add definitions of Broker Dealer, Joint Back Office, and Non-BATS Market Maker; (ii) to update the definitions of Customer and Market Maker; (iii) to make certain corresponding changes associated with these new and updated definitions; and (iv) to create a new Professional Penny Pilot Add Volume Tier.
The Exchange is proposing to add the definitions of Broker Dealer, Joint Back Office, and Non-BATS Market Maker to the BATS Options fee schedule. More specifically, the Exchange is proposing to add the following definitions: (i) “Broker Dealer” applies to any order for the account of a broker dealer, including a foreign broker dealer, that clears in the Customer range at the Options Clearing Corporation (“OCC”); (ii) “Joint Back Office” applies to any transaction identified by a Member for clearing in the Firm Range at the OCC that is identified with an origin code as Joint Back Office. A Joint Back Office participant is a Member that maintains a Joint Back Office arrangement with a clearing broker-dealer; and (iii) “Non-BATS Market Maker” applies to any transaction identified by a Member for clearing in the Market Maker range at the OCC, where such Member is not registered with the Exchange as a Market Maker, but is registered as a market maker on another options exchange. In conjunction with the proposed new defined terms above, the Exchange proposes to amend the fee schedule in multiple places (including the Standard Rates and Fee Codes and Associated Fees tables along with Footnotes 2, 3, 4, 6, 7, and 8) such that pricing for Broker Dealer and Joint Back Office transactions is the same as for Firm transactions and Non-BATS Market Maker transactions is the same as Market Maker transactions. In certain places, this includes using the term “Non-Customer” in order to capture pricing that relates to Professional, Firm, Market Maker, Broker Dealer, Joint Back Office, and Non-BATS Market Maker transactions.
In conjunction with these proposed additions, the Exchange is also proposing to amend the current definitions of Customer, Market Maker, and Firm on the BATS Options fee schedule. Currently, the fee schedule states that “Customer” applies to any transaction identified by a Member for clearing in the Customer range at the OCC, excluding any transaction for a “Professional” as defined in Exchange Rule 16.1; “Market Maker” applies to any transaction identified by a Member for clearing in the Market Maker range at the OCC; and “Firm” applies to any transaction identified by a Member for clearing in the Firm range at the OCC. In order to make these definitions work with proposed new definitions for Broker Dealer, Non-BATS Market Maker, and Joint Back Office described above, the Exchange is proposing that the definitions should read as follows: (i) “Customer” applies to any transaction identified by a Member for clearing in the Customer range at the
Finally, the Exchange is proposing to add a new “Professional Penny Pilot Add Volume Tier”. Currently, Professional orders that add liquidity in Penny Pilot Securities receive a standard $0.40 rebate. Under the proposed new tier, a Member that has a combined ADAV
As noted above, the Exchange proposes to implement the amendments to its fee schedule effective immediately.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
Volume-based rebates and fees such as the ones currently maintained on BATS Options have been widely adopted by equities and options exchanges and are equitable because they are open to all Members on an equal basis and provide additional benefits or discounts that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns, and introduction of higher volumes of orders into the price and volume discovery processes.
The Exchange believes that the proposed addition of the Professional Penny Pilot Add Volume Tier is a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and rebates because it marks an increased rebate (from $0.40 per contract to $0.43 per contract) available to all Members where the Member has a combined ADAV in Customer and Professional orders equal to or greater than 0.20% of average TCV. Such an increased rebate will provide Members entering Professional orders with the opportunity to receive higher rebates while simultaneously encouraging greater participation on BATS Options in both Professional and Customer orders, which the Exchange believes will result in higher levels of liquidity provision and introduction of higher volumes of orders into the price and volume discovery processes, which will benefit all participants on BATS Options.
The Exchange believes that the proposed additional definitions, amendments to the existing definitions, and the corresponding changes throughout the fee schedule represent a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and rebates because the amendments are designed to allow Members to more precisely mark the capacity of orders entered on the Exchange. The proposed changes to the definitions will not affect fees or rebates and the corresponding changes are designed to make this clear. Further, the additional order capacities will bring the Exchange generally in line with industry standards and Member expectations, making the Exchange's pricing easier to understand.
The Exchange reiterates that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels to be excessive.
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. With respect to the proposed new Professional Penny Pilot Add Volume Tier, the Exchange does not believe that the change burdens competition, but instead, that it enhances competition, as it is intended to increase the competitiveness of and draw additional volume to BATS Options.
With respect to the proposed changes to the definitions and the corresponding changes throughout the fee schedule, the Exchange does not believe that any such changes burden competition, but instead, that they enhance competition by bringing the Exchange's fee schedule and capacities generally in line with industry standards which will make it easier for Members to understand.
As stated above, the Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if the deem fee structures to be unreasonable or excessive.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing,
• 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.
Notice.
The Secretary of State determined on August 13, 2015, pursuant to Section 1245(d)(4)(D) of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), (Pub. L. 112-81), as amended, that as of August 14, 2015, each of the following countries: Belgium, the Czech Republic, France, Germany, Greece, Italy, the Netherlands, Poland, Spain, Sri Lanka, and the United Kingdom have maintained their crude oil purchases from Iran at zero over the preceding 180-day period. The Secretary of State last made exception determinations under Section 1245(d)(4)(D) of the NDAA regarding these purchasers on February 19, 2015.
Alex Whittington, Deputy Director, Office of the Middle East and Asia, Bureau of Energy Resources, 202-736-7149,
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice; correction.
On August 17, 2015, notice was published on pages 49296 and 49297 of the
For further information, including a list of the additional imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Pursuant to the authority vested in me by Section 610 of the Foreign Assistance Act of 1961, as amended (the “Act”), and the President's Memorandum of Delegation dated March 31, 2015, I hereby determine it necessary for the purposes of the Act that pursuant to the relevant authorities of the Act, the following funds be transferred to, and consolidated with, funds made available under Chapter 4 of Part II of the Act, and such funds are hereby so transferred and consolidated:
• $44,979,000 of Fiscal Year (FY) 2014 funds from the International Narcotics Control and Law Enforcement—Overseas Contingency Operations (INCLE-OCO) account to the Economic Support Fund—Overseas Contingency Operations (ESF-OCO) account;
• $10,500,000 of FY 2014 funds from the Foreign Military Financing—Overseas Contingency Operations (FMF-OCO) account to the ESF-OCO account; and
• $32,176,000 of FY 2014 funds from the Nonproliferation, Antiterrorism, Demining, and Related Programs (NADR) account to the ESF-OCO account.
This determination shall be reported to Congress and published in the
Office of the United States Trade Representative.
Request for comments and notice of public hearing concerning Russia's implementation of its obligations as a Member of the World Trade Organization (WTO).
The interagency Trade Policy Staff Committee (TPSC) will convene a public hearing and seek public comment to assist the Office of the United States Trade Representative (USTR) in the preparation of its annual report to Congress on Russia's implementation of its obligations as a Member of the WTO.
Written comments are due by 11:59 p.m., Monday, September 28, 2015. Persons wishing to testify orally at the hearing must provide written notification of their intention, as well as a summary of their testimony, by 11:59 p.m., Monday, September 28, 2015. The hearing will be held on Thursday, October 8, 2015, beginning at 9:30 a.m. in Rooms 1 & 2, 1724 F Street NW., Washington, DC 20508.
Written comments and notifications of intent to testify should be submitted electronically via the Internet at
For procedural questions concerning written comments, please contact Yvonne Jamison at (202) 395-3475. All other questions regarding this notice should be directed to Betsy Hafner, Deputy Assistant United States Trade Representative for Russia and Eurasia, at (202) 395-9124.
Russia became a Member of the WTO on August 22, 2012, and on December 21, 2012, following the termination of the application of the Jackson-Vanik amendment to Russia and the extension of permanent normal trade relations to the products of Russia, the United States and Russia both filed letters with the WTO withdrawing their notices of non-application and consenting to have the WTO Agreement apply between them. In accordance with section 201(a) of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitskiy Rule of Law Accountability Act of 2012 (Pub. L. 112-208), USTR is required to submit, by December 21 of each year, a report to Congress on the extent to which Russia is implementing the WTO Agreement, including the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Trade Related Aspects of Intellectual Property Rights. The Report must also assess Russia's progress on acceding to the Information Technology Agreement (ITA) and the Government Procurement Agreement (GPA). In addition, to the extent that USTR finds that Russia is not implementing fully the WTO Agreement or is not making adequate progress in acceding to the ITA or the GPA, USTR must describe in the report the actions it plans to take to encourage Russia to improve its implementation and/or increase its accession efforts. In accordance with section 201(a), and to assist it in preparing this year's report, the TPSC is hereby soliciting public comment.
The terms of Russia's accession to the WTO are contained in the Marrakesh Agreement Establishing the World Trade Organization and the Protocol on the Accession of the Russian Federation to the WTO (including its annexes) (Protocol). The Report of the Working Party on the Accession of the Russian Federation (Working Party Report) provides detail and context to the commitments listed in the Protocol. The Protocol and Working Party Report can be found on USTR's Web page,
USTR invites written comments and/or oral testimony of interested persons on Russia's implementation of the commitments made in connection with its accession to the WTO, including, but not limited to, commitments in the following areas: (a) Import regulation (
Written comments must be received no later than 11:59 p.m., Monday, September 28, 2015.
A hearing will be held on Thursday, October 8, 2015, in Rooms 1 & 2, 1724 F Street NW., Washington, DC 20508. Persons wishing to testify at the hearing must provide written notification of their intention by 11:59 p.m., September 28, 2015. The intent to testify notification must be made in the “Type Comment” field under docket number USTR-2015-0015 on the
Persons submitting a notification of intent to testify and/or written comments must do so in English and must identify (on the first page of the submission) “Russia's WTO Implementation.” In order to be assured of consideration, comments should be submitted by 11:59 p.m., September 28, 2015.
In order to ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to make on-line submissions, using the
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. Filers of submissions containing business confidential information must also submit a public version of their comments. The file name of the public version should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments or reply comments. Filers submitting comments containing no business confidential information should name their file using the name of the person or entity submitting the comments.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
As noted, USTR strongly urges submitters to file comments through
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of intent.
The Federal Highway Administration (FHWA) is issuing this notice to advise the public that a limited scope supplemental environmental impact statement (SEIS) will be prepared to determine construction phasing impacts for the Interstate 55 (I-55) Interchange at E.H. Crump Boulevard and South Boulevard project in the City of Memphis, Shelby County, Tennessee.
Theresa Claxton, Planning and Program Management Team Leader, Tennessee Division, Federal Highway Administration, 404 BNA Drive, Suite 508, Nashville, TN 37217, telephone: 615-781-5770.
FHWA, in cooperation with the Tennessee Department of Transportation (TDOT), prepared a Draft EIS (DEIS) and a Final EIS (FEIS) for proposed improvements to the I-55 interchange at E.H. Crump Boulevard in the City of Memphis. The DEIS was approved on March 25, 2009. The FEIS was approved on June 28, 2011. The FEIS examined four alternatives in detail. On January 25, 2012, FHWA issued a Record of Decision (ROD) identifying the Selected Alternative and the reasons for its selection. The Selected Alternative consists of replacing the existing cloverleaf interchange with a new interchange configuration that will provide through lanes for mainline I-55 traffic, eliminating the need for interstate traffic to utilize single-lane, low speed ramps in order to continue on I-55. A new multi-lane roundabout interchange will be constructed, replacing the existing cloverleaf interchange, providing improved access to and from I-55 and existing local roadways.
The FEIS and ROD are available for review on the project Web site at
Since the issuance of the ROD, TDOT has taken several major steps to advance the project towards construction. Based on a constructability review, TDOT became aware that a total closure of the I-55 bridge over the Mississippi River (Memphis-Arkansas Bridge) may be necessary. During this possible closure, traffic would be detoured to the I-40 Hernando DeSoto Bridge. A second constructability review determined that this closure could be up to 9 months. The impacts of a total closure of the I-55 bridge for up to nine months had not been evaluated in the ROD and therefore TDOT agreed to further explore the proposed construction phasing of the project via a reevaluation of the EIS. The reevaluation process involved additional studies on traffic, emergency services, and socioeconomic impacts and a public involvement process. TDOT held public meetings in both West Memphis, Arkansas and in Memphis, Tennessee to gather comments and concerns voiced by regional stakeholders and solicited written input through an on-line survey.
Through this process, TDOT, in coordination with FHWA, determined that the proposed construction phasing would result in potentially significant impacts not previously assessed and disclosed in the EIS. Therefore, TDOT concluded the Reevaluation with the determination that a Limited Scope Supplemental Environmental Impact Statement (SEIS) should be undertaken.
The analysis of impacts relating to construction phasing, and any potential changes to the construction phasing that may result, will not change the design or location of the alternatives under consideration or previous environmental studies, impacts or proposed mitigation committed to in the project Record of Decision. The scope of the SEIS will be limited to the social, economic, and environmental effects of the construction phasing for the I-55 Interchange at E.H. Crump Boulevard.
The SEIS process will include an invitation letter sent to potential cooperating agencies, participating agencies, and Section 106 consulting parties inviting the agencies to officially take part in the SEIS process. One or more public hearings will be held to solicit public input. In addition, a formal comment period for the public and agencies will be provided following the publication of the Draft SEIS. Written and verbal comments on the Draft SEIS will be taken by mail and at the public hearings. Public notice will be given on the time and place of the future public hearings. The comments received will be responded to in the Final SEIS.
Questions concerning this proposed closure and the SEIS should be directed to Steve Chipman, Project Manager, Tennessee Department of Transportation, 300 Benchmark Place, Jackson, TN 38301, telephone 731-935-0157.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of Unified Carrier Registration Plan Board of Directors Meeting.
The meetings will be held on September 17, 2015, from 1:00 p.m. to 5:00 p.m., and September 18, 2015, from 8:00 a.m. to 1:00 p.m. All meetings will take place in the Mountain Daylight Time Zone as described below.
The meetings will be open to the public at the SpringHill Suites Marriott, 6325 North Cloverdale, Boise, ID 83713 and via conference call. Those not attending the meetings in person may call 1-877-422-1931, passcode 2855443940, to listen and participate in the meetings.
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.
Mr. Avelino Gutierrez, Chair, Unified Carrier Registration Board of Directors at (505) 827-4565.
CSX Transportation, Inc. (CSXT), has filed a verified notice of exemption
CSXT has certified that: (1) No freight traffic has moved over the Line for at least two years; (2) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is either pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (3) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on September 30, 2015, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void
CSXT has filed environmental and historic reports that address the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by September 4, 2015. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or interim trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by CSXT's filing of a notice of consummation by August 31, 2016, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before September 30, 2015.
Ellen Shields, Associate Director of the Financial Assistance Policy and Oversight Division, M-65, Office of the Senior Procurement Executive, Office of the Secretary, Room W83-, Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366-4268.
There have also been adjustments to the burden estimates. In 2010, the Department estimated a combined total of 2,704 respondents and 189,280 burden hours. Due to a 35% decrease in appropriations, the Department has
Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW., Washington, DC 20503.
Comments are invited on: whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1:48.
Internal Revenue Service (IRS), Department of the Treasury (Treasury).
Notice.
The purpose of this notice is to publish the names of those IRS employees who will serve as members on IRS's Fiscal Year 2015 Senior Executive Service (SES) Performance Review Boards.
This notice is effective September 1, 2015.
Cheryl Huffman, IRS, 250 Murall Drive, Kearneysville, WV 25430, (304) 264-5572.
Pursuant to 5 U.S.C. 4314(c)(4), this notice announces the appointment of members to the IRS's SES Performance Review Boards. The names and titles of the executives serving on the boards are as follows:
This document does not meet the Treasury's criteria for significant regulations.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 14242, Reporting Abusive Tax Promotions or Preparers, and Form 14242 (SP), Informe las Presuntas Promociones de Planes Abusivos Tributarios o de Preparadores.
Written comments should be received on or before October 30, 2015 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Kerry Dennis, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before September 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by calling (202) 927-5331, email at
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before September 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before September 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by email at
Commodity Futures Trading Commission.
Notice of proposed rulemaking.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is proposing amendments to rules relating to swap data reporting in connection with cleared swaps for swap data repositories (“SDRs”), derivatives clearing organizations (“DCOs”), designated contract markets (“DCMs”), swap execution facilities (“SEFs”), swap dealers (“SDs”), major swap participants (“MSPs”), and swap counterparties who are neither SDs nor MSPs. Commodity Exchange Act (“CEA” or “Act”) provisions relating to swap data recordkeeping and reporting were added by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The proposed amendments to the rules further the goals of the Dodd-Frank Act to reduce systemic risk, increase transparency and promote market integrity within the financial system.
Comments must be received on or before October 30, 2015.
You may submit comments, identified by “Amendments to Swap Data Recordkeeping and Reporting Requirements for Cleared Swaps” and RIN 3038-AE12, by any of the following methods:
•
•
•
•
Please submit your comments using only one of these methods.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Dan Bucsa, Deputy Director, Division of Market Oversight, 202-418-5435,
On July 21, 2010, President Obama signed into law the Dodd-Frank Act.
To enhance transparency, promote standardization, and reduce systemic risk, section 727 of the Dodd-Frank Act added to the CEA section 2(a)(13)(G), which requires all swaps, whether cleared or uncleared, to be reported to SDRs, which are registered entities
On December 20, 2011, the Commission adopted part 45 of the Commission's regulations (“Final Part 45 Rulemaking”).
As part of the Commission's ongoing efforts to improve swap transaction data quality and to improve the Commission's ability to utilize the data for regulatory purposes, Commission staff has continued to evaluate reporting issues relating to the operation of part 45, and cleared swaps in particular. Commission staff's efforts included the formation of an interdivisional staff working group to identify, and make recommendations to resolve, reporting challenges associated with certain swaps transaction data recordkeeping and reporting provisions, including the provisions adopted in the Final Part 45 Rulemaking.
Based in large part on those efforts, the Commission ultimately requested comment on a variety of swap data reporting and recordkeeping provisions to help determine how such provisions were being applied and to determine whether or what clarifications or enhancements may be appropriate.
The swap data reporting framework adopted in the Final Part 45 Rulemaking was largely based on the mechanisms for the trading and execution of uncleared swaps. Under such a regime, swap data reporting was premised upon the existence of one continuous swap for reporting and data representation purposes. The Commission has since had additional opportunities to consult with industry and to observe how the part 45 regulations function in practice with respect to swaps that are cleared, including how the implementation of part 45 interacts with the implementation of part 39 of the Commission's regulations, which contains provisions applicable to DCOs.
In particular, § 39.12(b)(6) provides that upon acceptance of a swap by a DCO for clearing, the original swap is extinguished and replaced by equal and opposite swaps, with the DCO as the counterparty to each such swap.
Where possible, the Commission has endeavored to harmonize the rules proposed in this release with the approach proposed by the Securities and Exchange Commission (“SEC”) in its release proposing certain new rules and rule amendments to Regulation SBSR—Reporting and Dissemination of Security-Based Swap Information (“Regulation SBSR”).
Several commenters expressed concerns that allowing the clearing agency to report data to a different security-based SDR (“SB-SDR”)
Some commenters expressed support for modifications which would assign the sole reporting duty for a clearing transaction
Some commenters agreed with the SEC's proposed addition of a requirement that the registered clearing agency report whether it has accepted an alpha for clearing to the alpha SB-SDR in the format required by such SB-SDR.
Some commenters acknowledged the value of the proposal to require the party required to report the alpha to provide the clearing agency with the transaction ID of the alpha and the identity of the alpha SB-SDR, noting that the Unique Transaction Identifier has already been incorporated into submission flows to clearing agencies for use in reporting in other jurisdictions.
In developing these rules, Commission staff has engaged in extensive consultations with U.S. domestic financial regulators. The agencies and institutions consulted include the SEC, the Federal Reserve Board of Governors, the Federal Housing Finance Agency, the Federal Deposit Insurance Corporation, Office of Comptroller of the Currency, and the Farm Credit Administration.
The Commission is proposing revisions and additions to §§ 45.1, 45.3, 45.4, 45.5, 45.8, 45.10, and appendix 1 to part 45 in order to provide clarity to counterparties to a swap and registered entities regarding their part 45 reporting obligations with respect to each of the swaps involved in a cleared swap transaction.
• Amendments to § 45.1 would revise the definition of “derivatives clearing organization” to update a cross-reference and to make explicit that the definition covers only registered DCOs. Revised § 45.1 would also add new definitions for “original swaps” and “clearing swaps.” These proposed terms would be used throughout part 45 to help clarify reporting obligations for the swaps involved in a cleared swap transaction.
• Amendments to § 45.3 would: Modify and clarify DCO creation data reporting obligations for swaps that result from the clearing process; establish which entity has the obligation to choose the SDR to which creation data is reported; eliminate confirmation data reporting obligations for swaps that are intended to be submitted to a DCO for clearing at the time of execution; and make conforming changes.
• Amendments to § 45.4 would modify and clarify continuation data reporting obligations for original swaps, including the obligation to report original swap terminations to the SDR to which the original swap was reported; modify and clarify the obligation to report data providing for the linking of original and clearing swaps and the original and clearing swap SDRs; remove the requirement for SD/MSP reporting counterparties to report daily valuation data for cleared swaps; and would make conforming changes.
• Amendments to § 45.5 would set forth a DCO's obligations to create, transmit, and use unique swap identifiers (“USIs”) to identify clearing swaps.
• Amendments to § 45.8 would provide that the DCO will be the reporting counterparty for clearing swaps.
• Amendments to § 45.10 would provide that all swap data for a given
• Amendments to appendix 1 would modify certain existing PET data fields and certain explanatory notes in the Comment sections for existing PET data fields, and would add several new PET data fields to account for the clarifications provided in this release for the reporting of clearing swaps.
Throughout Section II of this release, the Commission will outline each existing provision the Commission is proposing to amend, discuss each proposed amendment, and request comments about the proposed amendments. The Commission has also included several examples to demonstrate how cleared swap reporting workflows would function under the proposed revisions.
The Commission is proposing to revise the definition of “derivatives clearing organization” in § 45.1 and to add definitions for the terms “original swap” and “clearing swap” to § 45.1.
Currently, § 45.1 defines “derivatives clearing organization,” as used in part 45, to have the meaning “set forth in CEA section 1a(9), and any Commission regulation implementing that Section, including, without limitation, § 39.5 of this chapter.” However, the CEA currently defines “derivatives clearing organization” in section 1a(15), not section 1a(9).
The Commission proposes to revise the definition of “derivatives clearing organization” in § 45.1 so that it cross-references the definition provided in § 1.3(d) of the Commission's regulations and so that it explicitly refers to a DCO registered with the Commission under section 5b(a) of the CEA.
As discussed earlier in this release, a cleared-swap transaction generally comprises an original swap that is terminated upon novation, and the equal and opposite swaps that replace it, with the DCO as the counterparty for each swap that replaces the original swap.
The Commission is proposing to define “original swap” as “a swap that has been accepted for clearing by a derivatives clearing organization” and “clearing swap” as “a swap created pursuant to the rules of a derivatives clearing organization that has a derivatives clearing organization as a counterparty, including any swap that replaces an original swap that was extinguished upon acceptance of such original swap by the derivatives clearing organization for clearing.”
As noted above, while a cleared-swap transaction generally comprises an original swap that is terminated upon novation and the equal and opposite swaps that replace it, the Commission is aware of certain circumstances in which a cleared swap transaction may not involve the replacement of an original swap.
As noted above, while original swaps are commonly referred to as “alpha” swaps and while the equal and opposite swaps that replace the original swap are commonly referred to as “beta” and “gamma” swaps, the Commission will use the proposed defined terms “original swap” and “clearing swap” throughout this section of the release.
The proposed definition of original swap will provide clarity with respect to certain continuation data reporting requirements for such swaps by tying such obligations to a specific point in time in the life of a swap that is either intended to be submitted to a DCO for clearing at the time of execution, or that is not intended to be cleared at the time of execution but is later submitted to a DCO for clearing. The Commission notes that under the proposed definition, a swap that is submitted to a DCO for clearing can become an original swap by virtue of the DCO's acceptance of such swap for clearing, irrespective of: (1) Whether such swap is executed on or pursuant to the rules of a SEF or DCM or off-facility; (2) whether or not such swap is subject to the clearing requirement; and (3) whether such swap is intended to be cleared at the time of execution or not intended to be cleared at the time of execution, but subsequently submitted to a DCO for clearing.
The Commission requests comment on all aspects of the proposed revised and proposed new definitions in § 45.1. The Commission also invites comments on the following:
(1) Is the Commission's proposed definition of “original swap” sufficiently clear and complete? If not, please provide detail about aspects of the definition that you believe are insufficiently clear or inadequately addressed.
(2) Is the Commission's proposed definition of “clearing swap” sufficiently clear and complete, and does it, together with the proposed definition of “original swap,” adequately account for all components of a cleared swap transaction and for all types of cleared swap transactions? If not, please provide detail about aspects of the definition that you believe are insufficiently clear or inadequately addressed.
(3) Is the Commission's proposed revised definition of “derivatives clearing organization” sufficiently clear and complete? If not, please provide detail about aspects of the definition that you believe are insufficiently clear or inadequately addressed.
(4) Are any other new defined terms necessary regarding swap data
(5) Are the terms as defined in § 45.1 adequately clear with respect to the existing swap data recordkeeping and reporting requirements of part 45? If not, please explain.
Regulation 45.3 requires reporting to an SDR of two types of “creation data” generated in connection with a swap's creation: “Primary economic terms data” and “confirmation data.”
Regulation 45.3 imposes swap data reporting requirements with respect to both primary economic terms data and confirmation data to different reporting counterparties and entities depending on whether the swap is executed on or pursuant to the rules of a SEF or DCM (§ 45.3(a)), subject to mandatory clearing and executed off-facility (§ 45.3(b)), or not subject to mandatory clearing and executed off-facility (§ 45.3(c) and (d)). Regulation 45.3 also addresses specific creation data reporting requirements in circumstances where a swap is accepted for clearing by a DCO,
As noted above, the Commission has had an opportunity to observe how the part 45 regulations function in practice with respect to swaps that are cleared. While CEA section 2(a)(13)(G) requires each swap (whether cleared or uncleared) to be reported to a registered SDR, the Commission understands that the interplay between the § 45.3 reporting requirements applicable to SEFs, DCMs and reporting counterparties, and the reporting requirements applicable to DCOs, could benefit from greater clarity regarding how the subsections of § 45.3 assign reporting responsibilities for each of the swaps involved in a cleared-swap transaction. Accordingly, the Commission proposes several additions and deletions so that § 45.3 will better delineate the creation data reporting requirements associated with each swap involved in a cleared swap transaction. The Commission also proposes several modifications to clarify existing requirements.
Currently, §§ 45.3 and 45.8 include references to the end-user exception to the swap clearing requirement set forth in section 2(h)(7) of the CEA. Following the publication of the Final Part 45 Rulemaking, the Commission codified the end-user exception in § 50.50 and published Two exemptions to the swap clearing requirement: The inter-affiliate exemption (§ 50.52) and the financial cooperative exemption (§ 50.51). The Commission is thus proposing to revise the introductory language of § 45.3, §§ 45.3(b) through (d), and 45.8(h)(1)(vi) to reflect that exceptions to, and exemptions from the clearing requirement are now codified in part 50 of the Commission's regulations.
Currently, paragraphs (a) through (d) of § 45.3 govern creation data reporting for swaps executed on or pursuant to the rules of a SEF or DCM and for off-facility swaps, but do not separately address creation data reporting for swaps created through the clearing process by a DCO (
The proposed revisions to § 45.3(e) would require a DCO, as reporting counterparty under proposed § 45.8(i),
As noted above, CEA section 2(a)(13)(G) requires each swap (whether cleared or uncleared) to be reported to a registered SDR. Proposed paragraphs (a) through (e) of § 45.3 would thus cover creation data reporting requirements for all swaps: Existing § 45.3(a) applies to “each swap executed on or pursuant to the rules of a [SEF] or [DCM],” existing § 45.3(b) through (d) applies to “all off-facility swaps,” and proposed § 45.3(e) would apply to clearing swaps. The provisions of § 45.3(a) through (d) as proposed to be amended in this release would thus exclude clearing swaps. Under the proposed revisions and amendments to § 45.3, a SEF/DCM or counterparty other than the DCO will not have swap data reporting obligations with respect to clearing swaps. Additionally, proposed § 45.3(a) through (d) would govern the creation data reporting requirements for swaps, including swaps commonly known as “alpha” swaps, regardless of whether they later become original swaps by virtue of their acceptance for clearing.
In response to the Commission's 2014 request for comment, commenters disagreed as to whether part 45 should
On the other hand, some commenters contended that alpha swaps should not be required to be reported to an SDR.
The Commission agrees with commenters who argued that alpha swaps should be required to be reported. As these commenters stated, alpha swaps contain information regarding the origins of a cleared swap transaction that is essential for market surveillance and audit-trail purposes. It is important that this information be reported reliably based on the reporting hierarchy established and sourced from the registered entity or reporting counterparty that the Commission believes has the easiest and fastest access to the data. Consistent reporting of alpha swap USIs in creation data for beta and gamma swaps, for instance, is crucial to the Commission's ability to trace the history of a cleared swap transaction from execution between the original counterparties to clearing novation. Similarly, determining when an alpha swap has been terminated aids the Commission's ability to analyze cleared swap activity and to review swap activity for compliance with the clearing requirement.
Finally, commenters also espoused varying views on which counterparty or entity should have the part 45 obligation to report alpha swaps; these comments will be discussed in section II.G. of this release.
As noted above, several current provisions of § 45.3 impose certain creation data reporting requirements on a DCO in circumstances where a swap is accepted for clearing by a DCO. To ensure consistency with § 39.12(b)(6), the Commission is proposing to remove these creation data reporting provisions (current § 45.3(a)(2),
Additionally, the Commission is proposing to remove portions of § 45.3(b)(1), (c)(1)(i), (c)(2)(i), and (d)(1). Currently, where both a DCO and reporting counterparty have obligations under § 45.3 for reporting creation data for the same swap, these subsections excuse the reporting counterparty from reporting creation data if the swap is accepted for clearing before any PET data is reported by the reporting counterparty. Under the proposed rules, these excusal provisions would no longer be necessary because the proposed rules would require DCOs to report creation data only for clearing swaps, and not for swaps accepted for clearing (
Currently, § 45.3(a) through (d) requires the SEF/DCM (§ 45.3(a)) or the reporting counterparty (§ 45.3(b) through (d)) to report both PET and confirmation data in order to comply with their creation data reporting obligations. While one commenter suggested that confirmation data reported to an SDR should be the same for cleared and uncleared swaps,
Accordingly, for swaps that are intended to be submitted to a DCO for
The Commission is proposing to renumber existing § 45.3(e), which governs creation data reporting for swaps involving allocation, as § 45.3(f).
Commenters requested that the Commission provide guidance as to who has the legal right to determine choice of SDR.
While some commenters recommended that the Commission affirmatively codify the right of the DCO to select the SDR,
By virtue of the addition of § 45.3(j) and the revisions to § 45.10,
Finally, the Commission notes that it is aware that there are certain situations wherein SEFs, DCMs and reporting counterparties for off-facility swap transactions may report the part 43 data for a swap to an SDR prior to reporting the part 45 required creation data for the same swap. In such situations, the registered entity or reporting counterparty has effectively chosen the SDR for the swap prior to submitting the part 45 data, since, pursuant to § 45.10, all swap data for a given swap is required to be reported to a single SDR.
Currently, § 45.3(b), (c), and (d), and the introductory language to § 45.3 include references to phase-in compliance dates that have since expired. The Commission is proposing to remove the references to the expired compliance dates in § 45.3(b)(1)(i), (b)(1)(ii), (b)(2), (b)(2)(ii), (c)(1)(i)(A), (c)(1)(i)(B), (c)(2)(i)(A), (c)(2)(i)(B), (d)(1), and (d)(3), and in the introductory language to § 45.3.
The Commission requests comment on all aspects of proposed new § 45.3(e) and (j) and the proposed amendments to § 45.3. The Commission also invites comments on the following:
(6) At the time that a swap is accepted for clearing, are there entities other than the DCO that would have complete information about the clearing swaps and that would be better suited to report required creation data for clearing swaps?
(7) Are there circumstances where the DCO would have complete information about the swap that becomes an original swap and would be better suited than the SEF/DCM or reporting counterparty to report creation data for such swap in a timely manner? If so, are there any reasons why the DCO should not be required to report creation data for the swap that would become the original swap?
(8) Are the requirements of proposed § 45.3(e) sufficiently clear and do such requirements adequately address the mechanics of the clearing process?
(9) Do the requirements of renumbered § 45.3(f) allow for complete, accurate, timely, and efficient reporting of allocations in light of the proposed definition of “clearing swap” and the proposed § 45.3(e) creation data reporting requirements for clearing swaps?
(10) Are the obligations set forth in amended § 45.3 sufficiently clear? If not, please explain.
(11) Are there differences between the confirmation data for swaps that are, at the time of execution, intended to be submitted to a DCO for clearing, and the confirmation data for the swaps that replace such swap upon acceptance for clearing? If so, discuss how the Commission should require the reporting of confirmation data with respect to a cleared swap transaction.
(12) Should another entity, other than the entity with the regulatory obligation to report the required swap creation data, be able to choose an SDR for reporting purposes? If so, please explain.
(13) Are the industry data standards currently used by market participants sufficient to report required swap creation data as required in the amended, revised and/or newly proposed provisions of this release? If not, what are the specific insufficiencies, and how should they be addressed?
Regulation 45.4 governs the reporting of swap continuation data to an SDR during a swap's existence through its final termination or expiration. This provision establishes the manner in which continuation data, including life cycle event data or state data, and valuation data,
For uncleared swaps, § 45.4(c) requires the reporting counterparty to report all required swap continuation data, including life cycle event data or state data, and valuation data.
As noted earlier in this release, the Commission has had an opportunity to observe how the part 45 regulations function in practice with respect to swaps that are cleared. The Commission understands that § 45.4 could benefit from greater clarity regarding continuation data reporting responsibilities for each of the swaps involved in a cleared swap transaction. Accordingly, the Commission proposes several revisions and additions so that § 45.4 will better delineate the continuation data reporting requirements associated with each swap involved in a cleared swap transaction. In particular, the Commission proposes conforming changes to existing § 45.4(a), revisions to existing § 45.4(b) and to existing § 45.4(c) (proposed to be renumbered as § 45.4(d)), and the addition of new § 45.4(c). Each proposed change is discussed in detail below.
The Commission is proposing to revise the heading of § 45.4(a) to read “Continuation data reporting method generally” to reflect that the continuation data reporting method requirements in § 45.4(a) apply to all swaps, regardless of asset class or whether the swap is an original swap, clearing swap or uncleared swap, whereas the continuation data reporting requirements in proposed § 45.4(b), (c), and (d) would apply to clearing swaps, original swaps, and uncleared swaps, respectively.
Regulation 45.4(b) currently governs continuation data reporting obligations for “cleared swaps,” but does not distinguish among the different swaps involved in a cleared swap transaction (
The Commission is not proposing modifications to the DCO life-cycle event data or state data reporting requirements in § 45.4(b)(1) or to the valuation data reporting requirements in § 45.4(b)(2)(i). However, the Commission is proposing to remove existing § 45.4(b)(2)(ii), which requires a reporting counterparty that is an SD or MSP to report valuation data for cleared swaps daily, in addition to the valuation data that is required to be reported by the DCO pursuant to § 45.4(b)(2)(i). Under the proposed revisions to § 45.4(b)(2), a reporting counterparty that is an SD or an MSP will not be required to report valuation data for clearing swaps; instead, the DCO would be the only swap counterparty required to report required continuation data, including valuation data, for clearing swaps.
While one commenter contended that valuation data from SD/MSP swap counterparties is valuable information and that the Commission should require such information from SD/MSP counterparties for all swaps, cleared or uncleared,
The valuation data reporting requirements applicable to DCOs pursuant to existing § 45.4(b)(2)(i) should present sufficient information for the Commission to understand clearing swap valuations. Additionally, the proposed removal of § 45.4(b)(2)(ii) would codify a series of no-action letters issued by Commission staff providing no-action relief to SDs and MSPs from the continuation data reporting
Currently, § 45.4(c) governs continuation data reporting for uncleared swaps. The Commission is proposing to renumber § 45.4(c) as § 45.4(d) (discussed below), and is proposing the addition of a new § 45.4(c), which would set forth the continuation data reporting requirements for original swaps.
Specifically, proposed § 45.4(c) would require a DCO to report all required continuation data for original swaps, including original swap terminations, to the SDR to which the swap that became such original swap was reported pursuant to § 45.3(a) through (d).
As proposed, § 45.4(c)(1) would require a DCO to report all life cycle event data for an original swap on the same day that any life cycle event occurs, or to report all state data for the original swap, daily.
The continuation data reporting requirements of proposed § 45.4(c) would apply to a swap that has been submitted to a DCO for clearing and that becomes an original swap by virtue of the DCO's acceptance of such swap for clearing. The DCO's continuation data reporting obligations for a swap to which it is not a counterparty (
While some commenters recommended that the original counterparty, and not the DCO, should report termination of the alpha to the SDR,
Several commenters asserted that the most cost-effective method for establishing a link between the original swaps and the swaps that replace the original swap upon acceptance for clearing is to include the USI of the original swap as a prior USI for the beta and gamma swaps.
These proposed data fields would enable the DCO to fulfill its continuation data reporting obligations, enable the SDR to maintain the accuracy and completeness of swap transaction data, and enable the Commission to track the life of a cleared swap transaction. In particular, including the LEI of the SDR where required swap creation data for each clearing swap was reported will permit the Commission and other regulators to ascertain the SDR where the clearing swaps associated with a particular original swap reside. This will enable the Commission and other regulators to review and more effectively associate data available at multiple SDRs in circumstances where the reporting entity or counterparty selects one SDR for the original swap and the DCO selects a different SDR for the clearing swaps under § 45.3.
Inclusion of the original swap's USI is necessary to enable the SDR where the swap that became the original swap's creation data was reported to associate continuation data reported by the DCO with the initial creation data reported by a SEF/DCM or reporting counterparty pursuant to § 45.3(a) through (d).
Together, the proposed revisions to § 45.4(b) and the addition of § 45.4(c) would require the reporting of continuation data for original swaps and clearing swaps. Accordingly, the Commission expects that records of original swaps that have been terminated would include the USIs for the clearing swaps that replaced the original swap and the LEI of the clearing swap SDR, such that review of an original swap would permit the identification of, and note the SDR where, the clearing swaps reside. These provisions will reflect the regulations applicable to DCOs outlined in part 39 of the Commission's regulations and will clearly delineate the continuation data reporting obligations associated with each swap involved in a cleared swap transaction.
As mentioned above, the Commission is proposing to renumber § 45.4(c) (Continuation data reporting for uncleared swaps) as § 45.4(d). The Commission is also proposing to amend § 45.4(d), which applies to “all swaps that are not cleared by a derivatives clearing organization,” to add the phrase “including swaps executed on or pursuant to the rules of a swap execution facility or designated contract market.” This proposed change would clarify the existing requirement that reporting counterparties report all required swap continuation data for an uncleared swap, irrespective of whether the swap was executed off-facility (in which case the reporting counterparty must report required swap creation data), or whether the swap was executed on or pursuant to the rules of a SEF or DCM (in which case the SEF or DCM must report the required swap creation data).
Finally, the Commission proposes to modify the introductory language to § 45.4 and § 45.4(d)(1)(ii)(A) to remove outdated references to compliance dates that have already expired.
The Commission requests comment on all aspects of proposed new § 45.4(c) and the proposed amendments to § 45.4. The Commission also invites comments on the following:
(14) Would market participants other than DCOs be better placed to more efficiently incur the duty to report continuation data for original swaps? If so, how would placing continuation data reporting requirements on such other market participants further the goal of ensuring that swap data for original swaps remains “current and accurate”?
(15) Should the Commission consider any alternative approaches to reporting requirements for original swap terminations? If so, please describe such an approach.
(16) Please describe whether there might be any life-cycle events for an original swap other than termination. Does § 45.4(c) adequately address any such life-cycle events?
(17) Would the valuation data that DCOs must currently report to SDRs pursuant to § 45.4(b)(2)(i) present sufficient information for the Commission to understand clearing swap valuations? Explain why this is or is not the case.
(18) What value, if any, would the Commission gain by receiving clearing swap valuation data from SD/MSP reporting counterparties?
(19) Do the continuation data reporting requirements and existing definition of life-cycle event found in § 45.1 adequately address the possible range of events that could occur during the life of a clearing swap?
(20) Should the Commission require original swap terminations to be reported as soon as technologically practicable after termination of an original swap?
(21) Should both the life cycle event method and state data method for continuation data reporting be permitted for clearing swaps? Please provide information about the advantages and disadvantages of each method with respect to clearing swaps.
(22) Do the proposed revisions to § 45.4 provide sufficient clarity concerning the reporting of continuation data for all life cycle events required to be reported, including any modifications to the clearing swaps? If not, what areas require further clarity?
(23) For a swap executed on or pursuant to the rules of a SEF or DCM, as well as for off-facility swaps, would the DCO to which the swap is submitted for clearing have the information necessary, at the time of submission for clearing, to report the required continuation data, including a notice of termination of the swap, to the SDR to which the SEF or DCM reported the swap?
(24) Are current industry data standards sufficient for DCOs to report required swap continuation data to the appropriate SDRs in a manner that would be consistent with proposed § 45.4? If not, what are the specific insufficiencies and how should they be addressed?
(25) Are the obligations that would be assigned in the proposed amendments to § 45.4 sufficiently clear? If not, please explain.
Regulation 45.5 currently requires that each swap subject to the Commission's jurisdiction be identified in all recordkeeping and all swap data reporting by the use of a USI. The rule establishes different requirements for the creation and transmission of USIs depending on whether the swap is executed on a SEF or DCM (§ 45.5(a)), executed off-facility with an SD or MSP reporting counterparty (§ 45.5(b)), or executed off-facility with a non-SD/MSP reporting counterparty (§ 45.5(c)). Existing § 45.5 provides that for swaps executed on a SEF or DCM, the SEF or DCM creates the USI, and for swaps not executed on a SEF or DCM, the USI is created by an SD or MSP reporting counterparty, or by the SDR if the reporting counterparty is not an SD or MSP.
With the exception of swaps with a non-SD/MSP reporting counterparty, the existing rule generally requires USI creation and transmission to be carried out by the entity or counterparty required to report all required swap creation data for the swap. Section 45.5 thus does not currently distinguish between original and clearing swaps, does not provide USI creation and transmission requirements specifically for DCOs, and consequently does not provide for the issuance to DCOs of a USI “namespace,” which is one of two component parts of a USI.
The Commission understands that in market practice, SEFs/DCMs and reporting counterparties, or SDRs in the case of non-SD/MSP reporting counterparties, generate and assign USIs for swaps that would become original swaps under the proposed rules, and that DCOs generate and assign USIs to swaps that would qualify as clearing swaps in connection with reporting required swap creation data for clearing swaps to SDRs.
The Commission is proposing to renumber existing § 45.5(d) as § 45.5(e) and to create a new § 45.5(d) which would set forth requirements regarding the creation and transmission of USIs for clearing swaps.
As proposed, § 45.5(d)(1) would require a DCO to generate and assign a USI for each clearing swap upon, or as soon as technologically practicable after, acceptance of an original swap by the DCO for clearing (or execution of a clearing swap that does not replace an original swap), and prior to reporting the required swap creation data for each clearing swap. Proposed § 45.5(d)(1) would also require that the USI for each clearing swap consist of two data components: A unique alphanumeric code assigned to the DCO by the Commission for the purpose of identifying the DCO with respect to USI creation; and an alphanumeric code generated and assigned to that clearing swap by the automated systems of the DCO. These proposed USI creation requirements and components for DCOs and clearing swaps are consistent with those currently required by part 45 for other registered entities such as SEFs, DCMs, and SDRs.
As proposed, § 45.5(d)(2) would require a DCO to transmit the USI for a clearing swap electronically to the SDR to which the DCO reports required swap creation data for the clearing swap, as part of that report; and to the DCO's counterparty with respect to that clearing swap, as soon as technologically practicable after either acceptance of the original swap by the DCO for clearing or execution of a clearing swap that does not replace an original swap. The proposed § 45.5(d) provisions governing creation and assignment of USIs by the DCO with respect to clearing swaps are consistent with the Commission's “first-touch” approach to USI creation for SEFs, DCMs, SDs, MSPs, and SDRs.
Finally, the Commission proposes to amend §§ 45.5(a), 45.8(f), and 45.10(a) to incorporate the language “or pursuant to the rules of” to the phrase “swaps executed on a swap execution facility or designated contract market” to make clear that those provisions currently apply to all swaps executed on or pursuant to the rules of a SEF or DCM.
The Commission requests comment on all aspects of proposed § 45.5(d). The Commission also invites comments on the following:
(26) Should an entity other than the DCO be required to create and transmit USIs for clearing swaps?
(27) Do the proposed requirements of § 45.5(d)(2) ensure that all relevant entities will receive the USI for a particular clearing swap?
(28) Should the proposed USI creation and transmission requirements for DCOs differ from those of other registered entities such as SEFs, DCMs and SDRs? If so, please explain how and why the requirements should differ.
Regulation 45.8 sets forth a hierarchy under which the reporting counterparty for a particular swap depends on the nature of the counterparties involved in the transaction. Regulation 45.8 assigns a reporting counterparty for off-facility swaps, for which the reporting counterparty must report all required swap creation data, as well as for swaps executed on or pursuant to the rules of a SEF or DCM, for which the SEF or DCM must report all required swap creation data.
Existing § 45.8 could be improved to better reflect the mechanics for cleared swap transactions. While existing § 45.3 currently imposes certain creation data reporting requirements on the DCO in connection with a swap that is accepted for clearing, the hierarchy currently set forth in § 45.8 does not expressly include a separate designation for the DCO as a reporting counterparty.
As discussed earlier in this release, a cleared swap transaction generally involves an original swap that is terminated upon novation, and the equal and opposite swaps that replace it, with the DCO as the counterparty for each swap that replaces the original swap.
The Commission is also proposing to amend the introductory language of § 45.8 to make clear that the reporting counterparty for all swaps except clearing swaps will be made as provided in paragraphs (a) through (h) of § 45.8, while the reporting counterparty for clearing swaps will be made as provided in paragraph (i) of § 45.8.
The Commission also proposes to remove the language “if available” from § 45.8(h)(1)(i) to ensure consistency with proposed changes to appendix 1 to part 45 and because this language was only relevant prior to availability of the LEI system.
Finally, the Commission proposes to further amend § 45.8 to remove part of paragraphs (d)(1) and (f)(1) and to remove part of paragraph (h)(2) and all of paragraphs (h)(2)(i) and (ii). Section 45.8(h) currently provides that if the SEF/DCM is unable to determine which counterparty to a swap is the reporting counterparty, it must notify each counterparty that it cannot identify which counterparty is the reporting counterparty, and must also transmit to each counterparty the LEI of the other counterparty. The removal of these paragraphs would ensure that swaps that are executed anonymously on a SEF or DCM, and then cleared in accordance with the Commission's straight-through processing requirements, remain anonymous.
The Commission requests comment on all aspects of proposed § 45.8(i). The Commission also invites comments on the following:
(29) Are the proposed additions of §§ 45.8(i) and 45.3(j), along with existing § 45.8, sufficiently clear with respect to the determination of the reporting counterparty and the choice of SDR? Please explain any scenarios for which the determination of the reporting counterparty or choice of SDR would not be sufficiently clear.
Regulation 45.10 currently requires “all swap data for a given swap” to be reported to a single SDR, which must be the same SDR to which creation data for that swap is first reported. The time and manner in which such data must be reported to a single SDR depends on whether the swap is executed on a SEF or DCM (§ 45.10(a)), executed off-facility with an SD/MSP reporting counterparty (§ 45.10(b)), or executed off-facility with a non-SD/MSP reporting counterparty (§ 45.10(c)). Currently, § 45.10(b) and (c) also discuss circumstances in which a reporting counterparty is excused from reporting PET data to an SDR because the swap is accepted for clearing by a DCO before the applicable reporting deadline.
In order to further clarify that “all swap data for a given swap” encompasses all swap data required to be reported pursuant to parts 43 and 45 of the Commission's regulations, the Commission is proposing to add language to this effect to paragraphs (a) through (c) and to the introductory language of § 45.10. This proposed additional language would clarify the existing requirement that registered entities and reporting counterparties must provide all swap data required under parts 43 and 45 to a single SDR for a given swap.
The Commission is also proposing to remove § 45.10(b)(2) and (c)(2).
The Commission is proposing to add new § 45.10(d), which would govern clearing swaps and would establish explicit requirements that DCOs report all required swap creation data and all required swap continuation data for each clearing swap to a single SDR. Specifically, proposed § 45.10(d)(1) would require a DCO to report all required swap creation data for a particular clearing swap to a single SDR. As proposed, § 45.10(d)(1) would also require the DCO to transmit the LEI of the SDR to which it reported the required swap creation data for each clearing swap to the counterparty of each clearing swap, as soon as technologically practicable after either acceptance of the original swap by the DCO for clearing or execution of a clearing swap that does not replace an original swap.
As proposed, § 45.10(d)(2) would require a DCO to report all required swap creation data and all required swap continuation data for a particular clearing swap to the same SDR that received the initial swap creation data for the clearing swap required by § 45.10(d)(1).
In the event there are clearing swaps that replace a particular original swap, and in the event there are equal and opposite clearing swaps that are created upon execution of the same transaction and that do not replace an original swap, § 45.10(d)(3) would require the DCO to report all required swap creation and continuation data for each such clearing swap to a single SDR.
The Commission notes that by operation of proposed new § 45.8(i) and (j) and proposed § 45.3(e), there may be scenarios in which the SEF/DCM or reporting counterparty reports required swap creation data for the swap that became the original swap to one SDR, and the DCO reports required swap creation data for the clearing swaps that replace the original swap to a different SDR. While some commenters stated that the Commission should require resulting swaps to be reported to the same SDR as original swaps,
As noted above, proposed § 45.3(j) would place the obligation to choose the SDR to which required swap creation data is reported on the registered entity or counterparty that is required to make the first report of required swap creation data pursuant to § 45.3. Placing the obligation to choose the SDR on the registered entity or counterparty that is required to report the swap, rather than on another entity, should result in more efficient data reporting and promote market competition, while avoiding injecting a third party into the decision as to how a registered entity or counterparty fulfills its regulatory obligation to report initial required swap creation data. The registered entity or counterparty that is required to report may select an SDR to which its technological systems are most suited and/or to which it already has an established relationship, with existing technological protocols and procedures, providing for the efficient and accurate reporting of swap data. The Commission notes that under proposed § 45.3(j), a registered entity or counterparty would not be precluded from choosing an SDR based on consideration of market preference or other factors; however, the obligation to choose the SDR will rest solely with the registered entity or counterparty enumerated therein. As discussed above, the Commission is proposing a number of requirements
The Commission has included the following example to illustrate the application of proposed § 45.10:
Swap 1 is intended to be submitted to a DCO for clearing and executed on or pursuant to the rules of a SEF. The SEF reports all required creation data for such swap to registered SDR A pursuant to § 45.3(a), selected by the SEF pursuant to § 45.3(j)(1), and submits the swap to the DCO for clearing. Upon acceptance of Swap 1 for clearing, the DCO extinguishes Swap 1 and replaces it with Swap 2 and Swap 3, both of which are clearing swaps. Swap 1 is now an original swap.
Under the proposal, § 45.4(c) would require the DCO to report the termination of Swap 1 to SDR A,
The requirements for DCOs demonstrated in the above example and contained in proposed § 45.10(d)(1) and (2) are consistent with the existing requirements for SEFs, DCMs, and other reporting counterparties under current § 45.10. By requiring that all swap data for each clearing swap be reported to a single SDR, proposed § 45.10(d)(1) and (2) further the Commission's stated purpose in creating § 45.10, and part 45 generally, of reducing fragmentation of data for a given swap across multiple SDRs.
The proposed requirement in § 45.10(d)(3) that the DCO report to a single SDR all swap data for each clearing swap that can be traced back to the same original swap also supports the goal of avoiding fragmentation of swap data. Though clearing swaps are new individual swaps, all clearing swaps that issue from the same original swap are component parts of a cleared swap transaction. Fragmentation among clearing swaps would needlessly impair the ability of the Commission and other regulators to view or aggregate all the data concerning the related clearing swaps.
The Commission requests comment on all aspects of proposed new § 45.10(d) and amended § 45.10(a) through (c). The Commission also invites comments on the following:
(30) Are the obligations assigned in the newly proposed and amended provisions of § 45.10 sufficiently clear? If not, please explain how you believe they should be clarified.
The following examples demonstrate the manner in which the proposed rules would operate in hypothetical scenarios involving: (1) an off-facility swap not subject to the clearing requirement with an SD/MSP reporting counterparty; and (2) a swap executed on or pursuant to the rules of a SEF or DCM. All references to part 45 appearing in the following examples refer to the rules as proposed in this release. These
An off-facility swap that is not subject to the clearing requirement is executed with an SD reporting counterparty. The SD generates and assigns a USI for the swap pursuant to § 45.5(b) and reports all required swap creation data for the swap to SDR A pursuant to § 45.3(c). The SD submits the swap to a DCO for clearing and, pursuant to § 45.10(b), transmits to the DCO, at the time the swap is submitted for clearing, the identity of SDR A and the USI for the swap.
The DCO accepts the swap for clearing, extinguishing it and replacing it with clearing swaps; the swap that was submitted for clearing is now an original swap. The DCO generates and assigns a USI to each clearing swap pursuant to proposed § 45.5(d) and, pursuant to the proposed amendments to § 45.3(e), reports all required swap creation data for the clearing swaps, including the original swap USI,
Pursuant to the proposed amendments to § 45.4(c), the DCO would report continuation data for the original swap, including the original swap termination notice, to SDR A using either the life cycle or state data methods, and using the facilities, methods, or data standards provided or required by SDR A.
The DCO would have no further continuation data reporting obligations with respect to the original swap thereafter. However, the Commission notes that pursuant to § 45.14, registered entities and counterparties required to report swap data to an SDR must report any errors and omissions in the data reported.
A swap is executed on or pursuant to the rules of a SEF or DCM. The SEF/DCM generates and assigns a USI for the swap pursuant to § 45.5(a) and reports all required swap creation data to SDR A pursuant to § 45.3(a). The SEF/DCM submits the swap to a DCO for clearing and, pursuant to § 45.10(a), transmits to the DCO, at the time the swap is submitted for clearing, the identity of SDR A and the USI for the swap.
The DCO accepts the swap for clearing, extinguishing it and replacing it with clearing swaps; the swap that was submitted for clearing is now an original swap. Under the proposed amendments to §§ 45.5(d) and 45.3(e), the DCO would generate and assign a USI to each clearing swap and report all required swap creation data, including the original swap USI, for the clearing swaps to registered SDR A, which, in this example, the DCO selected pursuant to proposed § 45.3(j)(2).
Pursuant to the proposed amendments to § 45.4(c), the DCO would report continuation data for the original swap, including the original swap termination notice, to SDR A using either the life cycle or state data methods, and using the facilities, methods, or data standards provided or required by SDR A. Such continuation data would include the LEI of SDR A (the SDR to which creation data for each clearing swap that replaced the particular original swap was reported), the USI of the original swap as transmitted to the DCO by the SEF/DCM at the time the swap was submitted for clearing, and the USI for each clearing swap.
The DCO would have no further continuation data reporting obligations with respect to the original swap thereafter. However, the Commission notes that pursuant to § 45.14, registered entities and counterparties required to report swap data to an SDR must report any errors and omissions in the data reported. Additionally, non-reporting counterparties are also required notify the reporting counterparty of such errors or omissions.
As demonstrated by the examples above, the Commission is proposing an approach to the reporting of cleared swaps that would require reporting counterparties or SEFs/DCMs to report creation and continuation data for swaps commonly known as alphas, and that would require DCOs to report alpha swap terminations and swaps commonly known as beta and gamma swaps.
A number of commenters suggested that part 45 should place swap data reporting obligations solely on DCOs, including with respect to swaps that are intended to be cleared at the time of execution and accepted for clearing by a DCO (alpha swaps) and swaps resulting from clearing (beta and gamma
The Commission understands that reporting counterparties and registered entities have invested substantial time and resources to report swaps to registered SDRs (whether or not such swaps are intended to be cleared at the time of execution) and that DCOs have invested substantial resources to report beta and gamma swaps that result from acceptance of a swap for clearing. Adopting the framework suggested by commenters above could result in a disruption of industry work flows and could require significant retooling of operational and technological solutions in place designed to report swap data, all at an additional cost to market participants.
The Commission's current lists of minimum primary economic terms for swaps in each swap asset class are found in tables in Exhibits A-D of appendix 1 to part 45. Those tables include data elements that reflect generic economic terms and conditions common to most standardized products. They reflect the fact that PET data captures a swap's basic nature and essential economic terms, and are provided in order to ensure to the extent possible that most such essential terms are included when required primary economic terms are reported for each swap.
The Commission is proposing the following revisions to Exhibits A through D of appendix 1, each of which is discussed in greater detail below: (1) modifications to existing PET data fields; (2) the addition of three new PET data fields applicable to all reporting entities for all swaps; and (3) the addition of a number of new data fields that must be reported by DCOs for clearing swaps.
i. Proposed Modifications to Existing PET Data Fields
The Commission proposes clarifying and conforming changes and minor corrective modifications to the following existing PET data fields:
• The Unique Swap Identifier for the swap—The Commission is proposing to remove the explanatory note in the Comment section to this data field in Exhibits A-D. The explanatory note is no longer necessary because under proposed § 45.5(d), the DCO would create the USI for each clearing swap.
• PET data fields that utilize a legal entity identifier
• If no CFTC-approved Legal Entity Identifier for the non-reporting counterparty is yet available, the internal identifier for the non-reporting counterparty used by the swap data repository—The Commission is also proposing to remove this data field in each of the Exhibits. As noted above, the CFTC has designated an LEI, and these PET data fields are no longer applicable.
• For a mixed swap reported to two non-dually-registered swap data repositories, the identity of the other swap data repository (if any) to which the swap is or will be reported—The Commission is proposing to add an explanatory note to the Comment section for this data field in Exhibits A-D providing that the field value is the LEI of the other SDR to which the swap is or will be reported.
• Block trade indicator—The Commission is proposing to modify the Comment section to this data field in Exhibits A-D to reflect that the CFTC has issued a final rulemaking regarding Procedures To Establish Appropriate Minimum Block Sizes for Large Notional Off-Facility Swaps and Block Trades.
• Execution venue—The Commission is proposing to modify the explanatory note in the Comment section to this data field in Exhibits A-D to reflect that the CFTC has designated an LEI system and to require the reporting of only the LEI of the SEF or DCM for swaps executed on or pursuant to the rules of a SEF or DCM.
• Clearing indicator—The Commission is proposing modifications to the explanatory note in the Comment section to this data field in Exhibits A through D to provide for the reporting of a Yes/No indication of whether the swap will be submitted for clearing to a DCO.
• Clearing venue—The Commission is proposing modifications to the Comment section of this data field in Exhibits A-D to provide for the reporting of only the LEI of the derivatives clearing organization.
The Commission proposes to add to Exhibits A-D the following new PET fields which would be applicable to all reporting entities for all swaps:
• Asset class—This data field would provide the specific asset class for the swap. Field values: credit, equity, FX, rates and other commodity.
• An indication of whether the reporting counterparty is a derivatives clearing organization with respect to the swap.
• Clearing exception or exemption type—This field would provide the type
The asset class data field will assist the Commission in identifying the asset class for swaps reported to registered SDRs pursuant to part 45. The indication of whether the reporting counterparty is a DCO with respect to the swap data field is consistent with proposed § 45.8(i), which designates the DCO as the reporting counterparty for clearing swaps, and the existing PET data fields that require certain information related to the registration status of the counterparties to be included in PET data reporting. The clearing exception or exemption types data field will provide information with respect to the specific exception or exemption from the clearing requirement that is being elected for the swap.
The Commission also proposes to modify Exhibits A-D in order to add new PET fields specifically to be reported by DCOs for clearing swaps. The proposed fields, which would be placed under the heading “Additional Data Categories and Fields for Clearing Swaps” in each table included as Exhibits A-D, would more accurately capture the additional, unique features of clearing swaps that are not relevant to uncleared swaps. The newly proposed data fields that must be reported by DCOs for clearing swaps include the following:
• Clearing swap USIs—This data field would provide the USI for each clearing swap that replaces the original swap, other than the USI for which the PET data is currently being reported.
• Original swap USI—This data field would provide the USI for the original swap that was replaced by clearing swaps.
• Original swap SDR—This data field would provide the LEI of the SDR to which the original swap was reported.
• Clearing member LEI—This data field would provide the LEI of the clearing member.
• Clearing member client account—This data field would provide the account number for the client, if applicable, of the clearing member.
• Origin (house or customer)—This data field would provide information regarding whether the clearing member acted as principal for a house trade or agent for a customer trade.
• Clearing Receipt Timestamp—This data field would provide the date and time at which the DCO received the original swap that was submitted for clearing.
• Clearing Acceptance Timestamp—This data field would provide the date and time at which the DCO accepted the original swap that was submitted for clearing.
Some commenters argued that the Commission should not require additional data fields for reporting and should reduce the number of fields currently required.
The Commission requests comment on all aspects of the proposed revisions to the PET data tables found in appendix 1 to part 45 and the proposed “Additional Data Categories and Fields for Clearing Swaps.” The Commission also invites comments on the following:
(31) Are there additional data categories and fields for clearing swaps which are necessary to understand a clearing swap and/or the mechanics of the clearing process? If so, please describe such additional data categories and fields.
(32) Will reporting any of the new or revised data categories and fields result in any operational or technological challenges? If so, please explain.
(33) Are there other entities, in addition to those currently required to be identified in swap data reporting, that may play some part in the execution or reporting of a cleared swap transaction? If so, what are they? Should their identifying information be reported to a registered SDR as an element of PET data?
(34) Are the newly proposed and revised PET data fields included in appendix 1, including the PET data therein, sufficiently clear? If not, please explain.
The Commission requests comments concerning all aspects of the proposed regulations, including, without limitation, all of the aspects of the proposed regulations on which comments have been requested specifically herein. The Commission also invites comments on the following:
(35) Please identify any challenges that might result from any differences between the Commission's and the SEC's respective proposals for treatment of cleared swap transactions.
(36) Are there differences between the Commission's and the SEC's respective proposals for the reporting of cleared swap transactions that should be harmonized? If so, please explain.
(37) Based upon the proposed modifications to the swap data reporting provisions of part 45, do commenters believe that associated modifications are necessary to the recordkeeping provisions of § 45.2?
(38) In practice, would DCOs employ agents for reporting clearing swaps to an SDR? Please explain any ways you believe the proposed regulations should be modified to facilitate a DCO's ability to employ agents to report clearing swaps.
(39) Please describe the nature of any changes necessary,
(40) Do the proposed amendments and additions to part 45 adequately address the reporting of swap transaction data for both the principal and agency clearing models? If not, please explain.
(41) Do commenters believe that additional revisions are necessary to part 45 to accurately and timely report any other type of swap transaction data for clearing transactions? If so, please explain.
The Regulatory Flexibility Act (“RFA”) requires federal agencies, in promulgating rules, to consider the impact of those rules on small entities.
The Final Part 45 Rulemaking and preceding proposal discussed how certain non-SD/MSP counterparties could be considered small entities in certain limited situations, but concluded that part 45 does not have a significant impact on a substantial number of small entities.
Therefore, the Chairman, on behalf of the Commission, pursuant to 5 U.S.C. 605(b), hereby certifies that the proposed rules will not have a significant economic impact on a substantial number of small entities.
The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The Commission is not seeking to amend information collection 3038-0089 because the Commission believes that the rule modifications proposed herein will not impose any new information collection requirements that require approval from OMB under the PRA. The proposed amendments may necessitate changes to market participants' and registered entities' reporting systems, but burdens for the maintenance and utilization of reporting functionality are already included in the approved information collection.
Additionally, though the proposed rules clarify the responsibilities of certain entities under part 45 where the responsibilities were not explicitly assigned in the original rule, the relevant entities were included in the PRA calculation for the original rule, meaning that explicitly assigning the responsibilities now does not create a burden that is not already included in information collection 3038-0089. Further, the proposed changes, especially in the context of swap data reporting, could also affect burdens that are included in the burdens calculated for part 43 of the Commission's regulations and, as described in the original publication of part 45, any cost or burden created by the proposed changes should not be considered additional to the burdens already calculated for part 43, as applicable.
The Commission specifically invites public comment on the accuracy of its estimate that no additional information collection requirements or changes to existing collection requirements would result from this proposal.
The Commission invites the public and other Federal agencies to comment on any aspect of the proposed information collection requirements discussed above. The Commission will consider public comments on this proposed collection of information in:
(1) Evaluating whether the proposed collection of information is necessary for the proper performance of the
(2) Evaluating the accuracy of the estimated burden of the proposed collection of information, including the degree to which the methodology and the assumptions that the Commission employed were valid;
(3) Enhancing the quality, utility, and clarity of the information proposed to be collected; and
(4) Minimizing the burden of the proposed information collection requirements on derivatives clearing organizations, designated contract markets, and swap execution facilities, including through the use of appropriate automated, electronic, mechanical, or other technological information collection techniques,
Copies of the submission from the Commission to OMB are available from the CFTC Clearance Officer, 1155 21st Street NW., Washington, DC 20581, (202) 418-5160 or from
• The Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attn: Desk Officer of the Commodity Futures Trading Commission;
• (202) 395-6566 (fax); or
•
Please provide the Commission with a copy of submitted comments so that all comments can be summarized and addressed in the final rulemaking, and please refer to the
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
The Commission is proposing revisions and additions to §§ 45.1, 45.3, 45.4, 45.5, 45.8, 45.10, and appendix 1 to part 45 in order to provide clarity to counterparties to a swap and registered entities regarding their part 45 reporting obligations with respect to cleared swap transactions and to improve the efficiency of data collection and maintenance associated with the reporting of the swaps involved in a cleared swap transaction.
The swap data reporting framework adopted in the Final Part 45 Rulemaking
The Commission has since had additional opportunities to consult with industry and with other regulators, including the Securities and Exchange Commission (“SEC”),
In particular, § 39.12(b)(6) provides that upon acceptance of a swap by a DCO for clearing, the original swap is extinguished and replaced by equal and opposite swaps, with the DCO as the counterparty to each such swap.
The existing part 45 regulations do not explicitly reflect industry practice, which the Commission understands is to generally report part 45 data for cleared swap transactions in conformance with the framework described in § 39.12(b)(6), where separate swaps (alphas, betas, and gammas) are represented individually in reported swap data. The Commission understands that under existing market practice: SEFs, DCMs and reporting counterparties generally report required swap creation data for alpha swaps to the SDR of their choice; DCOs that
The gaps between the existing part 45 regulations, § 39.12(b)(6), and certain industry practices, including those outlined above, have likely contributed to a lack of certainty regarding the applicability of the part 45 regulations to beta and gamma swaps, including which registered entity or counterparty is required to report creation data and/or continuation data for such swaps, and the manner in which such swaps must be reported. The Commission understands that this uncertainty presents compliance challenges for registered entities and reporting counterparties.
Additionally, the lack of clarity regarding existing part 45 obligations with respect to beta and gamma swaps has impacted the accuracy, quality, and usefulness of data that is reported for cleared swaps. For instance, inconsistent DCO reporting of alpha swap USIs in creation data for beta and gamma swaps hinders the Commission's ability to trace the history of a cleared swap transaction from execution between the original counterparties to clearing novation. Even in cases where the Commission can ascertain the USI of a specific alpha swap that was replaced by beta and gamma swaps, SDR data available to the Commission at times misleadingly shows some alpha swaps as remaining open between the original counterparties, when in actuality such swaps have been extinguished through clearing novation. An inability to determine whether an alpha swap has been terminated impedes the Commission's ability to analyze cleared swap activity and to review swap activity for compliance with the clearing requirement. Situations where alpha swaps that have been terminated that appear to remain open create a risk of double counting swap notional exposures and would impede the Commission's ability to analyze and study swaps market activity using accurate information. The inability to link the different swaps in a cleared swap transaction also impedes the Commission's ability to assess exposures of market participants in the uncleared and cleared swaps markets. Additionally, certain creation data fields that are currently populated for beta and gamma swaps prove difficult to interpret, and thus can result in inconsistencies in their application and reporting among alpha, beta, and gamma swaps, hindering the Commission's ability to interpret and analyze data regarding beta and gamma swaps.
The revisions and additions proposed in this release would amend part 45 so that it differentiates reporting requirements for cleared and uncleared swap transactions, and so that it explicitly addresses swap counterparty and registered entity reporting requirements for each component (
The Commission believes that the baseline for this consideration of costs and benefits is generally the existing part 45 regulations, which were adopted in 2011.
The following consideration of costs and benefits is organized according to the rules and rule amendments proposed in this release. For each rule, the Commission summarizes the proposed amendments
The Commission notes that this consideration of costs and benefits is based on the understanding that the swaps market functions internationally, with many transactions involving U.S. firms taking place across international boundaries, with some Commission registrants being organized outside of the United States, with leading industry members typically conducting operations both within and outside the United States, and with industry members commonly following substantially similar business practices wherever located. Where the Commission does not specifically refer to matters of location, the below discussion of costs and benefits refers to the effects of the proposed rules on all swaps activity subject to the proposed and amended regulations, whether by virtue of the activity's physical location in the United States or by virtue of the activity's connection with or effect on U.S. commerce under CEA section 2(i).
Proposed amendments to § 45.1 would revise the definition of “derivatives clearing organization” for purposes of part 45 to update a reference to an existing definition of “derivatives clearing organization” and to make clear that part 45 applies to DCOs registered with the Commission. Proposed amendments to § 45.1 would also add new definitions for “original swaps” (swaps that have been accepted for clearing by a DCO, commonly referred to as “alpha” swaps) and “clearing swaps” (swaps created pursuant to the rules of a DCO that have a DCO as a counterparty, including, but not limited to, any swap that replaces an original swap that was extinguished upon acceptance for clearing, commonly referred to as “beta” and “gamma” swaps).
These proposed terms would be used throughout part 45 to help clarify reporting obligations for each swap involved in a cleared swap transaction. The Commission will use the defined terms “original swaps” and “clearing swaps” throughout this consideration of costs and benefits when discussing the future applicability of the rules proposed in this release to the particular components of a cleared swap transaction. Given that these terms are a product of this release and are not yet part of industry nomenclature, the Commission will also use the terms “alpha, beta, and gamma” throughout this consideration of costs and benefits when discussing existing industry practice and when helpful for purposes of clarification.
The Commission does not anticipate that these proposed definitions, in and of themselves, would impose additional costs on DCOs or market participants. However, these proposed definitions will be referenced in other proposed substantive provisions. The costs and benefits of those substantive requirements will be discussed in the relevant sections below.
As discussed earlier in this release, the plain language of the existing part 45 regulations presumes the existence of one continuous swap and does not explicitly acknowledge distinct reporting requirements for the individual components (
Currently, § 45.3 requires reporting to an SDR of two types of “creation data” generated in connection with a swap's creation: “primary economic terms data” and “confirmation data.”
Proposed § 45.3(e) would govern creation data reporting requirements for swaps that fall under the proposed definition of clearing swaps. Proposed § 45.3(e) would require a DCO, as reporting counterparty under proposed § 45.8(i),
Additionally, the proposed rule would require DCOs to electronically report to a registered SDR required swap creation data for clearing swaps. Swaps other than clearing swaps, including swaps that later become original swaps by virtue of their acceptance for clearing by a DCO, would continue to be reported as currently required under existing § 45.3(a) through (d). The Commission is thus proposing an approach to creation data reporting that would require reporting counterparties or SEFs/DCMs to report creation data for swaps commonly known as alpha swaps, and that would require DCOs to report creation data for swaps commonly known as beta and gamma swaps, and for any other swaps to which the DCO is a counterparty.
With respect to confirmation data reporting, for swaps that are intended to be cleared at the time of execution, the Commission proposes to amend § 45.3(a), (b), (c)(1)(iii), (c)(2)(iii), and
The Commission is also proposing new § 45.3(j), which would provide that: For swaps executed on or pursuant to the rules of a SEF or DCM (including swaps that become original swaps), the SEF or DCM would have the obligation to choose the SDR for such swaps; for all other swaps (including for off-facility swaps and/or clearing swaps) the reporting counterparty (as determined in § 45.8) would have the obligation to choose the SDR.
The Commission understands that under current industry practice, DCOs commonly report to SDRs creation data for swaps that would fall under the definition of clearing swaps. Accordingly, to the extent that DCOs currently report in conformance with proposed § 45.3(e), the Commission does not expect the proposed rule to result in any additional costs. The Commission requests comment on specific details of market practice of DCOs and whether § 45.3(e) would carry any associated costs and/or impose additional obligations that go beyond existing industry practice of DCOs.
With respect to registered DCOs organized outside of the United States, its territories, and possessions that are subject to supervision and regulation in a foreign jurisdiction, a home country trade reporting regulatory regime may require the DCO to report swap data to a trade repository in the home country jurisdiction. For clearing swaps that a DCO would be required to report both to a registered SDR pursuant to the proposed amendments to part 45, and to a foreign trade repository pursuant to a home country trade reporting regulatory regime, a DCO could be expected to incur some additional costs in satisfying both its CFTC and home country reporting obligations, relative to a DCO that would only be subject to part 45 reporting requirements. As DCOs are not required to provide such cost information to the Commission, the Commission presently lacks access to the information needed to assess the magnitude of the costs relating to compliance with reporting obligations in multiple jurisdictions. However, the Commission expects that industry technological innovations may effectively allow for satisfaction of swap data reporting requirements across more than one jurisdiction by means of a single data submission, and that a streamlined reporting process or other technology and operational enhancements could mitigate the cost of satisfying reporting requirements for swaps that may be required to be reported to a foreign trade repository under a home country regulatory regime as well as to a registered SDR pursuant to proposed amendments to part 45.
The Commission requests comment regarding any unique costs and benefits of proposed § 45.3(e), and the proposed amendments and additions to part 45 generally, in regard to extraterritorial application, including:
• Are there any benefits or costs that the Commission identified in this release that do not apply, or apply to a different extent, to the extraterritorial application of the proposed additions and amendments to part 45?
• Are there any costs or benefits that are unique to the extraterritorial application of the proposed additions and amendments to part 45? If so, please specify how.
• If significant differences exist in the costs and benefits of the extraterritorial and domestic application of the proposed additions and amendments to part 45, what are the implications of those differences for the substantive requirements of the proposed additions and amendments to part 45?
• To what extent would trade reporting requirements in non-U.S. jurisdictions require a DCO to report swap data for clearing swaps to a foreign trade repository in addition to a registered SDR? Please describe any unique costs resulting from such scenarios.
• Are there any consistencies and/or inconsistencies between the proposed amendments to part 45 and any foreign trade reporting regulations that would apply to registered DCOs that would impose costs or provide benefits? If so, please describe any such consistencies and/or inconsistencies and associated cost and/or benefit implications.
The Commission requests that comments focus on information and analysis specifically relevant to the questions posed above as opposed to addressing the cross-border scope of the part 45 regulations. The Commission further requests that commenters supply the Commission with relevant data to support their comments.
With respect to confirmation data reporting, one commenter contended that requiring the reporting of confirmation data, in addition to PET data, is unnecessarily burdensome if the Commission collects the proper PET data.
Finally, with respect to choice of SDR, the Commission preliminarily believes that amendments to § 45.3(j) will not impose any additional costs because the amendments simply codify existing practice—the Commission understands that the workflows that apply the proposed choice of SDR obligations are already in place.
The Commission preliminarily believes that allowing DCOs to choose
Proposed § 45.3(e) would explicitly articulate DCO part 45 reporting obligations with respect to clearing swaps (
Requiring DCOs to report required swap creation data for clearing swaps to SDRs in the manner proposed in this release is expected to result in uniform protocols and consistent reporting of the individual components of a cleared swap transaction. DCOs already have the processes, procedures, and connectivity in place for reporting swap data to some registered SDRs, and given that DCOs utilize automated systems to communicate with SDRs, the Commission expects the data submitted by DCOs to SDRs to be standardized and readily available. The Commission submits that the proposed reporting framework for cleared swaps will result in more consistent reporting of all components of a cleared swap transaction, including linkages between the related swaps, thereby increasing the efficiency of the SDR data collection function and enhancing the Commission's ability to utilize the data for regulatory purposes, including for systemic risk mitigation, market monitoring, and market abuse prevention.
With respect to the proposed removal of certain confirmation data reporting requirements for swaps that are intended to be submitted to a DCO for clearing at the time of execution, the Commission is of the view that the proposed confirmation data reporting requirements for clearing swaps should provide necessary confirmation data with respect to cleared swap transactions. Given that the proposed rules would require the DCO to report confirmation data for clearing swaps, requiring an additional set of confirmation data reporting for the now-terminated original swap, in addition to PET data, would be unnecessary and provide little benefit.
Finally, with respect to choice of SDR, under proposed § 45.3(j), the party with the obligation to choose the SDR has the discretion to select the SDR of its choice. This could be an SDR with which the party already has a working relationship, an SDR which is, in the registered entity or reporting counterparty's estimation, most cost-effective, or an SDR that provides the best overall service and product. This flexibility to select SDRs may minimize reporting errors and foster competition between SDRs, as swap data for a particular reporting counterparty would be maintained in fewer SDRs, and may reduce costs, as reporting counterparties and registered entities (other than DCOs) should not have to establish connection to more than one SDR unless they prefer to do so. The Commission's understanding is that § 45.3(j) is consistent with industry practice,
The Commission proposes amendments to § 45.4, which governs the reporting of swap continuation data to an SDR during a swap's existence through its final termination or expiration, to incorporate the distinction between original swaps and clearing swaps. The Commission is also proposing to remove § 45.4(b)(2)(ii), which requires a reporting counterparty that is an SD or MSP to report valuation data for cleared swaps daily; instead, the DCO would be the only swap counterparty required to report swap continuation data, including valuation data, for clearing swaps.
Notably, proposed § 45.4(c) would require a DCO to report all required continuation data for original swaps, including original swap terminations, to the SDR to which such original swap was reported. Finally, proposed § 45.4(c)(2) would require that continuation data reported by DCOs include the following data fields as life cycle event data or state data for original swaps pursuant to proposed § 45.4(c)(1): (i) The LEI of the SDR to which each clearing swap that replaced a particular original swap was reported by the DCO pursuant to new § 45.3(e); (ii) the USI of the original swap that was replaced by the clearing swaps; and (iii) the USIs for each of the clearing swaps that replace the original swap.
Currently, § 45.4(b)(2) requires that both SDs/MSPs and DCOs report daily valuation data for cleared swaps. The proposed removal of § 45.4(b)(2)(ii) would eliminate the existing valuation data reporting requirement for SDs/MSPs, leaving DCOs as the sole entity responsible for daily valuation data reporting. As DCOs are currently required to report valuation data for cleared swaps, they would not bear any additional costs as a result of this proposed amendment.
With respect to termination notices, one commenter stated that DCOs should not be required to report termination of a cleared alpha because doing so would result in increased operational costs associated with establishing linkages to all registered SDRs.
The Commission requests more detailed information regarding the nature and amount of the costs identified above, as well information about the nature and amount of any other costs likely to result from proposed § 45.4(c), including a description of market practice as it relates to those costs. The Commission also requests information regarding whether DCOs are currently reporting alpha swap terminations and the scope of such reporting relative to all swaps accepted for clearing by such DCOs. The Commission notes that it does not possess the information required to quantify such costs since DCOs and SDRs are not required to provide the relevant information regarding cost structures to the Commission, but requests that commenters provide quantitative estimates, as well as data and other information to support those estimates.
With respect to the proposed additional data fields, as discussed above, proposed § 45.4(c)(2) would add three data fields (the LEI of the SDR to which creation data for the clearing swaps was reported, the USI of the original swap, and USIs of the clearing swaps) to the life cycle event data or to state data reported by DCOs as continuation data for original swaps.
Proposed § 45.4(c) would ensure that data concerning original swaps remains current and accurate, allowing the Commission to ascertain whether an original swap was terminated through clearing novation. Original swap data that does not reflect the current state of the swap frustrates the use of swap data for regulatory purposes, including, but not limited to, assessing market exposures between counterparties and evaluating compliance with the clearing requirement. The Commission is of the view that, to the extent that DCOs' current practices are not currently in conformance with the proposed rule, requiring the DCO to report continuation data for original swaps is the most efficient and effective method to ensure that data concerning original swaps remains current and accurate as the DCO, through its rules, determines when an original swap is terminated and thus has the quickest and easiest access to authoritative information concerning termination of the original swap.
Proposed § 45.4(c) would ensure that part 45 explicitly addresses DCO part 45 continuation data reporting obligations with respect to original swaps (
With respect to the valuation data reporting requirements of current § 45.4(b)(2)(ii), while one commenter contended that it would be valuable for the Commission to receive counterparty valuations for all swaps, whether cleared or uncleared,
The Commission preliminarily believes that the § 45.4(b)(2) proposal to remove the requirement that SDs and MSPs report daily valuation data for cleared swaps could result in cost savings to the extent that any SDs and MSPs are not currently relying on no-action relief.
Proposed § 45.4(c)(2) would require DCOs to report three important continuation data fields for original swaps which would assist regulators in tracing the history of, and associating the individual swaps involved in, a cleared swap transaction, from execution of the original swap through the life of each clearing swap that replaces an original swap, regardless of the SDR(s) to which the original and clearing swaps are reported. The newly required continuation data elements to be reported by the DCOs for original swaps will ensure that original swap continuation data includes sufficient information to identify, by USI, any clearing swaps created from the same original swap, as well as the SDR where those clearing swaps reside. As such, the Commission expects that review of any particular swap in a registered SDR will include a listing of all other relevant USIs with respect to that swap (
Regulation 45.5 currently requires that each swap subject to the Commission's jurisdiction be identified in all swap recordkeeping and data reporting by a USI. The rule establishes different requirements for the creation and transmission of USIs depending on whether the swap is executed on a SEF or DCM or executed off-facility with or without an SD or MSP reporting counterparty. Section 45.5 also provides that for swaps executed on or pursuant to the rules of a SEF or DCM, the SEF or DCM creates the USI, and for swaps not executed on or pursuant to the rules of a SEF or DCM, the USI is created by an SD or MSP reporting counterparty, or by the SDR if the reporting counterparty is not an SD or MSP.
Proposed new rule § 45.5(d) would require a DCO to generate and assign a USI for a clearing swap upon, or as soon as technologically practicable after, acceptance of an original swap by the DCO for clearing (in the event the clearing swap replaces an original swap) or execution of a clearing swap (in the event that the clearing swap does not replace an original swap), and prior to reporting the required swap creation data for the swap. Proposed § 45.5(d) contains provisions governing creation and assignment of USIs by the DCO that are consistent with analogous provisions governing creation and assignment of USIs by SEFs, DCMs, SDs, MSPs, and SDRs.
The Commission believes that proposed § 45.5(d) is largely consistent with industry practice and will not result in any additional costs for DCOs. Any DCOs that would not be in complete conformance with the proposed rule might have to enhance their existing technological protocols in order to create USIs in house, but these marginal costs would likely be lower than the costs associated with obtaining a USI with a separate USI-creating entity. While the Commission believes that creating USIs in-house, rather than with a different USI creating entity, might be less costly for DCOs, the Commission currently lacks data on that comparison and requests that commenters submit comments and/or data to estimate the quantifiable costs associated with USI creation.
As noted above, the existing part 45 regulations do not explicitly address the assignment of USIs to swaps that fall within the proposed definition of clearing swaps. Explicitly requiring DCOs to generate, assign and transmit USIs for clearing swaps would provide regulatory certainty with respect to the generation and assignment of USIs for clearing swaps. The proposal would also help ensure consistent and uniform USI creation and assignment for such swaps and would allow regulators to better identify and trace the swaps generally involved in cleared swap transactions, from execution of the original swap through the life of each clearing swap.
Current § 45.8 establishes a hierarchy under which the reporting counterparty for a particular swap depends on the nature of the counterparties involved in the transaction. DCOs are not included in the existing § 45.8 hierarchy. The Commission is proposing to amend § 45.8 in order to identify DCOs in the hierarchy as the reporting counterparty for clearing swaps.
The Commission does not anticipate that the proposed amendments to § 45.8, in and of themselves, will impose any additional costs on registered entities or reporting counterparties. The Commission preliminarily believes that the rule simply reflects established reporting arrangements, which, to the Commission's understanding, is for the DCO to submit data to the SDR for swaps that would fall within the definition of clearing swaps.
As noted above, clearing swaps are not explicitly acknowledged in existing § 45.3, and DCOs are not identified as reporting counterparties in the reporting counterparty hierarchy of § 45.8. The Commission expects that modifications to the § 45.8 reporting counterparty hierarchy will eliminate ambiguity regarding which registered entity or swap counterparty is required to report required creation data for clearing swaps, explicitly delineating the nature and extent of DCO reporting obligations, and affording market participants and SDRs a more precise and accurate understanding of reporting obligations under part 45.
Regulation 45.10 currently requires that all swap data for a given swap must be reported to a single SDR, which must be the same SDR to which creation data for that swap is first reported. The time and manner in which such data must be reported to a single SDR depends on whether the swap is executed on a SEF or DCM or executed off-facility with or without an SD/MSP reporting counterparty. The Commission is proposing to require DCOs to report all data for a particular clearing swap to a single SDR. Moreover, consistent with current industry practice, proposed § 45.10(d)(3) would require the DCO to report all required swap creation data for each clearing swap that replaces a particular original swap (
The Commission does not expect DCOs to incur any new costs associated with ensuring that clearing swap data is reported to a single SDR because the requirements of the proposed rule are, to the Commission's understanding, consistent with current DCO reporting practice.
The Commission preliminarily believes that the benefit of reporting data associated with each clearing swap to a single SDR is that all required creation data, all required continuation data for related clearing swaps and, by extension, USIs linking clearing swaps to the original swap, would be stored with the same SDR. This would minimize confusion on the part of SDRs and regulators regarding which swaps are still active and which ones have been terminated. The Commission notes that the benefits of reporting all data for clearing swaps to the same SDR are currently being realized, as it is current industry practice for DCOs to report swaps that would fall under the proposed definition of clearing swaps in conformance with proposed § 45.10(d)(3).
The Commission's current lists of minimum (required) primary economic terms for swaps in each swap asset class are found in tables in Exhibits A through D of appendix 1 to part 45. The Commission proposes to add several new data elements under the heading “Additional Data Categories and Fields for Clearing Swaps” to Exhibits A through D in order to more accurately capture the additional, unique features of clearing swaps that are not relevant to uncleared swaps. The newly proposed data fields include: The USI for the clearing swap; the USI for the original swap; the SDR to which the original swap was reported; clearing member LEI, clearing member client account origin, house or customer account; clearing receipt timestamp; and clearing acceptance timestamp.
The Commission also proposes to add several new required data elements which would be applicable to all swaps, and to make conforming changes to some existing data elements. The newly proposed fields include: Asset class, an indication of whether the reporting counterparty is a DCO with respect to the swap, and clearing exception or exemption types.
A number of commenters noted that making any changes and additions to required data fields could present substantial costs and operational burdens.
The Commission expects that the addition of the three data fields applicable to all reporting entities for all swaps will result in some increase in costs. The Commission does not currently possess the data needed to quantify such costs since reporting entities and SDRs are not required to provide to the Commission the relevant information regarding the costs associated with creating and using these fields, but requests that commenters provide quantitative estimates, as well as data and other information to support such estimates. The information necessary to report these data elements is likely to be readily available in connection with the execution of swaps, with some marginal costs stemming from the requirement to include the information in PET data reported to an SDR (to the extent that such information is not already reported). The Commission understands that in some cases, market practice is to report some of the information required by the proposed three new data fields applicable to all reporting entities for all swaps.
The Commission preliminarily believes that the proposed additions to the list of minimum primary economic terms would result in a variety of benefits. Fields such as USI for the original swap or the SDR to which the original swap was reported may facilitate the monitoring of each original swap by SDRs and regulators and may prevent potential double-counting of swap transactions or notional amounts, thus improving the accuracy of SDR data. Other proposed fields such as clearing member LEI or clearing member client account information would facilitate the Commission's assessment of risk management of market participants, promoting the protection of the financial integrity of the markets and the protection of market participants and the public. The asset class data field would assist the Commission in determining the asset class for swaps reported to SDRs, enhancing the Commission's ability to identify swaps activity in each asset class as well as the capability to use the data for regulatory purposes. The indication of whether the reporting counterparty is a DCO with respect to the swap data field would identify when a DCO is a reporting counterparty for clearing swaps, increasing the ability to interpret and utilize data for these swaps. The clearing exception or exemption types data field would
The Commission considered the costs and benefits of certain alternatives raised by commenters in response to the Commission's 2014 request for comment, including whether part 45 should require intended to be cleared swaps (original swaps) to be reported to registered SDRs. Some commenters noted that reporting of alpha swaps is beneficial and should continue to be required,
Some commenters stated that the Commission should require resulting swaps to be reported to the same SDR as original swaps, so that the entire history of a swap would reside at the same SDR.
In light of these comments, the Commission considered the costs and benefits of four alternatives in comparison to the costs and benefits of the proposed rule: (1) Requiring original and clearing swaps to be reported to the same SDR chosen by the reporting counterparty or SEF/DCM; (2) requiring original and clearing swaps to be reported to the same SDR chosen by the DCO accepting the swap for clearing; (3) requiring only one report for each swap intended for clearing, that is, not requiring original (alpha) swaps to be reported separately from clearing swaps, with the SDR chosen by the reporting counterparty or SEF/DCM; and (4) requiring only one report for each swap intended for clearing as in (3), but with the SDR chosen by the DCO accepting the swap for clearing.
The first two alternatives each require swaps that are intended to be cleared and the resulting clearing swaps to be reported to the same SDR. If such swaps were reported to the same SDR, there would be no need for certain requirements in proposed § 45.4(c) that extra fields, such as clearing swap SDR, be included in the report to the SDR for the clearing swap to link the clearing swap to an original swap on a different SDR. Similarly, the need for certain clearing swap PET data fields, such as the identity of the original SDR, intended to be used for linking purposes, might not be necessary. This would reduce costs relative to the proposed rule. Moreover, DCOs would incur reduced costs since they would only have to report data regarding cleared swap transactions to a single SDR. Further, market participants and the Commission could access all information about a single set of related original and clearing swaps at a single SDR, also reducing costs relative to the proposed rule.
However, because the proposed rule more closely reflects current industry practice relative to the alternative, there would be some potentially significant one-time costs, including the costs of changes to existing systems, associated with changing practices to conform to the alternatives. Additionally, a substantial portion of aggregation costs for regulators, and, likely, market participants, arises from the current landscape, which includes multiple SDRs. The proposed requirements to link original and clearing swaps at multiple SDRs is a relatively minor burden compared with the larger, already- incurred costs from having multiple SDRs. Additionally, costs associated with monitoring and aggregation would likely be mitigated by the continuation data fields of proposed
Regarding who would choose the single SDR, the SDR could be chosen by the reporting counterparty (or DCM or SEF) or by the DCO. Under either of the first two alternatives, one registered entity or counterparty's choice of SDR would bind a second registered entity or counterparty to also report to that SDR, which could be an SDR that the second registered entity or counterparty would not otherwise select. Allowing the reporting counterparty or SEF/DCM to choose the SDR would enable the reporting party to choose the SDR with the best combination of prices and service, and thus may promote competition among SDRs. Allowing the DCO to choose the SDR would likely result in the DCO always choosing the same SDR, which may be the SDR that is affiliated with the DCO (that is, shares the same parent company). This would reduce costs for DCOs since they would need to maintain connectivity with only one SDR, but would limit the ability of SDRs to compete since DCOs could choose to report only to SDRs with which they are affiliated. The Commission requests comment on the extent to which SDRs compete on the basis of price or service and the extent to which SDRs are chosen on the basis of relationships with registered entities and reporting counterparties.
Under the third and fourth alternatives, there would be no requirement to report intended to be cleared swaps (original swaps) separately from the resulting clearing swaps. Rather, there would only be one report for each cleared swap transaction. This would be a change from current swap market practice but is similar to existing practice in the futures market where there is no separate record for futures contracts before they are cleared. As with the first two alternatives, the choice of SDR could be made by the reporting counterparty as determined under current § 45.8, or by the DCO as under proposed § 45.8(i). If there is only one report for each cleared swap transaction, there would be ongoing cost savings associated with the need to make fewer reports to SDRs. As with the first two alternatives, there would be no need for the requirement in proposed § 45.4(c) that extra fields, such as clearing swap SDR, be included in the report to the SDR to link the clearing swap to an original swap on a different SDR, and market participants and the Commission could access all information about a single cleared swap transaction at a single SDR. This would also reduce costs relative to the proposed rule. However, the benefits of separate reports for original and clearing swaps would be foregone and there may be a less complete record of the history of each cleared swap. It may be possible to reclaim these benefits through requiring additional fields in each cleared swap report (although this would also increase costs). Moreover, because the proposed rule more closely reflects current industry practice relative to these alternatives, there would be some potentially significant one-time costs, including the costs of changes to existing systems, associated with changing practices to conform to the alternatives. The effects of who chooses the SDR are similar to the effects described for the first two alternatives.
The Commission has determined not to propose the alternatives at this time because the proposed rule is more consistent with current industry practice than the alternatives. The Commission understands that reporting counterparties and registered entities are already set up to report alpha swaps to registered SDRs (whether or not such swaps are intended to be cleared at the time of execution) and that DCOs are already set up to report beta and gamma swaps that result from acceptance of a swap for clearing, and have been making such reports. Accordingly, the industry has already incurred the costs of setting up a system for reporting cleared swap transactions to SDRs (including separate reports for swaps that would fall within the proposed definitions of original and clearing swaps). Changing this system to conform to an alternative rule would be costly, and the Commission notes that these practices did not evolve as a direct consequence of Commission actions.
The Commission also preliminarily believes that clarifying distinct reporting requirements in part 45 for alphas (swaps that become original swaps) and betas and gammas (clearing swaps that replace original swaps) presents a full history of each cleared swap transaction and permits the Commission and other regulators to identify and analyze each component part of such transactions. The Commission also continues to hold the view that placing the part 45 reporting obligation on the counterparty or registered entity closest to the source of, and with the easiest and fastest access to, complete and accurate data regarding a swap fosters accuracy and completeness in swap data reporting. In light of these benefits, the Commission proposes to maintain the current industry practice of separately reporting both alpha swaps (
Additionally, the multi-swap reporting approach proposed in this release is largely consistent with the approach proposed by the SEC in its release proposing certain new rules and rule amendments to Regulation SBSR,
The Commission requests comment on whether the ongoing cost savings of adopting an alternative rule would justify the one-time costs of changing industry practice to conform to the alternative rule.
The Commission requests comment on all aspects of the proposed rules. Beyond specific questions interspersed throughout its discussion, the Commission generally requests comment on all aspects of its consideration of costs and benefits, including: identification and assessment of any costs and benefits not discussed therein; the potential costs and benefits of the alternatives that the Commission discussed in this release; data and any other information to assist or otherwise inform the Commission's ability to quantify or qualitatively describe the benefits and costs of the proposed rules; and substantiating data, statistics, and any other information to support positions posited by commenters with respect to the Commission's consideration of costs and benefits. Commenters also may suggest other alternatives to the proposed approach where the commenters believe that the alternatives would be appropriate under the CEA and provide a superior cost-benefit profile.
Section 15(a) of the CEA requires the Commission to consider the effects of its
(1)
(2)
The rule obligating the reporting counterparty or SEF/DCM to choose the SDR for the original intended to be cleared swap may promote competition among SDRs. However, the Commission also acknowledges that by allowing DCOs to choose the SDR to which they report, competition for SDR services would be impacted as a result of some DCOs reporting to their affiliated SDR, that is, an SDR that shares the same parent company as the DCO. Any such impact on competition would be a consequence of business decisions designed to realize costs savings associated with the affiliations between DCOs and SDRs. It is reasonable to expect that DCOs would continue to report to affiliated SDRs under the proposed rules, but nothing in the proposed rules would require them to do so. The Commission notes that section 21 of the CEA permits a DCO to register as an SDR.
Additionally, the Commission notes that a significant portion of swap activity is reported to non-affiliated SDRs. Sample data from a recent representative week suggests that more than 40 percent of reported swaps are being reported to non-affiliated SDRs. A sizeable portion of the market could thus avoid the competitive impacts described above. The Commission requests comment on the extent to which a DCO's choice of an affiliated SDR may impact competition, including how market share among affiliated and non-affiliated SDRs may increase or lessen such an impact on competition.
(3)
(4)
(5)
As noted earlier in this release, the multi-swap reporting approach proposed in this release is largely consistent with the approaches proposed by the SEC and adopted by several foreign regulators. Given that the swaps market is global in nature, the Commission anticipates that adopting an approach that is consistent with the approaches adopted by other regulators may further other public interest considerations by reducing compliance costs for entities operating in multiple jurisdictions.
Section 15(b) of the CEA requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the objectives of the CEA, in issuing any order or adopting any Commission rule or regulation.
The Commission does not anticipate that the proposed amendments to part 45 will result in anti-competitive behavior. However, because the proposed amendments affect the existing reporting regime and swap transaction workflows, the Commission encourages comments from the public on any aspect of the proposal that may have the potential to be inconsistent with the anti-trust laws or be anti-competitive in nature. For example, the Commission is generally concerned with market concentration, the vertical integration of registered entities (DCMs, SEFs, DCOs, and SDRs), and the use of market power rather than competitive forces to determine the success or failure of particular SDRs. Accordingly, the Commission requests comment regarding whether the proposal in total, or its individual parts, could be deemed anti-competitive.
Data recordkeeping requirements and data reporting requirements, Swaps.
For the reasons stated in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR part 45 as set forth below:
7 U.S.C. 6r, 7, 7a-1, 7b-3, 12a, and 24a, as amended by Title VII of the Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203, 124 Stat. 1376 (2010), unless otherwise noted.
The additions and revisions read as follows:
Registered entities and swap counterparties must report required swap creation data electronically to a swap data repository as set forth in this section and in the manner provided in § 45.13(b). The rules governing acceptance and recording of such data by a swap data repository are set forth in § 49.10 of this chapter. The reporting obligations of swap counterparties with respect to swaps executed prior to the applicable compliance date and in existence on or after July 21, 2010, the date of enactment of the Dodd-Frank Act, are set forth in part 46 of this chapter. This section and § 45.4 establish the general swap data reporting obligations of swap dealers, major swap participants, non-SD/MSP counterparties, swap execution facilities, designated contract markets, and derivatives clearing organizations to report swap data to a swap data repository. In addition to the reporting obligations set forth in this section and § 45.4, registered entities and swap counterparties are subject to other reporting obligations set forth in this chapter, including, without limitation, the following: Swap dealers, major swap participants, and non-SD/MSP counterparties are also subject to the reporting obligations with respect to corporate affiliations reporting set forth in § 45.6; swap execution facilities, designated contract markets, swap dealers, major swap participants, and non-SD/MSP counterparties are subject to the reporting obligations with respect to real time reporting of swap data set forth in part 43 of this chapter; counterparties to a swap for which an exception to, or an exemption from, the clearing requirement has been elected under part 50 of this chapter are subject to the reporting obligations set forth in part 50 of this chapter; and, where applicable, swap dealers, major swap participants, and non-SD/MSP counterparties are subject to the reporting obligations with respect to large traders set forth in parts 17 and 18 of this chapter. Paragraphs (a) through (d) of this section apply to all swaps except clearing swaps, while paragraph (e) applies only to clearing swaps.
(a)
(b)
(1) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, within the applicable reporting deadline set forth in paragraph (b)(1)(i) or (ii) of this section.
(i) If the reporting counterparty is a swap dealer or a major swap participant, the reporting counterparty must report all primary economic terms data for the swap as soon as technologically practicable after execution, but no later than 15 minutes after execution.
(ii) If the reporting counterparty is a non-SD/MSP counterparty, the reporting counterparty must report all primary economic terms data for the swap as soon as technologically practicable after execution, but no later than one business hour after execution.
(2) [Reserved]
(c)
(1)
(i) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, within the applicable reporting deadline set forth in paragraph (c)(1)(i)(A) or (B) of this section.
(A) If the non-reporting counterparty is a swap dealer, a major swap participant, or a non-SD/MSP counterparty that is a financial entity as defined in CEA section 2(h)(7)(C), or if the non-reporting counterparty is a non-SD/MSP counterparty
(B) If the non-reporting counterparty is a non-SD/MSP counterparty
(ii) If the swap is not intended to be submitted to a derivatives clearing organization for clearing at the time of execution, the reporting counterparty must report all confirmation data for the swap, as defined in § 45.1, as soon as technologically practicable after confirmation, but no later than: 30 minutes after confirmation if confirmation occurs electronically; or 24 business hours after confirmation if confirmation does not occur electronically.
(2)
(i) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, within the applicable reporting deadline set forth in paragraph (c)(2)(i)(A) or (B) of this section.
(A) If the non-reporting counterparty is a swap dealer, a major swap participant, or a non-SD/MSP counterparty that is a financial entity as defined in CEA section 2(h)(7)(C), or if the non-reporting counterparty is a non-SD/MSP counterparty that is not a financial entity as defined in CEA section 2(h)(7)(C) and verification of primary economic terms occurs electronically, then the reporting counterparty must report all primary economic terms data for the swap as soon as technologically practicable after execution, but no later than two hours after execution.
(B) If the non-reporting counterparty is a non-SD/MSP counterparty that is not a financial entity as defined in CEA section 2(h)(7)(C), and if verification of primary economic terms does not occur electronically, then the reporting counterparty must report all primary economic terms data for the swap as soon as technologically practicable after execution, but no later than two hours after execution.
(ii) If the swap is not intended to be submitted to a derivatives clearing organization for clearing at the time of execution, the reporting counterparty must report all confirmation data for the swap, as defined in § 45.1, as soon as technologically practicable after confirmation, but no later than: 30 minutes after confirmation if confirmation occurs electronically; or 24 business hours after confirmation if confirmation does not occur electronically.
(d)
(1) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, as soon as technologically practicable after execution, but no later than 24 business hours after execution.
(2) If the swap is not intended to be submitted to a derivatives clearing organization for clearing at the time of execution, the reporting counterparty must report all confirmation data for the swap, as defined in § 45.1, as soon as technologically practicable after confirmation, but no later than 24 business hours after confirmation.
(e)
(f)
(1)
(2)
(ii)
(iii)
(g)
(h)
(2) The registered entity or reporting counterparty making the first report of required swap creation data pursuant to this section shall ensure that the same unique swap identifier is recorded for the swap in both the swap data repository and the security-based swap data repository.
(i)
(j)
(1) For swaps executed on or pursuant to the rules of a swap execution facility or designated contract market, the swap execution facility or designated contract market shall choose the swap data repository;
(2) For all other swaps, the reporting counterparty, as determined in section 45.8, shall choose the swap data repository.
Registered entities and swap counterparties must report required swap continuation data electronically to a swap data repository as set forth in this section and in the manner provided in § 45.13(b). The rules governing acceptance and recording of such data by a swap data repository are set forth in § 49.10 of this chapter. The reporting obligations of registered entities and swap counterparties with respect to swaps executed prior to the applicable compliance date and in existence on or after July 21, 2010, the date of enactment of the Dodd-Frank Act, are set forth in part 46 of this chapter. This section and § 45.3 establish the general swap data reporting obligations of swap dealers, major swap participants, non-SD/MSP counterparties, swap execution facilities, designated contract markets, and derivatives clearing organizations to report swap data to a swap data repository. In addition to the reporting obligations set forth in this section and § 45.3, registered entities and swap counterparties are subject to other reporting obligations set forth in this chapter, including, without limitation, the following: Swap dealers, major swap participants, and non-SD/MSP counterparties are also subject to the reporting obligations with respect to corporate affiliations reporting set forth in § 45.6; swap execution facilities, designated contract markets, swap dealers, major swap participants, and non-SD/MSP counterparties are subject to the reporting obligations with respect to real time reporting of swap data set forth in part 43 of this chapter; and, where applicable, swap dealers, major swap participants, and non-SD/MSP counterparties are subject to the reporting obligations with respect to large traders set forth in parts 17 and 18 of this chapter.
(a)
(1) Life cycle event data to a swap data repository that accepts only life cycle event data reporting;
(2) State data to a swap data repository that accepts only state data reporting; or
(3) Either life cycle event data or state data to a swap data repository that accepts both life cycle event data and state data reporting.
(b)
(1)
(i) All life cycle event data for the swap, reported on the same day that any life cycle event occurs with respect to the swap; or
(ii) All state data for the swap, reported daily.
(2)
(c)
(1)
(i) All life cycle event data for the swap, reported on the same day that any life cycle event occurs with respect to the swap; or
(ii) All state data for the swap, reported daily.
(2) In addition to all other necessary continuation data fields, life cycle event data and state data must include all of the following:
(i) The legal entity identifier of the swap data repository to which all required swap creation data for each clearing swap was reported by the derivatives clearing organization pursuant to § 45.3(e);
(ii) The unique swap identifier of the original swap that was replaced by the clearing swaps; and
(iii) The unique swap identifier of each clearing swap that replaces a particular original swap.
(d)
(1)
(i) If the reporting counterparty is a swap dealer or major swap participant:
(A) Life cycle event data must be reported on the same day that any life cycle event occurs, with the sole exception that life cycle event data relating to a corporate event of the non-reporting counterparty must be reported no later than the second business day after the day on which such event occurs.
(B) State data must be reported daily.
(ii) If the reporting counterparty is a non-SD/MSP counterparty:
(A) Life cycle event data must be reported no later than the end of the first business day following the date of any life cycle event; with the sole exception that life cycle event data relating to a corporate event of the non-reporting counterparty must be reported no later than the end of the second business day following such event.
(B) State data must be reported daily.
(2)
(i) If the reporting counterparty is a swap dealer or major swap participant, the reporting counterparty must report all valuation data for the swap, daily.
(ii) If the reporting counterparty is a non-SD/MSP counterparty, the reporting counterparty must report the current daily mark of the transaction as of the last day of each fiscal quarter. This report must be transmitted to the swap data repository within 30 calendar days of the end of each fiscal quarter. If a daily mark of the transaction is not available for the swap, the reporting counterparty satisfies this requirement by reporting the current valuation of the swap recorded on its books in accordance with applicable accounting standards.
Each swap subject to the jurisdiction of the Commission shall be identified in all recordkeeping and all swap data reporting pursuant to this part by the use of a unique swap identifier, which shall be created, transmitted, and used for each swap as provided in paragraphs (a) through (f) of this section.
(a)
(1)
(i) The unique alphanumeric code assigned to the swap execution facility or designated contract market by the Commission for the purpose of identifying the swap execution facility or designated contract market with respect to unique swap identifier creation; and
(ii) An alphanumeric code generated and assigned to that swap by the automated systems of the swap execution facility or designated contract market, which shall be unique with respect to all such codes generated and assigned by that swap execution facility or designated contract market.
(2)
(i) To the swap data repository to which the swap execution facility or designated contract market reports required swap creation data for the swap, as part of that report;
(ii) To each counterparty to the swap, as soon as technologically practicable after execution of the swap;
(iii) To the derivatives clearing organization, if any, to which the swap is submitted for clearing, as part of the required swap creation data transmitted to the derivatives clearing organization for clearing purposes.
(b)
(1)
(i) The unique alphanumeric code assigned to the swap dealer or major swap participant by the Commission at the time of its registration as such, for the purpose of identifying the swap dealer or major swap participant with respect to unique swap identifier creation; and
(ii) An alphanumeric code generated and assigned to that swap by the automated systems of the swap dealer or major swap participant, which shall be unique with respect to all such codes generated and assigned by that swap dealer or major swap participant.
(2)
(i) To the swap data repository to which the reporting counterparty reports required swap creation data for the swap, as part of that report;
(ii) To the non-reporting counterparty to the swap, as soon as technologically practicable after execution of the swap; and
(iii) To the derivatives clearing organization, if any, to which the swap is submitted for clearing, as part of the required swap creation data transmitted to the derivatives clearing organization for clearing purposes.
(c)
(1)
(i) The unique alphanumeric code assigned to the swap data repository by the Commission at the time of its registration as such, for the purpose of identifying the swap data repository with respect to unique swap identifier creation; and
(ii) An alphanumeric code generated and assigned to that swap by the automated systems of the swap data repository, which shall be unique with respect to all such codes generated and assigned by that swap data repository.
(2)
(i) To the counterparties to the swap, as soon as technologically practicable following creation of the unique swap identifier; and
(ii) To the derivatives clearing organization, if any, to which the swap is submitted for clearing, as soon as technologically practicable following creation of the unique swap identifier.
(d)
(1)
(i) The unique alphanumeric code assigned to the derivatives clearing organization by the Commission for the purpose of identifying the derivatives
(ii) An alphanumeric code generated and assigned to that clearing swap by the automated systems of the derivatives clearing organization, which shall be unique with respect to all such codes generated and assigned by that derivatives clearing organization.
(2)
(i) To the swap data repository to which the derivatives clearing organization reports required swap creation data for the clearing swap, as part of that report; and
(ii) To its counterparty to the clearing swap, as soon as technologically practicable after acceptance of a swap by the derivatives clearing organization for clearing or execution of a clearing swap that does not replace an original swap.
(e)
(1)
(i) If the unique swap identifier is created by a swap execution facility or designated contract market, the swap execution facility or designated contract market must include the unique swap identifier in its swap creation data report to the swap data repository, and must transmit the unique identifier to the reporting counterparty and to the agent.
(ii) If the unique swap identifier is created by the reporting counterparty, the reporting counterparty must include the unique swap identifier in its swap creation data report to the swap data repository, and must transmit the unique identifier to the agent.
(2)
(i) The non-reporting counterparty for the swap in question.
(ii) The agent.
(iii) The derivatives clearing organization, if any, to which the swap is submitted for clearing, as part of the required swap creation data transmitted to the derivatives clearing organization for clearing purposes.
(f)
The determination of which counterparty is the reporting counterparty for all swaps, except clearing swaps, shall be made as provided in paragraphs (a) through (h) of this section. The determination of which counterparty is the reporting counterparty for all clearing swaps shall be made as provided in paragraph (i) of this section.
(a) If only one counterparty is a swap dealer, the swap dealer shall be the reporting counterparty.
(b) If neither counterparty is a swap dealer, and only one counterparty is a major swap participant, the major swap participant shall be the reporting counterparty.
(c) If both counterparties are non-SD/MSP counterparties, and only one counterparty is a financial entity as defined in CEA section 2(h)(7)(C), the counterparty that is a financial entity shall be the reporting counterparty.
(d) If both counterparties are swap dealers, or both counterparties are major swap participants, or both counterparties are non-SD/MSP counterparties that are financial entities as defined in CEA section 2(h)(7)(C), or both counterparties are non-SD/MSP counterparties and neither counterparty is a financial entity as defined in CEA section 2(h)(7)(C):
(1) For a swap executed on or pursuant to the rules of a swap execution facility or designated contract market, the counterparties shall agree which counterparty shall be the reporting counterparty.
(2) For an off-facility swap, the counterparties shall agree as one term of their swap which counterparty shall be the reporting counterparty.
(e) Notwithstanding the provisions of paragraphs (a) through (d) of this section, if both counterparties to a swap are non-SD/MSP counterparties and only one counterparty is a U.S. person, that counterparty shall be the reporting counterparty.
(f) Notwithstanding the provisions of paragraphs (a) through (e) of this section, if neither counterparty to a swap is a U.S. person, but the swap is executed on or pursuant to the rules of a swap execution facility or designated contract market or otherwise executed in the United States, or is cleared by a derivatives clearing organization:
(1) For such a swap executed on or pursuant to the rules of a swap execution facility or designated contract market, the counterparties shall agree which counterparty shall be the reporting counterparty.
(2) For an off-facility swap, the counterparties shall agree as one term of their swap which counterparty shall be the reporting counterparty.
(g) If a reporting counterparty selected pursuant to paragraphs (a) through (f) of this section ceases to be a counterparty to a swap due to an assignment or novation, the reporting counterparty for reporting of required swap continuation data following the assignment or novation shall be selected from the two current counterparties as provided in paragraphs (g)(1) through (4) of this section.
(1) If only one counterparty is a swap dealer, the swap dealer shall be the reporting counterparty and shall fulfill all counterparty reporting obligations.
(2) If neither counterparty is a swap dealer, and only one counterparty is a major swap participant, the major swap participant shall be the reporting counterparty and shall fulfill all counterparty reporting obligations.
(3) If both counterparties are non-SD/MSP counterparties, and only one counterparty is a U.S. person, that counterparty shall be the reporting counterparty and shall fulfill all counterparty reporting obligations.
(4) In all other cases, the counterparty that replaced the previous reporting counterparty by reason of the assignment or novation shall be the reporting counterparty, unless otherwise agreed by the counterparties.
(h) For all swaps executed on or pursuant to the rules of a swap execution facility or designated contract market, the rules of the swap execution facility or designated contract market must require each swap counterparty to provide sufficient information to the swap execution facility or designated contract market to enable the swap execution facility or designated contract market to report all swap creation data as provided in this part.
(1) To achieve this, the rules of the swap execution facility or designated contract market must require each market participant placing an order with respect to any swap traded on the swap execution facility or designated contract market to include in the order, without limitation:
(i) The legal entity identifier of the market participant placing the order.
(ii) A yes/no indication of whether the market participant is a swap dealer with respect to the product with respect to which the order is placed.
(iii) A yes/no indication of whether the market participant is a major swap participant with respect to the product with respect to which the order is placed.
(iv) A yes/no indication of whether the market participant is a financial entity as defined in CEA section 2(h)(7)(C).
(v) A yes/no indication of whether the market participant is a U.S. person.
(vi) If applicable, an indication that the market participant will elect an exception to, or an exemption from, the clearing requirement under part 50 of this chapter for any swap resulting from the order.
(vii) If the swap will be allocated:
(A) An indication that the swap will be allocated.
(B) The legal entity identifier of the agent.
(C) An indication of whether the swap is a post-allocation swap.
(D) If the swap is a post-allocation swap, the unique swap identifier of the initial swap transaction between the reporting counterparty and the agent.
(2) To achieve this, the swap execution facility or designated contract market must use the information obtained pursuant to paragraph (h)(1) of this section to identify the counterparty that is the reporting counterparty pursuant to the CEA and this section.
(i)
All swap data for a given swap, which shall include all swap data required to be reported pursuant to parts 43 and 45 of this chapter, must be reported to a single swap data repository, which shall be the swap data repository to which the first report of required swap creation data is made pursuant to this part.
(a)
(1) The swap execution facility or designated contract market that reports required swap creation data as required by § 45.3 shall report all such data to a single swap data repository. As soon as technologically practicable after execution, the swap execution facility or designated contract market shall transmit to both counterparties to the swap, and to the derivatives clearing organization, if any, that will clear the swap, both:
(i) The identity of the swap data repository to which required swap creation data is reported by the swap execution facility or designated contract market; and
(ii) The unique swap identifier for the swap, created pursuant to § 45.5.
(2) Thereafter, all required swap creation data and all required swap continuation data reported for the swap reported by any registered entity or counterparty shall be reported to that same swap data repository (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(b)
(1) If the reporting counterparty reports primary economic terms data to a swap data repository as required by § 45.3:
(i) The reporting counterparty shall report primary economic terms data to a single swap data repository.
(ii) As soon as technologically practicable after execution, but no later than as required pursuant to § 45.3, the reporting counterparty shall transmit to the other counterparty to the swap both the identity of the swap data repository to which primary economic terms data is reported by the reporting counterparty, and the unique swap identifier for the swap created pursuant to § 45.5.
(iii) If the swap will be cleared, the reporting counterparty shall transmit to the derivatives clearing organization at the time the swap is submitted for clearing both the identity of the swap data repository to which primary economic terms data is reported by the reporting counterparty, and the unique swap identifier for the swap created pursuant to § 45.5.
(2) Thereafter, all required swap creation data and all required swap continuation data reported for the swap, by any registered entity or counterparty, shall be reported to the swap data repository to which swap data has been reported pursuant to paragraph (b)(1) or (2) of this section (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(c)
(1) If the reporting counterparty reports primary economic terms data to a swap data repository as required by § 45.3:
(i) The reporting counterparty shall report primary economic terms data to a single swap data repository.
(ii) As soon as technologically practicable after execution, but no later than as required pursuant to § 45.3, the reporting counterparty shall transmit to the other counterparty to the swap the identity of the swap data repository to which primary economic terms data was reported by the reporting counterparty.
(iii) If the swap will be cleared, the reporting counterparty shall transmit to the derivatives clearing organization at the time the swap is submitted for clearing the identity of the swap data repository to which primary economic terms data was reported by the reporting counterparty.
(2) The swap data repository to which the swap is reported as provided in paragraph (c) of this section shall transmit the unique swap identifier created pursuant to § 45.5 to both counterparties and to the derivatives clearing organization, if any, as soon as
(3) Thereafter, all required swap creation data and all required swap continuation data reported for the swap, by any registered entity or counterparty, shall be reported to the swap data repository to which swap data has been reported pursuant to paragraph (c)(1) of this section (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(d)
(1) The derivatives clearing organization that is a counterparty to such clearing swap shall report all required swap creation data for that clearing swap to a single swap data repository. As soon as technologically practicable after acceptance of an original swap by a derivatives clearing organization for clearing or execution of a clearing swap that does not replace an original swap, the derivatives clearing organization shall transmit to the counterparty to each clearing swap the legal entity identifier of the swap data repository to which the derivatives clearing organization reported the required swap creation data for that clearing swap.
(2) Thereafter, all required swap creation data and all required swap continuation data reported for that clearing swap shall be reported by the derivatives clearing organization to the swap data repository to which swap data has been reported pursuant to paragraph (d)(1) of this section (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(3) For clearing swaps that replace a particular original swap, and for equal and opposite clearing swaps that are created upon execution of the same transaction and that do not replace an original swap, the derivatives clearing organization shall report all required swap creation data and all required swap continuation data for such clearing swaps to a single swap data repository.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative. Commissioner Wetjen did not participate in this matter.
One of the most important requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act is the reporting of data on the swaps market. In 2008 during the global financial crisis, regulators had little information about this market or the exposures of major institutions, but difficult policy choices still had to be made. Today, that has changed. Today, all swap transactions, whether cleared or uncleared, must be reported to swap data repositories (SDRs). The availability of accurate data is allowing the CFTC to move forward with the important work of monitoring the market and understanding its potential risks.
While we have made great progress in this area, there is still more we need to do to make sure that we obtain useful and timely data as efficiently as possible. Today's proposal is one big step toward that end. If adopted, it will improve data quality and reduce compliance costs, by clarifying and simplifying some requirements and eliminating unnecessary reporting obligations.
This proposal would ensure there is a simple, consistent process surrounding the reporting workflows for cleared swaps. For example, the proposal would clarify the reporting obligations of the clearinghouse where the swap is cleared. It would help ensure that there are not multiple records of
This proposal reflects a careful consideration of the feedback received from the CFTC's request for comment on this regulation in 2014. It combines the best elements of those suggested by various stakeholders concerning the reporting of cleared swaps.
I believe the proposal will help simplify compliance obligations for market participants while improving the accuracy, quality and usefulness of the data that is reported. This is an important part of the ongoing process of simplifying, fine-tuning and harmonizing our rules, and we will continue to look for ways to improve our recordkeeping, reporting, and data quality rules and practices.
I look forward to reviewing comments to this proposal, and I encourage all market participants to provide feedback on this proposal.
I strongly support this proposed rulemaking because reporting is one of the key pillars of the financial reform mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Dodd-Frank Act was intended to stabilize our financial system after the 2008 crisis by reducing systemic risk, increasing transparency, and promoting market integrity within the financial system. Having accurate, comprehensive data is essential to meeting all of these goals. Without useful data about our markets, the Commission is unable to fully assess systemic risk and monitor market integrity. Accurate data does not only support financial reform, accurate data is itself a critical part of financial reform.
This proposed rulemaking represents a major step toward making our data more accurate. With this rulemaking, we intend to provide clarity to swap counterparties, exchanges, clearing organizations, and swap data repositories about the part 45 reporting obligations with respect to cleared swaps. This rulemaking is also intended to improve the efficiency of data collection and maintenance associated with the reporting of cleared swaps.
I have a keen interest in systemic risk and market structure issues. I believe regulators have an obligation to do everything in our power to gird our financial system to prevent a future financial crisis. Nearly seven years after the 2008 financial crisis, our economy has improved but the effects of the crisis linger. Many are still battling long-term unemployment, underemployment, and hobbled careers.
The Commission cannot get a perfect picture of what is happening in our markets without accurate data. So while data collection may not seem like the most exciting topic, in fact it is crucial. If the devil is in the details in life, in financial regulation, the devil is in the data.
But while I welcome this step, I realize that much more needs to be done. Our current part 45 rules outline the broad categories of data that the Commission needs, but market participants need much greater clarity on, among other things, what data needs to be submitted, how it needs to be submitted, and how data discrepancies need to be remediated. And our swap data repositories similarly need clarity on how to collect the data that the Commission needs to meet its mandate. While I am heartened by the international efforts to meet these aims, time is not on our side. The markets are active and real-time, and we need to get the best picture of what is happening in those markets as soon as possible.
Our amazing staff has been able to use the data that we are currently receiving to engage in excellent market surveillance. Yet, our staff would be able to do even more if this data was improved; that is why I wholeheartedly support this proposal. I also hope that the Commission makes further efforts to improve our data and reporting regimes in the near future.
I support the issuance of the proposed rules to amend the cleared swaps data reporting provisions. I have been a consistent supporter of the swap data reporting reforms in the Dodd-Frank Act to provide regulators with increased transparency into the swaps market. Getting the reporting rules right is critical to provide regulators with the information they need to better understand and oversee these highly dynamic markets.
Today's proposal demonstrates that the Commission can revisit Dodd-Frank rulesets and make needed adjustments based on its implementation experience over the past few years. I urge the Commission to take this same approach with other rulesets, including several of its swaps trading rules, to optimize the CFTC's swaps regulatory framework in light of the challenges of liquidity formation and market fragmentation that have grown since initial implementation.
Although today's proposal only addresses a small subset of the issues raised in the 2014 request for comment on the Review of Swap Data Recordkeeping and Reporting Requirements,
I commend CFTC staff, especially the Division of Market Oversight staff, for their efforts on this proposal. I look forward to reviewing well-considered, responsive and informative comments from the public.
Department of the Navy, DoD.
Final rule.
In this final rule, the Department of the Navy (DON) is revising its rules to assist the Secretary in managing sunken military craft under the jurisdiction of the DON pursuant to the Sunken Military Craft Act (SMCA), and to issue updated application procedures for research permits on terrestrial military craft under the jurisdiction of the DON.
This final rule is effective March 1, 2016.
Dr. Robert Neyland, Head, Underwater Archaeology Branch, Naval History and Heritage Command, Department of the Navy, 805 Kidder Breese Street SE., BL 57, Washington Navy Yard, DC 20374, email:
This final rule serves as a revision of 32 CFR part 767 and incorporates provisions of the existing regulations together with regulations implementing the expanded authority provided to the Secretary of the Navy by the SMCA (Pub. L. 108-375, 10 U.S.C. 113 Note and 118 Stat. 2094-2098) in regards to permitting activities directed at sunken military craft that are otherwise prohibited by the SMCA. The rule replaces the existing regulations and establishes a single permitting process for persons wishing to engage in activities that disturb, remove, or injure DON sunken military craft and terrestrial military craft for archaeological, historical, or educational purposes. In accordance with the limitations on application expressed in (10 U.S.C. 1402(c)(1)), section 1402 of the SMCA shall not apply to actions taken by, or at the direction of, the United States.
The former rule was based on provisions of the National Historic Preservation Act (NHPA) (54 U.S.C. 300101
The former regulations only applied to ships and aircraft that were classified as DON historic structures or archaeological sites, regardless of location, and did not carry the enforcement provisions necessary to serve as a deterrent to their unauthorized disturbance. The SMCA was enacted in 2004 and codified the existing principles of preservation of right, title, and interest of the United States in and to any United States sunken military craft. As defined in the SMCA, the term sunken military craft includes all sunken warships, all naval auxiliaries, and other vessels that were owned or operated by a government on military noncommercial service when they sank. The term also includes all sunken military aircraft or spacecraft owned or operated by a government when they sank. In addition, associated contents such as equipment, cargo, and the remains and personal effects of the crew and passengers are also protected if located within a craft's debris field. It is important to note that the SMCA is not limited to historic sunken military craft of the United States. All U.S. sunken military craft are covered, regardless of location or time of loss, while all foreign sunken military craft in U.S. waters, consisting of U.S. internal waters, the U.S. territorial sea, and the U.S. contiguous zone, are also afforded protection from disturbance by the SMCA. According to the SMCA, a permitting process may be implemented by the Secretary of a military department, or the department in which the Coast Guard is operating, in order to permit activities directed at sunken military craft that are otherwise prohibited. These regulations do not apply to any sunken military craft under the jurisdiction of the Maritime Administration or its predecessor agencies or organizations at the time of sinking. Predecessor agencies or organizations of the Maritime Administration, include, but are not limited to, the United States Shipping Board, the United States Shipping Board Merchant Fleet Corporation, the War Shipping Board, the War Shipping Administration, the United States Shipping Board of the U.S. Department of Commerce, and the U.S. Maritime Commission.
This final rule is, in part, promulgated based on the authority granted to the Secretary of the Navy by the SMCA to establish a permitting program allowing controlled public access to sunken military craft under the jurisdiction of the DON for the purposes of undertaking activities directed at these craft that are otherwise prohibited by the SMCA. Sunken military craft are not only of historical importance to the Nation, having served in all of its most critical moments, but are also often war graves and memorials to the men and women who served aboard them. Many carry unexploded ordnance that can pose public safety hazards or oil and other materials that, if not properly handled, may cause substantial harm to the environment. Furthermore, many hold state secrets and technologies of significance to national security. Therefore, it is important for these sites to be respected and remain undisturbed and for the U.S. to promote the international law rules pertaining to sunken military craft, sovereign immunity, and the preservation of title. When otherwise prohibited activities are permitted, they must be conducted in a professional manner and with archaeological, historical or educational purposes in mind. Accordingly, the SMCA declares that the “law of finds” does not apply to any U.S. sunken military craft or any foreign sunken military craft in U.S. waters. No salvage rights or awards are to be granted with respect to U.S. sunken military craft without the express permission of the U.S., or with respect to foreign sunken military craft located in U.S. waters without the express permission of the relevant foreign state.
As stewards of the DON's historic ship and aircraft wrecks, the Naval History and Heritage Command (NHHC) continues its role as the authority responsible for administering this revised permitting program. As a result of the need to incorporate provisions of the former regulations with provisions set forth in the SMCA, the rule adopts the definition of sunken military craft as
In addition to serving as the authority for permitting activities directed at historic DON sunken military craft and terrestrial military craft, the NHHC will also serve as the permitting authority for the disturbance of non-historic DON sunken military craft. Applications pertaining to non-historic DON sunken military craft will be considered when there is a clear demonstrable benefit to the DON, and under the special use permit provisions. Special use permits will only be issued in cases when internal DON coordination does not result in any objection. Finally, the NHHC will also serve as the permitting authority on behalf of the DON for those foreign sunken military craft located in U.S. waters that through and under the terms of an understanding or agreement with the respective foreign state are included within the NHHC's management purview. The Secretary of a military department, or in the case of the Coast Guard, the Secretary of the Department in which the Coast Guard is operating, may also request that the Secretary of the Navy administer their respective sunken military craft through the DON permitting program established by this rule.
Non-intrusive activities including diving on or remotely documenting sites do not require a permit or authorization from the NHHC, though this rule does not preclude the obligation to obtain permits or authorizations otherwise required by law. The regulations stipulate an application process for disturbance, removal, or injury of sunken military craft and terrestrial military craft under the jurisdiction or management of the DON. Applicants must meet certain requirements and qualifications which are set forth in the rule in order to demonstrate careful planning, professional credentials, and a long-term view of the effects of the proposed activities on the craft and any recovered material.
The rule also incorporates provisions for a special use permit to be issued in the case of certain activities directed at sunken military craft that would result in a wrecksite's disturbance, removal, or injury but otherwise be minimally intrusive. The standards that must be met for special use permits are more easily attainable as are the reporting requirements, though data collected shall be shared with the NHHC.
Additional permits or authorizations may otherwise be required by law and other agencies, even in the case where the NHHC issues a permit or a special use permit pertaining to activities directed at DON sunken or terrestrial military craft in accordance with these regulations. The NHHC remains responsible for complying with all applicable laws while implementing the DON permitting program such as the National Environmental Policy Act (NEPA) and the NHPA.
As more than half of the DON's sunken military craft rest beyond U.S. waters, the U.S. government has an interest in reaching understandings or agreements with foreign nations, and in particular the major maritime powers, seeking assurances that U.S. sunken military craft will be respected and protected and offering foreign nations reciprocal treatment. In order to encourage universal respect, protection, and mutually-beneficial treatment of sunken military craft, the Secretary of the Navy, in consultation with the Secretary of State, may consider requests by foreign states to incorporate their military craft located in U.S. waters within the DON permitting program. The foreign state must assert the sovereign immunity of or ownership over its craft, request assistance by the U.S. government, and acknowledge the provisions that will apply to their sunken military craft if incorporated into the DON permitting program. Following such a request and appropriate consultation, an understanding to this effect may be reached with that foreign state. The Secretary of State, in consultation with the Secretary of Defense, may also negotiate and conclude broader bilateral and multilateral agreements with foreign states pertaining to sunken military craft.
The final major provision of the rule affects violations of the SMCA or of the DON permitting program and outlines penalties and enforcement procedures. Violators may be punished by a fine not to exceed $100,000 per violation, with each day of a violation counting as a separate incident, may be liable for damages, and may suffer loss of their vessel and other equipment associated with the violation.
This rule codifies existing legislation and stated public policy and does not carry a significant burden of cost to the public. With stricter enforcement provisions acting as a deterrent and a management policy based on the principle of in situ preservation, the proposed rule makes the protection of war-related and other maritime graves, the preservation of historical resources, the proper handling of safety and environmental hazards, and the safeguarding of national security interests more effective, efficient, and affordable. At the same time, the proposed rule enables persons to have controlled intrusive access to sites otherwise prohibited from disturbance, bringing to light new knowledge about the Nation's maritime heritage, and honoring the service of those Sailors lost at sea.
The revisions to this rule are part of the Department of Defense (DoD) retrospective plan under EO 13563 completed in August 2011. DoD's full plan can be accessed at
The DON is revising 32 CFR part 767 pursuant to the SMCA in order to implement a permitting system regulating activities directed at DON sunken military craft for archaeological, historical, or educational purposes that are otherwise prohibited by the SMCA. This final rule also revises existing regulations by incorporating those permitting provisions stemming from 5 U.S.C. Chapter 301, 16 U.S.C. Chapter 470, and the SMCA into a single comprehensive set of rules for research activities directed at sunken military craft and terrestrial military craft under the jurisdiction of the DON, regardless of location or passage of time. Sunken military craft and terrestrial military craft are non-renewable cultural resources that often serve as war-related and other maritime graves, safeguard state secrets, carry environmental and safety hazards such as oil and ordnance, and hold significant historical and archaeological value. Access to these sites requires DON oversight to ensure site preservation, the sanctity of war and other maritime graves, public safety, and sound environmental stewardship. In addition, DON oversight ensures that research carrying the potential to disturb such sites is conducted to professional standards under existing laws and guidelines. The rule allows for the incorporation of foreign sunken military craft in this permitting system upon request and agreement with the foreign state. It also provides a Secretary of a military department, or in the case of the Coast Guard, the Secretary of the Department in which the Coast Guard is operating, the opportunity to request that their respective sunken military craft are also incorporated, upon agreement by the Secretary of the Navy, in this permitting program. Furthermore, it identifies penalties and enforcement procedures to be followed in the event of violations to the rule affecting sunken military craft. This rule replaces the former 32 CFR part 767 to reflect current agency regulations. It has
Between January 6, 2014 and March 7, 2014, the DON held a public comment period inviting members of the public to submit comments, suggestions, concerns or requested modifications to the proposed rule revision to 32 CFR part 767 (79 FR 620). Upon conclusion of that public comment phase, the DON proceeded to afford each submission due consideration and categorize public comments into subject areas. What follows is a response by DON to the public comments addressed thematically by category. The DON response also identifies where public comments led to the proposed rule being amended in the development of the final rule.
The DON received several public comments submitted by citizens, organizations, and state agencies that recognized the value and regulatory clarity added by the adoption of a single consolidated permitting program such as the one proposed by the DON in these regulations. However, the DON also received comments critical of the overall benefit of these regulations that questioned why the DON would not contract with the civilian sector to recover associated contents from sunken military craft. The DON wishes to stress that actions taken by, or at the direction of, the United States are not bound by the prohibitions of § 1402 of the SMCA, and thereby the DON may proceed to contract with the civilian sector for recovery operations when it deems appropriate outside of the permitting program encompassed in these regulations. Furthermore, several comments expressed concern that the DON was prohibiting independent civilian groups from locating, exploring, and studying sunken military craft under its jurisdiction. The DON would like to emphasize that the revision to 32 CFR 767 aims to do precisely the contrary, affording controlled access to external parties that are presently prohibited by the SMCA from disturbing, removing, or injuring sunken military craft or their associated contents. Furthermore, the revised regulations do not affect activities that do not disturb, remove, or injure sunken military craft, such as non-intrusively locating, exploring and documenting these sites, as these activities are not prohibited by the SMCA.
In terms of application of national and international best practices in the management of submerged cultural resources, the public comments received were divided between those that believed that the consistency exhibited by the revision to 32 CFR part 767 with established management practices was prudent and those that posited an undue influence of the UNESCO Convention on the Protection of the Underwater Cultural Heritage (UNESCO Convention) on the drafting of these regulations. DON management practices, including that of in situ preservation, predate the UNESCO Convention as exhibited by the issuance in 2000 of the 32 CFR part 767 regulations presently being revised. Since that time, whereas the UNESCO Convention has not been ratified by the U.S., the principles and practices established by its Annex have been recognized as appropriate international guidelines in the management of underwater cultural heritage by several pertinent federal agencies such as the National Park Service, the National Oceanic and Atmospheric Administration, the Bureau of Ocean Energy Management, the U.S. Coast Guard, as well as by the Advisory Council on Historic Preservation. The DON, in agreement with the aforementioned federal agencies, regards the Annex of the UNESCO Convention as representing guidelines that embody sound international practices in the realm of underwater cultural heritage stewardship. However, in developing the revision to 32 CFR part 767, the DON was and remains driven by national legislation such as the Sunken Military Craft Act and the National Historic Preservation Act. The DON views continuation of the in situ preservation management practice as the preferred practice in its stewardship of a vast collection of sunken military craft as it cumulatively best addresses concerns regarding maritime grave sites, public safety, environmental hazards, state secrets, national security, and the preservation of the U.S. Navy's non-renewable submerged cultural resources.
A moderate number of public comments emphasized and encouraged the consistency exhibited by these regulations with federal legislation; other comments questioned the impact of the revised rule on the Abandoned Shipwreck Act, the common law of finds, and the common law of salvage. The DON considers the revision to 32 CFR part 767 to be consistent with the SMCA and federal legislation, including the National Historic Preservation Act, the Archaeological Resources Protection Act, and the Abandoned Shipwreck Act. Section 1401 of the SMCA clearly states that right, title, and interest of the United States in and to any United States sunken military craft shall not be extinguished except by express divestiture of title, regardless of when the sunken military craft sank. Accordingly, United States sunken military craft are not considered abandoned, unless title has been specifically divested, thereby excluding them from the abandoned shipwrecks addressed in the Abandoned Shipwreck Act and managed by individual states. Elsewhere, section 1406 of the SMCA states that the law of finds shall not apply to any United States sunken military craft, wherever located, or any foreign sunken military craft located in United States waters. Additionally, the same section states that no salvage rights or awards shall be granted with respect to any United States sunken military craft without the express permission of the United States, or any foreign sunken military craft in United States waters without the express permission of the relevant state. The revised rule, remaining consistent with the federal mandate of the SMCA, does not alter or amend any of these provisions.
Several public comments addressed the nature and scope of definitions present in the proposed revision to 32 CFR part 767. In response, the DON has simplified § 767.3 to enhance the clarity of the overall regulations by removing definitions for the terms “Archaeological Site” and “Historic Structure”, as well as any mention of those terms elsewhere. The definition of “Sunken Military Craft”, commonly referenced in public comments, is derived from the SMCA proper and remains as established by Congress except for a clarification stipulating that divestiture of title results in the loss of status for a sunken military craft. Whereas a number of public comments recommended further revision of the definition of “Sunken Military Craft”, the DON believes the established definition appropriately identifies the set of assets Congress intended to afford protection to and requires no alteration. In contrast with interpretations expressed in certain public comments, merchant ships in private ownership may not qualify as sunken military craft unless they served as vessels operated by a government on military noncommercial service when they sank.
The DON does not believe that it is in the interest of international reciprocity to specifically delineate a category of
Several comments concentrated on the definition of the term “Disturbance” noting that it did not provide sufficient clarity to the diving community, thereby raising concerns of inadvertent violations of the SMCA. The SMCA and these regulations clearly do not prohibit diving on sunken military craft; rather they address activities directed at sunken military craft that disturb, remove, or injure such craft. In response to the expressed concerns, the DON has defined the term “Directed at” and limited its application to intentional or negligent acts. Therefore, unintentional or accidental impacts that disturb, injure, or remove sunken military craft or terrestrial military craft, provided they are not the result of negligence, do not constitute prohibited activities directed at sunken military craft.
Four public comments addressed matters pertaining to sunken military craft that do not necessarily fall under the jurisdiction of the DON, but are not considered foreign sunken military craft. The DON would like to emphasize that these regulations address sunken military craft that fall under the cognizance of the Secretary of the Navy. Accordingly, these regulations do not apply to sunken military craft that fall solely under the jurisdiction of other agencies such as the U.S. Department of Transportation or that of state governments, unless an agreement to that effect has been reached with the respective authorities. Certain state agencies requested amendment or elaboration of the definition of the term “Sunken Military Craft” which the DON deems unnecessary given the primary intended applicability of these regulations to DON sunken military craft. In the case of U.S. Coast Guard sunken military craft, the SMCA states that the Secretary of the Department in which the Coast Guard is operating is the Secretary concerned that may issue applicable regulations to implement a permitting program. The Secretary concerned would be the Secretary of the Navy only in times when the U.S. Coast Guard is operating under the DON. Accordingly, it is the position of the DON that these regulations would apply to U.S. Coast Guard sunken military craft, irrespective of the time of their loss, only when the U.S. Coast Guard is operating under the DON and that during all other times, U.S. Coast Guard sunken military craft would fall under the purview of the appropriate Secretary concerned. The revision to 32 CFR part 767 does incorporate a provision enabling the Secretary of the Department in which the U.S. Coast Guard is operating to request that the Secretary of the Navy administer a permitting program for sunken military craft under his or her cognizance (§ 767.15(e)). To an extent, this provision addresses one public comment suggesting the DON serve as the single permitting authority for all sunken military craft under the jurisdiction of the U.S. While the benefits of such a single permitting process are recognized by the DON, hence the provision affording other Secretaries concerned the opportunity to request that sunken military craft under their cognizance be incorporated into the DON permitting program, the Secretary of the Navy is defined in statute as the Secretary concerned solely in the case of DON sunken military craft. Accordingly, promulgating a single permitting program for all U.S. Government sunken military craft exceeds the authority vested in the Secretary of the Navy. As recommended by one public comment, the DON has modified the provisions of the DON permitting program that apply to those sunken military craft of other Departments that have been incorporated into the DON permitting program to include the application of portions of Subpart A that were previously omitted.
Several public comments addressed the treatment and status of foreign sunken military craft in the revision to 32 CFR part 767. The SMCA recognizes the importance of reciprocal and respectful treatment of sunken military craft among maritime nations and provides the Secretary of the Navy, in consultation with the Secretary of State, the authority to carry out the permitting program implemented in these regulations with regard to foreign sunken military craft, when expressly requested by the applicable foreign state (section 1403 (d)). The SMCA also encourages the Secretary of State, in conjunction with the Secretary of Defense, to negotiate bilateral and multilateral agreements with foreign countries with regard to sunken military craft (section 1407). Furthermore, the prohibitions and restrictions that apply to activities directed at U.S. sunken military craft also apply to those directed at foreign sunken military craft located in United States waters, in accordance with section 1406 of the SMCA. The Act, therefore, bars disturbance, removal, or injury of foreign sunken military craft in U.S. waters, asserts that the law of finds do not apply to such craft, and asserts that no salvage rights or awards are to be granted without the express permission of the relevant foreign state.
The proposed regulations are consistent with the clear recognition that foreign sunken military craft remain under the sovereign immunity or ownership of foreign governments unless title thereto has been expressly divested. Ownership of sunken military craft does not afford foreign states ownership of the lands upon which they sank, whether they are federal, state, or private in nature. In § 767.15 of these regulations, DON establishes a process whereby foreign states may request that one or more of its sunken military craft be incorporated in the permitting process set forth by these regulations. There are three conditions that a foreign government must acknowledge in submitting a request, without which a request will not be considered. As a result of one public comment, the condition that a foreign government must assert sovereign immunity over a specified sunken military craft or group of sunken military craft has been modified to require a foreign government to assert either sovereign immunity or ownership over such craft.
A small number of public comments pertained to waivers and waiver provisions incorporated within the revision to 32 CFR part 767. The DON believes that § 767.6(e) of the revised regulations provides sufficient latitude for applicants to request relief from certain permit application requirements, including the general liability insurance or equivalent bond provision, as well as special use permit holder qualification requirements. As a result of one public comment, a modification to § 767.6(e) has been made whereby, in exceptional circumstances, written permission may be replaced by verbal permission in cases of unexpected or emergent finds that may require immediate unanticipated disturbance, removal, or injury of a sunken or terrestrial military craft or its associated contents. Elsewhere, § 767.6(f) provides for the execution of activities directed at sunken military craft by individuals operating on behalf of agencies under existing agreements with the NHHC, thereby, in effect, acting in coordination with the NHHC through express written permission, as stipulated in the aforementioned section. These
A relatively large number of public comments received by the DON pertained to procedural concerns and recommendations that spanned across a number of areas of interest. Foremost, the DON wishes to clarify the misperception evident in certain public comments that amendments are being made to the SMCA itself through the implementation of these regulations. The SMCA, which has remained in effect as it was enacted in 2004, is not being and cannot be modified or amended in any way by these regulations. Rather, in publishing the proposed revision to 32 CFR part 767 for a 60-day public comment period, the DON put forth proposed regulations implementing the SMCA, in coordination with the Department of Defense, in accordance with procedures coordinated with the White House Office of Management and Budget. The DON elected to encompass terrestrial military craft in the same permitting program as that pertaining to sunken military craft, rather than issue separate regulations for the former, as suggested by one public comment. The DON believes that a consistent, uniform, and simplified approach is in the best interest of the regulated public, while at the same time enhancing the efficiency of the DON's management functions. Creating a single permitting program does not extend the application of the SMCA to terrestrial military craft, as was observed by another public comment. These regulations do not solely implement the SMCA but also encompass the former permitting program put in place in 2000 by the former 32 CFR part 767 rule. The process affords each permit application to be considered on its own merits, based on standardized criteria, with the ability for the applicant to request due consideration for waivers or appeals. The DON, therefore, respectfully rejects the small number of public comments which postulated that these regulations establish an arbitrary process or deny due process.
Per the request of one public comment, the DON has proceeded to amend § 767.12 to emphasize that diving operations may expressly be considered in activities intended to document sunken military craft. Another public comment expressed that the capacities of “Permit Holder” and “Principal Investigator” should be maintained separate, with the option for both capacities to be fulfilled by a single person. The DON agrees with this approach and reviewed the rule to ensure this distinction could be effectively maintained throughout the permitting process. This review led to a minor change in § 767.9(c) which now stipulates that the presence of a permit holder, or their principal investigator, if they are not the same person, is required on site. In response to public comment, the DON conducted a separate review of § 767.11(k) which pertained to National Register of Historic Places nominations that led to the section's removal from these regulations.
One public comment identified the need for improved clarity in § 767.6(f) regarding the responsibilities of persons acting at the direction of the NHHC. As a result, the DON has inserted language, consistent with its original intent, to emphasize that appropriate provisions regarding documentation of requirements by other means apply to such persons. Another public comment stated that the rule should make provision for the NHHC to review submitted reports for compliance and issue a formal note of concurrence, thereby ensuring and, if deemed acceptable, asserting that the applicant has fulfilled all permitting requirements. A modification to § 767.9(g) has been made to incorporate such a provision.
A separate public comment questioned the need for a special use permit provision and recommended its removal for the purposes of establishing a simpler system with a single permitting process. Upon consideration, the DON elected to retain the special use permit provision as the requirements for the full permit process would unnecessarily hinder less intrusive operations directed at sunken or terrestrial military craft, whether historic or not, by imposing stricter or less relevant standards. Violations of either permit or special use permit conditions are treated in the same manner under these regulations.
One public comment questioned the DON's assertion that the former rule provided insufficient enforcement provisions necessary to serve as a deterrent to unauthorized disturbance, removal, or injury. In fact, the former rule's section on violations was restricted to permit violations with the sole course of action for the DON being the amendment, suspension, or revocation of an issued permit. No provisions were made for the unauthorized disturbance of sites by non-permit holding members of the public, an omission addressed by the SMCA and subsequently these regulations. The amount of the civil penalty potentially assessed for each violation incorporated within section 1404 of the SMCA itself was questioned by one comment as being uniquely high among federal legislation. The civil penalty of $100,000 for each violation is entirely consistent with related laws such as the National Marine Sanctuaries Act and the Archaeological Resources Protection Act, as well as in line with the purpose of the civil penalty serving as a deterrent to illicit activities directed as sunken military craft. Finally, the DON emphasizes that subpart C of these regulations provides a clear due process for the issuance and response to Notices of Violation and Assessments.
A series of public comments addressed or questioned the concept of sunken military craft ownership, as well as the right of the DON to regulate access to sunken military craft under its jurisdiction. Under section 1401 of the SMCA, unless title is expressly divested, the U.S. Government maintains right, title, and interest in and to any United States sunken military craft, a right originally vested in the U.S. Government by the U.S. Constitution. The Act then proceeds to establish prohibitions identifying specific unauthorized activities directed at sunken military craft including engaging, or attempting to engage in any activity that disturbs, removes, or injures any sunken military craft, barring certain exceptions. The Secretary of the Navy is provided authority to permit persons to engage in such otherwise prohibited activities for archaeological, historical, or educational purposes. In order to promote public knowledge, awareness, and understanding of the DON's collection of sunken military craft, the Secretary of the Navy has elected to establish such a permitting process and assigned the NHHC responsibility for its implementation. Unless title has been expressly divested, DON sunken military craft remain the property of the DON, are not abandoned, and are not subject to the common law of finds irrespective of location. These regulations are consistent with the
A proportionally large number of public comments addressed assessments of the economic impact, or lack thereof, of these regulations. A series of public comments expressed concern over economic impacts on the salvage sector, the effect on their associated revenue stream, and the misperceived ineligibility of shipwreck recovery companies from pursuing permits. The DON wishes to stress that the prohibitions associated with disturbance, removal, and injury of sunken military craft, along with limitations on the application of the common laws of salvage and finds with respect to sunken military craft were established by enactment of the SMCA in 2004. These regulations are being issued pursuant to section 1403(a) of the SMCA that enables the Secretary of the Navy to implement a permitting program authorizing a person to engage in an activity otherwise prohibited by the SMCA, with respect to DON sunken military craft, expressly for archaeological, historical, or educational purposes. Whereas the DON continues to uphold the prohibitions, limitations, and enforcement provisions expressed in the SMCA through these regulations, along with affording new privileges and controlled access, it establishes no additional limitations that would lead the revision to 32 CFR 767 to constitute a significant regulatory action as a result of its annual effect on the economy. Sunken military craft have not represented potential economic assets at the disposal of salvage sector companies since well before 2004, unless the U.S. expressly granted salvage rights or awards. The permitting program established in these regulations is open to all qualified applicants, but is restricted by the SMCA to serve archaeological, historical, or educational purposes. The recovery of lost commodities for their potential economic value lies outside the prescribed permitting program, and would be addressed by the U.S. either through actions taken by it, or at its direction, as well as through expressly permitting the granting of salvage rights or awards with respect to its sunken military craft.
Certain public comments expressed concern over the economic impact of these regulations on dive operators and associated businesses. Concern is mostly concentrated on the same limitations established in 2004 by the SMCA, rather than the provisions of these regulations. At the same time, certain concerns that overlapped with concerns expressed regarding the definition of disturbance were expressed in view of the potential indirect economic impact of these regulations. The DON has proceeded to define the term “Directed at” in order to assuage concerns over unintentional disturbance of sunken military craft, thereby addressing concerns over potential indirect economic impacts on dive operators and associated businesses. These regulations do not prohibit or discourage responsible diving on sunken military craft. Finally, certain public comments expressed that these regulations will have a negative impact on the commercial archaeology sector, whether terrestrial or maritime, of the U.S. Leading professional organizations, such as the Society for Historical Archaeology, expressly asserted in their respective public comments the lack of such an impact, an assessment with which the DON concurs. Establishing a permitting program that enables access to sunken and terrestrial military craft for archaeological, historical, and educational purposes increases the number of cultural properties that can be assessed or researched by the commercial archaeology sector.
A few public comments focused on the concept of inadvertent disturbance of sunken military craft and the potential consequences thereof. The SMCA, in section 1406, states that, except to the extent that an activity is undertaken as a subterfuge for activities prohibited by the Act, nothing in the Act is intended to affect any activity that is not directed at a sunken military craft. The same holds true for traditional high seas freedoms of navigation including the laying of submarine cables and pipelines, the operation of vessels, fishing, or other internationally lawful uses of the sea related to such freedoms. Therefore, if a person does not know or have reason to know that the craft at which an activity is directed is a sunken military craft, the prohibitions stated in the Act do not apply. The same holds true for those conducting vessel operations, fishing, and laying of submarine cables and pipelines, who, having satisfied other permitting, licensing, or regulatory requirements, disturb, remove, or injure a sunken military craft without actual or constructive knowledge of its status.
A modest number of public comments concentrated on the appropriate level of resources required to implement the DON sunken military craft management program outlined in these regulations. One comment recommended that preferential treatment should be given to maritime grave sites, and stated that resources dedicated to sunken military craft that do not serve as grave sites detract from the overall mission. Whereas DON considers the matter of maritime grave sites preeminent among the reasons why DON sunken military craft require controlled access, concerns over unexploded ordnance and public safety, environmental hazards, state secrets and national security, as well as heritage preservation, firmly justify the management of DON sunken military craft that do not serve as maritime grave sites, and afford such craft equal status to that of their counterparts.
Several public comments addressed matters of federal and state agency coordination, requesting clarifying language in certain instances. As a result, DON has modified its executive summary in order to stress that, in addition to a DON permit, an applicant may need to seek additional permits or authorizations prior to conducting activities directed at sunken or terrestrial military craft, such as state antiquities permits. However, as these regulations implement federal statutes on behalf of the DON, including the SMCA, the DON has not introduced the term “Federal” when discussing permitting within the regulations. It is not the case that each permit issued by the DON will require some form of state agency license, which is the impression that may be afforded to the public through the application of the prefix “Federal” when discussing DON permitting. The DON has, however, modified § 767.5(f) to address state agency concerns surrounding the potential applicability of state permits on activities otherwise permitted by DON, and to account for the expressed desire by state agencies to reach agreements with DON on the sound stewardship of DON sunken military craft located in state waters. The DON views such agreements as the appropriate venue within which to discuss sensitive information such as the location or character of sunken or terrestrial military craft. The DON assures state agencies expressing concerns over inadvertently issuing permits for activities to be undertaken on DON sunken military craft, without recognizing their status as sunken
Finally, a small number of public submissions addressed technical comments which the DON proceeded to consider. As a result, a citation in § 767.12(e)(2) has been corrected to read “§ 767.9(h)” as opposed to “767.9(g)”, and reference to § 767.10(a), (b), and (c) has been shortened to simply read § 767.10. Other technical comments pertaining to the numbering of paragraphs did not appear valid or necessitating modification. The DON also reviewed a reference to “members of the public” in the Executive Summary and replaced the term with “persons” in order to promote consistency within the regulations.
It has been determined that 32 CFR part 767 is a significant regulatory action. The rule does not:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; or
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of the recipients thereof;
The rule does:
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.
It has been determined that 32 CFR part 767 does not contain a Federal Mandate that may result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that 32 CFR part 767 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
There will be minimal to no impact on small businesses since the existing permitting program is similar in scope to the requirements of the revised regulations except that the revised regulations further clarify for the applicant the types of information that would need to be required and also put in place an expedited Special Permit process. For example, under the revised regulations, the Navy has clarified what specific information would need to be included within a permit application, whereas under the existing rule, applicants are merely provided guidance regarding where they might procure the relevant form. Under the current rule, those applicants intending to minimally disturb a site are required to complete the same process as those intending full site recoveries. Under the revised regulations, such applicants would be permitted under a much simplified Special Permit process, requiring a streamlined and shorter application. This will lead to a reduced impact on small businesses since the applicants no longer will have to speculate on the types of information that will be needed to receive a permit, nor will they have to provide more information than is necessary for their particular activity. Applicants will be able to tailor their requests and provide specific required items vice providing more of a wider range of information.
It has been determined that 32 CFR part 767 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). For the past 14 years, only a handful, or less, of applications have been received and processed annually. The Navy will continue to monitor the number of applications received and processed and will submit an information collection package for OMB clearance should the threshold for doing so be reached.
It has been determined that 32 CFR part 767 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Aircraft, Government property management, Historic preservation, Research, Vessels.
For the reasons set forth in the preamble, 32 CFR part 767 is revised to read as follows:
10 U.S.C. 113 note; Pub. L. 108-375, Title XIV, sections 1401 to 1408,
The purpose of this part is:
(a) To assist the Secretary in managing sunken military craft under the jurisdiction of the Department of the Navy (DON) pursuant to the Sunken Military Craft Act (SMCA), 10 U.S.C. 113 note; Public Law 108-375, Title XIV, sections 1401 to 1408, Oct. 28, 2004, 118 Stat. 2094.
(b) To establish the procedural rules for the issuance of permits authorizing persons to engage in activities directed at sunken military craft and terrestrial military craft under the jurisdiction of the DON for archaeological, historical, or educational purposes, when the proposed activities may disturb, remove, or injure the sunken military craft or terrestrial military craft.
(c) To set forth the procedures governing administrative proceedings for assessment of civil penalties or liability damages in the case of a sunken military craft permit violation or violation of section 1402 of the SMCA.
(1) The equipment, cargo, and contents of a sunken military craft or terrestrial military craft that are within its debris field; and
(2) The remains and personal effects of the crew and passengers of a sunken military craft or terrestrial military craft that are within its debris field.
(1) The Secretary of a military department;
(2) In the case of a Coast Guard sunken military craft, the Secretary of the Department in which the Coast Guard is operating.
(1) Any sunken warship, naval auxiliary, or other vessel that was owned or operated by a government on military noncommercial service when it sank;
(2) Any sunken military aircraft or military spacecraft that was owned or operated by a government when it sank;
(3) The associated contents of a craft referred to in paragraph (1) or (2) of this definition;
(4) Any craft referred to in paragraph (1) or (2) of this definition which may now be on land or in water, if title thereto has not been abandoned or transferred by the government concerned.
(a)
(1) As authorized by a permit issued pursuant to these regulations;
(2) As otherwise authorized by these regulations; or
(3) As otherwise authorized by law.
(b)
(1) Section 1402 of the SMCA; or
(2) Any regulation set forth in this part or any permit issued under it; or
(3) Any prohibition, rule, regulation, ordinance, or permit that applies under any other applicable law.
(c)
(1) Actions taken by, or at the direction of, the United States.
(2) Any action by a person who is not a citizen, national, or resident alien of the United States, except in accordance with:
(i) Generally recognized principles of international law;
(ii) An agreement between the United States and the foreign country of which the person is a citizen;
(iii) In the case of an individual who is a crew member or other individual on a foreign vessel or foreign aircraft, an agreement between the United States and the flag State of the foreign vessel or aircraft that applies to the individual.
(a) As stewards of the DON's sunken military craft and terrestrial military craft, the NHHC is responsible for managing these irreplaceable resources for the continued education and appreciation of present and future generations. To ensure consistent and effective stewardship, the NHHC has developed a comprehensive program that encompasses the following aspects: Preservation planning; wrecksite management; archaeological research; conservation and curation; and public information, interpretation, and education. The NHHC strongly encourages cooperation with other Department of Defense commands, Federal and State agencies, educational institutions, and individuals interested in preserving DON's maritime and aviation heritage.
(b) Subject to operational requirements, sunken military craft and terrestrial military craft will generally be managed in place unless wrecksite disturbance, recovery, or injury is justified and necessary to protect the craft or the environment, to address matters pertaining to human remains or public safety, to mitigate adverse effects, to conduct research, or to provide for public education. While the NHHC prefers non-intrusive in situ research on sunken military craft and terrestrial military craft, it recognizes that wrecksite disturbance, removal, or injury may become necessary or appropriate. At such times, wrecksite disturbance, removal, or injury may be permitted by the NHHC with respect to DON sunken military craft for archaeological, historical, or educational purposes, subject to conditions set forth in accordance with these regulations. Historic shipwrecks under the jurisdiction of the DON that do not qualify as sunken military craft are to be provided the same consideration and treatment as terrestrial military craft.
(c) In addition to managing historic sunken military craft and terrestrial military craft, the NHHC will serve as the permitting authority for the disturbance of non-historic DON sunken military craft. Permit applications will only be issued in instances where there is a clear demonstrable benefit to the DON, and only special use permits can be issued in the case of non-historic sunken military craft. In such instances, prior to issuing a special use permit, the NHHC will consult with appropriate DON offices within affected commands or offices, including, but not limited to, the Naval Sea Systems Command, Naval Air Systems Command, Space and Naval Warfare Systems Command, Naval Supply Systems Command, Naval Facilities Engineering Command, Navy Personnel Command, Military Sealift Command, Supervisor of Salvage and Diving, Office of the Judge Advocate General of the Navy, the Office of the Chief of Naval Operations, or other interested offices.
(d) The NHHC will serve as the permitting authority for disturbance of those foreign state sunken military craft located in U.S. waters addressed in § 767.15. The NHHC, in consultation with the Department of State as appropriate, will make a reasonable effort to inform the applicable agency of a foreign state of the discovery or significant changes to the condition of its sunken military craft upon becoming aware of such information. The NHHC will also serve as the permitting authority for disturbance of those sunken military craft of another military department, or the Department in which the Coast Guard is operating, that have been incorporated into the DON permitting program in accordance with § 767.15(e).
(e) The DON recognizes that, in accordance with section 1402(a)(3) of the Act and other statutes, certain federal agencies have statutory authority to conduct and permit specific activities directed at DON sunken military craft and terrestrial military craft. The NHHC will coordinate, consult, and enter into interagency agreements with those federal agencies to ensure effective management of DON sunken military craft and terrestrial military craft and compliance with applicable law.
(f) Where appropriate, the NHHC will coordinate, consult, and enter into agreements with the appropriate State Historic Preservation Office (SHPO), or state land or resource manager, to ensure effective management of DON sunken military craft and terrestrial military craft and compliance with applicable law.
(g) Notwithstanding any other section of this part, no act by the owner of a vessel, or authorized agent of the owner of a vessel, under a time charter, voyage charter, or demise charter to the DON and operated on military service at the time of its sinking, provided that the sunken military craft is not considered historic as determined by the NHHC, shall be prohibited by, nor require a permit under, the SMCA or these regulations. This paragraph (g) shall not be construed to otherwise affect any right or remedy of the United States existing at law, in equity, or otherwise, in regard to any such sunken military craft, in regard to cargo owned by the United States on board or associated with any such craft, or in regard to other property or contents owned by the United States on board or associated with any such sunken military craft.
(h) The NHHC reserves the right to deny an applicant a permit if the proposed activity does not meet the permit application requirements; is inconsistent with DON policy or interests; does not serve the best interests of the sunken military craft or
(a) Any person seeking to engage in an activity otherwise prohibited by section 1402 of the SMCA with respect to a historic sunken military craft or any activity that might affect a terrestrial military craft under the jurisdiction of the DON shall apply for a permit for the proposed activity and shall not begin the proposed activity until a permit has been issued. The Secretary or his designee may issue a permit to any qualified person, in accordance with these regulations, subject to appropriate terms and conditions.
(b) To request a permit application form, please write to: Department of the Navy, U.S. Naval History and Heritage Command, Underwater Archaeology Branch, 805 Kidder Breese St. SE., Washington Navy Yard, Washington, DC 20374-5060. Application forms and guidelines can also be found on the NHHC's Web site at:
(c) Each applicant must submit a digital (electronic) and two printed copies of their complete application at least 120 days in advance of the requested effective date to allow sufficient time for evaluation and processing. Completed applications should be sent to the Department of the Navy, U.S. Naval History and Heritage Command, Underwater Archaeology Branch, 805 Kidder Breese St. SE., Washington Navy Yard, Washington, DC 20374-5060.
(d) Each permit application shall include:
(1) A statement of research objectives, scientific methods, and significance of the proposed work to the U.S. Navy or the nation's maritime cultural heritage. This should include discussion articulating clearly the archaeological, historical, or educational purposes of the proposed activity;
(2) A summary of significant previous work in the area of interest;
(3) A discussion of how the proposed activity could disturb, remove, or injure the sunken military craft or the terrestrial military craft and the related physical environment;
(4) A discussion of the methodology planned to accomplish the project's objectives. This should include a map showing the study location(s) and a description of the wrecksite(s) of particular interest;
(5) An analysis of the extent and nature of potential environmental impacts from permitted activities and feasible mitigation measures that could reduce, avoid, or reverse environmental impacts, as well as any associated permits or authorizations required by foreign, federal, state, or local law;
(6) A detailed plan for wrecksite restoration and remediation with recommendations on wrecksite preservation and protection of the wrecksite location;
(7) In addition to identification and qualifications of the principal investigator, required by § 767.8, identification of all other members of the research team and their qualifications. Changes to the primary research team subsequent to the issuance of a permit must be authorized via a permit amendment request in accordance with § 767.10(a);
(8) A proposed budget, identification of funding source, and sufficient data to substantiate, to the satisfaction of the NHHC, the applicant's financial capability to complete the proposed research and, if applicable, any conservation and curation costs associated with or resulting from that activity;
(9) A proposed plan for the public interpretation and professional dissemination of the proposed activity's results;
(10) Where the application is for the excavation and/or removal of artifacts from a sunken military craft or terrestrial military craft, or for the excavation and/or removal of a sunken military craft or terrestrial military craft in its entirety, the following must be included:
(i) A conservation plan, estimated cost, and the name of the university, museum, laboratory, or other scientific or educational institution in which the material will be conserved, including written certification, signed by an authorized official of the institution, of willingness to assume conservation responsibilities.
(ii) A plan for applicable post-fieldwork artifact analysis, including an associated timetable.
(iii) The name of the facility in which the recovered materials and copies of associated records derived from the work will be curated. This will include written certification, signed by an authorized official of the institution, of willingness to assume curatorial responsibilities for the collection. The named repository must, at a minimum, meet the standards set forth in 36 CFR part 79, Curation of Federally-Owned and Administered Archaeological Collections, in accordance with § 767.9(h).
(iv) Acknowledgement that the applicant is responsible for all conservation-related and long-term curation costs, unless otherwise agreed upon by NHHC.
(11) A proposed project timetable to incorporate all phases of the project through to the final report and/or any other project-related activities.
(e) If the applicant believes that compliance with one or more of the factors, criteria, or procedures in the regulations contained in this part is not practicable, the applicant should set forth why and explain how the purposes of the SMCA (if applicable), these regulations, and the policies of the DON are better served without compliance with the specified requirements. If the NHHC believes that the policies of the DON are better served without compliance with one or more of the factors, criteria, or procedures in the regulations, or determines that there is merit in an applicant's request and that full compliance is not required to meet these priorities, the NHHC will provide a written waiver to the applicant stipulating which factors, criteria, or procedures may be foregone or amended. In exceptional circumstances, verbal permission may be obtained in cases of unexpected or emergent finds that may require immediate unanticipated disturbance, removal, or injury of a sunken or terrestrial military craft or its associated contents. However, the NHHC will not waive statutory procedures or requirements.
(f) Persons carrying out official NHHC duties under the direction of the NHHC Director, or his/her designee, or conducting activities at the direction of or in coordination with the NHHC as recognized through express written permission by the NHHC Director, or his/her designee, need not follow the
(g) Federal agencies carrying out activities that disturb, remove, or injure sunken military craft or terrestrial military craft need not follow the permit application procedures set forth in this section and §§ 767.7 and 767.9 to 767.12 if those activities are associated with the management of sunken military craft or terrestrial military craft within their areas of responsibility. Where appropriate, Federal agencies will coordinate with the NHHC prior to engaging in the aforementioned activities.
(a) Permit applications are reviewed for completeness, compliance with program policies, and adherence to the regulations of this subpart. Incomplete applications will be returned to the applicant for clarification. Complete applications are reviewed by NHHC personnel who, when appropriate, may seek outside guidance or peer reviews. In addition to the criteria set forth in §§ 767.6(d) and 767.8, applications are also judged on the basis of: Project objectives being consistent with DON policy and the near- and long-term interests of the DON; relevance or importance of the proposed project; archaeological, historical, or educational purposes achieved; appropriateness and environmental consequences of technical approach; conservation and long-term management plan; qualifications of the applicants relative to the type and scope of the work proposed; and funding to carry out proposed activities. The NHHC will also take into consideration the historic, cultural, or other concerns of a foreign state when considering an application to disturb a foreign sunken military craft of that state located within U.S. waters, subsequent to an understanding or agreement with the foreign state in accordance with § 767.15. The same consideration may be applied to U.S. sunken military craft that are brought under the jurisdiction of the DON for permitting purposes following an agreement with the Secretary of any military department, or in the case of the Coast Guard, the Secretary of the Department in which the Coast Guard is operating, as set forth in § 767.15(e).
(b) Prior to issuing a permit, the NHHC will consult with the appropriate federal resource manager when it receives applications for research at wrecksites located in areas that include units of the National Park System, National Wildlife Refuge System, National Marine Sanctuary System, Marine National Monuments, within lease blocks managed by the Bureau of Ocean Energy Management, or within areas of responsibility of other Federal Land Managers.
(c) Prior to issuing a permit, the NHHC will consult with the appropriate SHPO, state land or resource manager or Tribal Historic Preservation Office (THPO) when it receives applications for research at wrecksites located on state lands, including lands beneath navigable waters as defined in the Submerged Lands Act, 43 U.S.C. 1301-1315, or tribal lands.
(d) The applicant is responsible for obtaining any and all additional permits or authorizations, such as but not limited to those issued by another federal or state agency, or foreign government. In the case of U.S. sunken military craft or terrestrial military craft located within foreign jurisdictions, the NHHC may review and issue a conditional permit authorizing activities upon receipt of the appropriate permits and authorizations of the applicable foreign government by the applicant. The applicant must file a copy of the foreign government authorization with the NHHC when submitting the preliminary report stipulated in § 767.9(d) and final report stipulated in § 767.9(f). Failure to do so will be considered a permit violation.
(e) Based on the findings of the NHHC evaluation, NHHC personnel will recommend an appropriate action to the NHHC Deputy Director. If approved, the NHHC Deputy Director, or his or her designee, will issue the permit; if denied, applicants are notified of the reason for denial and may request reconsideration within 30 days of receipt of the denial. Requests for reconsideration must be submitted in writing to: Director of Naval History, Naval History and Heritage Command, 805 Kidder Breese St. SE., Washington Navy Yard, Washington, DC 20374-5060.
The principal investigator shall be suitably qualified as evidenced by training, education, and/or experience, and possess demonstrable competence in archaeological theory and method, and in collecting, handling, analyzing, evaluating, and reporting archaeological data, relative to the type and scope of the work proposed. A resume or curriculum vitae detailing the professional qualifications of the principal investigator must be submitted with the permit application. Additionally, the principal investigator will be required to attest that all persons on the project team shall be qualified and have demonstrated competence appropriate to their roles in the proposed activity. The principal investigator must, at a minimum, meet the following requirements:
(a) The minimum professional qualification standards for archaeology as determined by the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation.
(b) At least one year of full-time professional supervisory experience in the archaeological study of historic maritime resources or historic aviation resources. This experience requirement may concurrently account for certain stipulations of paragraph (a) of this section.
(c) The demonstrated ability to plan, equip, fund, staff, organize, and supervise the type and scope of activity proposed.
(d) If applicable, the demonstrated ability to submit post-operational archaeological or other technical reports in a timely manner.
(a) Permits are valid for one year from the date of issue.
(b) Upon receipt of a permit, permit holders shall counter-sign the permit and return copies to the NHHC and the appropriate SHPO, state land or resource manager, THPO, or foreign government official, if applicable, prior to conducting permitted activities on the wrecksite. When the sunken military craft or terrestrial military craft is located within federal areas such as a unit of the National Park System, the National Wildlife Refuge System, the National Marine Sanctuary System, or Marine National Monuments, the permit holder shall provide copies of countersigned permits to the applicable federal resource manager. Upon the NHHC confirming receipt of the counter-signed permit, the permitted activities may commence, provided that any other federal or state regulatory and
(c) Permits shall be carried on-site and made available upon request for inspection by federal or state law enforcement officials. Permits are non-transferable. The permit holder, or the activity's authorized principal investigator in the case where a permit holder is not concurrently the authorized principal investigator, is expected to remain on-site for the duration of operations prescribed in the permit. In the event a permit holder or the authorized principal investigator is unable to directly oversee operations, the permit holder must nominate a suitable qualified representative who may only serve in that function upon written approval by the NHHC.
(d) Permit holders must abide by all provisions set forth in the permit as well as applicable state or federal regulations. Permit holders must abide by applicable regulations of a foreign government for activities directed at a sunken military craft when the sunken military craft is located in the internal waters, territorial sea, contiguous zone, or continental shelf of a foreign State, as defined by customary international law reflected in the United Nations Convention on the Law of the Sea. If the physical environment is to be impacted by the permitted activity, the permit holder will be expected to meet any associated permit or authorization stipulations required by foreign, federal, state, or local law, as well as apply mitigation measures to limit such impacts and where feasible return the physical environment to the condition that existed before the activity occurred.
(e) At least 30 days prior to the expiration of the original permit, the permit holder shall submit to the NHHC a preliminary report that includes a working log and, where applicable, a diving log, listing days spent conducting field research, activities pursued, working area locations including precise coordinates, an inventory of artifacts observed or recovered, and preliminary results and conclusions. The NHHC shall review preliminary reports for thoroughness, accuracy, and quality and shall inform the permit holder of their formal acceptance in writing.
(f) In the case of one or more permit extensions received through the process identified in § 767.10(b), a preliminary report that includes all the information stated in paragraph (e) of this section is to be submitted by the permit holder annually at least 30 days prior to the renewed permit's expiration date.
(g) The permit holder shall prepare and submit a final report as detailed in § 767.11, summarizing the results of the permitted activity to the NHHC, and any applicable SHPO, THPO, federal or state land or resource manager, or foreign government official within an appropriate time frame as specified in the permit. Failure to submit a final report within the specified time-frame will be considered a permit violation. If the final report is not due to be submitted within two years of commencement of a permitted activity, interim reports must be filed biennially, with the first interim report submitted within two years of commencement of the activity. The interim report must include information required by § 767.11 to the maximum extent possible, and an account of both the progress that has been achieved and the objectives remaining to be accomplished. The NHHC shall review interim and final reports for thoroughness, accuracy, and quality and shall inform the permit holder of their formal acceptance in writing.
(h) The permit holder shall agree to protect all sensitive information regarding the location and character of a wrecksite that could potentially expose it to non-professional recovery techniques, looters, or unauthorized salvage. Sensitive information includes specific location data and information about the cargo of a sunken military craft or terrestrial military craft, the existence of armaments, munitions and other hazardous materials, or the presence of, or potential presence of, human remains.
(i) All recovered DON sunken military craft, terrestrial military craft, and their associated contents, remain the property of the United States. These resources and copies of associated archaeological records and data must be preserved by a suitable university, museum, or other scientific or educational institution that, at a minimum, meets the standards set forth in 36 CFR part 79, Curation of Federally-Owned and Administered Archaeological Collections, at the expense of the applicant or facility, unless otherwise agreed upon in writing by the NHHC. The curatorial facility must establish a loan of resources agreement with the NHHC and maintain it in good standing. If a loan of resources agreement is not established, or at the discretion of the NHHC, resources are to be managed, conserved and curated directly by the NHHC at the expense of the applicant, unless otherwise agreed upon in writing by the NHHC. Copies of associated archaeological and conservation records and data will be made available to the NHHC, and to the applicable SHPO, THPO, the federal or state land or resource manager, or foreign government official upon request.
(j) The disposition of foreign sunken military craft or associated contents shall be determined on a case-by-case basis in coordination with the respective foreign state prior to the issuance of a NHHC permit.
(k) In the event that credible evidence for or actual human remains, unexploded ordnance, hazardous materials or environmental pollutants such as oil are discovered during the course of research, the permit holder shall cease all work and immediately notify the NHHC. Permitted work may not resume until authorized by the NHHC.
(l) The permittee shall purchase and maintain sufficient comprehensive general liability, and such other types of insurance, in an amount consistent with generally accepted industry standards throughout the period covered by the permit, or post an equivalent bond. Such insurance shall cover against any third party claims arising out of activities conducted under the permit. The permittee must further agree to hold the United States harmless against such claims.
(a) Requests for amendments to active permits (
(b) Permit holders desiring to continue research activities beyond the original permit expiration date must apply for an extension of a valid permit prior to its expiration. A pending extension request does not guarantee an extension of the original permit. All requests for a permit extension must be
(c) Permit holders may appeal denied requests for amendments or extensions to the appeal authority listed in § 767.7(e).
The permit holder's final report shall at minimum include the following:
(a) A wrecksite history and a contextual history relating the wrecksite to the general history of the region;
(b) A master wrecksite map;
(c) Feature map(s) of any recovered artifacts showing their positions within the wrecksite;
(d) Where environmental conditions allow, photographs of significant wrecksite features and significant artifacts both in situ and after removal;
(e) If applicable, a section that includes an inventory of recovered artifacts, description of conserved artifacts, laboratory conservation records, documentation of analyses undertaken, photographs of recovered artifacts before and after conservation treatment, and recommended curation conditions;
(f) A written report describing the wrecksite's discovery, environment, past and current archaeological fieldwork, results, and analysis;
(g) A summary of the survey and/or excavation process including methods and techniques employed, an account of operational phases, copies of applicable logs, as well as thorough analysis of the recovered data;
(h) An evaluation of the completed permitted activity that includes an assessment of the project's degree of success compared to the goals specified in the permit application;
(i) Recommendations for future activities, if applicable;
(j) An account of how the public interpretation or dissemination plan described in the permit application has been or is being carried out. Additionally, identification of any sensitive information as detailed in § 767.9(g).
(a) Any person proposing to engage in an activity to document a sunken military craft utilizing diving methods or remotely-operated or autonomously-operated equipment, or collect data or samples from a wrecksite, whether a sunken military craft or terrestrial military craft, that would result in the wrecksite's disturbance but otherwise be minimally intrusive, may apply for a special use permit. Any person proposing to engage in an activity that would disturb, remove, or injure a non-historic sunken military craft must apply for a special use permit.
(b) To request a special use permit application form, please refer to § 767.6(b) and (c). Special use permit applications must be sent to the Department of the Navy, U.S. Naval History and Heritage Command, Underwater Archaeology Branch, 805 Kidder Breese St. SE., Washington Navy Yard, Washington, DC 20374-5060.
(c) Each special use permit application shall include:
(1) A statement of the project's objectives and an explanation on how they would serve the NHHC's objectives stated in § 767.5;
(2) A discussion of the methodology planned to accomplish the project's objectives. This should include a map showing the study location(s) and a description of the wrecksite(s) of particular interest;
(3) An analysis of the extent and nature of potential direct or indirect impacts on the resources and their surrounding environment from permitted activities, as well as any proposed mitigation measures;
(4) Where appropriate, a plan for wrecksite restoration and remediation with recommendations on wrecksite preservation and protection of the wrecksite location;
(d) The NHHC Deputy Director, or his or her designee, may authorize a special use permit under the following conditions:
(1) The proposed activity is compatible with the NHHC policies and in the case of non-historic sunken military craft is not opposed by consulted DON parties;
(2) The activities carried out under the permit are conducted in a manner that is minimally intrusive and does not purposefully significantly disturb, remove or injure the sunken military craft or wrecksite;
(3) When applicable, the pilot(s) of remotely-operated equipment holds a certificate of operation from a nationally-recognized organization;
(4) The principal investigator must hold a graduate degree in archaeology, anthropology, maritime history, oceanography, marine biology, marine geology, other marine science, closely related field, or possess equivalent training and experience. This requirement may be waived by the NHHC on a case by case basis depending on the activity stipulated in the application.
(e) The permittee shall submit the following information subsequent to the conclusion of the permitted activity within an appropriate time frame as specified in the special use permit:
(1) A summary of the activities undertaken that includes an assessment of the goals specified in the permit application;
(2) Identification of any sensitive information as detailed in § 767.9(h);
(3) Complete and unedited copies of any and all documentation and data collected (photographs, video, remote sensing data, etc.) during the permitted activity and results of any subsequent analyses.
(f) The following additional sections of this subpart shall apply to special use permits: §§ 767.7(e); 767.9(a), (b), (c), (e), (f), (g), (h), (k), and (l); 767.10; 767.13; 767.14; and 767.15(c).
(g) All sections of subpart A of this part shall apply to all special use permits, and all sections of subpart C of this part shall apply to special use permits pertaining to sunken military craft.
(h) Unless stipulated in the special use permit, the recovery of artifacts associated with any wrecksite is prohibited.
Permitted activities will be monitored to ensure compliance with the conditions of the permit. In addition to remotely monitoring operations, NHHC personnel, or other designated authorities, may periodically assess work in progress through on-site monitoring at the location of the permitted activity. The discovery of any potential irregularities in performance under the permit by NHHC on-site personnel, other designated authorities, or the permit holder, must be promptly reported to the NHHC for appropriate action. Adverse action may ensue in accordance with § 767.14. Findings of unauthorized activities will be taken into consideration when evaluating future permit applications.
The NHHC Deputy Director, or his/her designee may amend, suspend, or revoke a permit in whole or in part, temporarily or indefinitely, if in his/her view the permit holder has acted in violation of the terms of the permit or of other applicable regulations, or for
(a) Sunken military craft are generally entitled to sovereign immunity regardless of where they are located or when they sank. Foreign governments may request, via the Department of State, that the Secretary of the Navy administer a permitting program for a specific or a group of its sunken military craft in U.S. waters. The request must include the following:
(1) The foreign government must assert the sovereign immunity of or ownership over a specified sunken military craft or group of sunken military craft;
(2) The foreign government must request assistance from the United States government;
(3) The foreign government must acknowledge that subparts B and C of this part will apply to the specified sunken military craft or group of sunken military craft for which the request is submitted.
(b) Upon receipt and favorable review of a request from a foreign government, the Secretary of the Navy, or his or her designee, in consultation with the Department of State, will proceed to accept the specified sunken military craft or group of sunken military craft into the present permitting program. The Secretary of the Navy, or his or her designee, in consultation with the Department of State, reserves the right to decline a request by the foreign government. Should there be a need to formalize an understanding with the foreign government in response to a submitted request stipulating conditions such as responsibilities, requirements, procedures, and length of effect, the Secretary of State, or his or her designee, in consultation with the Secretary of Defense, or his or her designee, will proceed to formalize an understanding with the foreign government. Any views on such a foreign government request or understanding expressed by applicable federal, tribal, and state agencies will be taken into account.
(c) Persons may seek a permit to disturb foreign sunken military craft located in U.S. waters that have been accepted into the present permitting program or are covered under a formalized understanding as per paragraph (b) of this section, by submitting a permit application or special use permit application, as appropriate, for consideration by the NHHC in accordance with subparts B and C of this part.
(d) In the case where there is reasonable dispute over the sovereign immunity or ownership status of a foreign sunken military craft, the Secretary of the Navy, or his or her designee, maintains the right to postpone action on §§ 767.6 and 767.12, as well as requests under paragraph (a) of this section, until the dispute over the sovereign immunity or ownership status is resolved.
(e) The Secretary of any military department, or in the case of the Coast Guard the Secretary of the Department in which the Coast Guard is operating, may request that the Secretary of the Navy administer the DON permitting program with regard to sunken military craft under the cognizance of the Secretary concerned. Upon the agreement of the Secretary of the Navy, or his or her designee, subparts A, B, and C of this part shall apply to those agreed upon craft.
(a)
(b)
(c)
(d)
(a) Any person who engages in an activity in violation of section 1402 or any regulation or permit issued under the Act that disturbs, removes, or injures any U.S. sunken military craft shall pay the United States enforcement costs and damages resulting from such disturbance, removal, or injury.
(b) Damages referred to in paragraph (a) of this section may include:
(1) The reasonable costs incurred in storage, restoration, care, maintenance, conservation, and curation of any sunken military craft that is disturbed, removed, or injured in violation of section 1402 or any regulation or permit issued under the Act; and
(2) The cost of retrieving, from the site where the sunken military craft was disturbed, removed, or injured, any information of an archaeological, historical, or cultural nature.
(a) A NOVA will be issued by the Director of the NHHC and served in person or by registered, certified, return receipt requested, or express mail, or by commercial express package service, upon the respondent, or in the case of a vessel respondent, the owner of the vessel. A copy of the NOVA will be similarly served upon the permit holder, if the holder is not the respondent. The NOVA will contain:
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provision(s) of the SMCA, regulation, or permit violated;
(3) The findings and conclusions upon which the Director of the NHHC bases the assessment;
(4) The amount of civil penalty, enforcement costs and/or liability for damages assessed; and
(5) An advisement of the respondent's rights upon receipt of the NOVA, including a citation to the regulations governing the proceedings.
(b) The NOVA may also contain a proposal for compromise or settlement of the case.
(c) Prior to assessing a civil penalty or liability for damages, the Director of the NHHC will take into account information available to the Agency concerning any factor to be considered under the SMCA and any other information required by law or in the interests of justice. The respondent will have the opportunity to review information considered and present information, in writing, to the Director of the NHHC. At the discretion of the Director of the NHHC, a respondent will be allowed to present information in person.
(a) Whenever this part requires service of a document, such service may effectively be made either in person or by registered or certified mail (with return receipt requested) on the respondent, the respondent's agent for service of process or on a representative designated by that agent for receipt of service. Refusal by the respondent, the respondent's agent, or other designated
(b) A document will be considered served and/or filed as of the date of the postmark; or (if not mailed) as of the date actually delivered in person; or as shown by electronic mail transmission.
(c) Time periods begin to run on the day following service of the document or date of the event. Saturdays, Sundays, and Federal holidays will be included in computing such time, except that when such time expires on a Saturday, Sunday, or Federal holiday, such period will be extended to include the next business day. This method of computing time periods also applies to any act, such as paying a civil penalty or liability for damages, required by this part to take place within a specified period of time.
(a) The respondent or permit holder has 45 days from service receipt of the NOVA in which to reply. During this time the respondent or permit holder may:
(1) Accept the penalty or compromise penalty, if any, by taking the actions specified in the NOVA;
(2) Seek to have the NOVA amended, modified, or rescinded under paragraph (b) of this section;
(3) Request a hearing before a DOHA Administrative Judge under paragraph (f) of this section;
(4) Request an extension of time to respond under paragraph (c) of this section; or
(5) Take no action, in which case the NOVA becomes final in accordance with § 767.22(a).
(b) The respondent or permit holder may seek amendment, modification, or rescindment of the NOVA to conform to the facts or law as that person sees them by notifying the Director of the NHHC in writing at the address specified in the NOVA. If amendment or modification is sought, the Director of the NHHC will either amend the NOVA or decline to amend it, and so notify the respondent, permit holder, or vessel owner, as appropriate.
(c) The respondent or permit holder may, within the 45-day period specified in paragraph (a) of this section, request in writing an extension of time to respond. The Director of the NHHC may grant an extension in writing of up to 30 days unless he or she determines that the requester could, exercising reasonable diligence, respond within the 45-day period.
(d) The Director of the NHHC may, for good cause, grant an additional extension beyond the 30-day period specified in paragraph (c) of this section.
(e) Any denial, in whole or in part, of any request under this section that is based upon untimeliness will be in writing.
(f) If the respondent or permit holder desires a hearing, the request must be in writing, dated and signed, and must be sent by mail to the Director, Defense Office of Hearings and Appeals, 875 North Randolph St., Suite 8000, Arlington, VA 22203. The Director, Defense Office of Hearings and Appeals may, at his or her discretion, treat any communication from a respondent or a permit holder as a proper request for a hearing. The requester must attach a copy of the NOVA. A single hearing will be held for all parties named in a NOVA and who timely request a hearing.
(a) Hearings before a DOHA Administrative Judge are
(b) In any DOHA hearing held in response to a request under § 767.20(f), the Administrative Judge will render a final written Decision which is binding on all parties.
If no request for a hearing is timely filed as provided in § 767.20(f), the NOVA becomes effective as the final administrative decision and order of the Agency on the 45th day after service of the NOVA or on the last day of any delay period granted.
(a) Respondent must make full payment of the civil penalty, enforcement costs and/or liability for damages assessed within 30 days of the date upon which the assessment becomes effective as the final administrative decision and order of the Agency. Payment must be made by mailing or delivering to the Agency at the address specified in the NOVA a check or money order made payable in U.S. currency in the amount of the assessment to the “Treasurer of the United States”, or as otherwise directed.
(b) Upon any failure to pay the civil penalty, enforcement costs and/or liability for damages assessed, the Agency may request the Department of Justice to recover the amount assessed in any appropriate district court of the United States, or may act under any law or statute that permits any type of recovery, including but not limited to arrest, attachment, seizure, or garnishment, of property and/or funds to satisfy a debt owed to the United States.
(a) The Director of the NHHC, in his/her sole discretion, may compromise, modify, remit, or mitigate, with or without conditions, any civil penalty or liability for damages imposed, or which is subject to imposition, except as provided in this subpart.
(b) The compromise authority of the Director of the NHHC under this section is in addition to any similar authority provided in any applicable statute or regulation, and may be exercised either upon the initiative of the Director of the NHHC or in response to a request by the respondent or other interested person. Any such request should be sent to the Director of the NHHC at the address specified in the NOVA.
(c) Neither the existence of the compromise authority of the Director of the NHHC under this section nor the Director's exercise thereof at any time changes the date upon which an assessment is final or payable.
(a) Factors to be taken into account in assessing a penalty may include the nature, circumstances, extent, and gravity of the alleged violation; the respondent's degree of culpability; any history of prior offenses; ability to pay; and such other matters as justice may require.
(b) The Director of the NHHC may, in consideration of a respondent's ability to pay, increase or decrease a penalty from an amount that would otherwise be warranted by other relevant factors. A penalty may be increased if a respondent's ability to pay is such that a higher penalty is necessary to deter future violations, or for commercial violators, to make a penalty more than the profits received from acting in violation of the SMCA, or any regulation
(c) If a respondent asserts that a penalty should be reduced because of an inability to pay, the respondent has the burden of proving such inability by providing verifiable, complete, and accurate financial information to the Director of the NHHC. The Director of the NHHC will not consider a respondent's inability to pay unless the respondent, upon request, submits such financial information as the Director of the NHHC determines is adequate to evaluate the respondent's financial condition. Depending on the circumstances of the case, the Director of the NHHC may require the respondent to complete a financial information request form, answer written interrogatories, or submit independent verification of his or her financial information. If the respondent does not submit the requested financial information, he or she will be presumed to have the ability to pay the penalty.
(1) Financial information relevant to a respondent's ability to pay includes, but is not limited to, the value of respondent's cash and liquid assets and non-liquid assets, ability to borrow, net worth, liabilities, income, prior and anticipated profits, expected cash flow, and the respondent's ability to pay in installments over time. A respondent will be considered able to pay a penalty even if he or she must take such actions as pay in installments over time, borrow money, liquidate assets, or reorganize his or her business. The Director of the NHHC's consideration of a respondent's ability to pay does not preclude an assessment of a penalty in an amount that would cause or contribute to the bankruptcy or other discontinuation of the respondent's business.
(2) Financial information regarding respondent's ability to pay should be submitted to the Director of the NHHC as soon after receipt of the NOVA as possible. In deciding whether to submit such information, the respondent should keep in mind that the Director of the NHHC may assess de novo a civil penalty, enforcement costs and/or liability for damages either greater or smaller than that assessed in the NOVA.
Nothing in these regulations is intended to prevent the United States from pursuing criminal sanctions for plundering of wrecks, larceny of Government property, or violation of applicable criminal law, whether the infringement pertains to a sunken military craft, a terrestrial military craft or other craft under the jurisdiction of the DON.
References for submission of permit application, including but not limited to, and as may be further amended:
(a) National Historic Preservation Act (NHPA) of 1966, as amended, 54 U.S.C. 300101
(b) National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321
(c) Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation available at
(d) Archaeological Resources Protection Act of 1979, as amended, 16 U.S.C. 470aa-mm, and the Uniform Regulations, 43 CFR part 7, subpart A. This statute and its implementing regulations establish basic government-wide standards for the issuance of permits for archaeological research, including the authorized excavation and/or removal of archaeological resources on public lands or Indian lands.
(e) Secretary of the Interior's regulations, Curation of Federally-Owned and Administered Archaeological Collections, 36 CFR part 79. These regulations establish standards for the curation and display of federally-owned artifact collections.
(f) Antiquities Act of 1906, Public Law 59-209, 34 Stat. 225 (codified at 16 U.S.C. 431
(g) Executive Order 11593, 36 FR 8291, 3 CFR, 1971-1975 Comp., p. 559 (Protection and Enhancement of the Cultural Environment).
(h) Department of Defense Instruction 4140.21M (DoDI 4140.21M, August 1998). Subject: Defense Disposal Manual.
(i) Secretary of the Navy Instruction 4000.35A (SECNAVINST 4000.35A, 9 April 2001). Subject: Department of the Navy Cultural Resources Program.
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |